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WESTCHESTER FIRE INSURANCE COMPANY, et al v. TYREE SERVICE 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: 
2:14-cv-05222 Search Pacer
ACE Group party(s): 
Court Type: 
Federal
US District Court: 
Eastern District of New York
Date Filed: 
Sep 5 2014

Plaintiff, Westchester Fire Insurance Company (hereinafter referred to as
"Westchester" or "Surety"), as and for its Complaint in the above-captioned civil action,
alleges the following:
JURISDICTION AND VENUE
1. This Court has subject matter jurisdiction over this matter pursuant to 28
U.S.C. § 1332 in that this is an action between citizens of different states and the
amount in controversy exceeds $75,000.00, exclusive of interest and costs.
2. This Court possesses the power to declare the respective rights and other
legal relations of Westchester and the Defendants as requested herein pursuant to 28
U.S.C. § 2201(a).
3. Venue is proper against defendants Tyree Service Corp., Tyree
Environmental Corp. and Tyree Holdings Corp. pursuant to 28 U.S.C. §112(b) and 28
U.S.C. §1391 because the Agreement of Indemnity executed by these defendants,
which is referenced in the paragraphs below and attached to this Complaint provides as
follows:
10. CHOICE OF LAW/FORUM - It is mutually agreed that
this Agreement is deemed made in the State of New York,
regardless of the order in which the signatures of the parties
shall have been affixed and shall be interpreted, and the
rights and liabilities of the parties determined in accordance
with the laws of the State of New York. INDEMNITOR
agrees that all actions or proceedings arising directly or
indirectly from this Agreement shall be litigated only in courts
having status within the State of New York, and consents to
the personal jurisdiction and venue of any local, state or
Federal Court located therein.
See, 1110 of Agreement of Indemnity dated July 24, 2008, annexed hereto
as EXHIBIT "A".
4. This Court has personal jurisdiction over the defendants Tyree Service
Corp., Tyree Environmental Corp. and Tyree Holdings Corp. because they consented to
the personal jurisdiction of this Court pursuant to the "choice of law/forum" provision
excerpted in the preceding paragraph.
5. Venue is proper over the defendants Amincor, Inc. and Tyree Equipment
Corp. in this Court pursuant to 28 U.S.C. §1391 (b)(1) because all defendants are
residents of the State of New York and defendants' Tyree Service Corp., Tyree
Environmental Corp., Tyree Holdings Corp. and Tyree Equipment Corp.'s principal
place of business is in Nassau County.
THE PARTIES
6. Westchester, whose address is 436 Walnut Street, Philadelphia, PA
19106 is a corporation organized and existing under the laws of the State of
Pennsylvania and is duly authorized to conduct business within the State of New York
as a Surety, and to execute and issue Surety Bonds in the State of New York.
7. Upon information and belief, Defendant Tyree Service Corp., whose
address is 208 Route 109, Farmingdale, NY 11735, is a corporation organized and
existing under the laws of the State of Delaware.
8. Upon information and belief, Defendant Tyree Environmental Corp.,
whose address is 208 Route 109, Farmingdale, NY 11735, is a corporation organized
and existing under the laws of the State of Delaware.
9. Upon information and belief, Defendant Tyree Holdings Corp., whose
address is 208 Route 109, Farmingdale, NY 11735, is a corporation organized and
existing under the laws of the State of Delaware.
10. Upon information and belief, Defendant Amincor, Inc., whose address is
1350 Avenue of the Americas, 24th Floor, New York, NY 10019, is a corporation
organized and existing under the laws of the State of Nevada.
11. Upon information and belief, Defendant Tyree Equipment Corp. whose
address is 208 Route 109, Farmingdale, NY 11735, is a corporation organized and
existing under the laws of the State of Delaware.
THE AGREEMENTS OF INDEMNITY
7. Tyree Service Corp. was at all relevant times engaged in the construction
business in connection with construction projects. Tyree Service Corp. was required
for certain projects to provide performance and payment bonds and fringe benefit bonds
in connection with its construction contracts for public projects.
8. On or about July 24, 2008, the defendants Tyree Service Corp., Tyree
Holdings Corp. and Tyree Environmental Corp., in partial consideration of and as an
inducement to Westchester for the execution by Westchester of certain bonds or
undertakings, did duly execute an Agreement of Indemnity, by the terms of which
Defendants undertook and agreed, jointly and severally, among other things, to:
"...indemnify and save harmless the SURETY from and against any
and all liability, claim, demand, loss, damages, expense, cost,
attorney's fees and expenses, including without limitation, fees and
disbursements of counsel incurred by the SURETY in any action or
proceeding between the INDEMNITOR and the SURETY, or between
the SURETY and any third party, which SURETY shall at any time
incur by reason of its execution of any Bond or its payment of or its
liability to pay any claim, irrespective of whether the claim is made
against the SURETY as a joint or several obligation and whether the
INDEMNITOR is then liable to make such payment, and to place the
SURETY in funds to meet all of its liability under any Bond, promptly
upon request and before the SURETY may be required to make any
payment thereunder, and copy of the claim, demand, voucher or other
evidence of the payment by the SURETY of any liability, claim,
demand, loss damage, expense, cost and attorney's fees, shall be
prima facie evidence of the fact and amount of INDEMNITOR'S liability
to the SURETY under this Agreement.
See, EXHIBIT "A" at fl 2.
9. On or about July 27, 2011, the defendants Amincor, Inc., Tyree Holdings
Corp., Tyree Service Corp., Tyree Environmental Corp. and Tyree Equipment Corp., in
partial consideration of and as an inducement to Westchester for the execution by
Westchester of certain bonds or undertakings, did duly execute an Agreement of
Indemnity, by the terms of which Defendants undertook and agreed, jointly and
severally, among other things, to:
"...exonerate, hold harmless, indemnify and keep indemnified
SURETY from and against any and all claims, demands and liability for
losses, costs and expenses of whatsoever kind or nature, including but
not limited to court costs, counsel fees, costs of investigation,
consultant fees, accountant fees, engineer or construction
management fees, together with interest thereon at the maximum rate
allowed by law, which SURETY may sustain or honor by reason of or
in consequence of the:
A. Execution or procurement of the execution of BOND(s);
B. Failure by PRINCIPAL(s) or INDEMNITOR(s) to perform or comply
with any of the covenants or conditions of this AGREEMENT;
C. Any Event of Default hereto;
D. Enforcement of any covenant of this AGREEMENT;
E. Performance of any investigation, attempt or attainment of any
release in connection with any BOND(s) or any loss or unpaid
premium in connection with any BOND(s);
F. Prosecution or defense of any action or claim in connection with
any BOND(s), whether Surety, at its own discretion, elects to
PRINCIPAL(s) or INDEMNITOR(s) to make arrangements for
SURETY'S legal representation;
G. Attempt to recover losses or expenses paid or incurred in
connection with this AGREEMENT, CONTRACT(s) and/or
BOND(s)...."
See, fTHIRD of Agreement of Indemnity dated July 27, 2011, annexed hereto as
EXHIBIT "B".
10. Following the Defendants' execution of the Agreements of Indemnity,
Tyree Service Corp. obtained at least two payment and performance bonds, including
for the (i) Fairfield Route 15 NB- Canopy Project (hereinafter referred to as "Fairfield"
project) and the (ii) Interstate 95 Branford, CT Northbound Service Plaza Service Area
(hereinafter referred to as "I-95 Service Area" project) from Westchester.
11. Following the Defendants' execution of the Agreements of Indemnity,
Tyree Service Corp. obtained at least two fringe benefit bonds, including for the (i) Local
Union #200 of the United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada and (ii) Plumbers Local 1
Welfare Fund and Related Funds.
AS AND FOR A FIRST CAUSE OF ACTION
12. Westchester repeats and realleges the allegations set forth in paragraphs
1 through 11 as though set forth at length herein.
13. Defendant Tyree Service Corp. as contractor entered into at least two
contracts with the State of Connecticut Department of Transportation Project Services
LLC and Centerplan Construction Company LLC, including but not limited to the
Fairfield Project and I-95 Service Area Project.
14. At the request of Defendants, Westchester, as Surety, executed a
Performance and Payment Bond No. KO8408841 for the Fairfield Project and a
Performance and Payment Bond No. KO8707418 for the I-95 Service Area project
naming Tyree Service Corp. as Principal.
15. At the request of Defendants, Westchester, as Surety, also executed a
Fringe Benefit Bond No. K08107865 for the Local 1 Union and Fringe Benefit Bond No.
KO7542380 for the Local 200 Union naming Tyree Service Corp. as Principal.
16. The Bonds were executed and delivered by Westchester, as Surety, in
consideration of and in reliance upon, among other things, the written Agreements of
Indemnity.
17. Tyree Service Corp. failed to pay certain suppliers and/or subcontractors
for labor and materials used on the Fairfield and I-95 Service Area project.
18. Various vendors for the Fairfield and I-95 Service Area Projects filed
claims with Westchester for labor, materials, supplies and/or services provided to
defendant Tyree Service Corp.
19. Tyree Service Corp. also failed to pay fringe benefits to the Local 1 Union
and Local 200 Union.
20. Local Union 1 and Local Union 200 filed claims with Westchester for
unpaid fringe benefits.
21. Westchester made substantial payments, including direct payments to
subcontractors and suppliers as well as Local Union 1 and Local Union 200, who had
filed the claims.
22. On April 17, 2014, counsel for Westchester sent a letter demanding that
the defendants indemnify Westchester for the losses sustained.
23. By reason of having executed the Bond No. KO8408841, Bond No.
KO8707418, Bond No. K08107865 and Bond No. KO7542380 and the terms of the
Agreements of Indemnity, Westchester is entitled to indemnification and exoneration of
bond losses in the sum of $269,402.01 plus statutory interest pursuant to the CPLR for
which Defendants Tyree Service Corp. Tyree Environmental Corp., Tyree Holdings
Corp., Amincor, Inc. and Tyree Equipment Corp. are liable to Westchester under the
aforesaid Agreements of Indemnity.
AS AND FOR A SECOND CAUSE OF ACTION
24. Westchester repeats and reiterates each and every allegation contained in
paragraphs 1 through 23 as though herein at length set forth.
25. Defendants Tyree Service Corp. Tyree Environmental Corp., Tyree
Holdings Corp., Amincor, Inc. and Tyree Equipment Corp. executed Agreements of
Indemnity whereby they each, jointly and severally, agreed to personally indemnify
Westchester for all losses and/or expenses of whatsoever kind or nature, including
interest, court costs and counsel fees.
26. Westchester retained the law firm of Gottesman, Wolgel, Flynn, Weinberg
& Lee, P.C. (hereinafter referred to as "Gottesman") in connection with the Bonded
Projects including Bond No. KO8408841, Bond No. KO8707418, Bond No. K08107865
and Bond No. KO7542380 (hereinafter referred to as "Bond").
27. By reason of having executed the Bonds and the terms of the Agreement
of Indemnity, Westchester, as Surety is entitled to be indemnified, exonerated and held
harmless for all its attorney fees and expenses through December 11, 2013 of not less
than $40,909.72 plus statutory interest pursuant to the CPLR for which defendants
Tyree Service Corp. Tyree Environmental Corp., Tyree Holdings Corp., Amincor, Inc.
and Tyree Equipment Corp. are liable to Westchester under the aforesaid Agreements
of Indemnity.
AS AND FOR A THIRD CAUSE OF ACTION
28. Westchester repeats and reiterates each and every allegation contained in
paragraphs 1 through 27 as though herein at length set forth.
29. By reason of having executed the aforesaid bonds, in the course of
Westchester's responses to the claims made against the bonds, and in enforcing its
rights under the Agreements of Indemnity and for the instant lawsuit herein,
Westchester will continue to incur attorney's fees and expenses for which Defendants
Tyree Service Corp. Tyree Environmental Corp., Tyree Holdings Corp., Amincor, Inc.
and Tyree Equipment Corp. are liable, jointly and severally, to Westchester under the
aforesaid Agreement of Indemnity.
30. Westchester, as Surety, is entitled to be indemnified, exonerated and held
harmless by virtue of its status as Surety for all attorney fees and expenses from
December 11, 2013 onward for an amount not yet determined plus interest but are
continuing to be incurred, including but not limited to commencing and prosecuting the
within lawsuit.
AS AND FOR A FOURTH CAUSE OF ACTION
31. Westchester repeats each and every allegation set forth in paragraphs 1
through 30 of its Complaint as if set forth at length herein.
32. As between Westchester and Tyree Service Corp., Westchester is
secondarily obligated under the Bonds, while Tyree Service Corp. is primarily obligated
under the Bonds, and otherwise owes a duty to Westchester to procure the discharge of
all obligations arising under the Bonds.
33. Tyree Service Corp. has failed and refused, and continues to fail and
refuse, to satisfy the obligations to Westchester arising under the Bonds.
34. Westchester is entitled to be exonerated and indemnified by Defendants
Tyree Service Corp. Tyree Environmental Corp., Tyree Holdings Corp., Amincor, Inc.
and Tyree Equipment Corp., jointly and severally, for any and all losses incurred under
the Bonds.
35. As a result of Defendants Tyree Service Corp. Tyree Environmental Corp.,
Tyree Holdings Corp., Amincor, Inc. and Tyree Equipment Corp.'s failure to honor their
obligations arising under the Agreements of Indemnity and the Bonds, Westchester has
sustained and will continue to sustain damages in at least the principal amount of
$310,311.73.
WHEREFORE, Westchester Fire Insurance Company respectfully requests
judgment as follows:
i. on the First Cause of Action in the sum of $269,402.01 plus interest
for performance and/or payment bond losses and fringe benefit
bond losses;
ii. on the Second Cause of Action for attorney's fees and expenses of
not less than $40,909.72 through December 11, 2013;
iii. on the Third Cause of Action for attorney's fees and expenses
since December 11, 2013 for an amount not yet determined plus
interest but are continuing to be incurred, including but not limited
to commencing and prosecuting the within lawsuit;
iv. on the Fourth Cause of Action for indemnification and exoneration
for performance and payment bond losses and attorney's fees and
expenses in the sum of $310,311.73 plus interest; and
v. that Plaintiff have such other and further relief as the Court may
deem just and proper, together with the costs and disbursements of
this action.

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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