Case 2:14-cv-01540-ADS-GRB

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK X UNITED STATES OF AMERICA FOR THE USE AND BENEFIT OF CIA CONSTRUCTION COMPANY, Plaintiff, -againstWESTCHESTER FIRE INSURANCE COMPANY AND ATLAS ROLL-OFF CORP. a/k/a ATLAS CONSTRUCTION SERVICES, Defendants. Plaintiff, CIA Construction Company by and through its attorneys, Rabinowitz & Galina, Esqs., complaining of the Defendant alleges as follows: JURISDICTION AND VENUE 1. At all times material herein, Plaintiff, CIA Construction Company ("CIA"), was and remains a corporation duly organized and existing pursuant to the laws of the State of New York with its principal place of business located at 950 2nd Street, Ronkonkoma, New York 11804. 2. Upon information and belief, at all times material herein, Defendant, Westchester Fire Insurance Company ("Westchester") was and remains a corporation, duly organized and existing pursuant to the laws of the State of New Jersey with its principal place of business located at 10 Exchange Place, Jersey City, New Jersey 07302. COMPLAINT Case No.

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3. Upon information and belief, at all times material herein, Westchester is authorized by the Insurance Department of the State of New York to issue surety bonds in the State of New York. 4. Upon information and belief, at all times material herein, Defendant, Atlas RollOff Corp. a/k/a Atlas Construction Services ("Atlas") was and remains a corporation, duly organized and existing pursuant to the laws of the State of Jersey with its principal place of business located at 95-11 147lh Place, Jamaica, New York 11435-4507. 5. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. Sections 1331,1352 and 1367 and 40 U.S.C. Sections 3131 and 3133 (the Miller Act).18 U.S.C. Sections 1391 (b) and 40 U.S.C. Section 3133(b)(3)(B). AS AND FOR A FIRST CAUSE OF ACTION 4. Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1 through 5 above as if more fully set forth herein. 5. Upon information and belief, on or about May 11, 2012, Atlas entered into a written contract with the United States of America designated as Contract No. W912PQ-12-C-0009, Proj. #WKVB082012, whereby Atlas agreed to furnish labor, services and materials necessary for the public improvement known as Repair High Speed Taxiway at Gabreski Field, Westhampton, New York, (the "Project"). 6. Upon information and belief, on or about May 15, 2012, Atlas, as principle and Westchester, as surety, executed a payment bond (the "Bond" a copy appended hereto as Exhibit "A"), pursuant to the provisions of the Miller Act,

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whereby Atlas and Westchester bound themselves jointly and severally in the sum of $ 3,093,783.00 to assure the payment by Atlas of the claims of all person supplying labor and materials at the Project. 7. The Bond was accepted by the United States of America. 8. After entering into its contract with the United States of America, Atlas entered into a Subcontract with CIA that required CIA to supply certain equipment to the Project. 9. Over the course of the Project, CIA did supply certain equipment to the project. 10. To date, the sum of $ 54,401.62 remains due and owing to CIA from Atlas. 11. CIA provided all of the equipment as required and has satisfied all of the terms and conditions of its agreement to supply the equipment to the Project. 12. Within ninety days from the date on which CIA last provided equipment to the Project, CIA provided written notice to Atlas of the monies due and owing on the Project. 13. All of the equipment and labor furnished by CIA to Atlas were furnished within the Eastern District of New York. 14. CIA furnished the last of its equipment and labor on the Project within one (1) year of the filing of this Complaint. 15. All conditions precedent required by law or by the terms of the Bond have occurred or have been complied with so that this action may be commenced 16. By reason of Atlas' failure to pay CIA in accordance with its agreement, and by reason of the Bond, the Miller Act and the agreement(s) between Atlas and

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CIA, Atlas, as principle and Westchester, as surety, have become jointly indebted jointly and severally to CIA in the sum of $ 54,401.62 plus interest and attorney's fees. AS AND FOR A SECOND CAUSE OF ACTION 17. Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1 through 16 above as if more fully set forth herein. 18. The Agreement(s) entered into between Atlas and CIA required Atlas to pay ICA for the equipment and labor that CIA provided to the Project. 19. Atlas failed to pay CIA in full for the equipment and labor provided. 20. Atlas failure to pay CA constitutes a breach of the Agreement(s) entered into between Atlas and CIA. 21. By reason of the foregoing, Atlas is liable to CIA for breach of contract in the amount of $ 54,401.62 plus interest and attorney's fees. AS AND FOR A THIRD CAUSE OF ACTION 22. Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1 through 21 above as if more fully set forth herein. 23. That during the course of furnishing the equipment and labor to Atlas, CIA did send invoices and statements of account to Atlas on a regular and timely basis. 24. That upon information and belief, Atlas reviewed each periodic invoice and accepted and retained said invoices and statements without objection. 25. That George Flopoulos, a principal of Defendants, repeatedly reassured Vector that Defendants would remit the balance due and owing on or before

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26. That the invoices and statements constituted an account stated to which Atlas did not object. 27. That the invoices and statements showed a balance due and owing from Atlas to CIA in the amount of $ 54,401.62. 28. By reason of the foregoing, Atlas is liable to CIA for account stated in the amount of $ 54,401.62 plus interest and attorney's fees. WHEREFORE, Plaintiff demands judgment against the Defendants as follows: 1. On the first cause of action against Defendants Westchester and Atlas on the Miller Act Bond in the amount of $ 54,401.62 plus interest and attorney's fees. 2. On the second cause of action against Defendant Atlas for breach of contract in the amount of $ 54,401.62 plus interest and attorney's fees; 3. On the third cause of action against Defendant Atlas for account stated in the amount of $ 54,401.61 plus interest and attorney's fees. 4. For such other and further relief as to this Court may seem just and proper. Dated: February 27, 2014 Mineola, New York Rabinowitz and Galina, Esqs. Attotrfevs fof PtaJ^Hiff

ByTMichael M. Rabinowitz, Esq. (MR-5654) 94 Willis Avenue Mineola, New York 11501 (516)739-8222

Case 2:14-cv-01540-ADS-GRB

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CORPORATE VERIFICATION STATE OF NEW YORK COUNTY OF NASSAU ) )Ss.: ) STEVEN LONG, being duly sworn, deposes and says: I am the President of the Plaintiff, CIA Construction Company. in the within matter. I have read the foregoing Complaint and know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon the following: review of relevajjt*orpejat^ooksand^eei)rds and personal records.

Sworn to

Notary pub