1EDON311212010

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

Index No.: Date Filed:

Plaintiff, -against-

.r

Plain tiff designates New York County as place of Trial

PETER ONITIRI d/b/a OPTA CONTRACTING & GENERAL BUILDERS and WESTCHESTER FIRE INSURANCE COMPANY,
Defendants.

SUMMONS

101' 287

The basis of venue is the location of the Subject Property.

YOU ARE HEREBY SUMMONED and required to serve upon Plaintiff's

Attorneys an Answer to the Complaint in this Action within twenty (20) days after the service of this Summons, exclusive of the day of service, or within thirty (30) days after service is complete if this Summons is not personally delivered to you within the State of New York. In case of your failure to answer, judgment will be taken against you by default for the relief demanded in the Verified Complaint. The basis of venue is the location of the real property which is the subject of this foreclosure action. Relief Demanded: Foreclosure of Mechanic's Lien; Breach of Contract Damages. Dated: Mineola, New York March 8,2010

THOMAS A. TOSCAN

By:

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Moco General Construction Corp. 200 Old Country Road, Suite 100 Mineola, New York 11501 (516) 741-9300

**\.

TO:

Peter Onitiri OPTA Contracting & General Builders 442 Lorimer Street, Suite 258 Brooklyn, New York 11206 Peter Onitiri d/b/a OPTA Contracting & General Builders 307 Bushwick Avenue, Apartment 9B Brooklyn, New York 11206 Westchester Fire Insurance Company 1325 Avenue of the Americas, 19th Floor New York, New York 10019

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Plaintiff, -againstPETER ONITIRI d/b/a OPTA CONTRACTING & GENERAL BUILDERS and WESTCHESTER FIRE INSURANCE COMPANY,

VERIFIED COMPLAINT

PLAINTIFF, MOCO GENERAL CONSTRUCTION, CORP., by its attorneys, Thomas A. Toscano, P.C., as and for its Verified Complaint alleges against the Defendant PETER ONITIRI d/b/a OPTA CONTRACTING & GENERAL BUILDERS and WESTCHESTER FIRE INSURANCE COMPANY as follows: 1. That heretofore and at all times hereinafter mentioned, Plaintiff Moco

General Construction Corp. (hereinafter referred to as Plaintiff) was, and is, a corporation organized and existing under and by virtue of the laws of the State of New York, with its principal place of business located at 34-26 Steinway Street, Suite 15, Long Island City, New York 11101. 2, That heretofore and at all times hereinafter mentioned, upon infomation

and belief, Defendant PETER ONITIRI d/b/a OPTA Contracting & General Builders (hereinafter referred to as OPTA) is a sole proprietorship having an address at 442 Lorimer Street, Suite 258, Brooklyn, New York 11206.

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3.

That heretofore and at all times hereinafter mentioned, upon information

and belief, OPTA is a sole proprietorship having an address at 307 Bushwick Avenue, Apartment 9B, Brooklyn, New York 11206.

4.

That heretofore and at all times hereinafter mentioned, upon information

and belief, Defendant Westchester Fire Insurance Company (hereinafter referred to as Westchester) is a company licensed by the State of New York to issue surety bonds and maintains an office for the transaction of business at 1325 Avenue of the Americas, 19th Floor, New York, New York 10019. 5. That heretofore and at all times hereinafter mentioned, upon information

and belief, R.S.N. Construction Co., Inc. (hereinafter referred to as R.S.N.) is a corporation organized and existing under and by virtue of the laws of the State of New York, with its principal place of business located 33 Snapdragon Lane, Roslyn Heights,
New York 11577. 6.

That heretofore and at all times hereinafter mentioned, upon information

and belief, the New York City Department of Design and Construction (hereinafter referred to as the D.D.C.) is a statutory public authority and maintains an office for the transaction of business at 30-30 Thomson Avenue, Long Island City, New York 11101. 7. That heretofore and at all times hereinafter mentioned, upon information

and belief, the New York City Department of Finance (hereinafter referred to as the

NYC Department of Finance) is a statutory public authority and maintains an office for the transaction of business at 66 John Street, New York, New York 10038

8.

Upon information and belief, R.S.N. entered into a contract (Contract

#20090015243) with the D.D.C. and NYC Department of Finance for the performance of

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certain construction work at the property located at 2238 Fifth Avenue, New York, New York 10037 (hereinafter referred to as the Construction Project), and more commonly known as the Central Harlem District Health Center (hereinafter referred to as the Premises).
9.

Upon information and belief, OPTA entered into a subcontract with

R.S.N. for the performance of certain construction work at the Premises.

10.

On or about June 8, 2009, OPTA entered into an agreement with Plaintiff

to furnish certain labor and materials for the Construction Project (hereinafter referred to
as the OPTA Agreement). 1 1. The OPTA Agreement specifically stated that Plaintiff would provide

certain labor and materials for the Construction Project, including but not limited to stucco, masonry and ironwork, in exchange for the payment of $62,612.00.
AS AND FOR A FIRST CAUSE OF ACTION AS AGAINST DEFENDANT PETER ONITIRI d/b/a OPTA CONTRACTING & GENERAL BUILDERS

12.

Plaintiff repeats, reiterates and realleges each and every allegation

contained in paragraphs 1 through 1 1 above as if set forth fully at length herein.

13.

Plaintiff perfomed the work and provided materials pursuant to the OPTA

Agreement, such work having a total value of $62,612.00.

14.

OPTA has failed to issue payments due to Plaintiff for labor and materials

pursuant to the OPTA Agreement, except for $25,264.22, leaving a balance due to Plaintiff of $37,347.78. 15. Despite demand therefor, OPTA has refused and failed to make payment

to Plaintiff for the balance of the sums due to Plaintiff from OPTA pursuant to the OPTA Agreement in the amount of $37,347.78.

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16.
17.

By reason of the foregoing, OPTA has breached the OPTA Agreement. There is due and owing to Plaintiff from OPTA the sum of $37,347.78

plus interest, no part of which has been paid although duly demanded.

AS AND FOR A FIRST CAUSE OF ACTION AS AGAINST DEFENDANT WESTCHESTER FIRE INSURANCE COMPANY
18. Plaintiff repeats, reiterates and realleges each and every allegation

contained in paragraphs 1 through 17 above as if set forth fully at length herein. 19. On or about November 10, 2009, Plaintiff filed a Notice Under

Mechanics Lien Law for Account of Public Improvements in the sum of $37,347.78 with the D.D.C. and NYC Department of Finance (hereinafter referred to as the Mechanics Lien). Annexed hereto and made a part hereof is a true and correct copy

the Mechanics Lien referred to herein at Exhibit A.

20.

Plaintiff has served a copy of the Mechanics Lien upon OPTA and R.S.N.

and in all other respects has complied with the New York State Lien Law.
21.

Upon information and belief, on or about February 3, 2010, Westchester

on behalf of R.S.N, issued a bond to discharge the Mechanics Lien to the D.D.C./NYC Department of Finance in the sum of $41,082.56 (the Bond). 22. Plaintiff seeks judgment against Westchester pursuant to the Bond in the

amount of $41,082.56 plus interest.

WHEREFORE, Plaintiff Moco General Construction Corp. respectfully

demands judgment as follows: (i) On the First Cause of Action As Against Peter Onitiri d/b/a OPTA Contracting & General Builders, judgment against Defendant OPTA Contracting & General Builders in the amount of $37,347.78, plus interest;

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(ii)

On the First Cause of Action As Against Westchester Fire Insurance Company, judgment against Defendant Westchester Fire Insurance Company in the amount of $37,347.78, plus interest;

(iii)

That the that the Court adjust and determine the equities of all the parties to this action;
That Plaintiff have such other and further relief, or both, as shall be just, equitable and proper.

(iv)

Dated: Mineola, New York March 8,20 10

THOMAS A. TOSCANO, P.C.

By:

Moco General Construction Corp. 200 Old Country Road, Suite 100 Mineola, New York 11501 (516) 741-9300
TO:

Peter Onitiri d/b/a OPTA Contracting & General Builders 442 Lorimer Street, Suite 258 Brooklyn, New York 11206 Peter Onitiri d/b/a OPTA Contracting & General Builders 307 Bushwick Avenue, Aparhnent 9B Brooklyn, New York 11206 Westchester Fire Insurance Company 1325 Avenue of the Americas, 19th Floor New York, New York 10019

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ATTORNEY VERIFICATION
Anthony Contardo, Esq., being duly sworn, states that he is an associate at the law firm of Thomas A. Toscano, P.C., attorneys for Plaintiff and that the foregoing Complaint is true to his own knowledge, except as to matters therein stated on information and belief and as to those matters he believes to be true; that the grounds of his belief as to all matters are correspondence and writings furnished to him by Plaintiff and interviews with officers and employees of Plaintiffi and that the reason why the verification is not made by Plaintiff is that the Plaintiff is not located within the county in which the deponents office is located. Dated: Mineola, New York March 8,2010

v t h o n y Contardo

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Plaintiff,

"against-

PETER ONITIRI d/b/a OPTA CONTRACTING & GENERAL BUILDERS and WESTCHESTER FIRE INSURANCE COMPANY,

SUMMONS AND VERIFIED COMPLAINT

THOMAS A. TOSCANO, P.C. ATTORNEYS FOR PLAINTIFF 200 OLD COUNTRY ROAD SUITE 100 MINEOLA, NEW YORK 11501 (516) 741-9300

Signature (Rule 130-1.1-a)

Anthony Contardo, Esq.

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