new york state supreme court queens county

NEW YORK STATE SUPREME COURT QUEENS COUNTY -------------------------------------------------------------------X MALBRO CONSTRUCTION SERVICES, INC. and MALBRO INC. Plaintiffs, -against-

ANDREW L. TROIANO; and ALT DESIGN & CONSTRUCTION CONSULTING, INC. Defendants. -------------------------------------------------------------------X

Index Number: 703701/2016

Date case Filed: March 28, 2016

NOTICE OF MOTION for

Default Judgment

S I R S :

PLEASE TAKE NOTICE, that upon the Summons and Verified Complaint, the Proof of

Service of said Summons and Verified Complaint on ANDREW L. TROIANO; and ALT DESIGN

& CONSTRUCTION CONSULTING, INC., and the annexed Affirmation of Victor M. Serby, Esq.,

Plaintiffs MALBRO CONSTRUCTION SERVICES, INC. and MALBRO INC., through counsel,

will move this court located at Centralized Motion Part, Courtroom 25, located at 88-11 Sutphin

Blvd., Jamaica New York, 11435, on Friday February 3, 2017 at 11:00 a.m., or as soon thereafter

as counsel may be heard for the following relief:

A) a default judgment pursuant to CPLR 3215 in favor of Plaintiffs MALBRO

CONSTRUCTION SERVICES, INC. and MALBRO INC. and against Defendants

ANDREW L. TROIANO; and ALT DESIGN & CONSTRUCTION CONSULTING, INC.,

jointly and severally, on the issue of liability and piercing the corporate veil, on all causes of

action, with judgment against ANDREW L. TROIANO; and ALT DESIGN &

CONSTRUCTION CONSULTING, INC., jointly and severally, in the amount of $92,682

with interest from April 12, 2014 to the date of verdict, report or decision, plus punitive

damages in the amount of $834,138 on the second cause of action, jointly and severally

together with taxable costs and disbursements in the amount of $720; and

B) for such other, further and different relief as to this Court may seem just and proper.

FILED: QUEENS COUNTY CLERK 01/24/2017 12:39 PM INDEX NO. 703701/2016

NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/24/2017

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Dated: January 24, 2017 Woodmere, New York

Yours etc. VICTOR M. SERBY, Esq.

Attorney for Plaintiff MALBRO CONSTRUCTION SERVICES,

INC. and MALBRO INC. 255 Hewlett Neck Road Woodmere, New York 11598 Tel. (516) 374-2455

TO: All appearing defense counsel Via NYSCEF filing and service

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ATTORNEY’S AFFIRMATION

AS TO DEFAULT

VICTOR M. SERBY, an attorney duly admitted to practice law in the State of New York,

hereby affirms the truth of the following statement under penalty of perjury:

1. I am the attorney for MALBRO CONSTRUCTION SERVICES, INC. and MALBRO INC.,

Plaintiffs herein.

2. I am fully familiar with that which is hereinafter set forth from an examination of the entire

file which is maintained in this office.

3. I have personal knowledge of everything attested to herein, except those matters specifically

stated upon information and belief.

4. This affirmation is respectfully submitted in support of the motion for:

a. a default judgment pursuant to CPLR 3215 in favor of Plaintiffs MALBRO

CONSTRUCTION SERVICES, INC. and MALBRO INC. and against Defendants

ANDREW L. TROIANO; and ALT DESIGN & CONSTRUCTION CONSULTING,

INC., jointly and severally, on the issue of liability and piercing the corporate veil, on

all causes of action, with judgment in the amount of $92,682 with interest from April

12, 2014 to the date of verdict, report or decision, plus punitive damages in the

amount of $834,138 on the second cause of action, together with taxable costs and

disbursements in the amount of $720; and

b. for such other, further and different relief as to this Court may seem just and

proper.

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5. This motion is timely because it is made within 1 year after the default as discussed infra.

6. Attached hereto as Exhibits are true copies of the following documents:

(A) Exhibit 1 [NYSCEF doc# 1]—Summons and Verified Complaint

(B) Exhibit 2—(1) Proof of Service of the Summons and Verified Complaint on

ANDREW L. TROIANO; and ALT DESIGN & CONSTRUCTION CONSULTING,

INC.,

(C) Exhibit 3—Waiver of personal jurisdiction [NYSCEF docs. 2, 4, 5]

(D) Exhibit 4—Bill of Costs in the amount of $720.

PROOF OF THE FACTS CONSTITUTING THE CLAIM (CPLR 3215(f))

7. The necessary facts for the case against Defendants ANDREW L. TROIANO; and ALT

DESIGN & CONSTRUCTION CONSULTING are found in the Verified Complaint (Exhibit

1) and may be used herein in support of this motion. CPLR 105(u) [A "verified pleading"

may be utilized as an affidavit whenever the latter is required.] See also CPLR 3215(f).

SUMMARY of FACTS, PROCEDURE and PROOF OF SERVICE of the PLEADINGS

8. The substantive facts are taken from the verified complaint, and those facts are incorporated

herein by reference as if fully set forth hereat. See Exhibit 1. It is axiomatic that upon default,

the facts stated in the Verified Complaint are deemed admitted.

Many homes in Breezy Point, Queens, New York, were destroyed by Superstorm Sandy. Upon

information and belief, ALT DESIGN had experience in purchasing and constructing modular

homes.

The 29 Graham Place Property

Lorien Colleran and Richard Colleran, her husband, after their home was destroyed during

Sandy, hired defendant ALT DESIGN on 7/23/2013 as their contractor for the purchase and

construction of a modular home to be erected upon their property at 29 Graham Place in Breezy

Point, Queens. The contract between the Collerans and ALT DESIGN specified that certain

payments became due upon the completion of specified acts listed in the contract. One such specified

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act was a payment of $63,750.00 (Sixty-Three Thousand and Seven Hundred Fifty dollars) that was

due upon completion of the concrete foundation.

ANDREW L. TROIANO; and ALT DESIGN hired MALBRO in November 2013 as a

subcontractor to install a concrete foundation with ancillary construction work at 29 Graham Place,

Breezy Point, New York. During the course of the performance of this job, MALBRO received a

partial payment of thirteen thousand dollars ($13,000.00) towards the price of the job. MALBRO

completed the job on or about April 30, 2014 and that the job cost sixty-two thousand dollars one

hundred and eighty-two dollars ($62,182.00). Lorien Colleran and Richard Colleran specifically paid

sixty-three thousand seven hundred and fifty dollars ($63,750.00) to ALT DESIGN with a check

dated 3/31/14 for the foundation job and associated, and said check cleared their account. Said

$63,750.00 payment was entrusted to ALT DESIGN exclusively for payment of MALBRO for the

foundation work, and that ALT DESIGN and construction had no permission or authority to not pay

MALBRO as a subcontractor or to use the money for a purpose other than it was intended.

After subtracting a partial payment of thirteen thousand dollars ($13,000.00), ALT DESIGN

had an outstanding balance owed to MALBRO for forty-nine thousand dollars one hundred and

eighty two dollars ($49,182.00) for the foundation job at 29 Graham Place, Breezy Point, Queens

County, New York. Multiple demands for payment and mailing of invoices resulted in no further

payments. A true copy of invoice # 130596 in the amount of $49,182.00 that was sent to defendants

multiple times is attached as Exhibit 1 to the Complaint. Said invoice was due upon receipt. The

defendants never disputed the payment due for this job. Defendants have not paid any of the

outstanding balance due.

The 8 Fulton Walk Property

John Morris and his wife Sandra Morris, after their home was destroyed during Sandy, hired

defendant ALT DESIGN on 7/23/2013 as their contractor for the purchase and construction of a

modular home to be erected upon their property at 8 Fulton Walk Breezy Point, Queens County, New

York. The contract between Mr. and Mrs. Morris and ALT DESIGN specified that certain payments

became due upon the completion of specified acts listed in the contract. One such specified act was a

payment of $58,500.00 (Fifty-Eight Thousand and Five Hundred Dollars) that was due upon

completion of the concrete foundation.

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ANDREW L. TROIANO and ALT DESIGN hired MALBRO on April 5, 2014 as a

subcontractor to install a concrete foundation with ancillary construction work at 8 Fulton Walk

Breezy Point, Queens County, New York. MALBRO completed the job on or about May 31, 2014

and the job cost $55,000.00 (Fifty-Five Dollars).

The “Build It Back Program” (a governmental program to assist Sandy ravaged homeowners)

directly paid MALBRO $11,500 towards the work. After subtracting a partial payment of eleven

thousand five hundred dollars ($11,500.00), ALT DESIGN had an outstanding balance owed to

MALBRO for forty-three thousand five hundred dollars ($43,500.00) for the foundation job at 8

Fulton Walk, Breezy Point, Queens County, New York.

John Morris and his wife Sandra Morris specifically paid $58,500.00 (Fifty-Eight Thousand

and Five Hundred Dollars) to ALT DESIGN with a check dated April 27, 2014 for the foundation

job and ancillary work, and said check cleared their account. Said $58,500.00 payment was entrusted

to ALT DESIGN exclusively for payment of MALBRO for the foundation and associated work, and

ALT DESIGN had no permission or authority to not pay MALBRO as a subcontractor or to use the

money for a purpose other than it was intended.

Multiple demands for payment and mailing of invoices resulted in no further payments. A true

copy of invoice # 130597 in the amount of $43,500.00 that was sent to defendants multiple times is

attached as Exhibit 2 to the Complaint. Said invoice was due upon receipt. The defendants never

disputed the payment due for this job. Defendants have not paid any of the outstanding balance due.

Criminal Charges Against Defendants

A true copy of the Affidavit filed by the Queens County District Attorney in support of the

criminal charges against the defendants ANDREW L. TROIANO and ALT DESIGN is annexed to

the Complaint as Exhibit 3.

Defendants ANDREW L. TROIANO and ALT DESIGN & CONSTRUCTION

CONSULTING, INC. were charged criminally by the Queens County District Attorney’s Office for

violation of the following statutes in connection with the above jobs, and as part of a broader theft

and fraud involving Superstorm Sandy victims in Breezy Point:

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a. NYS LIEN LAW 79-A-1 [CF) MISAPPROPRIATION OF FUNDS OF TRUST, AS

A GRAND LARCENY IN THE SECOND DEGREE - (DNA SAMPLEREQUIRED

UPON CONVICTION) (2 COUNTS)

b. NYS LIEN LAW 79-A-1 (DF] MISAPPROPRIATION OF FUNDS OF TRUST, AS

A GRAND LARCENY IN THE THIRD DEGREE - (DNA SAMPLE REQUIRED

UPON CONVICTION) (2 COUNTS)

c. PL 155.40-1 (CF) GRAND LARCENY IN THE SECOND DEGREE - (DNA

SAMPLE REQUIRED UPON CONVICTION) (2 COUNTS) PL 155.35-1

(11/1/2010) (DF) GRAND LARCENY IN THE THIRD DEGREE (DNA SAMPLE

REQUIRED UPON CONVICTION) (2 COUNTS)

d. PL 155.30-1 (EF) GRAND LARCENY IN THE FOURTH DEGREE - (DNA

SAMPLE REQUIRED UPON CONVICTION) PL 190 .65-1 (B) (9/19/2008) (EF]

SCHEME TO DEFRAUD IN THE FIRST DEGREE - (DNA SAMPLE REQUIRED

UPON CONVICTION)

A true copy of the New York State Unified Court System WebCrims Case Detail – Charges, as

of March 28, 2016, for each defendant, is annexed as Exhibit 4 to the Complaint.

A forensic review of ALT DESIGN’s bank records by John Murphy, a forensic accountant with

the Queens District Attorney’s Office, revealed that defendant ANDREW L. TROIANO embezzled

$178,750.00 that was received from three Breezy Point homeowners, (which includes the aforesaid

$63,750.00 from the Collerans and $58,500.00 from the Morrises) and credited to the defendant ALT

DESIGN’s JP Morgan Chase Bank accounts as a contractor under or in connection with a

contract for an improvement of real property within the meaning of New York Lien Law §70 (1).

Said embezzled corporate trust funds were used for the personal use of ANDREW L.

TROIANO. ANDREW L. TROIANO was/is a trustee of the aforesaid $178,750.00, that included

$63,750.00 from the Collerans and $58,500.00 from the Morrises. MALBRO was a beneficiary of

said $63,750.00 paid into trust by the Collerans and $58,500.00 paid into trust from the Morrises to

the extent of the actual amount of its unpaid bills for the foundation jobs and related work ($49,182

for the Collerans and $43,500) totaling $92,682.

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Summary of FIRST CAUSE OF ACTION [Breach of Contract and Account Stated]

29 Graham Place Property

Defendants ALT DESIGN and ANDREW L. TROIANO breached the contract with

MALBRO as its subcontractor for the installation of foundations and ancillary work at 29 Graham

Place, Breezy Point, New York. The contract price for the 29 Graham Place property was $62,182, of

which ALT DESIGN paid $13,000 leaving a balance of $49,182.00. MALBRO Invoice # 120596 in

the amount of $49,182, for work completed on the Graham Place property, was mailed to the

defendants on or about July 15, 2014 and due upon receipt.

After no payment was received, additional copies of said invoice were periodically mailed to

the defendants at their various addresses. The defendants never disputed the payment due for this

job. Defendants have not paid any of the outstanding balance due. As such, plaintiff has an account

stated in the amount of $49,182.00 for the amount due for the Graham Place contract.

Defendant ANDREW L. TROIANO stole, for his personal use, the payment that homeowners

Lorien Colleran and Richard Colleran tendered, in trust, to ALT DESIGN for payment of

MALBRO’s bills for installation of the foundation and ancillary work. As such defendants

ANDREW L. TROIANO and ALT DESIGN are liable jointly and severally to MALBRO in the

amount of $49,182.00, plus statutory interest under CPLR 5001 from July 15, 2014 to the date of

verdict, report or decision for this cause of action.

8 Fulton Walk Property

Defendants ALT DESIGN and ANDREW L. TROIANO breached the contract with

MALBRO as its subcontractor for the installation of foundations and ancillary work at 8 Fulton

Walk, Breezy Point, New York. The contract price for the 8 Fulton Walk property was $55,000. The

Build it Back program paid $11,500 of that price leaving a balance due of $44,500. MALBRO

Invoice # 120597 in the amount of $43,500, for work completed on said Fulton Walk property, was

mailed to the defendants on or about July 15, 2014 and due upon receipt.

After no payment was received, additional copies of said invoice were periodically mailed to

the defendants at their various addresses. The defendants never disputed the payment due for this

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job. Defendants have not paid any of the outstanding balance due. As such, plaintiff has an account

stated in the amount of $43,500 for the amount due for said Fulton Walk contract.

Defendant ANDREW L. TROIANO stole, for his personal use, the payment that homeowners

John Morris and his wife Sandra Morris tendered, in trust, to ALT DESIGN for payment of

MALBRO’s bills for installation of the foundation and ancillary work at 8 Fulton Walk. As such

defendants ANDREW L. TROIANO and ALT DESIGN are liable jointly and severally to MALBRO

in the amount of $92,682 ($49,182 + $43,500), plus statutory interest under CPLR 5001 from July

15, 2014 to the date of verdict, report or decision for this cause of action.

Summary of SECOND CAUSE OF ACTION [Larceny from Trust]

ANDREW L. TROIANO, as signatory to ALT DESIGN’s bank accounts at JP Morgan Chase

Bank, stole trust funds paid by homeowners John Morris and his wife Sandra Morris for foundation

and ancillary work MALBRO performed on the 8 Fulton Walk property. ANDREW L. TROIANO,

as signatory to ALT DESIGN’s bank accounts at JP Morgan Chase Bank, stole trust funds paid by

homeowners Lorien Colleran and Richard Colleran for foundation and ancillary work MALBRO

performed on the 29 Graham Place property and converted those funds to his own use. $92,682 of

the stolen funds were the property of MALBRO as beneficiary of the trusts.

ANDREW L. TROIANO was criminally charged in relation to this larceny of trust funds.

MALBRO is entitled to $92,682 with interest under CPLR 5001 from April 12, 2014 as a reasonable

intermediate date under CPLR 5001(b) for this cause of action. In addition, MALBRO is entitled to

punitive damages of $834,138, or up to the constitutional maximum, for this cause of action, to

punish ANDREW L. TROIANO for larceny and criminal misappropriation of trust funds.

Summary of THIRD CAUSE OF ACTION [Piercing the Corporate Veil]

MALBRO sustained damages by reason of the wrongful conduct of ALT DESIGN. ANDREW

L. TROIANO exercised complete "dominion and control" over the corporation in its dealings with

MALBRO and otherwise. ANDREW L. TROIANO exercised complete "dominion and control"

over and the funds paid to ALT DESIGN by the Collerans and the Morrises to be held in trust to pay

MALBRO for the foundation and ancillary work that MALBRO did on their respective properties.

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ANDREW L. TROIANO in exercising complete "dominion and control" over ALT DESIGN

and in his criminal conduct of stealing corporate trust funds for his own use, that were paid to ALT

DESIGN for the subcontractors, including MALBRO, abused the privilege of doing business in the

corporate form, and thereby perpetrated a wrong that resulted in injury to the plaintiff, in that

plaintiff was never fully paid for the foundation work done on said properties. ANDREW L.

TRIANO allowed ALT DESIGN to be dissolved by the Florida Secretary of State by failing to file an

annual report for said corporation.

As such, this court should “pierce the corporate veil” and hold ANDREW L. TROIANO

personally liable for the debts of the corporation, including the money, in the form of trust funds, that

he stole that was earmarked for MALBRO.

Proof of Service

9. According to the Affidavit of Service, on March 29, 2016 at 11:30 a.m., ANDREW L.

TROIANO was served a first copy of the Summons and Verified Complaint by personal

delivery to him. See Exhibit 2 (Proof of Service).

10. According to the Affidavit of Service, on March 29, 2016 at 11:30 a.m., ALT DESIGN &

CONSTRUCTION CONSULTING, INC. was served by personal delivery of a second copy

of the Summons and Verified Complaint to ANDREW L. TROIANO as president of ALT

DESIGN & CONSTRUCTION CONSULTING, INC. See Exhibit 2 (Proof of Service).

11. Furthermore, the parties, through counsel, executed several stipulations to extend the time to

answer, and the defendants agreed not to contest personal jurisdiction therein. See Exhibit 3

(NYSCEF docs. 2, 4,5).

12. The time for Defendants ANDREW L. TROIANO; and ALT DESIGN & CONSTRUCTION

CONSULTING to serve its Answer to the Verified Complaint expired, as of 11:59 p.m. on

June 22, 2016 per stipulation (See exhibit 3), and Defendants ANDREW L. TROIANO; and

ALT DESIGN & CONSTRUCTION CONSULTING have not answered, moved, asked for

an extension of time, or otherwise appeared.

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13. Defendants ANDREW L. TROIANO; and ALT DESIGN & CONSTRUCTION

CONSULTING have therefore defaulted on its obligation to serve an Answer, move or

otherwise respond to the Verified Complaint as of June 22, 2016.

14. On June 24, 2016, I complied with CPLR 3215(g)(3) and gave additional notice to defendant

ANDREW L. TROIANO, by mailing a copy of the summons by first-class mail to the

defendant ANDREW L. TROIANO at 924 Pine Hill Road, Lititz PA 17543, his place of

residence, in an envelope bearing the legend "personal and confidential" and not

indicating on the outside of the envelope that the communication is from an attorney or

concerns an alleged debt.

15. This motion is timely, since it was made within one year of the default.

16. Plaintiff has met all the statutory requirements of CPLR 3215 and submitted the requisite

proof for the Court to enter a default judgment under CPLR 3215 on the issue of liability and

damages, including punitive damages for stealing Trust funds.

WHEREFORE Plaintiffs MALBRO CONSTRUCTION SERVICES, INC. and MALBRO

INC. requests that the Court grant this motion for a default judgment in the amount of $92,682 with

interest from April 12, 2014 to the date of verdict, report or decision, plus punitive damages in the

amount of $834,138, together with taxable costs and, disbursements, and enter judgment

accordingly.

Dated: January 24, 2017 Woodmere, New York

VICTOR M. SERBY, ESQ.

Attorney for Plaintiff for MALBRO CONSTRUCTION SERVICES, INC. and MALBRO INC.

255 Hewlett Neck Road Woodmere, NY 11598 516-374-2455

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PROOF OF SERVICE

Victor M. Serby, Esq., an attorney duly admitted to practice law in the State of New York,

hereby affirms the following under the penalties of perjury:

That, on January 24, 2017, your affirmant served the within

NOTICE OF MOTION UNDER CPLR 3215

AFFIRMATION IN SUPPORT and all Exhibits thereto On:

all appearing defendants using the court’s NYSCEF system

_ _ Victor M. Serby, Esq.

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