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KEWAUNEE SCIENTIFIC CORPORATION v. ELLI NY DESIGN CORP. et al

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
3:13-cv-01827 Search Pacer
ACE Group party(s): 
Opposing Party: 
Kewaunee Scientific Corporation
Court Type: 
Federal
US District Court: 
Connecticut District Court
Date Filed: 
Dec 10 2013

FIRST CLAIM FOR RELIEF
(Breach of Contract/Purchase Order #1)
14. Paragraphs 1 through 13 above are realleged and incorporated herein by
reference.
15. Kewaunee fully performed all of its obligations on the Project #1 in accordance
with the Purchase Order #1.
16. The products manufactured and delivered by Kewaunee to the Project #1 pursuant
to Purchase Order #1 were approved and accepted by Elli NY Design.
17. Pursuant to the terms and conditions of the Purchase Order #1, Elli NY Design
was obligated to pay Kewaunee for its manufacture and delivery of the products to Project #1
pursuant to the Purchase Order #1.
18. Elli NY Design has paid Kewaunee for some of the products manufactured and
delivered by Kewaunee to Project #1 pursuant to Purchase Order #1, but Elli NY Design has
wrongfully refused to pay Kewaunee the entire balance due under Purchase Order #1.
19. Despite Kewaunee's repeated demands, Elli NY Design has wrongfully failed and
refused to pay Kewaunee in full for the products it manufactured and delivered to the Project #1
pursuant to Purchase Order #1.
20. Elli NY Design breached its contractual duties to Kewaunee by, inter alia, failing
to pay Kewaunee for its manufacturer and delivery of products to Project #1 in accordance with
the terms of the Purchase Order #1.
21. As a result of the above-described breach of the Purchase Order #1 by Elli NY
Design, Kewaunee is entitled to recover payment from Elli NY Design in a principal sum in
excess of $108,000, the specific amount to be proven at trial held in connection with this matter,
plus interest thereon at the highest rate allowed by law from the date of breach until paid, court
costs and attorneys' fees.
22. Kewaunee is proceeding in part in reliance upon the Connecticut Uniform
Commercial Code, Conn. Gen. Stats, fflf 42a-101 et seq.

SECOND CLAIM FOR RELIEF
(Bond Claim v. Elli NY Design and Westchester)
23. Paragraphs 1 through 22 above are realleged and incorporated herein by
reference.
24. Elli NY Design, as "Contractor," and Westchester, as "Surety," executed a
payment bond in the amount of $1,120,000, thereby guaranteeing the payment of all lawful
claims of suppliers of labor, materials and/or equipment to Elli NY Design in connection with its
performance of the Subcontract on Project #1.
25. Upon information and belief, in May of 2012, Westchester issued the abovereferenced
payment bond, being Bond No. K08634841, on behalf of its principal, Elli NY
Design ("Bond"). A copy of the Bond is appended hereto as Exhibit B and incorporated herein
pursuant to FRCP 10(c).
26. The labor, materials and equipment provided by Kewaunee were covered by and
fall within the meaning of such terms contained in the Bond.
27. Kewaunee is an intended beneficiary of the Bond.
28. Kewaunee properly served a Notice of Claim on the Bond to Elli NY Design and
Westchester. A copy of the Notice of Claim is appended hereto as Exhibit C and incorporated
herein pursuant to FRCP 10(c).
29. Elli NY Design has failed to make prompt payment to Kewaunee despite
Kewaunee's repeated demands for payment.
30. Westchester has also failed to make prompt payment to Kewaunee in violation of
the payment obligations of the Bond, despite having actual notice of Kewaunee's claim.
31. Upon information and belief, Westchester has failed to conduct an independent,
good-faith investigation of Kewaunee's claim.
32. Kewaunee has been damaged by Elli NY Design's breach of Purchase Order #1,
including, without limitation, Elli NY Design's failure to pay Kewaunee the Purchase Order #1
balance due Kewaunee.
33. Kewaunee has fulfilled all conditions of the Bond necessary for Kewaunee to
recover under the same.
34. By reason of the foregoing, Kewaunee is entitled to recover from Elli NY Design
and Westchester, jointly and severally, the principal sum in excess of $108,000, such amount to
be more specifically proven at any trial held in connection with this matter, plus interest thereon
at the highest rate allowed by law, court costs and attorneys' fees.

THIRD CLAIM FOR RELIEF
(Breach of Contract/Purchase Order #2)
35. Paragraph 1 through 5 above are realleged and incorporated herein by reference.
36. Upon information and belief, Gilbane Building Company and McKissack &
McKissack via a joint venture ("Gilbane"), acting as construction manager, and the New York
City Health and Hospitals Corporation ("Owner") entered into a contract ("Prime Contract")
pursuant to which Gilbane was to construct the Goldwater No. - LTACH Project 13160 in New
York, New York ("Project #2). Subsequently, Gilbane, as general contractor, and Elli NY
Design, as subcontractor, entered into a subcontract agreement pursuant to which Elli NY Design
was to provide labor, materials and equipment for the Project #2.
37. Subsequently, on or about January 24, 2013, Elli NY Design, as subcontractor,
and Kewaunee, as supplier, entered into Purchase Order #13034, pursuant to which Kewaunee
was to manufacture and deliver casework, cabinets, and countertops for Project #2 ("Purchase
Order #2"). A copy of Purchase Order #2 is appended hereto as Exhibit D and incorporated
herein pursuant to FRCP 10(c).
38. Pursuant to Purchase Order #2, Elli NY Design was to pay Kewaunee for its work
under the Purchase Order #2 the sum of $50,279.
39. Elli NY Design accepted Kewaunee's products manufactured and delivered to
Project #2 pursuant to Purchase Order #2, but failed and refused to pay Kewaunee in full for the
same.
40. Kewaunee fully performed all of its obligations on Project #2 in accordance with
Purchase Order #2.
41. The products manufactured and delivered by Kewaunee to Project #2 pursuant to
Purchase Order #2 were approved and accepted by Elli NY Design.
42. Pursuant to the terms and conditions of Purchase Order #2, Elli NY Design was
obligated to pay Kewaunee for its manufacture and delivery of the products to Project #2 under
Purchase Order #2.
43. Elli NY Design has paid Kewaunee for some of the products manufactured and
delivered by Kewaunee to Project #2 , but Elli NY Design has wrongfully refused to pay the
balance due Kewaunee the entire Purchase Order #2.
44. Despite Kewaunee's repeated demands, Elli NY Design has wrongfully failed and
refused to pay Kewaunee in full for the products it manufactured and delivered to Project #2 in
accordance with Purchase Order #2.
45. Elli NY Design breached its contractual duties to Kewaunee by, inter alia, failing
to pay Kewaunee for its manufacture and delivery of products to Project #2 in accordance with
the terms of Purchase Order #2.
46. As a result of the above-described breach of Purchase Order #2 by Elli NY
Design, Kewaunee is entitled to recover payment from Elli NY Design in a principal sum in
excess of $25,000, the specific amount to be proven at trial held in connection with this matter,
plus interest thereon at the highest rate allowed by law from the date of breach until paid, court
costs and attorneys' fees.
47. Kewaunee is proceeding in part in reliance upon the New York Uniform
Commercial Code, N.Y.U.C.C. Law Sects. HJ 2-101 et seq.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff Kewaunee prays the Court that:
1. Regarding Kewaunee's First Claim for Relief for Breach of Contract/Purchase
Order #1, Kewaunee have and recover judgment against Elli NY Design in the principal amount
in excess of $108,000, to be more specifically proven at any trial held in connection with this
matter, plus interest thereon at the highest rate allowed by law from the date of breach, plus court
costs and attorneys' fees;
2. Regarding Kewaunee's Second Claim for Relief, Kewaunee have and recover
judgment against Elli NY Design and Westchester, jointly and severally, in an amount in excess
of $108,000, to be more specifically proven at any trial held in connection with this matter,
together with interest thereon at the highest rate allowed by law from the date of breach until
paid, plus court costs and attorneys' fees;
3. Regarding Kewaunee's Third Claim for Relief for Breach of Contract/Purchase
Order #2, Kewaunee have and recover judgment against Elli NY Design in the principal amount
in excess of $25,000, to be more specifically proven at any trial held in connection with this
matter, plus interest thereon at the highest rate allowed by law from the date of breach, plus court
costs and attorneys' fees;
4. All costs of this action, including Kewaunee's reasonable attorneys' fees, be taxed
against the Defendants; and
5. For such other and further relief as the Court deems just and proper.

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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