Preview
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
VIRTUOSO TILE & STONE CORP., Index No.: _______________
Plaintiff, SUMMONS
-against- Plaintiff Designates New York County
as the place for trial.
CREFMA1 340 EAST 52ND OWNER LLC;
CREFMA1 231 EAST 76TH OWNER LLC; Venue is based on CPLR § 507 because the
U.S. SPECIALTY INSURANCE real property that is at issue herein is located
COMPANY; and ECA DEVELOPERS LLC, in New York County, New York and because
a substantial part of the events giving rise to
Defendants. this lawsuit occurred in this judicial district.
To the above-named Defendants:
YOU ARE HEREBY 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 Plaintiff’s attorneys within twenty (20) days after the service of this summons,
exclusive of the day of service (or within thirty (30) days after service is complete if this
summons is not personally delivered to you within the State of New York); and in case of your
failure to appear or answer, judgment will be taken against you by default for the relief
demanded herein.
Plaintiff designates New York County as the place of trial. The basis of venue is
pursuant to CPLR § 507 because the real property at issue in this action is located in New York
County, New York and a substantial part of the vents giving rise to this action occurred in this
judicial district. Further, venue is proper in this Court pursuant to CPLR § 503(a) as Plaintiff’s
residence and/or principal place of business is in New York County.
1
1 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
Dated: New York, New York
June 7, 2024 THE POSTLETHWAITE LAW FIRM PLLC
_______________________________
Preston J. Postlethwaite, Esq.
100 Park Avenue, 16th Floor
New York, New York 10017
(646) 389-3202 (phone)
(646) 619-4733 (fax)
PJP@postlethwaitelaw.com
Attorneys for Plaintiff
Defendants’ Addresses:
CREFMA1 340 EAST 52ND OWNER LLC
c/o Fortress Investment Group
1345 Avenue of Americas, 46th Floor
Attn: David Scheible
New York, New York 10105
CREFMA1 231 East 76th Owner LLC
c/o Fortress Investment Group
1345 Avenue of Americas, 46th Floor
Attn: David Scheible
New York, New York 10105
U.S. SPECIALTY INSURANCE COMPANY
600 Lexington Avenue
New York, New York 10022
ECA DEVELOPERS LLC
25-52 Crescent Street
Astoria, New York 11102
2
2 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
VIRTUOSO TILE & STONE CORP., Index No.: _______________
Plaintiff, VERIFIED COMPLAINT
-against-
CREFMA1 340 EAST 52ND OWNER LLC;
CREFMA1 231 EAST 76TH OWNER LLC; U.S.
SPECIALTY INSURANCE COMPANY; and
ECA DEVELOPERS LLC,
. Defendants.
Plaintiff Virtuoso Tile & Stone Corp., by and through its counsel, The Postlethwaite Law
Firm PLLC, as and for its Verified Complaint against Defendants CREFMA1 340 East 52nd
Owner LLC; CREFMA1 231 East 76th Owner LLC; U.S. Specialty Insurance Company; and
ECA Developers LLC, alleges as follows:
PARTIES
1. Plaintiff Virtuoso Tile & Stone Corp. (“Plaintiff”) is a business corporation organized
and existing under the laws of the State of New York, with a principal place of business
located at 519 Eighth Avenue, 7th Floor, New York, New York 10018.
2. Defendant CREFMA1 340 East 52nd Owner LLC (“52nd Owner”), upon information and
belief, is a foreign limited liability company organized and existing under the laws of the
State of Delaware, with an office for the conduct of its business in New York State
located at 1345 Avenue of Americas, 46th Floor, New York, New York 10105. 52nd
Owner was and still is the owner of certain real property located in the State of New
York, County of New York known as 340 East 52nd Street, New York, New York also
known as Block: 1344, Lot: 33.
3. Defendant CREFMA1 231 East 76th Owner LLC (“76th Owner”), upon information and
belief, is a foreign limited liability company organized and existing under the laws of the
1
Verified Complaint
3 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
State of Delaware, with an office for the conduct of its business in New York State
located at 1345 Avenue of Americas, 46th Floor, New York, New York 10105. 76th
Owner was and still is the owner of certain real property located in the State of New
York, County of New York known as 231 East 76th Street, New York, New York also
known as Block: 1431, Lot: 16.
4. Defendant U.S. Specialty Insurance Company (“U.S. Specialty” or “Surety”), upon
information and belief, is a foreign business corporation organized and existing under the
laws of the State of Texas, with an office for the conduct of its business in New York
State located at 600 Lexington Avenue, New York, New York 10022.
5. Defendant ECA Developers LLC (“ECA”), upon information and belief, is a limited
liability company organized and existing under the laws of the State of New York, with a
principal place of business located at 25-52 Crescent St., Astoria, New York 11102.
VENUE AND JURISDICTION
6. Venue is proper in this Court pursuant to CPLR § 507 because the real property that is at
issue herein is located in New York County, New York and because a substantial part of
the events giving rise to this lawsuit occurred in this judicial district.
7. This Court has jurisdiction over each of the Defendants because each of them is a
resident of the State of New York and/or regularly transacts and conducts business within
the State of New York.
THE RELATIONSHIP AMONG THE PARTIES
8. This action concerns two parcels of real property situated in the City and State of New
York, County of New York: 340 E. 52nd Street, New York, New York 10022, with an
original tax map designation of Block: 1344, Lot: 33 (the “52nd Street Property”); and
231 East 76th Street, New York, New York 10021, with an original tax map designation
of Block: 1431, Lot: 16 (the “76th Street Property”).
2
Verified Complaint
4 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
9. The 52nd Street Property is legally described as:
Town of: New York
Borough: Manhattan
Block: 1344
Lot: 33
ALL that certain plot, piece or parcel of land, situate, lying and being in the Borough of
Manhattan, City, County and State of New York, bounded and described as follows:
BEGINNING at a point on the southerly side of 52nd Street, distant 150 feet westerly
from the corner formed by the intersection of the southerly side of 52nd Street with the
westerly side of First Avenue;
RUNNING THENCE southerly parallel with First Avenue and part of the distance
through a party wall, 100 feet 5 inches to the centre line of the block;
THENCE westerly parallel with 52nd Street, 80 feet;
THENCE northerly parallel with First Avenue and part of the distance through a party
wall, 100 feet 5 inches to the southerly side of 52nd Street; and
THENCE easterly along the southerly side of 52nd Street, 80 feet to the point or place of
BEGINNING.
10. The 76th Street Property is Legally Described as:
Town of: New York
Borough: Manhattan
Block: 1431
Lot: 16
ALL that certain plot, piece or parcel of land, situate, lying and being in the City, County
and State of New York, bounded and described as follows:
BEGINNING at a point on the northerly side of 76th Street, distant 100 feet westerly
from the corner formed by the intersection of the westerly line or side of Second Avenue
with the northerly line or side of 76th Street;
RUNNING THENCE northerly and parallel with Second Avenue, 102 feet 2 inches to
the center line of the block between 76th and 77th Street;
THENCE westerly along said center line and parallel with 76th Street, 130 feet;
THENCE southerly and parallel with Second Avenue, 102 feet 2 inches to the northerly
side of76th Street; and
THENCE easterly along the northerly side of 76th Street, 130 feet to the point or place
of BEGINNING.
3
Verified Complaint
5 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
11. Upon information and belief, 52nd Owner became the owner of the Property pursuant to a
deed, dated and recorded in the office of the New York County Clerk on June 10, 2022.
12. Upon information and belief, 76th Owner became the owner of the 76th Street Property
pursuant to a deed, dated and recorded in the office of the New York County Clerk on
June 10, 2022.
13. Upon information and belief, sometime before March 2023, Defendant ECA entered into
a written contract with 52nd Owner wherein ECA, as general contractor, agreed to provide
construction services on the 52nd Street Property. Plaintiff respectfully requests leave to
refer to said contract at the trial of this matter as if more fully incorporated herein.
14. Upon information and belief, sometime before March 2023, Defendant ECA also entered
into a written contract with 76th Owner wherein ECA, as general contractor, agreed to
provide constructions services on the 76th Street Property. Plaintiff respectfully requests
leave to refer to said contract at the trial of this matter as if more fully incorporated
herein.
THE 52ND STREET SUBCONTRACT
15. Thereafter, on or about March 21, 2023, Plaintiff (as subcontractor) and ECA (as
contractor) entered into a Contractor & Subcontractor Agreement (the “52nd Street
Subcontract”), as subsequently duly amended by agreed upon and approved change
orders, whereby ECA hired Plaintiff to provide labor and materials for use and
incorporation into the construction project of the 52nd Street Property (the “52nd Street
Project”). The fair and reasonable value of such labor and materials provided by Plaintiff
pursuant to the 52nd Street Subcontract is $1,422,911.00, of which $500,320.25 remains
unpaid.
16. Pursuant to the 52nd Street Subcontract, Plaintiff began work and furnished materials in
connection with the Project on March 23, 2023.
4
Verified Complaint
6 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
17. Plaintiff performed the last item of work and furnished the last item of materials in
connection with the 52nd Street Project on December 22, 2023.
18. Throughout this time period, Plaintiff performed labor and furnished materials in
connection with the 52nd Street Project pursuant to its duties and obligations under the
52nd Street Subcontract. The agreed price and value of the labor performed and value of
materials furnished by Plaintiff is $1,422.911.00.
19. Throughout this time period, Plaintiff issued invoices to ECA detailing the labor and
materials provided and furnished to ECA pursuant to the 52nd Street Subcontract, and
which were accepted by ECA, between March 23, 2023 and December 22, 2023.
20. All such labor provided and materials furnished by Plaintiff pursuant to the 52nd Street
Subcontract were done with the consent, authorization, and/or knowing permission of
ECA and 52nd Owner.
21. Upon information and belief, 52nd Owner consented to the 52nd Street Subcontract.
22. Plaintiff substantially performed all of its obligations required under the 52nd Street
Subcontract, except those obligations as to which Plaintiff has been relieved by reason of
ECA’s and/or 52nd Owner’s failure to pay Plaintiff; by reason of ECA’s and/or 52nd
Owner’s consent; and/or by reason of ECA’s and/or 52nd Owner’s breach of the 52nd
Street Subcontract.
23. All of the materials furnished and labor provided by Plaintiff at the 52nd Street Property
were accepted by ECA and/or 52nd Owner and enhanced the value of the 52nd Street
Property to the extent, or in excess of, $1,422.911.00.
24. Plaintiff, however, was not paid in full for the labor performed and materials furnished.
25. As of December 22, 2023, the total amount unpaid for the labor performed and materials
furnished by Plaintiff pursuant to the 52nd Street Subcontract is $500,320.25.
THE 76TH STREET SUBCONTRACT
5
Verified Complaint
7 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
26. On or about March 21, 2023, Plaintiff (as subcontractor) and ECA (as contractor) entered
into a Contractor & Subcontractor Agreement (the “76th Street Subcontract”), as
subsequently duly amended by agreed upon and approved change orders, whereby ECA
hired Plaintiff to provide labor and materials for use and incorporation into the
construction project of the 76th Street Property (the “76th Street Project”). The fair and
reasonable value of such labor and materials provided by Plaintiff pursuant to the 76th
Street Subcontract is $361,811.50, of which $237,939.40 remains unpaid.
27. Pursuant to the 76th Street Subcontract, Plaintiff began work and furnished materials in
connection with the Project on April 30, 2023.
28. Plaintiff performed the last item of work and furnished the last item of materials in
connection with the 76th Street Project on July 7, 2023.
29. Throughout this time period, Plaintiff performed labor and furnished materials in
connection with the 76th Street Project pursuant to its duties and obligations under the
76th Street Subcontract. The agreed price and value of the labor performed and value of
materials furnished by Plaintiff is $361,811.50.
30. Throughout this time period, Plaintiff issued invoices to ECA detailing the labor and
materials provided and furnished to ECA pursuant to the 76th Street Subcontract, and
which were accepted by ECA, between April 30, 2023, and July 7, 2023.
31. All such labor provided and materials furnished by Plaintiff pursuant to the 76th Street
Subcontract were done with the consent, authorization, and/or knowing permission of
ECA and 76th Owner.
32. Upon information and belief, 76th Owner consented to the 76th Street Subcontract.
33. Plaintiff substantially performed all of its obligations required under the 76th Street
Subcontract, except those obligations as to which Plaintiff has been relieved by reason of
ECA’s and/or 76th Owner’s failure to pay Plaintiff; by reason of ECA’s and/or 76th
6
Verified Complaint
8 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
Owner’s consent; and/or by reason of ECA’s and/or 76th Owner’s breach of the 76th
Street Subcontract.
34. All of the materials furnished and labor provided by Plaintiff at the 76th Street Property
were accepted by ECA and/or 76th Owner and enhanced the value of the 76th Street
Property to the extent, or in excess of, $361,811.50.
35. Plaintiff, however, was not paid in full for the labor performed and materials furnished.
36. As of July 7, 2023, the total amount unpaid for the labor performed and materials
furnished by Plaintiff pursuant to the 76th Street Subcontract is $237,939.40.
THE LIENS
37. As a result of ECA’s failure to honor its payment obligations to Plaintiff under the 52nd
Street and 76th Street Subcontracts, on or about February 1, 2024, Plaintiff filed: i) a
Notice Under Mechanic’s Lien in the sum of Five Hundred Thousand Three Hundred
Twenty Dollars and Twenty-Five Cents ($500,320.25) in the office of the Clerk of the
County of New York against the 52nd Street Property in connection with labor and
materials furnished by Plaintiff at the 52nd Street Property (the “52nd Street Lien”); and ii)
a Notice Under Mechanic’s Lien in the sum of Two Hundred Thirty-Seven Thousand
Nine Hundred and Thirty-Nine Dollars and Forty Cents ($237,939.40) in the office of the
Clerk of the County of New York against the 76th Street Property in connection with
labor and materials furnished by Plaintiff at the 76th Street Property (the “76th Street
Lien”).
38. Copies of the two Notices Under Mechanic’s Lien filed by Plaintiff with the New York
County Clerk are attached hereto and incorporated herein by reference as Exhibit A and
Exhibit B.
39. On February 29, 2024, Plaintiff served a copy of the 52nd Street Lien upon ECA and 52nd
Owner and thereafter filed with the New York County Clerk proof of service of the 52nd
7
Verified Complaint
9 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
Street Lien upon said parties. A copy of the filed proof of service is attached hereto and
incorporated herein by reference as Exhibit C.
40. On February 14, 2024, 52nd Owner, as principal, and U.S. Specialty, as surety, issued a
bond in the amount of Five Hundred Fifty Thousand Three Hundred and Fifty-Two
Dollars and Twenty-Eight Cents ($550,352.28) to discharge the 52nd Street Lien as
against the 52nd Street Property (the “52nd Street Bond”). A true and correct copy of the
filed 52nd Street Bond is attached hereto as Exhibit D.
41. On February 27, 2024, the 52nd Street Bond was filed in the office of the New York
County Clerk.
42. Plaintiff now makes a payment claim in the amount of $500,320.25 on the 52nd Street
Bond for unpaid sums due to Plaintiff for its work on the 52nd Street Project.
43. On February 29, 2024, Plaintiff served a copy of the 76th Street Lien upon ECA and 76th
Owner and thereafter filed with the New York County Clerk proof of service of the 76th
Street Lien upon said parties. A copy of the filed proof of service is attached hereto and
incorporated herein by reference as Exhibit E.
44. On February 14, 2024, 76th Owner, as principal, and U.S. Specialty, as surety, issued a
bond in the amount of Two Hundred Sixty-One Thousand Seven Hundred Thirty-Three
and Thirty-Four Cents ($261,733.34) to discharge the Lien as against the 76th Street
Property (the “76th Street Bond”). A true and correct copy of the filed 76th Street Bond is
attached hereto as Exhibit F.
45. On February 27, 2024, the 76th Street Bond was filed in the office of the New York
County Clerk.
46. Thereafter, 76th Owner served a notice on Plaintiff, dated March 1, 2024, demanding that
Plaintiff commence an action to enforce the 76th Street Lien pursuant to Lien Law § 59.
8
Verified Complaint
10 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
47. Plaintiff now makes a payment claim in the amount of $237,939.40 on the 76th Street
Bond for unpaid sums due to Plaintiff for its work on the 76th Street Project.
AS AND FOR PLAINTIFF’S FIRST CAUSE OF ACTION
BREACH OF 52ND STREET SUBCONTRACT – ECA DEVELOPERS LLC
48. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1
through 47 of the Verified Complaint as if the same were set forth fully at length herein.
49. On or about March 21, 2023, Plaintiff, as subcontractor, entered into the 52nd Street
Subcontract with ECA, as general contractor, to perform certain work and to provide
labor, equipment, and materials in connection with the 52nd Street Property, namely, the
supplying and installation of drywall and tile, painting, and removal of construction
debris. Pursuant to the 52nd Street Subcontract, as subsequently duly amended by agreed
upon and approved change orders, the agreed upon price and value of the labor,
equipment, and materials provided by Plaintiff in connection with the 52nd Street
Property was $1,422.911.00.
50. The 52nd Street Subcontract is valid and enforceable.
51. Upon information and belief, at all times mentioned herein, ECA was acting within the
scope of its authority under its agreement with 52nd Owner when ECA entered into the
52nd Street Subcontract with Plaintiff.
52. Plaintiff duly performed pursuant to the 52nd Street Subcontract by performing the work
and labor, and by furnishing the required materials, at the 52nd Street Property in
accordance with the terms and conditions of the 52nd Street Subcontract.
53. ECA materially breached the 52nd Street Subcontract by failing to pay the full agreed
upon price, leaving a balance due and owing to Plaintiff of $500,320.25, no part of which
has been paid to Plaintiff by ECA although same has been duly demanded.
9
Verified Complaint
11 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
54. ECA breached the 52nd Street Subcontract by failing to pay Plaintiff for the labor and
materials provided, leaving a balance due and owing of $500,320.25, no part of which
has been paid although same has been duly demanded.
55. Upon information and belief, 52nd Owner has failed to pay ECA all of the agreed upon
amount as requested by ECA for the work performed by Plaintiff at the 52nd Street
Property under the 52nd Street Subcontract.
56. Despite due demand therefore, there remains an amount due and owing to Plaintiff in the
sum of $500,320.25, together with interest thereon, for work performed by Plaintiff at the
52nd Street Property under the 52nd Street Subcontract.
57. A period of greater than thirty (30) days has elapsed since Plaintiff requested payment
from ECA, and ECA has not provided Plaintiff with written notice of withholding,
specifying conditions, and identifying the amount to be withheld.
58. As a direct and proximate result of ECA’s breach of the 52nd Street Subcontract, Plaintiff
has sustained compensatory damages in the amount of $500,320.25 plus interest.
59. By reason of the foregoing, Plaintiff prays that this Court enter judgment in its favor and
against ECA in the amount of $500,320.25 plus prejudgment interest, and for such other
and further relief as this Corut deems reasonable and just.
AS AND FOR PLAINTIFF’S SECOND CAUSE OF ACTION
BREACH OF 76TH STREET SUBCONTRACT – ECA DEVELOPERS LLC
60. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1
through 59 of the Verified Complaint as if the same were set forth fully at length herein.
61. On or about March 21, 2023, Plaintiff, as subcontractor, entered into the 76th Street
Subcontract with ECA, as general contractor, to perform certain work and to provide
labor, equipment, and materials in connection with the 76th Street Property, namely, the
supplying and installation of drywall and tile, painting, and removal of construction
10
Verified Complaint
12 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
debris. Pursuant to the 76th Street Subcontract, as subsequently duly amended by agreed
upon and approved change orders, the agreed upon price and value of the labor,
equipment, and materials provided by Plaintiff in connection with the 76th Street Property
was $361,811.50.
62. The 76th Street Subcontract is valid and enforceable.
63. Upon information and belief, at all times mentioned herein, ECA was acting within the
scope of its authority under its agreement with 76th Owner when ECA entered into the
76th Street Subcontract with Plaintiff.
64. Plaintiff duly performed pursuant to the 76th Street Subcontract by performing the work
and labor, and by furnishing the required materials, at the 76th Street Property in
accordance with the terms and conditions of the 76th Street Subcontract.
65. ECA materially breached the 76th Street Subcontract by failing to pay the full agreed
upon price, leaving a balance due and owing to Plaintiff of $237,939.40, no part of which
has been paid to Plaintiff by ECA although same has been duly demanded.
66. ECA breached the 76th Street Subcontract by failing to pay Plaintiff for the labor and
materials provided, leaving a balance due and owing of $237,939.40, no part of which
has been paid although same has been duly demanded.
67. Upon information and belief, 76th Owner has failed to pay ECA all of the agreed upon
amount as requested by ECA for the work performed by Plaintiff at the 76th Street
Property under the 76th Street Subcontract.
68. Despite due demand therefore, there remains an amount due and owing to Plaintiff in the
sum of $237,939.40, together with interest thereon, for work performed by Plaintiff at the
76th Street Property under the 76th Street Subcontract.
11
Verified Complaint
13 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
69. A period of greater than thirty (30) days has elapsed since Plaintiff requested payment
from ECA, and ECA has not provided Plaintiff with written notice of withholding,
specifying conditions, and identifying the amount to be withheld.
70. As a direct and proximate result of ECA’s breach of the 76th Street Subcontract, Plaintiff
has sustained compensatory damages in the amount of $237,939.40 plus interest.
71. By reason of the foregoing, Plaintiff prays that this Court enter judgment in its favor and
against ECA in the amount of $237,939.40 plus prejudgment interest, and for such other
and further relief as this Corut deems reasonable and just.
AS AND FOR PLAINTIFF’S THIRD CAUSE OF ACTION
GOODS SOLD AND DELIVERED – ECA DEVELOPERS LLC
72. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1
through 71 of the Verified Complaint as if the same were set forth fully at length herein.
73. During the period between March 23, 2023 and December 22, 2023, Plaintiff sold and
delivered to ECA, and ECA accepted, building materials and accessories as set forth
herein delivered by Plaintiff for use and incorporation into the real properties known as
340 East 52nd Street, New York, New York and 231 East 76th Street, New York, New
York, with a reasonable and agreed upon value totaling $1,784,722.50, together with
sales tax where applicable.
74. Plaintiff has received payments and/or issued credits toward the outstanding indebtedness
of ECA in the sum of $1,046,462.85, leaving a balance due and owing to Plaintiff of
$738,259.65, no part of which has been paid to Plaintiff by ECA although same has been
duly demanded.
75. As a result of the foregoing, Plaintiff has been damaged in the sum of $738,259.65 plus
interest from December 22, 2023.
AS AND FOR PLAINTIFF’S FOURTH CAUSE OF ACTION
ACCOUNT STATED – ECA DEVELOPERS LLC
12
Verified Complaint
14 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
76. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1
through 75 of the Verified Complaint as if the same were set forth fully at length herein.
77. Plaintiff has rendered statements of account to ECA stating the balance owed for the
materials provided pursuant to the 52nd Street Subcontract and 76th Street Subcontract.
78. ECA has received the statements of account and has not refuted or contested same,
thereby creating an account stated between the parties.
79. Therefore, by reason of ECA’s failure to object to the account stated, Plaintiff is entitled
to recover from ECA $500,320.25 in connection with the 52nd Street Project and
$237,939.40 in connection with the 76th Street Project, for a total sum of $738,259.65.
AS AND FOR PLAINTIFF’S FIFTH CAUSE OF ACTION
FORECLOSURE OF MECHANIC’S LIEN AGAINST ALL DEFENDANTS
(340 EAST 52ND STREET, NEW YORK, NEW YORK)
80. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1
through 79 of the Verified Complaint as if the same were set forth fully at length herein.
81. Upon information and belief, at all times relevant hereto, 52nd Owner was and is the legal
owner of the 52nd Street Property.
82. Upon information and belief, sometime before March 2023, ECA entered into a written
contract with 52nd Owner wherein ECA, as general contractor, agreed to provide
construction services on the 52nd Street Property.
83. Subsequent to the agreement between ECA and 52nd Owner, ECA requested that Plaintiff
provide labor and furnish materials to ECA for use and incorporation into the 52nd Street
Property.
84. Thereafter, on or about March 21, 2023, Plaintiff and ECA entered into the 52nd Street
Subcontract, as subsequently duly amended by agreed upon and approved change orders,
whereby ECA hired Plaintiff to provide labor and materials for use and incorporation into
the construction project of the 52nd Street Property. The fair and reasonable value of such
13
Verified Complaint
15 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
labor and materials provided by Plaintiff pursuant to the 52nd Street Subcontract is
$1,422,911.00.
85. The first day Plaintiff furnished labor and materials in connection with the 52nd Street
Property was March 23, 2023.
86. The last day Plaintiff furnished labor and materials in connection with the 52nd Street
Property was December 22, 2023.
87. The work, labor, and services performed by Plaintiff and the materials furnished by
Plaintiff were all delivered or furnished for the improvement of the 52nd Street Property
and with the knowledge and consent of 52nd Owner.
88. Plaintiff, however, was not paid in full for the labor performed and materials furnished.
89. As of December 22, 2023, the total amount unpaid for the labor performed and materials
furnished by Plaintiff pursuant to the 52nd Street Subcontract is $500,320.25, no part of
which has been paid to Plaintiff by Defendants although same has been duly demanded.
90. As of February 1, 2024, ECA had failed to pay Plaintiff for the balance due of
$500,320.25 although demand for same was duly made.
91. Consequently, on or about February 1, 2024, within eight (8) months after the final
performance of the work and the final furnishing of the materials, Plaintiff caused to be
filed in the Office of the Clerk of the County of New York, the 52nd Street Lien.
92. The 52nd Street Lien was in writing, duly verified by Plaintiff as Lienor, and in due form.
93. The Lien contained, among other things: i) the name of the owner of the Property against
whom the Lien is claimed; ii) the nature of such interest; iii) the name of the entity by
whom Plaintiff was employed, to whom it furnished materials and performed labor and
with whom the Subcontract was made; iv) the materials furnished and labor performed;
v) the agreed price and value of the materials furnished and labor performed; vi) the
amount unpaid to Plaintiff for the materials furnished and labor performed; vii) the date
14
Verified Complaint
16 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
when the first item of material was furnished and the first item of labor was performed;
viii) the date when the last item of material was furnished and the last item of labor
performed; and ix) a description of the Property sufficient for identification.
94. By reason of the foregoing, Plaintiff acquired a valid and effective lien against the 52nd
Street Property to the extent of $500,320.25, with interest thereon, and Plaintiff is entitled
to recover, in full, said sums.
95. The 52nd Street Lien has not been paid, waived, or cancelled, and no other action or
proceeding, either at law or in equity, is pending to recover the outstanding balance, or
any part thereof, in the amount of $500,320.25, except that same was discharged on or
about February 14, 2024, pursuant to Lien Law § 19(4) by the posting of a Lien
Discharge Bond by U.S. Specialty, as surety, and 52nd Owner, as principal, with the New
York County Clerk (Bond No. 1001196886).
96. Plaintiff by this cause of action seeks foreclosure of said 52nd Street Lien.
97. U.S. Specialty is made a party defendant herein as it is the surety on the 52nd Street Bond.
98. Upon information and belief, to the extent that other claims and/or liens exist against the
Property, they are subsequent and subordinate to the Lien, and Plaintiff has no knowledge
of other outstanding liens on the Property except as set forth herein.
AS AND FOR PLAINTIFF’S SIXTH CAUSE OF ACTION
FORECLOSURE OF MECHANIC’S LIEN AGAINST ALL DEFENDANTS
(231 EAST 76TH STREET, NEW YORK, NEW YORK)
99. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1
through 98 of the Verified Complaint as if the same were set forth fully at length herein.
100. Upon information and belief, at all times relevant hereto, 76th Owner was and is
the legal owner of the 76th Street Property.
15
Verified Complaint
17 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
101. Upon information and belief, sometime before March 2023, ECA entered into a
written contract with 76th Owner wherein ECA, as general contractor, agreed to provide
construction services on the 76th Street Property.
102. Subsequent to the agreement between ECA and 76th Owner, ECA requested that
Plaintiff provide labor and furnish materials to ECA for use and incorporation into the
76th Street Property.
103. Thereafter, on or about March 21, 2023, Plaintiff and ECA entered into the 76th
Street Subcontract, as subsequently duly amended by agreed upon and approved change
orders, whereby ECA hired Plaintiff to provide labor and materials for use and
incorporation into the construction project of the 76th Street Property. The fair and
reasonable value of such labor and materials provided by Plaintiff pursuant to the 76th
Street Subcontract is $361,811.50.
104. The first day Plaintiff furnished labor and materials in connection with the 76th
Street Property was April 30, 2023.
105. The last day Plaintiff furnished labor and materials in connection with the 76th
Street Property was July 7, 2023.
106. The work, labor, and services performed by Plaintiff and the materials furnished
by Plaintiff were all delivered or furnished for the improvement of the 76th Street
Property and with the knowledge and consent of 76th Owner.
107. Plaintiff, however, was not paid in full for the labor performed and materials
furnished.
108. As of July 7, 2023, the total amount unpaid for the labor performed and materials
furnished by Plaintiff pursuant to the 76th Street Subcontract is $237,939.40, no part of
which has been paid to Plaintiff by Defendants although same has been duly demanded.
16
Verified Complaint
18 of 27
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024
109. As of February 1, 2024, ECA had failed to pay Plaintiff for the balance due of
$237,949.40 although demand for same was duly made.
110. Consequently, on or about February 1, 2024, within eight (8) months after the
final performance of the work and the final furnishing of the materials, Plaintiff caused to
be filed in the Office of the Clerk of the County of New York, the 76th Street Lien.
111. The 76th Street Lien was in writing, duly verified by Plaintiff as Lienor, and in
due form.
112. The Lien contained, among other things: i) the name of the owner of the Property
against whom the Lien is claimed; ii) the nature of such interest; iii) the name of the
entity by whom Plaintiff was employed, to whom it furnished materials and performed
labor and with whom the Subcontract was made; iv) the materials furnished and labor
performed; v) the agreed price and value of the materials furnished and labor performed;
vi) the amount unpaid to Plaintiff for the materials furnished and labor performed; vii) the
date when the first item of material was furnished and the first item of labor was
performed; viii) the date when the last item of material was furnished and the last item of
labor performed; and ix) a description of the Property sufficient for identification.
113. By reason of the foregoing, Plaintiff acquired a valid and effective lien against the
76th Street Property to the extent of $237,939.40, with interest thereon, and Plaintiff is
entitled to recover, in full, said sums.
114. The 76th Street Lien ha
Preview
FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VIRTUOSO TILE & STONE CORP., Index No.: _______________ Plaintiff, SUMMONS -against- Plaintiff Designates New York County as the place for trial. CREFMA1 340 EAST 52ND OWNER LLC; CREFMA1 231 EAST 76TH OWNER LLC; Venue is based on CPLR § 507 because the U.S. SPECIALTY INSURANCE real property that is at issue herein is located COMPANY; and ECA DEVELOPERS LLC, in New York County, New York and because a substantial part of the events giving rise to Defendants. this lawsuit occurred in this judicial district. To the above-named Defendants: YOU ARE HEREBY 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 Plaintiff’s attorneys within twenty (20) days after the service of this summons, exclusive of the day of service (or within thirty (30) days after service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded herein. Plaintiff designates New York County as the place of trial. The basis of venue is pursuant to CPLR § 507 because the real property at issue in this action is located in New York County, New York and a substantial part of the vents giving rise to this action occurred in this judicial district. Further, venue is proper in this Court pursuant to CPLR § 503(a) as Plaintiff’s residence and/or principal place of business is in New York County. 1 1 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 Dated: New York, New York June 7, 2024 THE POSTLETHWAITE LAW FIRM PLLC _______________________________ Preston J. Postlethwaite, Esq. 100 Park Avenue, 16th Floor New York, New York 10017 (646) 389-3202 (phone) (646) 619-4733 (fax) PJP@postlethwaitelaw.com Attorneys for Plaintiff Defendants’ Addresses: CREFMA1 340 EAST 52ND OWNER LLC c/o Fortress Investment Group 1345 Avenue of Americas, 46th Floor Attn: David Scheible New York, New York 10105 CREFMA1 231 East 76th Owner LLC c/o Fortress Investment Group 1345 Avenue of Americas, 46th Floor Attn: David Scheible New York, New York 10105 U.S. SPECIALTY INSURANCE COMPANY 600 Lexington Avenue New York, New York 10022 ECA DEVELOPERS LLC 25-52 Crescent Street Astoria, New York 11102 2 2 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VIRTUOSO TILE & STONE CORP., Index No.: _______________ Plaintiff, VERIFIED COMPLAINT -against- CREFMA1 340 EAST 52ND OWNER LLC; CREFMA1 231 EAST 76TH OWNER LLC; U.S. SPECIALTY INSURANCE COMPANY; and ECA DEVELOPERS LLC, . Defendants. Plaintiff Virtuoso Tile & Stone Corp., by and through its counsel, The Postlethwaite Law Firm PLLC, as and for its Verified Complaint against Defendants CREFMA1 340 East 52nd Owner LLC; CREFMA1 231 East 76th Owner LLC; U.S. Specialty Insurance Company; and ECA Developers LLC, alleges as follows: PARTIES 1. Plaintiff Virtuoso Tile & Stone Corp. (“Plaintiff”) is a business corporation organized and existing under the laws of the State of New York, with a principal place of business located at 519 Eighth Avenue, 7th Floor, New York, New York 10018. 2. Defendant CREFMA1 340 East 52nd Owner LLC (“52nd Owner”), upon information and belief, is a foreign limited liability company organized and existing under the laws of the State of Delaware, with an office for the conduct of its business in New York State located at 1345 Avenue of Americas, 46th Floor, New York, New York 10105. 52nd Owner was and still is the owner of certain real property located in the State of New York, County of New York known as 340 East 52nd Street, New York, New York also known as Block: 1344, Lot: 33. 3. Defendant CREFMA1 231 East 76th Owner LLC (“76th Owner”), upon information and belief, is a foreign limited liability company organized and existing under the laws of the 1 Verified Complaint 3 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 State of Delaware, with an office for the conduct of its business in New York State located at 1345 Avenue of Americas, 46th Floor, New York, New York 10105. 76th Owner was and still is the owner of certain real property located in the State of New York, County of New York known as 231 East 76th Street, New York, New York also known as Block: 1431, Lot: 16. 4. Defendant U.S. Specialty Insurance Company (“U.S. Specialty” or “Surety”), upon information and belief, is a foreign business corporation organized and existing under the laws of the State of Texas, with an office for the conduct of its business in New York State located at 600 Lexington Avenue, New York, New York 10022. 5. Defendant ECA Developers LLC (“ECA”), upon information and belief, is a limited liability company organized and existing under the laws of the State of New York, with a principal place of business located at 25-52 Crescent St., Astoria, New York 11102. VENUE AND JURISDICTION 6. Venue is proper in this Court pursuant to CPLR § 507 because the real property that is at issue herein is located in New York County, New York and because a substantial part of the events giving rise to this lawsuit occurred in this judicial district. 7. This Court has jurisdiction over each of the Defendants because each of them is a resident of the State of New York and/or regularly transacts and conducts business within the State of New York. THE RELATIONSHIP AMONG THE PARTIES 8. This action concerns two parcels of real property situated in the City and State of New York, County of New York: 340 E. 52nd Street, New York, New York 10022, with an original tax map designation of Block: 1344, Lot: 33 (the “52nd Street Property”); and 231 East 76th Street, New York, New York 10021, with an original tax map designation of Block: 1431, Lot: 16 (the “76th Street Property”). 2 Verified Complaint 4 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 9. The 52nd Street Property is legally described as: Town of: New York Borough: Manhattan Block: 1344 Lot: 33 ALL that certain plot, piece or parcel of land, situate, lying and being in the Borough of Manhattan, City, County and State of New York, bounded and described as follows: BEGINNING at a point on the southerly side of 52nd Street, distant 150 feet westerly from the corner formed by the intersection of the southerly side of 52nd Street with the westerly side of First Avenue; RUNNING THENCE southerly parallel with First Avenue and part of the distance through a party wall, 100 feet 5 inches to the centre line of the block; THENCE westerly parallel with 52nd Street, 80 feet; THENCE northerly parallel with First Avenue and part of the distance through a party wall, 100 feet 5 inches to the southerly side of 52nd Street; and THENCE easterly along the southerly side of 52nd Street, 80 feet to the point or place of BEGINNING. 10. The 76th Street Property is Legally Described as: Town of: New York Borough: Manhattan Block: 1431 Lot: 16 ALL that certain plot, piece or parcel of land, situate, lying and being in the City, County and State of New York, bounded and described as follows: BEGINNING at a point on the northerly side of 76th Street, distant 100 feet westerly from the corner formed by the intersection of the westerly line or side of Second Avenue with the northerly line or side of 76th Street; RUNNING THENCE northerly and parallel with Second Avenue, 102 feet 2 inches to the center line of the block between 76th and 77th Street; THENCE westerly along said center line and parallel with 76th Street, 130 feet; THENCE southerly and parallel with Second Avenue, 102 feet 2 inches to the northerly side of76th Street; and THENCE easterly along the northerly side of 76th Street, 130 feet to the point or place of BEGINNING. 3 Verified Complaint 5 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 11. Upon information and belief, 52nd Owner became the owner of the Property pursuant to a deed, dated and recorded in the office of the New York County Clerk on June 10, 2022. 12. Upon information and belief, 76th Owner became the owner of the 76th Street Property pursuant to a deed, dated and recorded in the office of the New York County Clerk on June 10, 2022. 13. Upon information and belief, sometime before March 2023, Defendant ECA entered into a written contract with 52nd Owner wherein ECA, as general contractor, agreed to provide construction services on the 52nd Street Property. Plaintiff respectfully requests leave to refer to said contract at the trial of this matter as if more fully incorporated herein. 14. Upon information and belief, sometime before March 2023, Defendant ECA also entered into a written contract with 76th Owner wherein ECA, as general contractor, agreed to provide constructions services on the 76th Street Property. Plaintiff respectfully requests leave to refer to said contract at the trial of this matter as if more fully incorporated herein. THE 52ND STREET SUBCONTRACT 15. Thereafter, on or about March 21, 2023, Plaintiff (as subcontractor) and ECA (as contractor) entered into a Contractor & Subcontractor Agreement (the “52nd Street Subcontract”), as subsequently duly amended by agreed upon and approved change orders, whereby ECA hired Plaintiff to provide labor and materials for use and incorporation into the construction project of the 52nd Street Property (the “52nd Street Project”). The fair and reasonable value of such labor and materials provided by Plaintiff pursuant to the 52nd Street Subcontract is $1,422,911.00, of which $500,320.25 remains unpaid. 16. Pursuant to the 52nd Street Subcontract, Plaintiff began work and furnished materials in connection with the Project on March 23, 2023. 4 Verified Complaint 6 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 17. Plaintiff performed the last item of work and furnished the last item of materials in connection with the 52nd Street Project on December 22, 2023. 18. Throughout this time period, Plaintiff performed labor and furnished materials in connection with the 52nd Street Project pursuant to its duties and obligations under the 52nd Street Subcontract. The agreed price and value of the labor performed and value of materials furnished by Plaintiff is $1,422.911.00. 19. Throughout this time period, Plaintiff issued invoices to ECA detailing the labor and materials provided and furnished to ECA pursuant to the 52nd Street Subcontract, and which were accepted by ECA, between March 23, 2023 and December 22, 2023. 20. All such labor provided and materials furnished by Plaintiff pursuant to the 52nd Street Subcontract were done with the consent, authorization, and/or knowing permission of ECA and 52nd Owner. 21. Upon information and belief, 52nd Owner consented to the 52nd Street Subcontract. 22. Plaintiff substantially performed all of its obligations required under the 52nd Street Subcontract, except those obligations as to which Plaintiff has been relieved by reason of ECA’s and/or 52nd Owner’s failure to pay Plaintiff; by reason of ECA’s and/or 52nd Owner’s consent; and/or by reason of ECA’s and/or 52nd Owner’s breach of the 52nd Street Subcontract. 23. All of the materials furnished and labor provided by Plaintiff at the 52nd Street Property were accepted by ECA and/or 52nd Owner and enhanced the value of the 52nd Street Property to the extent, or in excess of, $1,422.911.00. 24. Plaintiff, however, was not paid in full for the labor performed and materials furnished. 25. As of December 22, 2023, the total amount unpaid for the labor performed and materials furnished by Plaintiff pursuant to the 52nd Street Subcontract is $500,320.25. THE 76TH STREET SUBCONTRACT 5 Verified Complaint 7 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 26. On or about March 21, 2023, Plaintiff (as subcontractor) and ECA (as contractor) entered into a Contractor & Subcontractor Agreement (the “76th Street Subcontract”), as subsequently duly amended by agreed upon and approved change orders, whereby ECA hired Plaintiff to provide labor and materials for use and incorporation into the construction project of the 76th Street Property (the “76th Street Project”). The fair and reasonable value of such labor and materials provided by Plaintiff pursuant to the 76th Street Subcontract is $361,811.50, of which $237,939.40 remains unpaid. 27. Pursuant to the 76th Street Subcontract, Plaintiff began work and furnished materials in connection with the Project on April 30, 2023. 28. Plaintiff performed the last item of work and furnished the last item of materials in connection with the 76th Street Project on July 7, 2023. 29. Throughout this time period, Plaintiff performed labor and furnished materials in connection with the 76th Street Project pursuant to its duties and obligations under the 76th Street Subcontract. The agreed price and value of the labor performed and value of materials furnished by Plaintiff is $361,811.50. 30. Throughout this time period, Plaintiff issued invoices to ECA detailing the labor and materials provided and furnished to ECA pursuant to the 76th Street Subcontract, and which were accepted by ECA, between April 30, 2023, and July 7, 2023. 31. All such labor provided and materials furnished by Plaintiff pursuant to the 76th Street Subcontract were done with the consent, authorization, and/or knowing permission of ECA and 76th Owner. 32. Upon information and belief, 76th Owner consented to the 76th Street Subcontract. 33. Plaintiff substantially performed all of its obligations required under the 76th Street Subcontract, except those obligations as to which Plaintiff has been relieved by reason of ECA’s and/or 76th Owner’s failure to pay Plaintiff; by reason of ECA’s and/or 76th 6 Verified Complaint 8 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 Owner’s consent; and/or by reason of ECA’s and/or 76th Owner’s breach of the 76th Street Subcontract. 34. All of the materials furnished and labor provided by Plaintiff at the 76th Street Property were accepted by ECA and/or 76th Owner and enhanced the value of the 76th Street Property to the extent, or in excess of, $361,811.50. 35. Plaintiff, however, was not paid in full for the labor performed and materials furnished. 36. As of July 7, 2023, the total amount unpaid for the labor performed and materials furnished by Plaintiff pursuant to the 76th Street Subcontract is $237,939.40. THE LIENS 37. As a result of ECA’s failure to honor its payment obligations to Plaintiff under the 52nd Street and 76th Street Subcontracts, on or about February 1, 2024, Plaintiff filed: i) a Notice Under Mechanic’s Lien in the sum of Five Hundred Thousand Three Hundred Twenty Dollars and Twenty-Five Cents ($500,320.25) in the office of the Clerk of the County of New York against the 52nd Street Property in connection with labor and materials furnished by Plaintiff at the 52nd Street Property (the “52nd Street Lien”); and ii) a Notice Under Mechanic’s Lien in the sum of Two Hundred Thirty-Seven Thousand Nine Hundred and Thirty-Nine Dollars and Forty Cents ($237,939.40) in the office of the Clerk of the County of New York against the 76th Street Property in connection with labor and materials furnished by Plaintiff at the 76th Street Property (the “76th Street Lien”). 38. Copies of the two Notices Under Mechanic’s Lien filed by Plaintiff with the New York County Clerk are attached hereto and incorporated herein by reference as Exhibit A and Exhibit B. 39. On February 29, 2024, Plaintiff served a copy of the 52nd Street Lien upon ECA and 52nd Owner and thereafter filed with the New York County Clerk proof of service of the 52nd 7 Verified Complaint 9 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 Street Lien upon said parties. A copy of the filed proof of service is attached hereto and incorporated herein by reference as Exhibit C. 40. On February 14, 2024, 52nd Owner, as principal, and U.S. Specialty, as surety, issued a bond in the amount of Five Hundred Fifty Thousand Three Hundred and Fifty-Two Dollars and Twenty-Eight Cents ($550,352.28) to discharge the 52nd Street Lien as against the 52nd Street Property (the “52nd Street Bond”). A true and correct copy of the filed 52nd Street Bond is attached hereto as Exhibit D. 41. On February 27, 2024, the 52nd Street Bond was filed in the office of the New York County Clerk. 42. Plaintiff now makes a payment claim in the amount of $500,320.25 on the 52nd Street Bond for unpaid sums due to Plaintiff for its work on the 52nd Street Project. 43. On February 29, 2024, Plaintiff served a copy of the 76th Street Lien upon ECA and 76th Owner and thereafter filed with the New York County Clerk proof of service of the 76th Street Lien upon said parties. A copy of the filed proof of service is attached hereto and incorporated herein by reference as Exhibit E. 44. On February 14, 2024, 76th Owner, as principal, and U.S. Specialty, as surety, issued a bond in the amount of Two Hundred Sixty-One Thousand Seven Hundred Thirty-Three and Thirty-Four Cents ($261,733.34) to discharge the Lien as against the 76th Street Property (the “76th Street Bond”). A true and correct copy of the filed 76th Street Bond is attached hereto as Exhibit F. 45. On February 27, 2024, the 76th Street Bond was filed in the office of the New York County Clerk. 46. Thereafter, 76th Owner served a notice on Plaintiff, dated March 1, 2024, demanding that Plaintiff commence an action to enforce the 76th Street Lien pursuant to Lien Law § 59. 8 Verified Complaint 10 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 47. Plaintiff now makes a payment claim in the amount of $237,939.40 on the 76th Street Bond for unpaid sums due to Plaintiff for its work on the 76th Street Project. AS AND FOR PLAINTIFF’S FIRST CAUSE OF ACTION BREACH OF 52ND STREET SUBCONTRACT – ECA DEVELOPERS LLC 48. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 47 of the Verified Complaint as if the same were set forth fully at length herein. 49. On or about March 21, 2023, Plaintiff, as subcontractor, entered into the 52nd Street Subcontract with ECA, as general contractor, to perform certain work and to provide labor, equipment, and materials in connection with the 52nd Street Property, namely, the supplying and installation of drywall and tile, painting, and removal of construction debris. Pursuant to the 52nd Street Subcontract, as subsequently duly amended by agreed upon and approved change orders, the agreed upon price and value of the labor, equipment, and materials provided by Plaintiff in connection with the 52nd Street Property was $1,422.911.00. 50. The 52nd Street Subcontract is valid and enforceable. 51. Upon information and belief, at all times mentioned herein, ECA was acting within the scope of its authority under its agreement with 52nd Owner when ECA entered into the 52nd Street Subcontract with Plaintiff. 52. Plaintiff duly performed pursuant to the 52nd Street Subcontract by performing the work and labor, and by furnishing the required materials, at the 52nd Street Property in accordance with the terms and conditions of the 52nd Street Subcontract. 53. ECA materially breached the 52nd Street Subcontract by failing to pay the full agreed upon price, leaving a balance due and owing to Plaintiff of $500,320.25, no part of which has been paid to Plaintiff by ECA although same has been duly demanded. 9 Verified Complaint 11 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 54. ECA breached the 52nd Street Subcontract by failing to pay Plaintiff for the labor and materials provided, leaving a balance due and owing of $500,320.25, no part of which has been paid although same has been duly demanded. 55. Upon information and belief, 52nd Owner has failed to pay ECA all of the agreed upon amount as requested by ECA for the work performed by Plaintiff at the 52nd Street Property under the 52nd Street Subcontract. 56. Despite due demand therefore, there remains an amount due and owing to Plaintiff in the sum of $500,320.25, together with interest thereon, for work performed by Plaintiff at the 52nd Street Property under the 52nd Street Subcontract. 57. A period of greater than thirty (30) days has elapsed since Plaintiff requested payment from ECA, and ECA has not provided Plaintiff with written notice of withholding, specifying conditions, and identifying the amount to be withheld. 58. As a direct and proximate result of ECA’s breach of the 52nd Street Subcontract, Plaintiff has sustained compensatory damages in the amount of $500,320.25 plus interest. 59. By reason of the foregoing, Plaintiff prays that this Court enter judgment in its favor and against ECA in the amount of $500,320.25 plus prejudgment interest, and for such other and further relief as this Corut deems reasonable and just. AS AND FOR PLAINTIFF’S SECOND CAUSE OF ACTION BREACH OF 76TH STREET SUBCONTRACT – ECA DEVELOPERS LLC 60. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 59 of the Verified Complaint as if the same were set forth fully at length herein. 61. On or about March 21, 2023, Plaintiff, as subcontractor, entered into the 76th Street Subcontract with ECA, as general contractor, to perform certain work and to provide labor, equipment, and materials in connection with the 76th Street Property, namely, the supplying and installation of drywall and tile, painting, and removal of construction 10 Verified Complaint 12 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 debris. Pursuant to the 76th Street Subcontract, as subsequently duly amended by agreed upon and approved change orders, the agreed upon price and value of the labor, equipment, and materials provided by Plaintiff in connection with the 76th Street Property was $361,811.50. 62. The 76th Street Subcontract is valid and enforceable. 63. Upon information and belief, at all times mentioned herein, ECA was acting within the scope of its authority under its agreement with 76th Owner when ECA entered into the 76th Street Subcontract with Plaintiff. 64. Plaintiff duly performed pursuant to the 76th Street Subcontract by performing the work and labor, and by furnishing the required materials, at the 76th Street Property in accordance with the terms and conditions of the 76th Street Subcontract. 65. ECA materially breached the 76th Street Subcontract by failing to pay the full agreed upon price, leaving a balance due and owing to Plaintiff of $237,939.40, no part of which has been paid to Plaintiff by ECA although same has been duly demanded. 66. ECA breached the 76th Street Subcontract by failing to pay Plaintiff for the labor and materials provided, leaving a balance due and owing of $237,939.40, no part of which has been paid although same has been duly demanded. 67. Upon information and belief, 76th Owner has failed to pay ECA all of the agreed upon amount as requested by ECA for the work performed by Plaintiff at the 76th Street Property under the 76th Street Subcontract. 68. Despite due demand therefore, there remains an amount due and owing to Plaintiff in the sum of $237,939.40, together with interest thereon, for work performed by Plaintiff at the 76th Street Property under the 76th Street Subcontract. 11 Verified Complaint 13 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 69. A period of greater than thirty (30) days has elapsed since Plaintiff requested payment from ECA, and ECA has not provided Plaintiff with written notice of withholding, specifying conditions, and identifying the amount to be withheld. 70. As a direct and proximate result of ECA’s breach of the 76th Street Subcontract, Plaintiff has sustained compensatory damages in the amount of $237,939.40 plus interest. 71. By reason of the foregoing, Plaintiff prays that this Court enter judgment in its favor and against ECA in the amount of $237,939.40 plus prejudgment interest, and for such other and further relief as this Corut deems reasonable and just. AS AND FOR PLAINTIFF’S THIRD CAUSE OF ACTION GOODS SOLD AND DELIVERED – ECA DEVELOPERS LLC 72. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 71 of the Verified Complaint as if the same were set forth fully at length herein. 73. During the period between March 23, 2023 and December 22, 2023, Plaintiff sold and delivered to ECA, and ECA accepted, building materials and accessories as set forth herein delivered by Plaintiff for use and incorporation into the real properties known as 340 East 52nd Street, New York, New York and 231 East 76th Street, New York, New York, with a reasonable and agreed upon value totaling $1,784,722.50, together with sales tax where applicable. 74. Plaintiff has received payments and/or issued credits toward the outstanding indebtedness of ECA in the sum of $1,046,462.85, leaving a balance due and owing to Plaintiff of $738,259.65, no part of which has been paid to Plaintiff by ECA although same has been duly demanded. 75. As a result of the foregoing, Plaintiff has been damaged in the sum of $738,259.65 plus interest from December 22, 2023. AS AND FOR PLAINTIFF’S FOURTH CAUSE OF ACTION ACCOUNT STATED – ECA DEVELOPERS LLC 12 Verified Complaint 14 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 76. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 75 of the Verified Complaint as if the same were set forth fully at length herein. 77. Plaintiff has rendered statements of account to ECA stating the balance owed for the materials provided pursuant to the 52nd Street Subcontract and 76th Street Subcontract. 78. ECA has received the statements of account and has not refuted or contested same, thereby creating an account stated between the parties. 79. Therefore, by reason of ECA’s failure to object to the account stated, Plaintiff is entitled to recover from ECA $500,320.25 in connection with the 52nd Street Project and $237,939.40 in connection with the 76th Street Project, for a total sum of $738,259.65. AS AND FOR PLAINTIFF’S FIFTH CAUSE OF ACTION FORECLOSURE OF MECHANIC’S LIEN AGAINST ALL DEFENDANTS (340 EAST 52ND STREET, NEW YORK, NEW YORK) 80. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 79 of the Verified Complaint as if the same were set forth fully at length herein. 81. Upon information and belief, at all times relevant hereto, 52nd Owner was and is the legal owner of the 52nd Street Property. 82. Upon information and belief, sometime before March 2023, ECA entered into a written contract with 52nd Owner wherein ECA, as general contractor, agreed to provide construction services on the 52nd Street Property. 83. Subsequent to the agreement between ECA and 52nd Owner, ECA requested that Plaintiff provide labor and furnish materials to ECA for use and incorporation into the 52nd Street Property. 84. Thereafter, on or about March 21, 2023, Plaintiff and ECA entered into the 52nd Street Subcontract, as subsequently duly amended by agreed upon and approved change orders, whereby ECA hired Plaintiff to provide labor and materials for use and incorporation into the construction project of the 52nd Street Property. The fair and reasonable value of such 13 Verified Complaint 15 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 labor and materials provided by Plaintiff pursuant to the 52nd Street Subcontract is $1,422,911.00. 85. The first day Plaintiff furnished labor and materials in connection with the 52nd Street Property was March 23, 2023. 86. The last day Plaintiff furnished labor and materials in connection with the 52nd Street Property was December 22, 2023. 87. The work, labor, and services performed by Plaintiff and the materials furnished by Plaintiff were all delivered or furnished for the improvement of the 52nd Street Property and with the knowledge and consent of 52nd Owner. 88. Plaintiff, however, was not paid in full for the labor performed and materials furnished. 89. As of December 22, 2023, the total amount unpaid for the labor performed and materials furnished by Plaintiff pursuant to the 52nd Street Subcontract is $500,320.25, no part of which has been paid to Plaintiff by Defendants although same has been duly demanded. 90. As of February 1, 2024, ECA had failed to pay Plaintiff for the balance due of $500,320.25 although demand for same was duly made. 91. Consequently, on or about February 1, 2024, within eight (8) months after the final performance of the work and the final furnishing of the materials, Plaintiff caused to be filed in the Office of the Clerk of the County of New York, the 52nd Street Lien. 92. The 52nd Street Lien was in writing, duly verified by Plaintiff as Lienor, and in due form. 93. The Lien contained, among other things: i) the name of the owner of the Property against whom the Lien is claimed; ii) the nature of such interest; iii) the name of the entity by whom Plaintiff was employed, to whom it furnished materials and performed labor and with whom the Subcontract was made; iv) the materials furnished and labor performed; v) the agreed price and value of the materials furnished and labor performed; vi) the amount unpaid to Plaintiff for the materials furnished and labor performed; vii) the date 14 Verified Complaint 16 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 when the first item of material was furnished and the first item of labor was performed; viii) the date when the last item of material was furnished and the last item of labor performed; and ix) a description of the Property sufficient for identification. 94. By reason of the foregoing, Plaintiff acquired a valid and effective lien against the 52nd Street Property to the extent of $500,320.25, with interest thereon, and Plaintiff is entitled to recover, in full, said sums. 95. The 52nd Street Lien has not been paid, waived, or cancelled, and no other action or proceeding, either at law or in equity, is pending to recover the outstanding balance, or any part thereof, in the amount of $500,320.25, except that same was discharged on or about February 14, 2024, pursuant to Lien Law § 19(4) by the posting of a Lien Discharge Bond by U.S. Specialty, as surety, and 52nd Owner, as principal, with the New York County Clerk (Bond No. 1001196886). 96. Plaintiff by this cause of action seeks foreclosure of said 52nd Street Lien. 97. U.S. Specialty is made a party defendant herein as it is the surety on the 52nd Street Bond. 98. Upon information and belief, to the extent that other claims and/or liens exist against the Property, they are subsequent and subordinate to the Lien, and Plaintiff has no knowledge of other outstanding liens on the Property except as set forth herein. AS AND FOR PLAINTIFF’S SIXTH CAUSE OF ACTION FORECLOSURE OF MECHANIC’S LIEN AGAINST ALL DEFENDANTS (231 EAST 76TH STREET, NEW YORK, NEW YORK) 99. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 98 of the Verified Complaint as if the same were set forth fully at length herein. 100. Upon information and belief, at all times relevant hereto, 76th Owner was and is the legal owner of the 76th Street Property. 15 Verified Complaint 17 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 101. Upon information and belief, sometime before March 2023, ECA entered into a written contract with 76th Owner wherein ECA, as general contractor, agreed to provide construction services on the 76th Street Property. 102. Subsequent to the agreement between ECA and 76th Owner, ECA requested that Plaintiff provide labor and furnish materials to ECA for use and incorporation into the 76th Street Property. 103. Thereafter, on or about March 21, 2023, Plaintiff and ECA entered into the 76th Street Subcontract, as subsequently duly amended by agreed upon and approved change orders, whereby ECA hired Plaintiff to provide labor and materials for use and incorporation into the construction project of the 76th Street Property. The fair and reasonable value of such labor and materials provided by Plaintiff pursuant to the 76th Street Subcontract is $361,811.50. 104. The first day Plaintiff furnished labor and materials in connection with the 76th Street Property was April 30, 2023. 105. The last day Plaintiff furnished labor and materials in connection with the 76th Street Property was July 7, 2023. 106. The work, labor, and services performed by Plaintiff and the materials furnished by Plaintiff were all delivered or furnished for the improvement of the 76th Street Property and with the knowledge and consent of 76th Owner. 107. Plaintiff, however, was not paid in full for the labor performed and materials furnished. 108. As of July 7, 2023, the total amount unpaid for the labor performed and materials furnished by Plaintiff pursuant to the 76th Street Subcontract is $237,939.40, no part of which has been paid to Plaintiff by Defendants although same has been duly demanded. 16 Verified Complaint 18 of 27 FILED: NEW YORK COUNTY CLERK 06/10/2024 12:41 PM INDEX NO. 155331/2024 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/10/2024 109. As of February 1, 2024, ECA had failed to pay Plaintiff for the balance due of $237,949.40 although demand for same was duly made. 110. Consequently, on or about February 1, 2024, within eight (8) months after the final performance of the work and the final furnishing of the materials, Plaintiff caused to be filed in the Office of the Clerk of the County of New York, the 76th Street Lien. 111. The 76th Street Lien was in writing, duly verified by Plaintiff as Lienor, and in due form. 112. The Lien contained, among other things: i) the name of the owner of the Property against whom the Lien is claimed; ii) the nature of such interest; iii) the name of the entity by whom Plaintiff was employed, to whom it furnished materials and performed labor and with whom the Subcontract was made; iv) the materials furnished and labor performed; v) the agreed price and value of the materials furnished and labor performed; vi) the amount unpaid to Plaintiff for the materials furnished and labor performed; vii) the date when the first item of material was furnished and the first item of labor was performed; viii) the date when the last item of material was furnished and the last item of labor performed; and ix) a description of the Property sufficient for identification. 113. By reason of the foregoing, Plaintiff acquired a valid and effective lien against the 76th Street Property to the extent of $237,939.40, with interest thereon, and Plaintiff is entitled to recover, in full, said sums. 114. The 76th Street Lien ha