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WESTCHESTER FIRE INSURANCE COMPANY v. TWINS ELECTRIC 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: 
1:14-cv-07969 Search Pacer
ACE Group party(s): 
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Oct 2 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. This Court has personal jurisdiction over the defendants because all
defendants are residents of the State of New York and Defendant Twins Electric Corp's
principal place of business is in the County of the Bronx.
4. Venue is proper over the Defendants pursuant to 28 U.S.C. §1391 (b)(1)
because all defendants are residents of the State of New York and Defendant Twins
Electric Corp's principal place of business is in the County of the Bronx.

THE PARTIES
5. 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.
6. Upon information and belief, Defendant Twins Electric Corp., whose
address is 695 East 132nd Street, Suite 205, New York, NY, 10452 is a corporation
organized and existing under the laws of the State of New York.
7. Upon information and belief, Defendant Alfonso Di Fusco is an individual
residing at 46 Baron Drive, Hopewell Junction, NY 12533.
8. Upon information and belief, Defendant Rosanna Di Fusco is an individual
residing at 46 Baron Drive, Hopewell Junction, NY 12533.
9. Upon information and belief, Defendant Anthony Di Fusco is an individual
residing at 25 Brigam Lane, Hopewell Junction, NY 12533.
10. Upon information and belief, Defendant Samantha Di Fusco is an
individual residing at 25 Brigam Lane, Hopewell Junction, NY 12533.
11. Upon information and belief, Defendant Frank Di Fusco is an individual
residing at 86 Wimmer Road, Hopewell Junction, NY 12533.
12. Upon information and belief, Defendant Lorrie Di Fusco is an individual
residing at Wimmer Road, Hopewell Junction, NY 12533.
13. Upon information and belief, Defendant Steven Di Fusco is an individual
residing at 171 Sandy Pines Boulevard, Hopewell Junction, NY 12533.
14. Upon information and belief, Defendant Jenna Di Fusco is an individual
residing at 171 Sandy Pines Boulevard, Hopewell Junction, NY 12533.

THE AGREEMENTS OF INDEMNITY
15. Twins Electric Corp. was at all relevant times engaged in the construction
business in connection with construction projects. Twins Electric Corp. was required for
certain projects to provide performance and payment bonds in connection with its
construction contracts.
16. On or about August 7, 2009, the defendants Twins Electric Corp., Alfonso
Di Fusco, Rosanna Di Fusco, Steven Di Fusco, Jenna Di Fusco, Anthony Di Fusco,
Samantha Di Fusco, Frank Di Fusco, and Lorrie Di Fusco, 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, indemnity and keep indemnified SURETY
from and against 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, accountant fees, engineer or
construction management fees, together with interest thereon at the
maximum rate allowed by law, which SURETY may sustain or incur 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 employ
counsel of its own solicitation or permits or requires 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, IfTHIRD of Agreement of Indemnity dated August 7, 2009, annexed hereto as
EXHIBIT "A".
17. Following the Defendants' execution of the Agreements of Indemnity, Twins
Electric Corp. obtained a payment and performance bond for the Nomad Hotel Project
No. 2128 Electrical Package Project (hereinafter referred to as the "Nomad Project") from
Westchester.

AS AND FOR A FIRST CAUSE OF ACTION
18. Westchester repeats and realleges the allegations set forth in paragraphs
1 through 17 as though set forth at length herein.
19. Defendant Twins Electric Corp. as contractor entered a contract with 1170
Broadway Associates, LLC and Magnetic Construction Group Corp. for the Nomad
Project.
20. At the request of Defendants, Westchester, as Surety, executed a
Performance Bond and Labor and Material Payment Bond No. K08326885 for the
Nomad Project naming Twins Electric Corp. as Principal.
21. 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.
22. Twins Electric Corp. failed to pay certain suppliers and/or subcontractors
for labor and materials used on the Nomad Project.
23. ANG Lighting LLC filed a claim with Westchester for labor, materials,
supplies and/or services provided to Defendant Twins Electric Corp. for the Nomad
Project.
24. Westchester made substantial payment to Lighting LLC in resolution of its
claim.
25. On May 7, 2014, counsel for Westchester sent a letter demanding that the
Defendants indemnify Westchester for the losses sustained.
26. By reason of having executed the Bond No. K08326885 and the terms of
the Agreements of Indemnity, Westchester is entitled to indemnification and exoneration
of bond losses in the sum of $174,155.34 plus statutory interest pursuant to the CPLR
for which Defendants Twins Electric Co., Alfonso Di Fusco, Rosanna Di Fusco, Anthony
Di Fusco, Samantha Di Fusco, Frank Di Fusco, Lorrie Di Fusco, Steven Di Fusco, and
Jenna Di Fusco are liable to Westchester under the aforesaid Agreements of Indemnity.

AS AND FOR A SECOND CAUSE OF ACTION
27. Westchester repeats and reiterates each and every allegation contained in
paragraphs 1 through 26 as though herein at length set forth.
28. Defendants Twins Electric Co., Alfonso Di Fusco, Rosanna Di Fusco,
Anthony Di Fusco, Samantha Di Fusco, Frank Di Fusco, Lorrie Di Fusco, Steven Di
Fusco, and Jenna Di Fusco 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.
29. Westchester retained the law firm of Gottesman, Wolgel, Flynn, Weinberg
& Lee, P.C. (hereinafter referred to as "Gottesman") in connection with the Bonded
Project including Bond No. K08326885 (hereinafter referred to as "Bond").
30. 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 September 30, 2014 of not less
than $7,929.50 plus statutory interest pursuant to the CPLR for which defendants Twins
Electric Co., Alfonso Di Fusco, Rosanna Di Fusco, Anthony Di Fusco, Samantha Di
Fusco, Frank Di Fusco, Lorrie Di Fusco, Steven Di Fusco, and Jenna Di Fusco are
liable to Westchester under the aforesaid Agreements of Indemnity.

AS AND FOR A THIRD CAUSE OF ACTION
31. Westchester repeats and reiterates each and every allegation contained in
paragraphs 1 through 30 as though herein at length set forth.
32. 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
Twins Electric Co., Alfonso Di Fusco, Rosanna Di Fusco, Anthony Di Fusco, Samantha
Di Fusco, Frank Di Fusco, Lorrie Di Fusco, Steven Di Fusco, and Jenna Di Fusco are
liable, jointly and severally, to Westchester under the aforesaid Agreement of Indemnity.
33. 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
September 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.

WHEREFORE, Westchester Fire Insurance Company respectfully requests
judgment as follows:
i. on the First Cause of Action in the sum of $174,155.34 plus interest
for performance and/or payment bond losses;
ii. on the Second Cause of Action for attorney's fees and expenses of
not less than $7,929,50 through September 30, 2014;
iii. on the Third Cause of Action for attorney's fees and expenses
since September 30, 2014 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; and
iv. 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.