FILED: NEW YORK COUNTY CLERK 05/18/2023 09:25 AM
`NYSCEF DOC. NO. 1
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`INDEX NO. 652404/2023
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`RECEIVED NYSCEF: 05/18/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
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`SCHIAVONE CONSTRUCTION CO. LLC,
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`Plaintiff,
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`- against -
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`
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`NEW YORK DEPARTMENT OF
`ENVIRONMENTAL PROTECTION,
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`Defendant.
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`(Catskill Aqueduct Repair and Rehabilitation)
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`To The Above-Named Defendants:
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`
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`Index No.
`Date Purchased:
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`Plaintiff(s) designate (s) New York
`County as to the place of Trial
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`The basis of the venue is location of
`Defendant’s Offices
`SUMMONS
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`Plaintiff(s) reside(s) at:
`150 Meadowlands Parkway,
`Secaucus, NJ 07094
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`YOU ARE SUMMONED to answer the Complaint in this action and to serve a copy of
`your Answer, or, if the Complaint is not served with this Summons, to serve a Notice of
`Appearance, on the plaintiff’s attorney(s) within twenty (20) days after the service of this
`Summons, exclusive of the day of service (or within thirty (30) days after the service is complete
`if this Summons is not personally delivered to you within the State of New York); and in case your
`failure to appear or answer, judgment will be taken against you by default for the relief demanded
`in the Complaint.
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`Dated: New York, New York
`May 18, 2023
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`McElroy, Deutsch, Mulvaney & Carpenter, LLP
`225 Liberty Street, 36th Floor
`New York, New York 10281
`(212) 483-9490
`Attorneys for Plaintiff
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`
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`By: /s/ Mark A. Rosen
`Mark A. Rosen
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`Defendant’s Address:
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`One Centre Street
`New York, New York 10007
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`FILED: NEW YORK COUNTY CLERK 05/18/2023 09:25 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 652404/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`
`
`
`
`SCHIAVONE CONSTRUCTION CO. LLC,
`
`
`Plaintiff,
`
`- against -
`
`
`
`NEW YORK DEPARTMENT OF
`ENVIRONMENTAL PROTECTION,
`
`
`Defendant.
`(Catskill Aqueduct Repair and Rehabilitation)
`
`Index No.
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`VERIFIED COMPLAINT
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`Plaintiff, by its attorneys McElroy, Deutsch, Mulvaney & Carpenter, LLP, as and for its
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`verified complaint against defendant, alleges as follows:
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`1.
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`Plaintiff Schiavone Construction Co. LLC (“Schiavone”) is a corporation duly
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`authorized to conduct business in the State of New York.
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`2.
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`On information and belief, defendant NEW YORK CITY DEPARTMENT OF
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`ENVIRONMENTAL PROTECTION (“DEP”) is a municipal agency duly organized and
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`existing under and by virtue of the laws of the State of New York with the ability to sue and be
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`sued.
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`3.
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`That heretofore pursuant to public bidding and in compliance with the laws made
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`and provided therefor, plaintiff entered into a written contract (“Contract”) with the DEP to
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`perform the labor and furnish the equipment and material required for a project known as the
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`Catskill Aqueduct Repair and Rehabilitation, Contract No. 20181427993 (“Project”).
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`Said Contract was in all respects regularly executed and was in accordance with
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`Thereafter, plaintiff entered into performance of the Contract and duly performed
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`law.
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`4.
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`5.
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`FILED: NEW YORK COUNTY CLERK 05/18/2023 09:25 AM
`NYSCEF DOC. NO. 1
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`INDEX NO. 652404/2023
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`RECEIVED NYSCEF: 05/18/2023
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`all of the terms and conditions of the Contract on its part to be performed through the date of this
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`complaint except as prevented by the defendant.
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`6.
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`On or about April 18, 2023, plaintiff duly filed a Notice of Claim with the
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`Comptroller of the City of New York setting forth its claims.
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`7.
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`More than 30 days have elapsed since the filing of said notice of claim and
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`before the commencement of this action, but defendant and said Comptroller has refused and
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`neglected to pay or adjust plaintiff’s said claims.
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`AS AND FOR A FIRST CAUSE OF ACTION
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`8.
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`Plaintiff repeats, reiterates and realleges each and every allegation set forth in
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`paragraphs “1” through “7” of the complaint with the same force and effect as though fully set
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`forth herein.
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`9.
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`Plaintiff’s performance of its contract work has been substantially and materially
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`disrupted, interfered with and delayed by circumstances uncontemplated by plaintiff which could
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`not have been reasonably foreseen when the contract was bid and entered into and by
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`affirmative, intentional or grossly intentional acts and bad faith by defendant, all of which
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`constitute breaches of defendant’s fundamental obligations of the contract.
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`10. DEP’s affirmative, intentional, bad faith or grossly negligent or uncontemplated
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`acts and omissions constituting material breaches of fundamental obligations include, but are not
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`limited to, the failure to provide access to the site; the issuance of inaccurate, incomplete and
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`erroneous bid and design documents; the failure to provide a design that was appropriate for the
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`project and free of design errors and omissions; the failure to properly assess and the
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`misrepresentations of conditions at the site; the issuance of an excessive amount of design
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`changes, extra work and change orders; the failure to timely issue and approve required re-
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`FILED: NEW YORK COUNTY CLERK 05/18/2023 09:25 AM
`NYSCEF DOC. NO. 1
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`INDEX NO. 652404/2023
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`RECEIVED NYSCEF: 05/18/2023
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`designs necessary for the change orders and extra work and to allow the work to proceed; the
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`failure to timely register change orders; the failure to properly assess hazardous environmental
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`conditions at the site; the direction that respirators must be worn for biofilm removal; the
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`addition of a fourth shutdown for the performance of remaining contract and additional change
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`order work; the direction to suspend work.
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`11.
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` In addition, the project was impacted by the COVID-19 pandemic and the rules
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`and restrictions as to how work could proceed imposed by various government entities including,
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`but not limited to, the DEP.
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`12.
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`That by reason of the affirmative, intentional or grossly negligent or
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`uncontemplated acts and bad faith of the defendant constituting material breaches of fundamental
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`obligations and the excessive Change Orders and redesigns, plaintiff was prevented from
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`performing and completing the work in accordance with the schedule, phasing and sequencing
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`set forth in the Contract Documents upon which plaintiff relied upon in preparing its bid for the
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`Project and entering into the Contract.
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`13.
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`That by reason of the foregoing, plaintiff’s progress and performance of its work,
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`as well as that of its subcontractors, was substantially interfered with and plaintiff was forced to
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`perform in a non-sequential, disrupted, non-productive manner and the duration of the
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`performance of the contract has been extended well beyond the original contract completion
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`date.
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`14. Defendant’s breaches and misrepresentations were deliberate, willful, reckless
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`and grossly negligent and plaintiff, in bidding this contract based on the bid documents could not
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`have anticipated or contemplated the long delays and interferences resulting from defendant’s
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`improper performance of its contractual obligations.
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`FILED: NEW YORK COUNTY CLERK 05/18/2023 09:25 AM
`NYSCEF DOC. NO. 1
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`INDEX NO. 652404/2023
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`RECEIVED NYSCEF: 05/18/2023
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`15.
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`That as a result of the foregoing, plaintiff’s and its subcontractor’s, cost of
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`performing the work was substantially and excessively increased beyond what it otherwise
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`would have cost to complete the contract by reason of increased costs for labor, material, greatly
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`extended field supervision and field overhead and general overhead costs.
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`16.
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`That by reason of the foregoing plaintiff has been damaged in a sum not less than
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`$19,325,991.57 no part of which has been paid although duly demanded.
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`17.
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`Plaintiff reserves its right to payment of all other monies due or to become due
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`under the Contract for work performed or to be performed, including change orders for approved
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`and disputed extra work, and the return of all bonds and other securities deposited to secure
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`payment of monies retained under the Contract.
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`AS AND FOR A SECOND CAUSE OF ACTION
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`18.
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`Plaintiff repeats, reiterates and realleges each and every allegation contained in
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`paragraphs “1” through “17” inclusive of the complaint with the same force and effect as though
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`fully set forth herein.
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`19.
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`That in submitting its bid for the contract based upon the bid documents
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`presented to it by the defendant, plaintiff contemplated that defendant’s plans and specifications
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`would be accurate and adequate, that there would be no extensive redesigns of the work, that
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`defendant would promptly determine any necessary changes in the plans and specifications, that
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`defendant’s representations concerning the schedule and the work of other trades were
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`substantially accurate and adequate, that defendant would provide plaintiff timely access to
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`necessary areas of the site for the plaintiff’s work, that defendant would efficiently and
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`effectively coordinate, supervise, schedule and progress the work with the various trades on the
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`project, that defendant would not interfere with the performance, procedures and sequencing
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`FILED: NEW YORK COUNTY CLERK 05/18/2023 09:25 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 652404/2023
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`RECEIVED NYSCEF: 05/18/2023
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`plaintiff reasonably anticipated utilizing, that defendant would allow plaintiff adequate and
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`reasonable time to perform its work and issue appropriate and reasonable extensions of time and
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`do all things required to enable plaintiff to perform its work expeditiously by normal and
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`contemplated sequencing procedures and in accordance with the Contract Documents.
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`20.
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`That defendant has materially breached the contract by DEP’s affirmative,
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`intentional, bad faith or grossly negligent or uncontemplated acts and omissions constituting
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`material breaches of fundamental obligations include, but are not limited to, the failure to
`
`provide access to the site; the issuance of inaccurate, incomplete and erroneous bid and design
`
`documents; the failure to provide a design that was appropriate for the project and free of design
`
`errors and omissions; the failure to properly assess and the misrepresentations of conditions at
`
`the site; the issuance of an excessive amount of design changes, extra work and change orders;
`
`the failure to timely issue and approve required re-designs necessary for the change orders and
`
`extra work and to allow the work to proceed; the failure to timely register change orders; the
`
`failure to properly assess hazardous environmental conditions at the site; the direction that
`
`respirators must be worn for biofilm removal; the addition of a fourth shutdown for the
`
`performance of remaining contract and additional change order work; the direction to suspend
`
`work.
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`21.
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`That as a result of defendant’s aforesaid breaches of its contract obligations, there
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`has been a material and cardinal change in the nature of the work, as contemplated by plaintiff.
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`Plaintiff has been precluded from performing the work as and when contemplated when the
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`contract was bid and plaintiff’s work has been caused to be extended well beyond the anticipated
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`completion date.
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`22.
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`That by reason thereof plaintiff, and its subcontractors, have been subjected to
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`FILED: NEW YORK COUNTY CLERK 05/18/2023 09:25 AM
`NYSCEF DOC. NO. 1
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`INDEX NO. 652404/2023
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`RECEIVED NYSCEF: 05/18/2023
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`substantial additional and otherwise unnecessary costs for labor, materials and equipment,
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`greatly extended field supervision and field overhead and general office overhead not
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`contemplated by plaintiff or its subcontractors in submitting their bids for the project.
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`23.
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`That as a result of the foregoing plaintiff has been damaged in an amount not less
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`than $17 million no part of which has been paid although duly demanded.
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`WHEREFORE, plaintiff demands judgment against the defendant in a sum not less than
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`$19,325,991.57 on its First Cause of Action and in a sum not less than $17 million on its Second
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`Cause of Action together with interest thereon, the costs and disbursements of this action and
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`such other and further relief the Court deems proper.
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`Dated: New York, New York
`May 18 2023
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`
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`
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`McELROY, DEUTSCH, MULVANEY &
`CARPENTER, LLP
`
`By
`
`
`
`/s/ Mark A. Rosen
`Mark A. Rosen
`Attorneys for Plaintiff
`225 Liberty Street, 36th Floor
`New York, New York 10281
`(212) 483-9490
`
`
`
`
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`FILED: NEW YORK COUNTY CLERK 05/18/2023 09:25 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 652404/2023
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`RECEIVED NYSCEF: 05/18/2023
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`VERIFICATION
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`Mark A. Rosen, an attorney duly admitted to practice before the Courts of the State of
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`New York, affirms the following under the penalties of perjury:
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`I am a member of the firm of McElroy Deutsch Mulvaney & Carpenter LLP, attorney
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`for the plaintiff herein.
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`I have read the foregoing Complaint and know the contents thereof; and, the same is true
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`on information and belief based on the corporate records and discussions with representatives of
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`plaintiff. To the extent that the claims include claims asserted therein or listed in any referenced
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`schedule include matters and amounts claimed by plaintiff’s subcontractors or suppliers, the
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`matters and amounts claimed are based on information provided by such subcontractors or
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`suppliers.
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`This verification is made by me because the plaintiff’s offices are located other than in
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`
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`/s/ Mark A. Rosen
`MARK A. ROSEN
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`8 of 8
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`the County of New York.
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`Dated: New York, New York
`May 18, 2023
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`4769550_1
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