FILED: NEW YORK COUNTY CLERK 11/04/2016 04:38 PM INDEX NO. 157522/2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 11/04/2016 SUPREME COURT OF THE STATE NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------)( ANDREW JAMES INTERIORS, INC., on behalf of itself and all other persons similarly situated as trust fund beneficiaries of Lien Law trust of which MCGOVERN & COMPANY, LLC is a trustee, Plaintiff, MCGOVERN & COMPANY, LLC, STEPSTONE GROUP L.P., 885 THIRD OWNER LLC, CONSOLIDATED CARPET WORKROOM, LLC, AIR STREAM AIR CONITIONING CORP., SOVEREIGN MECHANICAL CORP., MODCO SUPPLY INC., CITY VIEW BLINDS OF N.Y. INC., ARCHITECTURAL FLOORING CARE, LLC, S&J ENTRANCE & WINDOW SPECIALIST, INC., PAR PLUMBING CO., INC., ESS & VEE ACOUSTICAL CONTRACTORS, INC., GOTHAM GENERAL COMPANY CARPENTRY INC., ALL STATE INTERIOR DEMOLITION INC., METRO POLIT AN 885 THIRD A VENUE LEASEHOLD, LLC, U. S. SPECIALTY INSURANCE COMPANY, DANIEL G. MCGOVERN AND "JOHN DOE ONE" THROUGH "JOHN DOE TEN", Index No. 157522/16 ANSWER OF MCGOVERN LLC AND DANIEL MCGOVERN TO CROSS-CLAIM OF AIR STREAM Defendants. -------- ---- ---- ~ ----------------------- - ------------------ - - - - - -------)( ESS &VEE ACOUSTICAL CONTRACTORS, INC., Cross-Claim Plaintiff, MCGOVERN & COMPANY, LLC, STEPSTONE GROUP L.P., 885 THIRD OWNER LLC, METROPOLITAN 885 THIRD A VENUE LEASEHOLD, LLC, U.S. SPECIAL TY INSURANCE COMPANY, AND DANIEL G. MCGOVERN, Cross-Claim Defendants. -----------------------------------------------------------------------)( Defendants McGovern & Company, LLC and Daniel McGovern, by their attorneys, Howard Blum, P.C., for their Answer to the Cross-Claims of Air Stream, respectfully allege: 1 of 6
AS TO THE FIRST CROSS-CLAIM 1. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph 9. 2. Deny the allegations contained in paragraphs 11, 12, 13, 14, 15 and 16, admit that certain work was performed and refer to the contract for its true terms and conditions. AS TO THE SECOND CROSS-CLAIM 3. Repeat and reiterate the responses to the allegation contained in paragraph 17 as if fully set forth herein. 4. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 18 through 32. 5. Deny the allegations contained in paragraphs 34, 35 and 36, except admit that certain work was performed and refer to the contract for its true terms and conditions. 6. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 37, 38, 39, 40, 41 and 42, except admit that certain work was performed. FIRST AFFIRMATIVE DEFENSE 7. The Cross-Claims of Air Stream fail to state a cause of action upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 8. No extra work was ordered by McGovern. THIRD AFFIRMATIVE DEFENSE 9. Air Stream's claims are barred by the Doctrine of Estoppel. FOURTH AFFIRMATIVE DEFENSE 10. Air Stream's claims are barred by the Doctrine of Waiver. 2 2 of 6
FIFTH AFFIRMATIVE DEFENSE 11. Air Stream's claims are barred by the Doctrine oflaches. SIXTH AFFIRMATIVE DEFENSE 12. Air Stream's claims are barred by the Doctrine of Unclean Hands. SEVENTH AFFIRMATIVE DEFENSE 13. Air Stream's claims are barred by the Doctrine of Accord and Satisfaction. EIGHTH AFFIRMATIVE DEFENSE 14. Air Stream's claims are subject to set-off, recoupment, and/or reduction to the extent that any amounts that may be due and owing from McGovern for costs, expenses, credits, and/or back-charges incurred by and/or charged against McGovern in connection with Air Stream' s performance, provision, and/or failure to perform/provide the services, labor, and/or equipment which Air Stream subcontracted with McGovern to perform. NINTH AFFIRMATIVE DEFENSE 15. Air Stream's claims are subject to set-off, recoupment, and/or reduction to the extent that Air Stream's own conduct and/or the conduct of Air Stream' s agents, employees, and other parties outside of the control of McGovern are responsible for the alleged damages complained of by Air Stream. TENTH AFFRIMATIVE DEFENSE 16. McGovern reserves its right to amend this Answer to assert additional affirmative defenses on the completion of its investigation and discovery herein. 3 3 of 6
WHEREFORE, defendants McGovern LLC and Daniel McGovern demand judgment dismissing the Cross-Claims of Air Stream, and for such further relief as this Court deems just and proper under the circumstances. Dated: November /A., 2016 Yours, etc. oward Blum Esq. Attorneys for Defendants McGovern & Company, LLC and Daniel McGovern 286 Madison A venue, l 8 1 h Floor New York, New York 10017 (212) 557-3000 hbdoc:c/mcgovern-andrew james answ to air stream 4 4 of 6
VERIFICATION STATE OF NEW YORK ) )ss.: COUNTY OF NEW YORK ) DANIEL MCGOVERN, being duly sworn, says: I am a Member of defendant McGovern & Company, LLC and a defendant. I have read the foregoing Answer and know the contents thereof, and that the same is true to my knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true. The grounds of my belief as to all matters not stated upon my knowledge is as follows: invoices, correspondence, defendant. versations with employees of //~ ~,-om to before me this.:f day of November, 2016 JAMES MCCLELLAND GALE NOTARY PUBLIC-STATE Of NEW YORtc No. 01GA633l.C63 Qualified In Westchest r County My Commltslon Expires October 13. 2019 5 of 6
Index No.: 157552 Year 2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ANDREW JAMES INTERIORS, INC., on behalf of itself and all other persons similarly situated as trust fund beneficiaries of Lien Law trust of which MCGOVERN & COMPANY, LLC is a trustee, MCGOVERN & COMPANY, LLC, STEPSTONE GROUP L.P., 885 THIRD OWNER LLC, CON SO LIDA TED CARPET WORKROOM, LLC, AIR STREAM AIR CONITIONING CORP., SOVEREIGN MECHANICAL CORP., MODCO SUPPLY INC., CITY VIEW BLINDS OF N.Y. INC., ARCHITECTURAL FLOORING CARE, LLC, S&J ENTRANCE & WINDOW SPECIALIST, INC., PAR PLUMBING CO., INC., ESS & VEE ACOUSTICAL CONTRACTORS, INC., GOTHAM GENERAL COMPANY CARPENTRY INC., ALL STATE INTERIOR DEMOLITION INC., METRO POLIT AN 885 THIRD A VENUE LEASEHOLD, LLC, U.S. SPECIALTY INSURANCE COMPANY, DANIEL G. MCGOVERN AND "JOHN DOE ONE" THROUGH "JOHN DOE TEN", ESS &VEE ACOUSTICAL CONTRACTORS, INC., MCGOVERN & COMPANY, LLC, STEPSTONE GROUP L.P., 885 THIRD OWNER LLC, METROPOLITAN 885 THIRD A VENUE LEASEHOLD, LLC, U.S. SPECIAL TY INSURANCE COMPANY, AND DANIEL G. MCGOVERN, Plaintiff, Defendants. Cross-Claim Plaintiff, Cross-Claim Defendants. ANSWER OF MCGOVERN LLC AND DANIEL MCGOVERN TO CROSS-CLAIM OF AIR STREAM HOWARD BLUM, P.C. Attorneys for Defendants McGovern & Company, LLC and Daniel McGovern 286 Madison Avenue - J 8 1 h Floor New York, New York 10017 (212) 557-3000 To Dated, Attorney(s) for 6 of 6