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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

WESTCHESTER METAL WORKS, INC. v. WESTCHESTER FIRE INSURANCE COMPANY

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: 
7:13-cv-01944 Search Pacer
ACE Group party(s): 
Opposing Party: 
Westchester Metal Works, Inc.
Court Type: 
Federal
US District Court: 
Southern District of New York
Date Filed: 
Mar 22 2013

"COUNT ONE

12. Plaintiff repeats and realleges each and every allegation contained in paragraphs "1 *' through "11" above as though they were fully set forth at length herein.

13. Upon information and belief, the City of Yonkers (the "City") entered into a written contract with MVM, whereby MVM agreed to furnish labor, materials, and equipment required for the construction of the Project.

14. On or about May 27, 2011, Westchester Fire Insurance, as surety, and MVM as principal, issued a labor and material payment bond (the "Payment Bond"), numbered K0814770A, guaranteeing, jointly and severally, prompt payment of all monies due to all persons furnishing labor, materials, and/or services for use, or reasonably required for use, in connection the above-referenced contract between the City and MVM.

15. On or about February 2,2011, MVM and WMW entered into a written agreement whereby WMW agreed to furnish certain labor, services and materials, and to perform certain work, at the Project for the lump sum price of $210,000.00 (the "Subcontract").

16. Plaintiff, WMW, at the request of MVM, and pursuant to the Subcontract furnished and installed miscellaneous steel and furnished all items required for or incidental to the furnishing and installation of the miscellaneous steel at the Project and as more particularly required by the agreement between MVM and the City.

17. WMW has fully performed its obligations under the Subcontract.

18. There is currently due and owing to WMW from MVM the sum of $163,518.33 plus interest thereon.

19. No part of the amount due has been paid by MVM although WMW has demanded payment of said amount and MVM has admitted in writing that the sum of $163,518.33 is owedto WMW.

20. The materials and equipment furnished and, the labor performed by WMW were required to be furnished and performed and were actually furnished and performed for the construction of the Project, and the aforesaid materials, equipment and labor were used or were reasonably required for use in the performance of the Subcontract.

21. WMW has performed and satisfied all of the terms and conditions of the Payment Bond.

22. MVM has breached its obligations under the Subcontract by failing to make payments as required under the Subcontract.

23. By reason of the foregoing, WMW has been damaged in the amount of $163,518.33 plus interest thereon from November 30,2012.

24. Two years have not elapsed from the date on which MVM ceased work on said Project, and, although due demand for payment has been made to Westchester Fire Insurance under the Payment Bond, no part of the sum of $163,518.33 plus interest thereon from November 30, 2012, has been paid to WMW.

25. The amount due to WMW has been unreasonably withheld since November 30, 2012, and plaintiff is entitled to interest at the rate of twelve (12%) percent per annum, from that date.

26. All of the labor, materials and equipment performed and furnished by WMW, were furnished within the Southern District of New York.

COUNT TWO

27. Plaintiff repeats and realleges each and every allegation contained in paragraphs " 1 " through "26" above as though they were fully set forth at length herein.

28. By letter to Westchester Fire Insurance, dated March 1,2013, WMW's attorneys demanded payment on behalf of WMW in the amount of $163,518.33 under the Payment Bond.

29. Westchester Fire Insurance Company has failed and refused to make payment under the Payment Bond as demanded by WMW.

30. Westchester Fire Insurance has no substantial basis in fact or law to withhold payment from WMW under the Payment Bond as demanded.

31. By reason of the foregoing, WMW has been damaged in the amount of $163,518.33 plus interest and is entitled to recover its attorneys fees and costs associated with this lawsuit (see §137 sub. div. 4.(c) of the NY State Finance Law).

WHEREFORE, Westchester Metal Works, Inc. demands judgment as follows:
1. On Count One, judgment against defendant, Westchester Fire Insurance Company, in the amount of $163,518.33 plus interest thereon from November 30, 2012, along with costs, disbursements and such other and further relief as this Court may deem just and proper.

2. On Count Two, judgment against defendant, Westchester Fire Insurance, in the amount of $163,518.33 plus interest thereon from November 30, 2012, along with costs, disbursements, attorneys fees and such other and further relief as the Court may deem 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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