FILED: NEW YORK COUNTY CLERK 06/02/2017 05:43 PM
`FILED: NEW YORK COUNTY CLERK 06m2017 05:43 PM
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`R«.C«.IV«.D \IYSCEF: 06/02/2017
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`———————————————————————————————————————————————————————————————— X
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`APPLE AND HONEY, LLC d/b/a HMH IRON
`DESIGN LLC,
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`.
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`Index NO.
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`Plaintiff,
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`VERIFIED COMPLAINT
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`-against-
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`860 WASHINGTON STREET LLC, CNY
`CONSTRUCTION 860 LLC, CNY GROUP LLC,
`DIFERRO CONTRACTING CORP, THE IDEAL
`SUPPLY COMPANY, THE IDEAL SUPPLY
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`COMPANY OF NEW YORK, HENICK LANE
`HVAC, INC.,
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`Defendants.
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`________________________________________________________________ X
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`Plaintiff Apple and Honey, LLC d/b/a HMH Iron Design LLC (“Plaintiff’ or
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`“HMH”), by and through its undersigned counsel, for its Complaint against 860 Washington
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`Street LLC (“860 Washington”), CNY Construction 860 LLC (“CNY 860”), CNY Group LLC
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`(“CNY,” and collectively with 860 Washington and CNY 860, the “860 Defendants”), DiFerro
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`Contracting Corp.
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`(“DiFerrO”), The Ideal Supply Company (“Ideal”), The Ideal Supply
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`Company of New York (“NY Ideal”) and Henick Lane HVAC, Inc. (“Henick”, and collectively
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`with 860 Washington, CNY 860, CNY, DiFerro, Ideal, NY Ideal and Henick, the “Defendants”)
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`alleges, upon personal knowledge as to itself and its own acts and upon information and belief as
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`to all other matters, as follows:
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`NATURE OF ACTION AND PARTIES
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`1.
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`Plaintiff, at all times hereinafter mentioned, was and is a domestic limited liability
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`company, with its principal place of business at 2054 57th Street, Brooklyn, New York 11204.
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`2.
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`Upon information and belief, 860 Washington is a foreign limited liability
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`company licensed to transact business in New York, with its principal place of business at 829
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`Washington Street, Suite 18, New York, New York 10014.
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`3.
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`Upon information and belief, defendant CNY 860 is a domestic limited liability
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`company, with its principal place of business at 214 West 39th Street, New York, New York
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`10018.
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`4.
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`Upon information and belief, defendant CNY is a domestic limited liability
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`company, with its principal place of business at 214 West 39th Street, New York, New York
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`10018.
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`5.
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`Upon information and belief, defendant DiFierro is a domestic corporation, with
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`its principal place of business at 6470 Maurice Avenue, Maspeth, New York 11378.
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`6.
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`Upon information and belief, defendant Ideal is a foreign corporation licensed to
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`transact business in New York, with its principal place of business at 445 Communipaw Avenue,
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`Jersey City, New Jersey 07304.
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`7.
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`Upon information and belief, defendant NY Ideal is a foreign corporation licensed
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`to transact business in New York, with its principal place of business at 445 Communipaw
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`Avenue, Jersey City, New Jersey 07304.
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`8.
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`Upon information and belief, defendant Henrick is a domestic corporation, with
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`its principal place of business at 45-39 Davis Street, Long Island City, New York 11101.
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`9.
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`At all times hereinafter mentioned, 860 Washington was and is the owner of that
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`certain premises located at 860 Washington Street in the City, County and State of New York,
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`having a block and lot designation in the New York County Clerk’s Office of Block 646, Lot 19
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`(the “Premises”).
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`10.
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`The action herein complained of accrued in the City, County and State of New
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`York and is commenced within the applicable statute of limitations.
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`STATEMENT OF FACTS
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`11.
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`Upon information and belief, at all times hereinafter mentioned, CNY 860 was
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`and is the general contractor for the construction project located at the Premises (the “Project”),
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`pursuant to that certain general contractor agreement between CNY 860 and 860 Washington
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`(the “Prime Contract”).
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`12.
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`In order to perform in compliance with the Prime Contract, CNY 860 entered into
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`a subcontract with Plaintiff on or about July 9, 2015, as such subcontract was amended by certain
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`change orders thereto (collectively, the “Subcontract”), pursuant to which Plaintiff was to supply
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`certain materials and perform certain installation labor.
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`13.
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`Plaintiff begs leave to refer to the original Subcontract as the same may be
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`produced upon the trial of this action for all of its terms and conditions.
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`14.
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`Pursuant to the Subcontract, Plaintiff was to perform certain labor and supply
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`certain materials,
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`including, among other things, certain wood, metal and glass ornamental
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`finishings for bathrooms and common areas of the Project (the “Work”), all with the knowledge
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`and consent of 860 Washington.
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`15.
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`According to the terms and conditions of the Subcontract, Plaintiff did agree to
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`provide the Work to CNY 860 for the agreed sum of $658,500.97.
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`16.
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`According to the terms and conditions of the Subcontract, Plaintiff did complete
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`the Work for the 860 Defendants, thereby earning the sum of $658,500.97.
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`17.
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`There remains a balance due to Plaintiff in the sum of $48,733. 12 for the Work.
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`18.
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`The amount due to Plaintiff has been duly demanded and has not been paid.
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`AS AND FOR A FIRST CAUSE OF ACTION ‘
`(Foreclosure of Mechanic’s Lien)
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`19.
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`Plaintiff realleges and incorporates by reference the allegations in Paragraphs “1”
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`through “18” as though fully set forth herein.
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`20.
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`The Work furnished by Plaintiff to CNY 860 was
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`for construction of
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`improvements on the Premises on behalf of 860 Washington, and the Work was furnished with
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`the knowledge and consent of 860 Washington.
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`21.
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`That pursuant to the Lien Law of the State of New York, Plaintiff, on March 20,
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`2017, within eight (8) months after the time when the last items of labor and materials were
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`supplied, duly filed with the New York County Clerk a Notice of Mechanic’s Lien in writing and
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`in proper and due form duly verified by the oath of Tzvi Hasenfeld, Managing Partner of
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`Plaintiff, which claims a lien on the Premises within the described for the sum of $48,733.12 (the
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`“Notice of Lien”).
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`22.
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`Said Notice of Lien set forth 860 Washington, the owner of the real property
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`against whose interest therein a lien was claimed and the interest of the owner as far as known to
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`Plaintiff; the name of the entity by whom the lienor was employed and to whom Plaintiff as
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`lienor furnished the Work; the unpaid balance; the time when the first and last materials and
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`labor were furnished;
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`the property subject to the lien with a description thereof to permit
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`identification; and said Notice of Lien contained all
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`the statements required by, and in all
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`respects duly complied with, the statutes of the State of New York. A copy of the Notice of Lien
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`and proof of service thereof is annexed hereto as Exhibit A.
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`23.
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`Pursuant to Lien Law Sections 11 and 11-h following the filing of the Notice of
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`Lien, Speedy Lien Inc. served the same upon each 860 Washington, as owner of the Premises,
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`and CNY 860, with whom the construction contract was made. Pursuant to Lien Law Sections
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`11 and 11—h, an affidavit with proof of service as to the certified mailing of copies of the Notice
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`of Lien was filed with the New York County Clerk within thirty-five (35) days after the Notice
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`of Lien was filed.
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`24.
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`By reason of the foregoing, and by the filing and docketing of the lien Notice of
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`Lien and the affidavits of service of the Notice of Lien within thirty-five (35) days of the filing of
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`the Notice of Lien, Plaintiff acquired a good, valid and subsisting lien on the Premises.
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`25.
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`Upon information and belief, DiFerro filed a Notice of Lien with the New York
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`County Clerk in connection with the Premises in the amount of $201,415.22 on or about August
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`24, 2016 and for that reason is made a party hereto.
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`26.
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`Upon information and belief, Ideal and/or NY Ideal filed a Notice of Lien with
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`the New York County Clerk in connection with the Premises in the amount of $12,426.45 on or
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`about August 29, 2016 and for that reason is made a party hereto.
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`27.
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`Upon information and belief, Henick filed a Notice of Lien with the New York
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`County Clerk in connection with the Premises in the amount of $1,432,166.25 on or about
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`September 27, 2016 and for that reason is made a party hereto.
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`28.
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`Upon information and belief, each of the Defendants has, or claims to have, an
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`interest in the Premises.
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`29.
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`Upon information and belief, no person has any subsequent liens or claims against
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`the Premises by way ofj udgment, mortgage or otherwise.
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`AS AND FOR A SECOND CAUSE OF ACTION
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`(Breach of Contract)
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`30.
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`Plaintiff realleges and incorporates by reference the allegations in Paragraphs “1”
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`through “29” as though fully set forth herein.
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`31.
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`On or about July 9, 2015, CNY 860 entered into the Subcontract with Plaintiff
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`whereby CNY 860 agreed to pay money to Plaintiff in exchange for Plaintiff s performance of
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`the Work.
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`32.
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`Plaintiff fully performed the Work to CNY 860 pursuant to the Subcontract.
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`33.
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`CNY 860 breached the Agreement by failing to make payment to Plaintiff for the
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`Work performed pursuant to the Subcontract.
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`34.
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`By reason of the foregoing, Plaintiff has been damaged in the amount of at least
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`$48,733.12, together with attorney’s fees, interest, costs and expenses.
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`AS AND FOR A THIRD CAUSE OF ACTION
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`(Unjust Enrichment)
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`35.
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`Plaintiff realleges and incorporates by reference the allegations in Paragraphs “1”
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`through “34” as though fully set forth herein.
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`36.
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`To date,
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`the 860 Defendants have benefited from the Work performed by
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`Plaintiff.
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`37.
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`The 860 Defendants continue to benefit from the Work provided by Plaintiff
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`without payment therefore, to the detriment of Plaintiff, for which the 860 Defendants have been
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`unjustly enriched.
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`38.
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`Despite due demand the 860 Defendants have failed, refused and neglected to pay
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`said amount still owing.
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`39.
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`By reason of the foregoing, Plaintiff has been damaged in the amount of at least
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`$48,733.12, together with attorney’s fees, interest, costs and expenses.
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`AS AND FOR A FOURTH CAUSE OF ACTION
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`(Quantum Meruit)
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`40.
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`Plaintiff realleges and incorporates by reference the allegations in Paragraphs “1”
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`through “39” as though fully set forth herein.
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`41.
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`Plaintiff fully and properly performed the Work as directed by the 860
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`Defendants, with the consent and for the benefit of the 860 Defendants.
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`42.
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`The 860 Defendants accepted the Work performed by’Plaintiff.
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`43.
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`The fair and reasonable value of the Work Plaintiff performed for the 860
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`Defendants for which Plaintiff has not been paid is $48,733.12, excluding interest and costs.
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`44.
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`Despite due demand the 860 Defendants have failed, refused and neglected to pay
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`said amount.
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`45.
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`By reason of the foregoing, Plaintiff has been damaged in the amount of at least
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`$48,733.12, together with attorney’s fees, interest, costs and expenses.
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`WHEREFORE, Plaintiff respectfully prays for judgment in its favor, as follows:
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`I.
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`On the First Cause of Action:
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`a.
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`b.
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`c.
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`d.
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`That Plaintiff be determined and adjudged to have a valid and subsisting
`lien in the sum of $48,733.12, together with interest thereon, upon the
`interest of 860 Washington in the Premises;
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`That Plaintiff have judgment for the enforcement of said lien against the
`Premises;
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`That Plaintiff have judgment in the sum of $48,733.12 against the 860
`Defendants;
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`That the Premises be sold, as provided by law, and that out of the proceeds
`of such sale Plaintiff be paid the amount of its lien, together with interest
`thereon and the costs and disbursements of this action; and that Plaintiff
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`have judgment against the 860 Defendants for any deficiency which may
`then remain;
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`e.
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`In case it be determined and adjudged that Plaintiff did not have a valid
`and subsisting lien, that Plaintiff then be granted a personal judgment
`against the 860 Defendants in the sum of $48,733.12 with interest thereon,
`together with the costs and disbursements of this action; and
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`f.
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`An order awarding damages and attorneys’ fees.
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`II.
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`On the Second Cause of Action:
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`a.
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`That judgment be granted against CNY 860 on said cause of action in its
`entirety in the amount of $48,733.12,
`together with attorney’s fees,
`interest, costs and expenses.
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`111.
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`On the Third Cause of Action:
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`a.
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`That judgment be granted against the 860 Defendants on said cause of
`action in its entirety in the amount of $48,733.12, together with attorney’s
`fees, interest, costs and expenses.
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`111.
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`On the Fourth Cause of Action:
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`a.
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`That judgment be granted against the 860 Defendants on said cause of
`action in its entirety in the amount of $48,733.12, together with attorney’s
`fees, interest, costs and expenses.
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`For such other and further relief as this Court deems just and proper.
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`Dated: June 2, 2017
`New York, New York
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`HERRICK, FEINSTEIN LLP
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`Byz/s/ Jonathan L. Adler
`Jonathan L. Adler
`Brendan O. Schmitt
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`Attorneys for Plaintifl
`Two Park Avenue
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`New York, New York 10016
`212.592.1400
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`RnCnIVnD VYSCEF: 06/02/2017
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`VERIFICATION
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`ss.:
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`) )
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`STATE OF NEW YORK
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`COUNTY OF NEW YORK )
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`Tzvi Hasenfeld, being duly sworn, deposes and says:
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`1.
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`I have read the foregoing Verified Complaint, and can state that the factual
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`contents thereof are true to my personal knowledge, except as to matters alleged upon
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`information and belief, which matters I believe to be true based upon same.
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`I
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`T
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`I HASENFELD
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`Sworn to before me this
`Qéf: day of May, 2017.
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`40L an“
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`BRENDAN O. SCHMITT
`Notary Public, State of New York
`No. 02806300989
`Qualified in New York County
`Commission Expires April 07, 2018
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