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FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
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T.G. NICKEL 2 ASSOCIATES, LLC, and
T.G. NICKEL 2 ASSOCIATES, LLC, as Assignee and
Subrogee of Trust Fund Beneficiary FESK SPECIAL
SYSTEMS, INCORPORATED, on behalf of itself and
on behalf of allother entitled to share in the funds Index No. 652578/2018
received by AMPAK ELECTRICAL SERVICES, INC., as
Trustee, in connection with the improvement of real property
44th
known as 27-19 DriVe, Long Island City, New York,
Block 00268, Lot 8, and 44-12 and 44-16 Purvis Street,
Long Island City, New York, Block 00268, Lot 20,
AMENDED VERIFIED
Plaintiff, ANSWER WITH
AFFIRMATIVE
-against- DEFENSES AND
COUNTERCLAIM
AMPAK ELECTRICAL SERVICES, INC., AMPAK
DATA 4 ELECTRICAL SERVICES, INC., JOHN
ESPOSITO, MARIA CUCUZZA, NICK ROMEO,
1" 100,"
and "JOHN DOE No. through JOHN DOE No.
said names being fictitious, true names being those
unknown individuals and/or entities liable for the
diversion of trust funds pursuant to Article 3-A of the
Lien Law of the State of New York, in connection with
44th
the construction project at 27-19 Drive, Long Island
City, New York, Block 00268, Lot 8, and 44-12 and 44-16
Purvis Street, Long Island City, New York, Block 00268, Lot
20,
Defendants.
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Electrical"
Defendants, Ampak Electrical Services, Inc. ("Ampak Electrical"), Ampak Data &
Data"
Electrical Services, Inc. ("Ampak Data"), John Esposito ("Esposito"), Maria Cucuzza ("Cucuzza")
("Romeo"
and Nick Romeo ("Romeo"), as and for their Amended Verified Answer to the Verified Complaint
responds as follows:
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GENERAL ALLEGATIONS
1. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"1"
of the allegations contained in paragraph of the Verified Complaint.
"2"
2. Deny the allegations contained paragraph of the Verified Complaint.
"3"
3. Deny the allegations contained in paragraph of the Verified Complaint.
"4"
4. Admit the allegations contained in paragraph of the Verified Complaint.
"5"
5. Deny the allegations contained in paragraph of the Verified Complaint.
"6"
6. Deny the allegations contained in paragraph of the Verified Complaint.
7. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"7"
of the allegations contained in paragraph of the Verified Complaint.
8. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"8"
of the allegations contained in paragraph of the Verified Complaint.
9. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"9"
of the allegations contained in paragraph of the Verified Complaint.
10. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"10"
of the allegations contained in paragraph of the Verified Complaint.
11. Admit that T.G. Nickel entered into an agreement with Ampak Electrical, but begs
leave of Court to refer to said agreement for itstrue terms and import.
"12"
12. Admit the allegations contained in paragraph of the Verified Complaint.
"13"
13. Admit the allegations contained in paragraph of the Verified Complaint.
14. Admit that certain change orders were issued but begs leave of court to refer to said
charge orders for their true terms and import.
"15"
15. Admit the allegations contained in paragraph of the Verified Complaint.
2
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"16"
16. Admit the allegations contained in paragraph of the Verified Complaint.
"17"
17. Admit the allegations contained in paragraph of the Verified Complaint.
18. Admit that Partial Waivers of Lien and Releases were executed and submitted to
TG Nickel, but beg leave of Court to refer to said documents for their true terms and import.
19. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"19"
of the allegations contained in paragraph of the Verified Complaint.
"20"
20. Deny the allegations contained in paragraph of the Verified Complaint.
21. Admit that correspondence was issues during the project, but beg leave of Court to
refer to said correspondence for its true terms and import.
"22"
22. Deny the allegations contained in paragraph of the Verified Complaint.
23. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"23"
of the allegations contained in paragraph of the Verified Complaint.
24. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"24"
of the allegations contained in paragraph of the Verified Complaint.
"25"
25. Deny the allegations contained in paragraph of the Verified Complaint.
Defendant Ampak Service and its Subcontractors in
Interest and Alter Ego, Defendant Ampak Data
"26"
26. Deny the allegations contained in paragraph of the Verified Complaint.
27. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"27"
of the allegations contained in paragraph of the Verified Complaint.
"28"
28. Admit the allegations contained in paragraph of the Verified Complaint.
"29"
29. Admit the allegations contained in paragraph of the Verified Complaint.
"30"
30. Admit the allegations contained in paragraph of the Verified Complaint.
"31"
31. Deny the allegations contained in paragraph of the Verified Complaint.
3
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"32"
32. Admit the allegations contained in paragraph of the Verified Complaint.
"33"
33. Admit the allegations contained in paragraph of the Verified Complaint.
"34"
34. Deny the allegations contained in paragraph of the Verified Complaint.
"35"
35. Deny the allegations contained in paragraph of the Verified Complaint.
Services'
Defendant Ampak Employed Defendant Ampak Data to Shield
Its Assets from Judgment Creditors and to Defraud Trust Fund Beneficiaries
"36"
36. Deny the allegations contained in paragraph of the Verified Complaint.
"37"
37. Deny the allegations contained in paragraph of the Verified Complaint.
"38"
38. Deny the allegations contained in paragraph of the Verified Complaint.
Wire"
Ace Wire & Cable Co., Inc. ("Ace Wire")
"39"
39. Admit the allegations contained in paragraph of the Verified Complaint.
"40"
40. Admit the allegations contained in paragraph of the Verified Complaint.
"41"
41. Deny the allegations contained in paragraph of the Verified Complaint.
Cooper Electric Supply Co.
"42"
42. Admit the allegations contained in paragraph of the Verified Complaint.
"43"
43. Admit the allegations contained in paragraph of the Verified Complaint.
"44"
44. Deny the allegations contained in paragraph of the Verified Complaint.
Fire"
Cross Fire 4 Security Co., Inc. ("Cross Fire")
"45"
45. Admit the allegations contained in paragraph of the Verified Complaint.
"46"
46. Admit the allegations contained in paragraph of the Verified Complaint.
47. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"47"
of the allegations contained in paragraph of the Verified Complaint.
"48"
48. Admit the allegations contained in paragraph of the Verified Complaint.
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"Electrotec"
Electrotech Service Equipment Corporation ("Electrotec")
"49"
49. Admit the allegations contained in paragraph of the Verified Complaint.
"50"
50. Admit the allegations contained in paragraph of the Verified Complaint.
"51"
51. Deny the allegations contained in paragraph of the Verified Complaint.
"52"
52. Deny the allegations contained in paragraph of the Verified Complaint.
"Fesk"
Fesk Special Systems Incorporated ("Fesk")
"53"
53. Admit the allegations contained in paragraph of the Verified Complaint.
"54"
54. Deny the allegations contained in paragraph of the Verified Complaint.
55. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"55"
of the allegations contained in paragraph of the Verified Complaint.
56. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"56"
of the allegations contained in paragraph of the Verified Complaint.
57. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"57"
of the allegations contained in paragraph of the Verified Complaint.
"58"
58. Admit the allegations contained in paragraph of the Verified Complaint.
"Manhattan"
Manhattan Electrical Supply Company, Inc. ("Manhattan")
"59"
59. Admit the allegations contained in paragraph of the Verified Complaint.
"60"
60. Admit the allegations contained in paragraph of the Verified Complaint.
"61"
61. Deny the allegations contained in paragraph of the Verified Complaint.
(" Sublet"
Sunbelt Rentals, Inc. ("Sublet")
"62"
62. Admit the allegations contained in paragraph of the Verified Complaint.
"63"
63. Admit the allegations contained in paragraph of the Verified Complaint.
"64"
64. Deny the allegations contained in paragraph of the Verified Complaint.
5
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"ULE"
United Lighting Electrical Corp. . ("ULE")
"65" '
65. Admit the allegations contained in paragraph of the Verified Complaint.
"66"
66. Admit the allegations contained in paragraph of the Verified Complaint.
"67"
67. Deny the allegations contained in paragraph of the Verified Complaint.
"68"
68. Admit the allegations contained in paragraph of the Verified Complaint.
AS AND FOR A FIRST CAUSE OF ACTION
(Breach of Contract - Defendant Ampak Services and
Its Successor in Interest and Alter Ego, Ampak Data)
"1"
69. Defendants repeat and reiterate each and every response to paragraphs through
"68"
of the Verified Complaint as if fully set forth at length herein.
"70"
70. Deny the allegations contained in paragraph of the Verified Complaint.
"71"
71. Deny the allegations contained in paragraph of the Verified Complaint.
"72"
72. Deny the allegations contained in paragraph of the Verified Complaint.
AS AND FOR A SECOND CAUSE OF ACTION
(Fraud - Defendant Ampak Services)
"1"
73. Defendants repeat and reiterate each and every response to paragraphs through
"72"
of the Verified Complaint as if fully set forth at length herein.
"74"
74. Deny the allegations contained in paragraph of the Verified Complaint.
"75"
75. Deny the allegations contained in paragraph of the Verified Complaint.
"76"
76. Deny the allegations contained in paragraph of the Verified Complaint.
"77"
77. Deny the allegations contained in paragraph of the Verified Complaint.
"78"
78. Deny the allegations contained in paragraph of the Verified Complaint.
"79"
79. Deny the allegations contained in paragraph of the Verified Complaint.
"80"
80. Deny the allegations contained in paragraph of the Verified Complaint.
6
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AS AND FOR A THIRD CAUSE OF ACTION
(Fraud - Defendant John Esposito)
"1"
81. Defendants repeat and reiterate each and every response to paragraphs through
"80"
of the Verified Complaint as if fully set forth at length herein.
"82"
82. Deny the allegations contained in paragraph of the Verified Complaint.
"83"
83. Deny the allegations contained in paragraph of the Verified Complaint.
"84"
84. Deny the allegations contained in paragraph of the Verified Complaint.
"85"
85. Deny the allegations contained in paragraph of the Verified Complaint.
"86"
86. Deny the allegations contained in paragraph of the Verified Complaint.
"87"
87. Deny the allegations contained in paragraph of the Verified Complaint.
"88"
88. Deny the allegations contained in paragraph of the Verified Complaint.
AS AND FOR A FOURTH CAUSE OF ACTION
(Fraud- Defendant Nicholas Romeo)
"1"
89. Defendants repeat and reiterate each and every response to paragraphs through
"88"
of the Verified Complaint as if fully set forth at length herein.
"82"
90. Deny the allegations contained in paragraph of the Verified Complaint.
"82"
91. Deny the allegations contained in paragraph of the Verified Complaint.
"82"
92. Deny the allegations contained in paragraph of the Verified Complaint.
"82"
93. Deny the allegations contained in paragraph of the Verified Complaint.
"82"
94. Deny the allegations contained in paragraph of the Verified Complaint.
AS AND FOR A FIFTH CAUSE OF ACTION
(Diversion of Trust Funds Against Defendant Ampak Services
And Its Successor in Interest and Alter Ego, Defendant Ampak Data)
"1"
95. Defendants repeat and reiterate each and every response to paragraphs through
"94"
of the Verified Complaint as if fully set forth at length herein.
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"96"
96. Deny the allegations contained in paragraph of the Verified Complaint.
97. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"97"
of the allegations contained in paragraph of the Verified Complaint.
98. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"98"
of the allegations contained in paragraph of the Verified Complaint.
99. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"99"
of the allegations contained in paragraph of the Verified Complaint.
"199"
100. Deny the allegations contained in paragraph of the Verified Complaint.
"101"
101. Deny the allegations contained in paragraph of the Verified Complaint.
"102"
102. Admit the allegations contained in paragraph of the Verified Complaint.
"103"
103. Deny the allegations contained in paragraph of the Verified Complaint.
"104"
104. Deny the allegations contained in paragraph of the Verified Complaint.
"105"
105. Deny the allegations contained in paragraph of the Verified Complaint.
"106"
106. Deny the allegations contained in paragraph of the Verified Complaint.
"107"
107. Deny the allegations contained in paragraph of the Verified Complaint.
"108"
108. Deny the allegations contained in paragraph of the Verified Complaint.
"109"
109. Deny the allegations contained in paragraph of the Verified Complaint.
"110"
110. Deny the allegations contained in paragraph of the Verified Complaint.
"111"
111. Deny the allegations contained in paragraph of the Verified Complaint.
112. Deny knowledge or information sufficient to form a belief as to the truth or falsity
"112"
of the allegations contained in paragraph of the Verified Complaint
"113"
113. Deny the allegations contained in paragraph of the Verified Complaint.
8
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AS AND FOR A SIXTH CAUSE OF ACTION
(Diversion of Trust Funds against John Esposito)
"1"
114. Defendants repeat and reiterate each and every response to paragraphs through
"113"
of the Verified Complaint as if fully set forth at length herein.
"115"
115. Deny the allegations contained in paragraph of the Verified Complaint.
"116"
116. Deny the allegations contained in paragraph of the Verified Complaint.
AS AND FOR A SEVENTH CAUSE OF ACTION
(Diversion of Trust Funds against Maria Cucuzza)
"1"
117. Defendants repeat and reiterate each and every response to paragraphs through
"116"
of the Verified Complaint as if fully set forth at length herein.
"118"
118. Deny the allegations contained in paragraph of the Verified Complaint.
"119"
119. Deny the allegations contained in paragraph of the Verified Complaint.
AS AND FOR AN EIGHTH CAUSE OF ACTION
(Diversion of Trust Funds against Nick Romeo)
"1"
120. Defendants repeat and reiterate each and every response to paragraphs through
"119"
of the Verified Complaint as if fully set forth at length herein.
"121"
121. Deny the allegations contained in paragraph of the Verified Complaint.
"122"
122. Deny the allegations contained in paragraph of the Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
123. The claims are barred, in whole or in part, by Plaintiff's failure to mitigate its
damages.
AS AND FOR A SECONDAFFIRMATIVE DEFENSE
124. The claims are barred, in whole or in part, by the doctrine of laches.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
125. The claims are barred, in whole or in part, by the doctrine of waiver
9
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
126. The claims are barred and reduced under the doctrine of unclean hands.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
127. The claims are barred from recovery based on Plaintiff's failure to comply with the
terms of the contract and applicable law.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
128. Plaintiff failed to fulfill conditions precedent to itsclaims.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
129. Plaintiff's claims have been exaggerated.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
130. Plaintiff's claims do not set forth a cause of action upon which relief can be granted.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
131. The claims are barred by the doctrine of accord and satisfaction.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
132. The claims are barred by the doctrines of setoff and recoupment.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
133. Any monetary damages otherwise owing to Plaintiff, if any, are more than offset,
in whole or in part, by moneys owed by Plaintiff to Ampak Services, including, but not limited to,
the damages suffered by Ampak Services as a result of Plaintiff's failure to perform its obligations
in accordance with the terms and conditions of its agreement with Ampak Services and/or
modifications thereto.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
134. The Defendants have defenses founded upon documentary evidence.
10
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AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
135. Defendants have not received payment on account of Plaintiff's work.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
136. Any damages allegedly sustained by Plaintiff, were caused, in whole or in part, by
the culpable conduct, carelessness, recklessness, negligence, or wrongdoing of Plaintiff, its agents
and others for whom Plaintiff was responsible for, and therefore, the amount of any damages
otherwise recoverable should be extinguished or reduced to the extent such conduct caused
Plaintiff's alleged the damages.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
137. Defendants hereby reserve their right to assert to additional defenses that may
become known during the course of discovery.
COUNTERCLAIM
Defendant, Ampak Electrical, by its attorneys, Welby Brady & Greenblatt, LLP, as
Nickel"
and for itsCounterclaim against Plaintiff, T.G. Nickel & Associates, LLC (T.G. Nickel"), alleges
as follows:
PARTIES
138. At all times hereinafter mentioned, Ampak Electrical was and is a corporation duly
organized and existing under and by virtue of the laws of the State of New York with a place of
business located at 20 Marble Loop, Suite 2, Staten Island, New York 10309.
139. Upon information and belief, at all times hereinafter mentioned Plaintiff, T.G.
Nickel was and is a domestic corporation duly organized and existing under and by virtue of the
17th
laws of the State of New York with a place of business at 333 Seventh Avenue, Floor, New
York, New York 10001.
11
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AS AND FOR A FIRST COUNTERCLAIM
140. Ampak Electrical repeats, reiterates and realleges each and every allegation
"138" "139"
contained in paragraphs to of the Counterclaim with the same force and effect as if
more fully set forth at length herein.
141. Upon information and belief, T.G.Nickel entered into a construction management
agreement with TP LIC LLC, the owner of real property and the developer of a new rental
44th "Project"
residential project located at 27-19 orive, Long island City, New York (the "Project").
142. In furtherance of T.G. Nickel's agreement with the owner, on or about
Preview
FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X -------------------------------------------------------------------------X T.G. NICKEL 2 ASSOCIATES, LLC, and T.G. NICKEL 2 ASSOCIATES, LLC, as Assignee and Subrogee of Trust Fund Beneficiary FESK SPECIAL SYSTEMS, INCORPORATED, on behalf of itself and on behalf of allother entitled to share in the funds Index No. 652578/2018 received by AMPAK ELECTRICAL SERVICES, INC., as Trustee, in connection with the improvement of real property 44th known as 27-19 DriVe, Long Island City, New York, Block 00268, Lot 8, and 44-12 and 44-16 Purvis Street, Long Island City, New York, Block 00268, Lot 20, AMENDED VERIFIED Plaintiff, ANSWER WITH AFFIRMATIVE -against- DEFENSES AND COUNTERCLAIM AMPAK ELECTRICAL SERVICES, INC., AMPAK DATA 4 ELECTRICAL SERVICES, INC., JOHN ESPOSITO, MARIA CUCUZZA, NICK ROMEO, 1" 100," and "JOHN DOE No. through JOHN DOE No. said names being fictitious, true names being those unknown individuals and/or entities liable for the diversion of trust funds pursuant to Article 3-A of the Lien Law of the State of New York, in connection with 44th the construction project at 27-19 Drive, Long Island City, New York, Block 00268, Lot 8, and 44-12 and 44-16 Purvis Street, Long Island City, New York, Block 00268, Lot 20, Defendants. -------------------------------------------------------------------------X Electrical" Defendants, Ampak Electrical Services, Inc. ("Ampak Electrical"), Ampak Data & Data" Electrical Services, Inc. ("Ampak Data"), John Esposito ("Esposito"), Maria Cucuzza ("Cucuzza") ("Romeo" and Nick Romeo ("Romeo"), as and for their Amended Verified Answer to the Verified Complaint responds as follows: 1 of 18 FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 GENERAL ALLEGATIONS 1. Deny knowledge or information sufficient to form a belief as to the truth or falsity "1" of the allegations contained in paragraph of the Verified Complaint. "2" 2. Deny the allegations contained paragraph of the Verified Complaint. "3" 3. Deny the allegations contained in paragraph of the Verified Complaint. "4" 4. Admit the allegations contained in paragraph of the Verified Complaint. "5" 5. Deny the allegations contained in paragraph of the Verified Complaint. "6" 6. Deny the allegations contained in paragraph of the Verified Complaint. 7. Deny knowledge or information sufficient to form a belief as to the truth or falsity "7" of the allegations contained in paragraph of the Verified Complaint. 8. Deny knowledge or information sufficient to form a belief as to the truth or falsity "8" of the allegations contained in paragraph of the Verified Complaint. 9. Deny knowledge or information sufficient to form a belief as to the truth or falsity "9" of the allegations contained in paragraph of the Verified Complaint. 10. Deny knowledge or information sufficient to form a belief as to the truth or falsity "10" of the allegations contained in paragraph of the Verified Complaint. 11. Admit that T.G. Nickel entered into an agreement with Ampak Electrical, but begs leave of Court to refer to said agreement for itstrue terms and import. "12" 12. Admit the allegations contained in paragraph of the Verified Complaint. "13" 13. Admit the allegations contained in paragraph of the Verified Complaint. 14. Admit that certain change orders were issued but begs leave of court to refer to said charge orders for their true terms and import. "15" 15. Admit the allegations contained in paragraph of the Verified Complaint. 2 2 of 18 FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 "16" 16. Admit the allegations contained in paragraph of the Verified Complaint. "17" 17. Admit the allegations contained in paragraph of the Verified Complaint. 18. Admit that Partial Waivers of Lien and Releases were executed and submitted to TG Nickel, but beg leave of Court to refer to said documents for their true terms and import. 19. Deny knowledge or information sufficient to form a belief as to the truth or falsity "19" of the allegations contained in paragraph of the Verified Complaint. "20" 20. Deny the allegations contained in paragraph of the Verified Complaint. 21. Admit that correspondence was issues during the project, but beg leave of Court to refer to said correspondence for its true terms and import. "22" 22. Deny the allegations contained in paragraph of the Verified Complaint. 23. Deny knowledge or information sufficient to form a belief as to the truth or falsity "23" of the allegations contained in paragraph of the Verified Complaint. 24. Deny knowledge or information sufficient to form a belief as to the truth or falsity "24" of the allegations contained in paragraph of the Verified Complaint. "25" 25. Deny the allegations contained in paragraph of the Verified Complaint. Defendant Ampak Service and its Subcontractors in Interest and Alter Ego, Defendant Ampak Data "26" 26. Deny the allegations contained in paragraph of the Verified Complaint. 27. Deny knowledge or information sufficient to form a belief as to the truth or falsity "27" of the allegations contained in paragraph of the Verified Complaint. "28" 28. Admit the allegations contained in paragraph of the Verified Complaint. "29" 29. Admit the allegations contained in paragraph of the Verified Complaint. "30" 30. Admit the allegations contained in paragraph of the Verified Complaint. "31" 31. Deny the allegations contained in paragraph of the Verified Complaint. 3 3 of 18 FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 "32" 32. Admit the allegations contained in paragraph of the Verified Complaint. "33" 33. Admit the allegations contained in paragraph of the Verified Complaint. "34" 34. Deny the allegations contained in paragraph of the Verified Complaint. "35" 35. Deny the allegations contained in paragraph of the Verified Complaint. Services' Defendant Ampak Employed Defendant Ampak Data to Shield Its Assets from Judgment Creditors and to Defraud Trust Fund Beneficiaries "36" 36. Deny the allegations contained in paragraph of the Verified Complaint. "37" 37. Deny the allegations contained in paragraph of the Verified Complaint. "38" 38. Deny the allegations contained in paragraph of the Verified Complaint. Wire" Ace Wire & Cable Co., Inc. ("Ace Wire") "39" 39. Admit the allegations contained in paragraph of the Verified Complaint. "40" 40. Admit the allegations contained in paragraph of the Verified Complaint. "41" 41. Deny the allegations contained in paragraph of the Verified Complaint. Cooper Electric Supply Co. "42" 42. Admit the allegations contained in paragraph of the Verified Complaint. "43" 43. Admit the allegations contained in paragraph of the Verified Complaint. "44" 44. Deny the allegations contained in paragraph of the Verified Complaint. Fire" Cross Fire 4 Security Co., Inc. ("Cross Fire") "45" 45. Admit the allegations contained in paragraph of the Verified Complaint. "46" 46. Admit the allegations contained in paragraph of the Verified Complaint. 47. Deny knowledge or information sufficient to form a belief as to the truth or falsity "47" of the allegations contained in paragraph of the Verified Complaint. "48" 48. Admit the allegations contained in paragraph of the Verified Complaint. 4 of 18 FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 "Electrotec" Electrotech Service Equipment Corporation ("Electrotec") "49" 49. Admit the allegations contained in paragraph of the Verified Complaint. "50" 50. Admit the allegations contained in paragraph of the Verified Complaint. "51" 51. Deny the allegations contained in paragraph of the Verified Complaint. "52" 52. Deny the allegations contained in paragraph of the Verified Complaint. "Fesk" Fesk Special Systems Incorporated ("Fesk") "53" 53. Admit the allegations contained in paragraph of the Verified Complaint. "54" 54. Deny the allegations contained in paragraph of the Verified Complaint. 55. Deny knowledge or information sufficient to form a belief as to the truth or falsity "55" of the allegations contained in paragraph of the Verified Complaint. 56. Deny knowledge or information sufficient to form a belief as to the truth or falsity "56" of the allegations contained in paragraph of the Verified Complaint. 57. Deny knowledge or information sufficient to form a belief as to the truth or falsity "57" of the allegations contained in paragraph of the Verified Complaint. "58" 58. Admit the allegations contained in paragraph of the Verified Complaint. "Manhattan" Manhattan Electrical Supply Company, Inc. ("Manhattan") "59" 59. Admit the allegations contained in paragraph of the Verified Complaint. "60" 60. Admit the allegations contained in paragraph of the Verified Complaint. "61" 61. Deny the allegations contained in paragraph of the Verified Complaint. (" Sublet" Sunbelt Rentals, Inc. ("Sublet") "62" 62. Admit the allegations contained in paragraph of the Verified Complaint. "63" 63. Admit the allegations contained in paragraph of the Verified Complaint. "64" 64. Deny the allegations contained in paragraph of the Verified Complaint. 5 5 of 18 FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 "ULE" United Lighting Electrical Corp. . ("ULE") "65" ' 65. Admit the allegations contained in paragraph of the Verified Complaint. "66" 66. Admit the allegations contained in paragraph of the Verified Complaint. "67" 67. Deny the allegations contained in paragraph of the Verified Complaint. "68" 68. Admit the allegations contained in paragraph of the Verified Complaint. AS AND FOR A FIRST CAUSE OF ACTION (Breach of Contract - Defendant Ampak Services and Its Successor in Interest and Alter Ego, Ampak Data) "1" 69. Defendants repeat and reiterate each and every response to paragraphs through "68" of the Verified Complaint as if fully set forth at length herein. "70" 70. Deny the allegations contained in paragraph of the Verified Complaint. "71" 71. Deny the allegations contained in paragraph of the Verified Complaint. "72" 72. Deny the allegations contained in paragraph of the Verified Complaint. AS AND FOR A SECOND CAUSE OF ACTION (Fraud - Defendant Ampak Services) "1" 73. Defendants repeat and reiterate each and every response to paragraphs through "72" of the Verified Complaint as if fully set forth at length herein. "74" 74. Deny the allegations contained in paragraph of the Verified Complaint. "75" 75. Deny the allegations contained in paragraph of the Verified Complaint. "76" 76. Deny the allegations contained in paragraph of the Verified Complaint. "77" 77. Deny the allegations contained in paragraph of the Verified Complaint. "78" 78. Deny the allegations contained in paragraph of the Verified Complaint. "79" 79. Deny the allegations contained in paragraph of the Verified Complaint. "80" 80. Deny the allegations contained in paragraph of the Verified Complaint. 6 6 of 18 FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 AS AND FOR A THIRD CAUSE OF ACTION (Fraud - Defendant John Esposito) "1" 81. Defendants repeat and reiterate each and every response to paragraphs through "80" of the Verified Complaint as if fully set forth at length herein. "82" 82. Deny the allegations contained in paragraph of the Verified Complaint. "83" 83. Deny the allegations contained in paragraph of the Verified Complaint. "84" 84. Deny the allegations contained in paragraph of the Verified Complaint. "85" 85. Deny the allegations contained in paragraph of the Verified Complaint. "86" 86. Deny the allegations contained in paragraph of the Verified Complaint. "87" 87. Deny the allegations contained in paragraph of the Verified Complaint. "88" 88. Deny the allegations contained in paragraph of the Verified Complaint. AS AND FOR A FOURTH CAUSE OF ACTION (Fraud- Defendant Nicholas Romeo) "1" 89. Defendants repeat and reiterate each and every response to paragraphs through "88" of the Verified Complaint as if fully set forth at length herein. "82" 90. Deny the allegations contained in paragraph of the Verified Complaint. "82" 91. Deny the allegations contained in paragraph of the Verified Complaint. "82" 92. Deny the allegations contained in paragraph of the Verified Complaint. "82" 93. Deny the allegations contained in paragraph of the Verified Complaint. "82" 94. Deny the allegations contained in paragraph of the Verified Complaint. AS AND FOR A FIFTH CAUSE OF ACTION (Diversion of Trust Funds Against Defendant Ampak Services And Its Successor in Interest and Alter Ego, Defendant Ampak Data) "1" 95. Defendants repeat and reiterate each and every response to paragraphs through "94" of the Verified Complaint as if fully set forth at length herein. 7 7 of 18 FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 "96" 96. Deny the allegations contained in paragraph of the Verified Complaint. 97. Deny knowledge or information sufficient to form a belief as to the truth or falsity "97" of the allegations contained in paragraph of the Verified Complaint. 98. Deny knowledge or information sufficient to form a belief as to the truth or falsity "98" of the allegations contained in paragraph of the Verified Complaint. 99. Deny knowledge or information sufficient to form a belief as to the truth or falsity "99" of the allegations contained in paragraph of the Verified Complaint. "199" 100. Deny the allegations contained in paragraph of the Verified Complaint. "101" 101. Deny the allegations contained in paragraph of the Verified Complaint. "102" 102. Admit the allegations contained in paragraph of the Verified Complaint. "103" 103. Deny the allegations contained in paragraph of the Verified Complaint. "104" 104. Deny the allegations contained in paragraph of the Verified Complaint. "105" 105. Deny the allegations contained in paragraph of the Verified Complaint. "106" 106. Deny the allegations contained in paragraph of the Verified Complaint. "107" 107. Deny the allegations contained in paragraph of the Verified Complaint. "108" 108. Deny the allegations contained in paragraph of the Verified Complaint. "109" 109. Deny the allegations contained in paragraph of the Verified Complaint. "110" 110. Deny the allegations contained in paragraph of the Verified Complaint. "111" 111. Deny the allegations contained in paragraph of the Verified Complaint. 112. Deny knowledge or information sufficient to form a belief as to the truth or falsity "112" of the allegations contained in paragraph of the Verified Complaint "113" 113. Deny the allegations contained in paragraph of the Verified Complaint. 8 8 of 18 FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 AS AND FOR A SIXTH CAUSE OF ACTION (Diversion of Trust Funds against John Esposito) "1" 114. Defendants repeat and reiterate each and every response to paragraphs through "113" of the Verified Complaint as if fully set forth at length herein. "115" 115. Deny the allegations contained in paragraph of the Verified Complaint. "116" 116. Deny the allegations contained in paragraph of the Verified Complaint. AS AND FOR A SEVENTH CAUSE OF ACTION (Diversion of Trust Funds against Maria Cucuzza) "1" 117. Defendants repeat and reiterate each and every response to paragraphs through "116" of the Verified Complaint as if fully set forth at length herein. "118" 118. Deny the allegations contained in paragraph of the Verified Complaint. "119" 119. Deny the allegations contained in paragraph of the Verified Complaint. AS AND FOR AN EIGHTH CAUSE OF ACTION (Diversion of Trust Funds against Nick Romeo) "1" 120. Defendants repeat and reiterate each and every response to paragraphs through "119" of the Verified Complaint as if fully set forth at length herein. "121" 121. Deny the allegations contained in paragraph of the Verified Complaint. "122" 122. Deny the allegations contained in paragraph of the Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 123. The claims are barred, in whole or in part, by Plaintiff's failure to mitigate its damages. AS AND FOR A SECONDAFFIRMATIVE DEFENSE 124. The claims are barred, in whole or in part, by the doctrine of laches. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 125. The claims are barred, in whole or in part, by the doctrine of waiver 9 9 of 18 FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 126. The claims are barred and reduced under the doctrine of unclean hands. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 127. The claims are barred from recovery based on Plaintiff's failure to comply with the terms of the contract and applicable law. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 128. Plaintiff failed to fulfill conditions precedent to itsclaims. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 129. Plaintiff's claims have been exaggerated. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 130. Plaintiff's claims do not set forth a cause of action upon which relief can be granted. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 131. The claims are barred by the doctrine of accord and satisfaction. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 132. The claims are barred by the doctrines of setoff and recoupment. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 133. Any monetary damages otherwise owing to Plaintiff, if any, are more than offset, in whole or in part, by moneys owed by Plaintiff to Ampak Services, including, but not limited to, the damages suffered by Ampak Services as a result of Plaintiff's failure to perform its obligations in accordance with the terms and conditions of its agreement with Ampak Services and/or modifications thereto. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 134. The Defendants have defenses founded upon documentary evidence. 10 10 of 18 FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 135. Defendants have not received payment on account of Plaintiff's work. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 136. Any damages allegedly sustained by Plaintiff, were caused, in whole or in part, by the culpable conduct, carelessness, recklessness, negligence, or wrongdoing of Plaintiff, its agents and others for whom Plaintiff was responsible for, and therefore, the amount of any damages otherwise recoverable should be extinguished or reduced to the extent such conduct caused Plaintiff's alleged the damages. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 137. Defendants hereby reserve their right to assert to additional defenses that may become known during the course of discovery. COUNTERCLAIM Defendant, Ampak Electrical, by its attorneys, Welby Brady & Greenblatt, LLP, as Nickel" and for itsCounterclaim against Plaintiff, T.G. Nickel & Associates, LLC (T.G. Nickel"), alleges as follows: PARTIES 138. At all times hereinafter mentioned, Ampak Electrical was and is a corporation duly organized and existing under and by virtue of the laws of the State of New York with a place of business located at 20 Marble Loop, Suite 2, Staten Island, New York 10309. 139. Upon information and belief, at all times hereinafter mentioned Plaintiff, T.G. Nickel was and is a domestic corporation duly organized and existing under and by virtue of the 17th laws of the State of New York with a place of business at 333 Seventh Avenue, Floor, New York, New York 10001. 11 11 of 18 FILED: NEW YORK COUNTY CLERK 07/26/2018 10:04 AM INDEX NO. 652578/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/26/2018 AS AND FOR A FIRST COUNTERCLAIM 140. Ampak Electrical repeats, reiterates and realleges each and every allegation "138" "139" contained in paragraphs to of the Counterclaim with the same force and effect as if more fully set forth at length herein. 141. Upon information and belief, T.G.Nickel entered into a construction management agreement with TP LIC LLC, the owner of real property and the developer of a new rental 44th "Project" residential project located at 27-19 orive, Long island City, New York (the "Project"). 142. In furtherance of T.G. Nickel's agreement with the owner, on or about