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WESTCHESTER FIRE INSURANCE COMPANY v. VIRIDIAN INDUSTRIES, INC. 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-08244 Search Pacer
ACE Group party(s): 
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Oct 15 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
individual Defendants are residents of the State of New York and all corporate
Defendants' have their principal place of business in the State of New York.
4. Venue is proper over the Defendants pursuant to 28 U.S.C. §1391 (b)(1)
because all individual Defendants are residents of the State of New York and all
corporate Defendants' have their principal place of business in the State of New York.

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 Viridian Industries, Inc.
("Viridian"), whose address is 333 Marcus Boulevard, Hauppauge, NY 11788 is a
corporation organized and existing under the laws of the State of New York.
7. Upon information and belief, Defendant Diversified Carting, Inc., whose
address is 28 Garfield Avenue, Bayshore, NY 11706 is a corporation organized and
existing under the laws of the State of New York.
8. Upon information and belief, Defendant Diversified Construction Corp.,
whose address is 28 Garfield Avenue, Bayshore, NY 11706 is a corporation organized
and existing under the laws of the State of New York.
9. Upon information and belief, Defendant Superior Site Work, Inc., whose
address is 28 Garfield Avenue, Bayshore, NY 11706 is a corporation organized and
existing under the laws of the State of New York.
10. Upon information and belief, Defendant Grandview Contracting Corp.,
whose address is 28 Garfield Avenue, Bayshore, NY 11706 is a corporation organized
and existing under the laws of the State of New York.
11. Upon information and belief, Defendant Michael Geoffrion is an individual
residing at 37 Glen Lane, Kings Park, NY 11754.
12. Upon information and belief, Defendant Patricia Geoffrion is an individual
residing at 37 Glen Lane, Kings Park, NY 11754.
13. Upon information and belief, Defendant Troy Caruso is an individual
residing at 10 Colonial Drive, Smithtown, NY 11787.
14. Upon information and belief, Defendant Susan Caruso is an individual
residing at 30 Alice Lane, Smithtown, NY 11787.
THE AGREEMENT OF INDEMNITY
15. Viridian was at all relevant times engaged in the construction business in
connection with construction projects. Viridian was required for certain projects to
provide performance and payment bonds in connection with its construction contracts.
16. On or about May 20, 2010, the defendants Viridian Industries, Inc.,
Diversified Carting, Inc., Diversified Contracting Corp., Superior Site Work, Inc.,
Grandview Contracting Corp., Michael Geoffrion, Patricia Geoffrion, Troy Caruso, and
Susan Caruso, 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, jfTHIRD of Agreement of Indemnity dated May 2, 2010, annexed hereto as
EXHIBIT "A".
17. Pursuant to the terms of the Agreement of Indemnity the Surety:
"shall have the exclusive right in its name or in the name of PRINCIPAL(s)
or INDEMNITOR(s) to adjust, settle or compromise any claim, counterclaim,
demand, suit or judgment involving any BOND(s) or to take whatever action
it may deem necessary, expedient or appropriate. SURETY'S
determination as to whether any such claim, counterclaim, demand, suit or
judgment should be settled shall be binding and conclusive upon
PRINCIPAL(s) and INDEMNITOR(s). The vouchers or other evidence of
any such payments made by SURETY shall constitute prima facie evidence
of the fact and amount of liability of PRINCIPAL(s) and INDEMNITOR(s) to
SURETY."
See, jfNINTH of Agreement of Indemnity dated May 2, 2010 and annexed hereto as
EXHIBIT "A".

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. Viridian as contractor entered into a contract with NYS Parks Recreation
and Historic Preservation for the Bath House Alterations at Wildwood State Park. WW
2010-1G; D004088 ("Wildwood Project").
20. Viridian as contractor entered into a contract with the State University of
New York for Project No. 2012-01.
20. At the request of Defendants, Westchester, as Surety, executed a
Performance Bond and Labor and Material Payment Bond No. K08327312 for the
Wildwood Project and a Performance Bond and Labor and Material Bond No.
K08583444 for Project No. 2012-01 naming Viridian 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 Agreement of
Indemnity.
22. Viridian failed to pay certain suppliers and/or subcontractors for labor and
materials used on the Wildwood Project and Project No. 2012-01.
23. Sportsfield Specialties, Inc. ("Sportsfield") filed a claim in the amount of
$86,525.00 with Westchester for labor, materials, supplies, and/or services provided to
Viridian for Project No. 2012-01.
24. Reliable Truss and Components Inc. ("Reliable Truss") filed claim in the
amount of $46,544.67 with Westchester for labor, materials, supplies and/or services
provided to Viridian for the Wildwoods Project.
24. Westchester made payment to Sportsfield in the amount of $86,525.00
and to Reliable Truss in the amount of $46,544.67 in resolution of their respective
claims.
25. On September 30, 2014 and October 1, 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. K08327312 and Bond No.
K08583444 and the terms of the Agreement of Indemnity, Westchester is entitled to
indemnification and exoneration of bond losses in the sum of $133,069.67 plus statutory
interest for which Defendants Viridian, Diversified Carting, Inc., Diversified Contracting
Corp., Superior Site Work, Inc., Grandview Contracting Corp., Michael Geoffrion,
Patricia Geoffrion, Troy Caruso, and Susan Caruso are jointly and severally liable to
Westchester under the aforesaid Agreement 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 Viridian, Diversified Carting, Inc., Diversified Contracting
Corp., Superior Site Work, Inc., Grandview Contracting Corp., Michael Geoffrion,
Patricia Geoffrion, Troy Caruso, and Susan Caruso executed the Agreement 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. K08327312 and Bond No. K08583444 (hereinafter referred
to collectively as the "Bonds").
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 14, 2014 of not less
than $6,948.80 plus statutory interest for which defendants Viridian, Diversified Carting,
Inc., Diversified Contracting Corp., Superior Site Work, Inc., Grandview Contracting
Corp., Michael Geoffrion, Patricia Geoffrion, Troy Caruso, and Susan Caruso are jointly
and severally liable to Westchester under the aforesaid Agreement 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 Agreement of Indemnity and for the instant lawsuit herein, Westchester
will continue to incur attorney's fees and expenses for which Defendants Viridian
Industries, Inc., Diversified Carting, Inc., Diversified Contracting Corp., Superior Site
Work, Inc., Grandview Contracting Corp., Michael Geoffrion, Patricia Geoffrion, Troy
Caruso, and Susan Caruso 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 $133,069.67 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 $6,948.80 through September 14, 2014;
iii. on the Third Cause of Action for attorney's fees and expenses
since September 14, 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.