the Matter?of'the Claim of JADEOO CONSTRUCTION CORP., 012511 - against TOWN OF SMITHTOWN, _f -'12 r- Respondent. 50 Route 111 Smithtown, New York April 26, 2012 10 10 arm;_: HEARING of JADECO coNetf DEALMEIDA), the'clfr above9entitled action, at t?e?ab place, before Deborah Rozea, af?o State of New York, and pursuant to Section 50h of the General Municipal Law. 'k'k?kuir?k . . ..- - --L a Dealmeri-d-a I 2 Was it true and accurate a?*333+ 3? Itime of the signing of the document? - 4 A Yes, it was. Eff? 5 I Now, can you tell me M. 6 relationship, if any, you have with Jadecog 7 Construction Corp.? 8 A I'm the owner. 9 When was.that incorporated? I 10 A I think it was 1994. February I?m 11 pretty sure. .I think, yeah, I think it was 12 February 1994. Ii.- -13 And back in October of 29?? 14 you an officer of the corporation?I-EJ 15 A Yes. I 16 What offices did you ho1d? 17 A President. 18 Is there a Vice?President? 19 A No. 20 _I'm the only officer. 21 You are the only officer? -22 A Yes: 23 There is no-Secretary 24 Treasurer? I WA: 25 A No. RADAZO REPORTING, INC. (516) 248-1020 '"rm- .wHang-AcDealmeida You are the sole owner and officer- of the corporation? A Construction? A. paving. It's a general conStruc Yes. i What is the Jadec0- Concrete, cons anon; _Basicallyyu road work, you know,_curbs, know, asphalt patching. 1Q Jadeco A A A employees did Jadeco have?? A type of work? A Q. employees? RADAZO REPORTING, INC. And haS-that been the business of Yes. since incorporation Yes. in 1994? Yes. And in October I think it was-between 18 to 20. Does that vary depending on the Yeah, it varies how busy. Generally speaking 18 to 20 15.Dealmeida 2 AI Yeah; 3 What is the address of Jadeco 4 Construction?- 5 A The physical address now or the PO 6 Box? 7 The physical addrigy_ 8 A Right now it's 9 Avenue, Bohemia. I don't knioA i 10 forgot. 5 _1 it 11 I 'And what is the EC Ads? 12 A PO Box 16, St. da?es, New York. 13 _That?s where all the mailing goes to.' 14 And the Lakeland Avenue address, is 15 that a physical address? 16 A . A physical address. 17 Is that a lding, a 18 home residence? I Hi?ii-t I 19 A No, thatls a c9?h 20 It's the yard. That's whereas 21 equipment} The office-is in?ther?.5 22 Prior to 2008 had Jadeco performed 23 any work for any municipalities? I 24 I A .Yeah. 25 And did you participate in open RADAZO REPORTING, INC. '21 1 ?Nu?.Rik-rut M- Dealmeidai' bidding for that work? A I always bid jobs, yes. How long have you been bidding work . with regard to the municipalities? A Since I started the business. Since 1994? A Yeah.- Since 1994 can y?ui* ifmelwhatH municipalities or state agencies work for? A Town of Huntingtonp "Town of ISlipl Suffolk County DPW, Department of Public Works. Village Of Port Jeff. Village of Lake Grove. Village of Patchogue. Village of Islandia. Islandia? A Yeah, uh?huh. Anything else?sigg?yi A 'Village of Westham few more. I don't remember.-I Oh, Town of Smi Q- When for the first time did any work for the Town of SmithtoWn? A. II think since I started the business. RADAZO REPORTING, INC. (516) 248-1020 ?3 i-J??t?1 . SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Index No.: 12~1 6684 JADECO CONSTRUCTION CORR, PIaintiff, AMENDED against - VERIFIED COMPLAIM TOWN OF SMITHTHOWN, Defendant. Plaintiff, by its attorneys. Rayano Garabedian, P.C., complaining of the defendant herein, reSpectfully shows and alleges as follows: AS AND FOR A FIRST CAUSE OF ACTION 1. That at all times hereinafter mentioned, the piaintiff JADECO CONSTRUCTION CORP. (hereinafter JADECO) was and stilt is corporation duly organized and existing under the laws of the State of New York. 2. That at all times hereinafter mentioned and upon information and belief, the defendant was and still is a municipal corporation, existing under and by virtue of the laws of the State of New York. That heretofore and priorto the commencement ofthis action and within ninety (90) days after the claim arose, plaintiff duly served upon the defendant a notice in writing, duly sworn to and verified, setting forth the following: name and post office address of the claimant; the nature of the claim; the time when, the piece where and the manner in which the claim arose; the items of damage and injuries as far as then ascertained. On April 26, 2012, a hearing was conducted pursuant to Section 50?h of the . Qt; EXHIBITB - EXHIBIT I ExhibitF - EXHIBIT 0 10. 11. General Municipal Law. Said defendant has wholly neglected and refused to make an adiUStment and payment of said claim, and more than ninety (90) days has elaPS?ad Since the ?aim arose. This action was commenced within one (1) year and ninety (90) days from the date of said incident. On or about June 2008, JADECO, submitted a bid for roadwork, curbs, sidewalks, etc. with the Town of Smithtown. This bid was known as BID or Procurement identification number 08?050, a copy of which is annexed hereto as Exhibit On or about April 30, 2009, the Town of Smithtown, by and through Purchasing Director Joseph Kostecki, and plaintiff agreed to extend the BID 08-050 up to and including June 17, 2010. Annexed hereto as Exhibit is a copy of such pricing and bid extension. From April 2009 through June 17, 2010. JADECO continued to provide its services to the Town of Smithtown as per the Bid and direction of the Highway Superintendent Glenn Jorgensen and his foreman. On or about May 19, 2010. the Town of Smithtown, by and through its Purchasing Director Joseph Kostecki, affected to extend the BIO 08?050 up to and including June30, 2011. On May 26, 2010, plaintiff agreed to such extension and a copy of such is annexed as Exhibit On or about June 29, 2011, JADECO received from Town of Smithtown?s Purchasing Director Joseph Kostecki a purchase order dated June 28, 2011, in the sum of $988,667.87. It identi?ed JADECO as the vendor and set forth the services requested by Town of Smithtown Highway Department. The purchase order referenced the BID contract 08-050 and described the services as follows: FOR SIDEWALK CURB REPLACEMENT. REPAIR, ETC. VALID UNTIL 10l31111" (date crossed out and initialed; however not by plaintiff DR. 5122.0266 THIS BLANKET PURCHASE ORDER GIVES YOU AUTHORITY TO DELIVER GOODS AS INSTRUCTED BY THE DEPARTMENT LISTED ABOVE. THE INSTRUCTIONS WILL DETAIL THE SPECIFIC GOODS AND SHIPPING INFORMATION. DO NOT EXCEED THE AMOUNT OF MONEY AUTHORIZED ON THIS A copy is annexed hereto as Exhibit 12. Thereafter JADECO received on June 30, 2011, a work order from Glenn Jorgensen, Highway Superintendent for Town of Smithtown, instructing JADECO certain work, labor and services which would be performed for defendant. Copy annexed as Exhibit 13. Between June 2011 and October 2011, JADECO continued to perform work at the specific request of the Town of Smithtown through the Highway Department. Annexed hereto as Exhibit are the invoices documenting such work: Invoices 214, 215, 236, 238, 239, 240, 242, 243. 244, 246. Total due to JADECO $497,212.25. Plaintiff relied upon payment for such services as set forth in the above-referenced purchase order Exhibit 14. On or about October 2011, in an effort to be compensated, JADECO's invoices were properly submitted to the Town Purchasing Director, together with the .EXHIBIT 3 EXHIBIT EXHIBIT 15. 16. 17. 18. 19. 20. 21. necessary certified payroll. On October 25, 2011, a partial payment in the sum of $55,544.99 was paid to JADECO, a copy of such check is annexed hereto as Exhibit This payment of $55,544.99 was alleged by the Town of Smithtown to have been paid toward the sums owed on invoices numbered 242, 243, 244 and 246. On or about November 18, 2011, plaintiffs claim voucher was approved by Glenn Jorgensen Highway Superintendent. Thedefendant's approval for such claim voucher is annexed hereto as Exhibit Numerous attempts were made for payment for the work, labor and services that JADECO provided, but no payment other than what has been stated above has been paid. To date a sum of $441,667.26 is due and owing and demands for payment have been ignored. That there is presently due and owing to the plaintiff from the defendant the sum of $441 ,66726, together with interest thereon from November 18, 2011. This complaint is being served pursuant to the order of the Hon. W. Gerard Asher dated December 31, 2012. AS AND FOR A SECOND CAUSE OF Am The plaintiff repeats, reiterates and realleges each and every allegation contained in the complaint marked, designated and numbered paragraphs through inclusive, with the same force and effect as if more fully set forth at length herein. As a direct result of defendant's failure to pay the plaintiff as aforesaid, the plaintiff was forced to incur debt in the sum of approximately $336,125.79. 22. 23. 24. 25. 26. 27. The president of JADECO, Jacinto DeAlmeida, liquidated certain personal assets and loaned such funds to plaintiff in order that plaintiff?s business could meet its financial obligations. Such debts were incurred as follows: The sum of 33,600.00 was loaned on or about May 7, 2012 The sum of $121,925.08 was leaned on or about May 24, 2012 The sum of 13,500.00 was leaned on or about June 15, 2012 The sum of $104,744.64 was loaned on or about August 24, 2012 The sum of 4,800.00 was loaned on or about August 2, 2012 The sum of 8 8,056.07 was loaned on or about August 2, 2012 The sum of 49,500.00 was loaned on or about March 1, 2013 Total $336,125.79 The debts incurred by JADECO are conseqUential damages incurred as a direct result ofthe defendant's deliberate, and without basis, refusal to pay the plaintiff the sum of $441 667.26, which is due and owing since on or about November 18, 201 1. The sum of $441,667.26 was and continues to be due and owing for services the plaintiff performed at the specific request of the defendant, as set forth more fully in Paragraphs 1 through 18. Said sum was income due to plaintiff, and since it was not paid in a timely fashion, the plaintiff was required to borrow sums necessary to cover the operating costs of its business in the sum of $336,125.79. This debt incurred by plaintiff is directly related to the defendant's failure to pay plaintiff. with interest from May 7, 28. There is due to plaintiff the sum of $336.125.79, togethe 2012. WHEREFORE, plaintiff demands judgment against the defendant: 3. On the First Cause of Action in the amount of $441,667.26, with interest from November 18. 2011', b. On the Second Cause of Action in the amount of $336,125.79, with interest from May 7. 2012; 0. Together with the costs and disbursements of this action. Dated: Central Isl?p, New York March I 2013 .. .. . .. (mini-qua. [51:52"- 1: . . . A Attmeys 2? Plaintiff I Offi 9 W0. Address 267 a eton Avenue, Suite 222 Centrat (slip, New York 11722 (631) 297-8360 5 TO: oevnr SPELLMAN BARRETT, LLP Attorneys for defendant 50 Route 111 Smithtown, New York 11787 File No.: T8639503 l-?vhihif T9: RECENED ,4 Town CLERK. In the Matter ofthe Claim or sensed swift?? - against - were as. Sierra-atonin- siinii?io?i? Town of Smithtown, 99 West Main Street, Smithtown, NY 11787 PLEASE TAKE NQTICE that the undersigned claimant hereby make claim and demands against you as'follows: . 2. '1'17?16 The name and posit-office ?address each. Claimant sn?a claimant?s . attorney is: RAYANO GARABEDIAN, 267 Carleton Avenue, Suite 222 Central 'Isiip, New-York 11722 (631) 297-8360 JADECO CONSTRUCTION CORP. 1441 Lakeland Avenue . The nature of the claim: Breach of contract based on non?payment of invoices presented for sidewalk and curb replacement/repair per ormed and supplies furnished by claimant, pursuant to the Town of Smithtown?s Purchase Order dated June 29, 2011, #29841. 3. The tin-tie when, the piece where and the manner in which the claim arose: Since October 12, 201 1, the Town of Smithtown failed to pay claimant's invoices for the above-stated work in a timely fashion. 4- The items of damage. or injuries claimed are: The claimant has been damaged by?the Town?s failure to pay the invoices iggesr?ed pursUant to the Town of Smithtown?s Purchase Order dated June 29, 2011, The undersigned claimant therefore presents this claim for adjustment and payment. You are hereby notified that unless it is adjusted and paid within the time provided by law from the date of presentation to you, the claimant intends to commence an action on? this claim. . - Mir?. .: i: - I Dated: December 14, 2011 a DeAlmeida, President gadeco Construction Corp. 67 eton Avenue, Suite 222 an al Islip, New York - 132976360 631 297?8363 FAX 11722 treat FicA'TIon: . State of New York, County of Suffolk, ss?: being duly's?w'om?says that depbnent iS?the'President or" Jadeco Construction Corp., the claimant herein that deponent has read the foregoin notice of-c'laim and knows the contents thereof, and that the same is true to deponent own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters deposit deponent believes it to be true. The reason why this veri?cation is made by deponent IS that deponent is an" officer, to Wit, the president of Jadeco Construction Corp., which is a domestic corporation, and deponent is familiar with the facts and circumstances herein. The sources of deponent?s information and the grounds of deponent?s belief as to all matters not therein stated upon degenent's knowledge are as follows: personal knowledge and the books and records oft corporation. acinto DeAlm ida Sworn to before me this 14th day of December, 2011 . Notary Public BARBAEA SCELZI Notary Public, State of New ?t?ork NO 4907007 Qualified in Suffolk County Thl'm Expires October 5, ?3 ?5 a? SUPREME COURT OF THE S'l?A'l?li OF YORK COUNTY or: SUFFOLK index No.1 JADECO CONSTRUCTION CORP. Plaintiff AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY against JUDGMENT lN 'LlliU 0F CUMPLAINT TOWN OF Defendant. STATE OF NEW YORK COUNTY OF SUFFOLK SS- lacinto DeAlmeida, being duly sworn, deposes and says: 1. I am the president of the plaintiff corporation ladeco Construction Corp. [hereinafter referred to as which has an voffice located at 1441 Lakeland I Avenue, Bohemia, New York, and as such I have personal knowledge of the facts and circumstances in the above said matter and claim. 2. submit this af?davit in support of the within motion for summary judgment in lieu of complaint pursuant to CPLR 3213. BACKGROUND 3 IADECO is a New York corporation organized on or about February 1994 and is in good standing. 4. IADECO is in the business of providing labor, material and services concerning asphalt, concrete paving with respect to roadwork, curbs and sidewalks. services are by and large used by local Suffolk County municipalities, such as the - .. . 10. County of Suffolk, of Islip, 'i?QWu of i-Iuntington, Town of" Smithtown and Village ofPort lefferson. Since 1994, JADECO has participated in bidding for local municipal work. To date, plaintiff has never had to ?le a Notice of Claim or bring an action to get paid for any of its work with the within Defendant, Town of Smithtown, or any other municipality. Co or about June 2008, your deponent, on behalf of IADECO, submitted a bid for roadwork, curbs, sidewalks, etc. with the Town of Smithtown. This bid was known as BID or Procurement identification number 08050, a copy of which is annexed hereto as Exhibit 011 or about April 30, 2009, the Town of Smithtown, by and through Purchasing Director Joseph Kostecki, and plaintiff agreed to extend the 811308?050 up to and including lune 2010. Annexed hereto as Exhibit is a copy of such pricing and bid extension. From April 2009 through June 17, 2010, IADECO Continued to provide its services to the Town of Smithtown as per the Bid and direction of the Highway Superintendent Glenn lorgensen and his foremen. On or about May 19, 2010, the Town of Smithtown, by and through its Purchasing Director Joseph Kostecki, effected to extend the BID 08-050 up to and including lune 30, 2011. On May 26, 2010, I agreed to such extension and a copy of such is annexed as Exhibit: On or about June 29, 2011, JADECO received from Town of Smithtown?s Purchasing Director loseph Kostecki a purchase order dated lune 29, 2011, in the sum of x-$938,667.87. It identi?ed IADECO as the vendor and set forth the services requested by Town of Smithtown Highway Department. The purchase order referenced the BID contract 08-050 and described the services as follows: FOR SIDEWALK 8a CURB REPLACEMENT, REPAIR, ETC. VALID UNTIL 10/31/11" (date crossed out and initialed; however not by your deponent) - DR. 51.22.0266 THIS BLANKET PURCHASE ORDER GIVES YOU AUTHORITY DELIVER GOODS AS BY THE DEPARTMENT LISTED ABOVE. THE 1 INSTRUCTIONS WILL DETAIL THE SPECIFIC GOODS AND SHIPPING INFORMATION. DO NOT EXCEED THE AMOUNT OF MONEY AUTHORIZED ON THIS A copy is annexed hereto as Exhibit 11. Thereafter IADECO received on lime 30, 2011, a work order from Glenn Iorgeosen, Highway Superintendent for Town of Smithtown, instructing JADECO certain werk, labor and services which would be performed for defendant. Copy annexed as Exhibit 12. Between lune 2011 and October 2011, IADECO continued to perform work at the speci?c request of the Town of Smithtown through the Highway Department. Annexed hereto as Exhibit are the invoices documenting such work: Invoices 214, 215, 236, 238, 239, 240, 242, 24.3, 244, 246. Total due to IADECO $497,212.25.- Plaintiff relied upon payment for such services as set forth in the above-referenced purchase order Exhibit 13about camber 2011, in an effort to be compensated, invoice-s were Properly Smeitted t0 the Town Purchasing Director, together with the necessary - certi?ed payroll. On October 25, 2011, a partial payment in the sum of $55,544.99 was paid to JADECO, a copy of such check is annexed hereto as Exhibit This payment of - $55,544.99 was alleged by the Town of Smithtown to have been paid toward the. sums owed on invoices numbered 242, 243; 244- and 246. On or about November 18, 2011, plaintiffs claim voucher was approved by Glenn Jorgensen Highway Superintendent. The. defendant?s approval for such claim voucher is annexed hereto as Exhibit Although I, on behalf of have made many attempts to get paid for the work, labor and services that Iadeoo had been promised, no payment other than what has been stated above has been paid. To date a sum of $441,667.26 is due and owing and demands for payment have been ignored. On or about December 1, 2011, your deponent, on behalf of JADECO contacted counsel to pursue the matter. On or about December 14, 2011, a Notice of Claim was served upon Town [annexed hereto as Exhibit On or about December 16, 2011, JADECO received a letter from john 1. Morris Town Comptroller [copy annexed as Exhibit which states in part as follows: additional amount was for work done alter your contract with the Town of Smithtoxon expired, therefore they cannot be paid". The contents of this letter make no sense at all since the Town of Smithtown issued a purchase order on June 29, 2011, and thereafter up to and including October 2011, . . fur-u. 20Performed all Wm'k labor and services at the Special direction of the Town Of f'iighway Superintendent Glenn Jorgeosen. Mr. lorgensen approved all work and payment in writing on November 18, 201 1 [see Exhibit Thereafter on or about March 16, 2012, counsel for the Town of Smithtown sent to plaintiff?s counsel a Demand for a 50 .H hearing and such hearing Was conducted at the office of Devitt 8a Spellman on April 26, 2012. IADECO is entitled to be paid in full for all work, labor and services as set forth in its invoices, together with the certi?ed payroll. Such work, labor and services were approved by the Town of Sniithtown Highway Soperintendent Glenn [orgensen on November 18, 2011. The is no legal reason why the sum due and owing cannot be paid. The Town of Smithtown has breached its contract with IADECO and has unlawfully refused to pay the sum due and owing cansin ladeco damages. That heretofore and prior to the commencement of this action and within ninety (90] days after the claim arose, plaintiff duly screed upon the defendant a notice in writing, duly sworn to and verified, setting forth the following: name and post of?ce address of the claimant; the nature of the claim; the time when, the place where and the manner in which the claim arose; the items of damage and injuries as far as then ascertained. Said defendant has wholly neglected and refused to make an adjustment and payment of said claim, and more than ninety [90] days has elapsed since the claim i7 . mm l? ..-. tin- I- {5352? .83 I - "hr 1 divs-av . \y 26. This action was commenced within one (1) year and ninety [90) days from the date of said incident. WHEREFORE, yeur depenent respectfully requests that this court grant Plaintiff?s motion for summary judgment in lieu of complaint together with the costs and disbursements of this action. - [emf ?cin?co DeAlmeida Sworn to before me this day of May, 2012 #4 0 13? lie NE M. New NOTARY wens. State at New lurk memes? uall?ee in Selim Laumyl Gomm ester: {mites 95: 7? I 1-- - rip-95A . SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK Index No: JADECO CONSTRUCTION CORP. Plaintiff - against - TOWN OF SMITHTOWN, Defendant go. )anine M. Rayano, an attorney duly admitted to practice law in the State of New York affirms the truth of the following under penalty of perjury: 1. I am a member of the law firm Rayano 8: Garabedian P.C., attorneys for the plaintiff, Iadeco Construction Corp. [hereinafter referred to as "Iadeco?) and as such, I am familiar with the fatts and circumstances relevant to the above matter. I make this af?rmation in support of the motion by iadeco for summary judgment in lieu of compliant against Town of Smithtown (hereinafter referred to as ?Towo?] pursuant to CPLR 321 3. As more fully set forth in the af?davit oi'Iacinto DeAlmeida, between lune 2008 and October 2011, ladeco performed certain labor and provided material and services to the Town pursuant to the BID #08-050 agreement and the extensions of such bid (see Exhibit; and Iadeco further performed work, labor and services as set forth in the June 29,. 2011,purchase order [see Exhibit Thereafter the ten invoices and the necessary certi?ed payroll were submitted to the Town in pursuit of payment. 5 - - . .. . The outstanding invoices and certified payroll that a sum of $441,667.26 is due and owing by the 'i?own of Smithtown to piaintiff and there is no defense or offset to the within claim. in fact, the Highway Superintendent Glen Iorgensen approved payment of these funds by the Town to plaintiff [see Exhibit The invoices and certi?ed payroll submitted to the Town were approved. No objection to the invoices or services was made in any fashion. An account stated exists between the parties, and as such this matter is for the payment of money only as is required by CPLR 3213. As can be seen from the detailed course of events and paperwork annexed to the 10. within motion, the Town retained the services of Plaintiff in writing, by extending the BID #08?050 via letters, Exhibit and by procuring Jadeco?s services as set forth in the purchase order dated lune 29, 201i, and faxed to Iadeco and by accepting and approved the work for which partial payment of such work was made on October 25, 2011. The balance of the work perforlned to that date remains unpaid without legal basis. The purchase Order accepted by Plaintiff and prepared by Defendant was a specific request for work labor and services in connection with sidewalk and curb work and referred speci?cally to the prior BID ii 08-050 awarded to plaintiff and extended by defendant on two occaSions see [Exhibits and annexed). Defendant is contractoally bound to pay the outstanding sum doc and owing to except for the sum paid plaintiff as set forth in the invoices annexed as Exhibit on October 25, 2011. Defendant acknowledges that such sum is due to ladeco - - 1 332735..? rurzi? 11. 12. 13. 14, 15. according to the November 18, 2011, voucher approval of payment issued by Superintendent of Highway Glenn Jorgensen see Exhibit As more fully set forth in af?davit of Mr. DeAhneida, prior to the transactions which are the subject of the above matter, ladeco regularly performed work, labor and services for Town of Smithtown. Pursuant to the reciuirements 0f the BID and Purchase Orders, defendant issued work orders via its Highway Department and plaintiff would perform the work, labor and services. In all prior instances thereafter, Jadeco would submit an invoice together with the required certified payroll. The Town would approve and remit payment. In the above instance, just as in the past, I'adeco submitted its request for payment on the outstanding invoices, and without any objections, defendant has failed 5,544.99, which was remitted on October 25, 2011. Defendant admits to receiving the invoices and has not raised an objection to the work, labor or. services provided by plaintiff and has set forth in writing [see Exhibit a refusal to pay Iadeco. All oral requests for payment made by Mr. DeAhneitla have been denied by Town of Smithtown purchasing department in spite of the Highway Superintendents approval to pay the sum due and owing [see Exhibit The Town of Smithtown has no defense to the instant motion. WHEREFORE it is respectfully requested that the court grant summary judgment in favor of the plaintiff and against the defendant in sum of $441,667 .26 with interest thereon from November 18, 2011, "together with costs and disbursements of this action. .3. Dated: Central lslip, New York May 22, 2012 I f: I he .. SUPREME COURT on .. COUNTY OF SUFFOLK JADECO CORP. YER El) ANSWER Plaintiff, '1?0 -against~ hich it 12-16684 TOWN OF SMl'l?l'lii?OWN, Defendant. Defendant, OF (hereinafter by its attorneys, Dli?v? l'l?l? BARRETT, LLP, as and for its Answer to the plaintiff's Amended Veri?ed Complaint, upon information and belief, states as follows: AS TO FIRST CAUSE OF ACTION FIRST: Denies having any knowledge or information suf?cient to form a belict?ns to the truth of the allegations contained in paragraphs numbered and designated as ?l and SECOND: Denies having any knowledge or information sntiicient to form belicfns to the truth of the allegations contained in paragraph numbered and designated as except admit receipt of purported Notice of Claim. THIRD: Denies each and every allegation contained in paragraphs numbered and ?1099, ?.149: FOURTH: Denies having any knowledge or information suf?cient to form a heliei?ns to the truth of the allegations contained in paragraphs numbered and designated as and ?l and refers all questions of law to this honorable court FIFTH: Denies having any knowledge or infonnation suf?cient to form a belief as to the truth of the allegations contained in paragraph numbered and designated as except admit JADECO submitted a bid to the TOWN. PWij-I'Vti- - ('33 SIXTH: Answering paragraph ?20? of the complaint, defentiant(s) repeat(s), reiterate(s) and rcallege(s) each and ever admission and denial heretofmc made t6 paragraphs through ?19" set forth therein with the same force and effect as if more fully set forth herein. Denies each and every allegation contained in paragraphs numbered and designated as and AS AND FOR A FIRST AFFIRMATIVE DEFENSE Plaintiff has failed to comply with the conditions precedent to suit contained in the Town Law and General Municipal Law. AS AND FOR A SECOND AFFIRMATIVE DEFENSE Plaintist claim against the TOWN is barred by govenunental immunity and discretiOnary acts immunity. AS AND FOR A THIRD AFFIRMATIVE DEFENSE Plaintiff?s claim against the TOWN is barred by the doctrines of equitabie estoppel, promissow estoppel and laches. AS AND FOR A FOURTH DEFENSE ELEVENTH: Plaintiff?s claims are barred by the applicable statute of limitations. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE The complaint fails to state a claim upon which relief can be granted. AS AND FOR A SIXTH DEFENSE This Court lacks personal jurisdiction over the defendant OF AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE The express temts of the bid document, as alleged in plaintiff?s FOU Complaint, bar recovery. . DEFENSE Pursuant to Town Law Section 64(6) and General Municipal Law Section 103, plaintil?i?s Complaint must be dismissed. AS AND FOR A NINTH AFFIRMATIVE DEFENSE i Plaintifi'did not have a valid contract with the when the alleged work was performed by the plaintiff. AS AND FOR A TENTH AFFIRMATIVE DEFENSE The bid document, as alleged in plaintiff Complaint, expired by its own terms and was not extended. As such, plaintiff did not have a valid binding contract with the and lacked authority to perform any work. 53 AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE Actions by the TOWN which allegedly extended the bid, as alleged by plaintiff in the Complaint, was null and void, nnenforeeable and of no force and eflicct. AS AND FOR A AFFIRMATIVE DEFENSE NINETEENTH: That any extension of the bid, as alleged in plaintiff?s Complaint, was not in accordance with the bid document, or applicable law. - AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE That any extension of the bid, as alleged in plaintiffs Complaint, was not authorized by the 'l?own Board. AS AND FOR A FOURTEENTH DEFENSE Plaintiff?s recovery, if any, is barred by Town Law Section 122. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE TWENTY-SECOND: The alleged extension of the contract is unenforceable and void as against public policy. '73.:rae - .-. .1 Tenn?arrowyell" as AND FOR A SIXTEENTH ?alumni; That the alleged damages set forth in the Amended Complaint is not capable of proot?with reasonable certainty. AS AND FOR A AFFIRMATIVE DEFENSE The terms of the bid and/or contract between the parties do not demonstrate an intent by the parties to allow for economic loss as alleged in the Amended Complaint. AS AND FOR FIRST COUNTERCLAIM AGAINST PLAINTIFF 11" Hi: The TOWN repeats, reiterates and realleges each and every admission and denial heretofore made to the set ferth paragraphs of the Complaint with the same force and effect as if more fully set forth herein. That at all times hereinto mentioned, the defendant was and still is a municipal corporation, existing under and by virtue of the laws of the State of New York. That at all times hereinto mentioned, upon information and belief, the plaintiff JADECO CORP. (hereinafter was and still is a corporation duly organixcd and existing under the laws of the State of New York. TWENTY-EIGHTH: That on or about June 2, 2008, IADECO, submitted a bid for roadwork, curbs, sidewalks, excavation, and other highway work to the TWENTY-NINTH: The aforesaid bid was identi?ed as Procurement identi?cation Number 08-050 which had an initial contract period of June 15, 2008 through June 17, 2009. THIRTIETH: That pursuant to section l2 of the bid terms and conditions the contract may be extended for up to two additional years beyond the initial contract period. That the contract herein was extended by the TOWN for an additional two year period which expired by its terms on June 17, 2011. that following expiration of the contract, JADECO, continued to . .. . .. t- ire}; "?4;th perform work for the TOWN in violation of the compel Law? 103. "ft UN): The work and extension were unauthorized. 'fl 1: TOWN did not ratify or otherwise approve of the extension. That the 'l?own paid to the plaintill? the sum of for work that upon int?ornuttirm and belief. was by plaintitf in violation of (letteral Municipal Law 103. 'l'iillt'l?Y?SlX?l?ll: As a result of foregoing, the ?t?own has sustained thnuages in the sum of $719,300.64 and is entitled to recover from JAINECO the aforesaid total amount paid to AS FOR SECOND 'l?he 'l?owu repeats, reiterates and reatlcges each and every adniission and denial heretofore made to the set forth paragraphs "ll?lRS'l?? though of the ?l?own?s answer with the same force and effect as if more fully set forth herein. TlIIR'deilt?illTl?I: That any alleged extension of the contract between the TOWN and is unenforceable and void as against public policy. As a result of foregoing, the is entitled to recoup all monies previously paid to JADECO pursuant to the void and unenforceable contract. As a result of foregoing, the has been damaged in the sum WHEREFORE, delcndant, TOWN OF demands judgment dismissing the complaint and that this defendant dcmandsjudgment over and against the plaintiff in the sum of $719,300.64 on its ?rst counterclaim and in the sum of $719,300.64 of its second counterclaim, together with the costs, disbursements and attorney?s fees associated with this action. itive bidding statute. General Dated: Smithtomx, New York March 18, 2013 TO: amine M. Rayauo Rayano 62: Garabcdian, PC. Attomcys for Plaintiff 267 Carleton Avenue, Suite 222 Central Islip, New York 11722 (63 l) 297-8360 . K.- 971m . TNJ-??rmv . Yours, eto., SPELLMAN BARRETT, LLP Attorneys for Defendant TOWN OF SMITHTOWN 50 Route 111 Smithtown, New York 1 l7 87 (631) 724-8833 Our File No. 18639503 SUPREME COURT OF THE STAT OF NEW YORK COUNTY OF SUFFOLK SUFFOLK ASPHALT CORR, Plaintiff VERIFIED COMPLAINT ~against- Index No. 604885-15 TOWN OF Defendant. ?x Plaintiff, by its attorneys, Pinks, Arbeit Nemeth, Iisqs., for its veri?ed complaint alleges: l. At all times hereinafter mentioned, plaintiff was and is a New York corporation. 2. Upon information and belief, at all times hereinafter mentioned, defendant is a town duly organized and existing under the laws of the State of New York. 3. On March 21, 2013 defendant awarded plaintiffa contract as low bidder to perform asphalt paving and construction work on various town roads within the Town of Smithtown. The contract was known as ?Requirements Contract 2014 Asphalt Overlay, Bid Number 13-01 4. Plaintiffduly and timely commenced performance of said contract and duly and timely performed and complied with and completed all the work, terms and conditions thereofon its part to be performed. 5. Defendant breached the contract as hereinafter set forth by failing and refusing to make payment to plaintiff for the work. labor and services performed by it pursuant to the contract. 6. On March 23, 2015 plaintiff caused to be served upon defendant by certi?ed mail, return receipt requested, a notice of claim as required by Town Law Section 65. 7. The notice ot?eiaim was received by defendant on March 26, 2015. More than 40 days have elapsed since the ?ling of the claim. AS AND FOR A FIRST CAUSE OF ACTION (Breach of Contract and Quantum Merritt) 8. That pursuant to the terms of the contract and at the special instance and request of the defendant, plaintiffperformed work, labor and services and furnished materials for defendant consisting of asphalt paving, milling and related work between October 17, 20l4 and November 15, 2014; 9. The work, labor and services and materials furnished by plaintiff was performed and furnished for the agreed price and reasonable value of $772,531.31. 10. Plaintiff requisitioned payment from the defendant for the work, labor and services and materials furnished on November 12, 2014. 1 l. The amount requisitioned by the plaintiff was consistent with the amount estimated by the superintendent of highways to be due and owing. 12. That pursuant to the terms of the contract heretofore referred to the defendant agreed to pay plaintiff the amount estimated by the superintendent of highways to be due and owing. 13. Defendant breached its contract with plaintiff by failing and refusing to pay plaintiff for the work, labor and services and materials furnished. 14. No part ofthe sum has been paid although duly demanded. AS AND FOR A SECOND CAUSE OF ACTION (Breach of Contract and Quantum Meruiz?) 15. That pursuant to the terms of the contract and at the special instance and request of the defendant, plaintiff performed work, labor and services and furnished materials for defendant consisting of asphalt paving, milling and related work between November 14, 2014 and December 4, 2014. 16. The work, labor and services and materials furnished by plaintiff was performed and furnished for the agreed price and reasonable value 17. Plaintiff requisitioned payment from the defendant for the work, labor and services and materials furnished on December 1 I, 2014. 18. The amount requisitioned by the plaintiff was consistent with the amount estimated by the superintendent of highways to be due and owing. 19. That pursuant to the terms ofthe contract heretofore referred to the defendant agreed to pay plaintiff the amount estimated by the superintendent of highways to be due and owing. 20. Defendant breached its contract with plaintiff by failing and refusing to pay plaintiff for the work, labor and services and materials furnished. No part ofthe sum has been paid although duly demanded. AS AND FOR A THIRD CAUSE OF ACTION (Breach of Contract and Quantum Marni!) 22. That pursuant to the terms of the contract and at the special instance and request ofthe defendant, plaintiff performed work, labor and services and furnished materials for defendant consisting of asphalt paving, milling and related work between October 24, 2013 and a November 3, 2013. 23. The work, labor and services and materials furnished by plaintiff was performed and furnished for the agreed price and reasonable value of $964,466.38. 24. Plaintiff requisitioned payment from the defendant for the work, labor and services and materials furnished. 25. The amount requisitioned by the plaintiff was consistent with the amount estimated by the superintendent of highways to be due and owing. 26. That pursuant to the terms of the contract heretofore referred to the defendant agreed to pay plaintiff the amount estimated by the superintendent of highways to be due and owing. 27. Defendant breached its contract with plaintiff by failing and refusing to pay plaintiff for the work, labor and services and materials furnished. 98. No part ofthe sum of $964,466.38 has been paid except the sum of $925,239,46, leavinu a balance due and owinU of$39.226.92, no )art of which has been aid althou Ih dulv - .1 demanded. AS AND FOR A FOURTH CAUSE OF ACTION (Breach of Contract and Merm't?) 29. That pursuant to the terms of the contract and at the special instance and request of the defendant, plaintiffperformed work. labor and services and furnished materials for defendant consisting of asphalt paving, milling and related work between May 19, 2014 and June 2, 2014. 30. The work, labor and services and materials furnished by plaintiff was performed and furnished for the agreed price and reasonable value of $1,107,411 7.64. 4 31. Plaintiff requisitioned payment from the defendant for the work, labor and services and materials furnished. 32. The amount requisitioned by the plaintiff was consistent with the amount estimated by the superintendent of highways to be due and owing. 33. That pursuant to the terms of the contract heretofore referred to the defendant agreed to pay plaintiff the amount estimated by the superintendent of highways to be due and owing. 34. Defendant breached its contract with plaintiff by failing and refusing to pay plaintiff for the work, labor and services and materials furnished. 35. No part ofthe sum of$l ,107,4l7.64 has been paid except the sum of $1,102, I 96.82 leaving a balance due and owing no part ofwhieh has been paid although duly demanded. AS AND FOR A CAUSE OF ACTION (Account Stated) 36. Plaintiff rendered accounts to the defendant by invoices and notice of claim. 37. The defendant neither rejected the invoices and notice ofclaim, nor has it paid any part thereof. 38. Defendants are indebted to plaintiff for an account stated in the amount of $1,841,209.04. plaintiff demandsjudgment against defendant as follows: A. On the first cause of action in the sum of $772,531.31 with interest from November 12, 2014; B. On the second cause of action in the sum with interest from I) December 1 1, 2014; C. On the third cause of action in the sum of $39,226.92 with interest from March 23, 2015; D. On the fourth cause of action in the sum with interest from March 23, 2015; E. On the ?fth cause of action in the sum 0131,84 1 ,209.04 with interest on $772,531.31 from November 12, 2014; on $1,024,299.95 with interest from December 1 1, 2014; on $39,226.92 with interest from March 23, 2015; and 011 $5,220.82 with interest from March 23, 2015;and Costs and disbursements ofthis action. Dated: I-Iauppaugc, New York. May 6, 2015 Yours, etc., PINKS, ARBEIT NEMETH, ISSQS. At?tm?neys for Plaintiff1?11th J40 Fell Court - Suite 303 I-Iauppauge, New York 1 1788 (631) 234-4400