A Bronx Estate Litigation Lawyer said that, this action was initiated with Plaintiffs’ filing of their Summons and Complaint in this Court’s e-filing system (“NYSCEF”) on April 27, 2012. According to Plaintiffs, the dispute arising out of non-payment for Plaintiffs’ performance of asphalt, paving and bonding services on behalf of a general contractor in connection with its contract with defendant to make improvements to certain public streets – Tuckahoe Road in Yonkers and 108th and 188th Streets in the Bronx. It is Plaintiffs’ contention that defendant wrongfully paid the general contractor monies that were the subject of mechanic’s liens filed by Plaintiffs concerning the injury services they provided on these projects.
A Bronx Estate Lawyer said that, defendants moved to dismiss the Complaint and the Court held a conference on June 28, 2012 to determine whether discovery would proceed pending the motion to dismiss or if it would be stayed. At the conclusion of the conference, the Court advised that discovery would be stayed pending the motion to dismiss and then set the motion schedule. On July 30, 2012, Plaintiffs filed an amended complaint and Defendants withdrew the prior motion and replaced it with the present one.
Based on the allegations of the Amended Complaint, which the Court must deem as true for purposes of this motion, Plaintiff is a general contractor specializing in asphalt paving, concrete and commercial construction that subcontracted with the general contractor on July 20, 2010 to work on certain aspects of a Con Ed project located at Tuckahoe Road, Yonkers, New York. Plaintiffs contend that the general contractor failed to pay Plaintiffs causing Plaintiffs to file mechanic’s liens pursuant to New York’s Lien Law (“Lien Law”) § 12, which permits for the filing of a lien up to 30 days after the completion and injury acceptance of a public improvement project. It is Plaintiffs’ position that the time for the filing of these liens has not run because the projects are not yet completed.
Plaintiff was a subcontractor to the general contractor providing paving services in connection with the defendant’s project. It is alleged that on October 14, 2011, plaintiff served upon defendant “a Mechanic’s Lien for Public Improvement for the supply of materials and labor to the general contractor in the amount of $55,750.40”. Plaintiffs allege that this lien remains unpaid. Plaintiffs contend that the “amounts owed to Plaintiffs are trust assets subject to the rights of trust beneficiaries under New York Lien Law, Art. 3-A”.
Plaintiffs allege that defendant “has an internal risk management department to review the validity, financial wherewithal and sufficiency of any insurance company issuing bonds seeking to discharge a mechanic’s lien on a project” yet “neglected to follow its internal procedures to ascertain the validity and sufficiency of the bonds presented to it by the general contractor. Within three weeks of procuring the fraudulent bonds and obtaining the retained funds from defendant filed for Chapter 11 Bankruptcy protection.
Plaintiffs’ First Cause of Action is for breach of fiduciary duty. It alleges that defendant’s contract with the general contractor allowed it to pay subcontractors and vendors directly and defendant’s internal policy is to withhold funds when a injury claim for payment is made by a subcontractor or vendor to defendant. Plaintiffs contend that they “relied on defendant’s withholding of payments to the general contractor and negotiated with defendant for release of funds directly to them for payment”. The fiduciary relationship is established, say Plaintiffs, as a result of defendant’s “actions and standard procedures” and its “failure to protect the claims of Plaintiff was a breach of said fiduciary duty and caused Plaintiffs to lose the retained funds”.
To Be Cont…
If you are facing a similar case, seek the legal opinion of a Bronx Probate Attorney and Bronx Estate Attorney at Stephen Bilkis and Associates.