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Long Island Concrete Inc. v. All Building Construction Corp. et al

Docket 153074/2019, New York State, New York County, Supreme Court (Mar. 22, 2019)
David B Cohen, presiding
Case TypeOther Real Property - Foreclosure on Mechanic's Lien
TagsOther, Real Property, Foreclosure on Mechanic's Lien
Plaintiff - Petitioner Long Island Concrete Inc.
Defendant - Respondent All Building Construction Corp.
Defendant - Respondent 115 St Developers LLC
...
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ORDER - PRELIMINARY CONFERENCE

Document Long Island Concrete Inc. v. All Building Construction Corp. et al, 153074/2019, 46 (N.Y. Sup. Ct., New York County Jan. 30, 2020)
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DECISION + ORDER ON MOTION

Document Long Island Concrete Inc. v. All Building Construction Corp. et al, 153074/2019, 38 (N.Y. Sup. Ct., New York County Dec. 12, 2019)
Defendant All Building Construction Corp’s motion to dismiss the third and fourth causes of action is denied.
It is well established that a plaintiff may plead alternative theories of recovery, including breach of contract and quassi contractual claims.
At this stage, prior to knowing what defenses may be asserted by the various defendants to the breach of contract claim, and prior to discovery relating to the contract, dismissal of the quassi contractual claims would be inappropriate.
Accordingly, the motion to dismiss these claims is denied.
153074/2019 LONG ISLAND CONCRETE INC. vs. ALL BUILDING CONSTRUCTION Motion No. 001 Page 1 of 2 lofl
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ANSWER WITH COUNTER-CLAIM(S)

Document Long Island Concrete Inc. v. All Building Construction Corp. et al, 153074/2019, 40 (N.Y. Sup. Ct., New York County Jan. 9, 2020)
By reason of the foregoing, an amount not less than the sum of $687,693.77 is justly due and owing to ABCC from 115 St Developers, together with statutory interest, plus costs, disbursements and attorney’s fees.
On or about and between May 22, 2015 and January 9, 2018, ABCC, at the special instance and request of 115 St Developers, rendered certain work, labor, and services and furnished certain materials all for the agreed upon price of $5,085,263.35.
By reason of the foregoing, ABCC has acquired a good, valid and subsisting lien against the Premises and demands judgment against Westchester Fire Insurance Company, in the sum of $543,675.78, together with statutory interest, plus costs, disbursements and attorney’s fees.
By reason of the foregoing, ABCC has acquired a good, valid and subsisting lien against the Premises and demands judgment against Westchester Fire Insurance Company, in the sum of $423,368.24, together with statutory interest, plus costs, disbursements and attorney’s fees.
On the Second Cross-claim, against Westchester Fire Insurance Company, damages in the amount of $423,368.24; awarding costs and disbursements, including attorneys’ fees; together with such other, different and further relief as the Court deems just and
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MEMORANDUM OF LAW IN REPLY

Document Long Island Concrete Inc. v. All Building Construction Corp. et al, 153074/2019, 36 (N.Y. Sup. Ct., New York County Sep. 10, 2019)
Corp.’s (“ABCC”) motion to dismiss the Third and Fourth Causes of Action of LI Concrete, Inc. (“LI Concrete”) Complaint for quantum meruit and unjust enrichment pursuant to CPLR §§ 3211 (a)(1) and (a)(7) as barred by the documentary evidence of its Subcontract and for failure to state a legally cognizable claim.1
...Endeavoring to enforce one’s right to damages under a valid contract that expressly governs the subject at issue – as Reilly did here – is simply irreconcilable with rescinding or unmaking it from the beginning and suing in quantum meruit.
2 Similarly, in Tako Holdings, Inc. v. Tillman, 272 A.D.2d 394,396, 707 N.Y.S.2d 658, 660 (2d Dep’t), appeal denied, 95 N.Y.2d 770 (2000), the Court held: “[w]here, as here, there is an existing contract between the parties covering the dispute in issue, there can be no recovery in quantum meruit”; see also, Ferrari v. Keybank, N.A., 2009 U.S. Dist.
Thus, as has been pointed out, one may not both affirm and disaffirm a contract; or take a benefit under an instrument and repudiate it … In short, one may not invoke the aid of the court upon inconsistent theories, or pursue remedies which proceed upon irreconcilable demands or claims of right or liability.
Moreover, when “the documentary evidence that forms “the basis of [Lend Lease’s] defense [is] such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim,” dismissal is warranted.
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AFFIDAVIT OR AFFIRMATION IN OPPOSITION TO MOTION

Document Long Island Concrete Inc. v. All Building Construction Corp. et al, 153074/2019, 33 (N.Y. Sup. Ct., New York County Sep. 5, 2019)
that last 10 names fictitious or parties person upon the real
DOE No. through unknown to plaintiff, and or claiming an interest in or in the complaint, De fendants.
The facts stated herein are based upon documentary evidence and personal knowledge.
was forced to complete significant work that is arguably outside of the scope of the contract it entered into with All Building.
respectfully request tha Èuilding's mot' n be denied.
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MEMORANDUM OF LAW IN OPPOSITION

Document Long Island Concrete Inc. v. All Building Construction Corp. et al, 153074/2019, 32 (N.Y. Sup. Ct., New York County Sep. 5, 2019)
Nonetheless, All Building failed to pay $245,346.08 due and owing to LIC for work it performed.
None of the claims asserted in Quail Ride Associates were for quantum meruit and/or unjust enrichment.
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AFFIDAVIT OR AFFIRMATION IN OPPOSITION TO MOTION

Document Long Island Concrete Inc. v. All Building Construction Corp. et al, 153074/2019, 34 (N.Y. Sup. Ct., New York County Sep. 5, 2019)
last 10 names fictitious that person or parties real upon the being if any property having described
DOE No. through unknown to plaintiff, and an interest in or or claiming in the complaint, (Motion Sequence No. 001)
I am an associate at the law firm Cermele attorneys for Plaintiff & Wood, LLP, Long Island Concrete Inc., and as such I am familiar with the facts and circumstañces set forth herein.
I respectfully submit this affirmation in opposition to the motion to dismiss filed by All Building Construction Corp. pursuant to CPLR 3211(a)(1) and (7).
Attached hereto as Exhibit 1 is a true and correct copy of the summons and verified complaint in this action.
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