J.V.C. Elec. Co., Inc. v Airmont Woods LLC

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J.V.C. Elec. Co., Inc. v Airmont Woods LLC 2017 NY Slip Op 32831(U) December 4, 2017 Supreme Court, Rockland County Docket Number: 031983/2015 Judge: Thomas E. Walsh II Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:08 PM 1] INDEX NO. 031983/2015 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 12/05/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------------------------------------X J.V.c. ELECTRICAL CO., INC. a/k/a J.V.c. ELECTRICAL COMPANY, INC. CARMELO SCAFFIDI & SONS BLACKTOPPING, INC. d/b/a SCAFFIDI'S PAYING & DRAINAGE, and UC TRUCKING INC., Plaintiffs, DECISION AND ORDER -againstIndex#031983/2015 Motion # 7 - MD DC - N Adj: 12/6/17 AIRMONT WOODS LLC, ABEKEN APARTMENTS LP, ABEKEN APARTMENTS II, LLC, ABEKEN LLC, ABEKEN MANAGEMENT LLC, CARDINAL DEVELOPMENT, LLC, CONGERS APARTMENT RENTALS, LLC, DENTON ACRES LLC, GLW DEVELOPERS LLC, K.D.J. REALTY, INC, KENABE, LLC, TUTHILL PARC, LCC, VIOLA PARK REALTY, LLC, WARWICK COMMONS LLC, KENNETH J. BERGSTOL, SUSAN BERGSTOL, JON BERGSTOL, JOHN DOE NO. "3" fl Through JOHN DOE NO. "5", JANE DOE NO. 1" Through JOHN DOE NO. "5", Defendant(s) ------------------------------------------------------------------X Thomas E. Walsh II, J. The following Jon Bergstol, and Rules 9 3211, Civil Practice Law and Rules Counts Susan Bergstol, determination 1- 3 re6d on this motion by Defendant Denton Acres LLC and KDJ realty Inc.'s for an order pursuant 3214 (1) dismissing Defendant papers numbered of the instant 9 3016(b) 11 and 12 for the Plaintiff's (2) staying motion any disclosure Susan Bergstol, to Civil Practice Law and Civil Practice Law and Rules Second Amended sought and (3) for such other by plaintiffs and further Complaint from relief as to her pending as this Court deems just and proper under the circumstances: NUMBER PAPERS NOTICE OF MOTION/AFFIRMATION EXHIBITS (A-D) OF ANTHONY X. ARTURI, ESQ'/ 1 AFFIRMATION OF PATRICIA E. HABAS, ESQ. IN OPPOSITION/AFFIDAVIT JOSEPH V. CACIOPPO, JR/AFFIDAVIT OF WILLIAM SCAFFIDI/AFFIDAVIT 1 1 of 6 OF OF 9 [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:08 PM 2] INDEX NO. 031983/2015 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 12/05/2017 JOSEPH JOHN BERTOLINO/EXHIBITS (1-18)/MEMORANDUM OF LAW IN OPPOSITION TO AIRMONT DEFENDANTS' MOTION TO DISMISS 2 REPLYAFFIRMATION OF ANTHONY X. ARTURI, JR., ESQ./EXHIBITS 3 (A-C) REPLY BRIEF OF SUSAN BERGSTOL ON MOTION DISMISS PLAINTIFF'S COMPLAINT Upon careful consideration Briefly, Defendants this action of the foregoing, arises from as part of the building between 2009 and 2012. 5, 2015 against Originally Defendants the Court now rules as follows: non-payment of various 4 for services provided homes in a subdivision in Airmont, Plaintiff JVC ELECTRICAL commenced AIRMONT WOODS and BERGSTOL. by Plaintiffs to New York this action on May The Complaint contains contract causes of action, causes of action pursuant to Article 3-A of the Lien Law ("Trust Fund Claims"). On June 1, 2015 Plaintiff's letter. Defendant's extension settlement counsel served Sterling prior counsel contacted to answer or appear, discussions which resulted ended unsuccessfully Tecum on February 9, 2016 on Sterling Plaintiff's National counsel in protracted Bank with a litigation on June 2015 requesting settlement in 2016 and Plaintiffs National hold discussions. filed a Subpoena Bank on notice to Defendants. an The Duces Prior to the bank's compliance with the subpoena, the issue was joined when Defendants AIRMONT WOODS and BERGSTOL filed a joint Verified Answer Defendants filed a motion seeking summary of action and to quash the subpoena undersigned from the bench. Amended Complaint pursuant judgment served On Marchi, to the original Complaint. dismissing on Sterling the fourth Bank which 9 3025(a) and fifth causes was denied 2016, Plaintiff served a Supplemental to Civil Practice Law and Rules Subsequently, by the Summons and jOining Plaintiffs UC TRUCKING and SCAFFIDI PAVING. On that date Plaintiffs UC TRUCKING and SCAFFIDI PAVING also served on Defendant Amended Complaint In November a Trustee Demand. Defendants filed a Verified Answer to the on March 30, 2016. 2016 the undersigned issued a Decision and Order addressing 2 2 of 6 Defendant [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:08 PM 3] INDEX NO. 031983/2015 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 12/05/2017 Airmont Woods, LLC and Kenneth Bergstol's Motion for partial Summary Judgment the Twelfth tenth (Trust Fund), Eleventh (Fraudulent Conveyance) causes of action and for a protective subpoena filed on Sterling National Conveyance) and order and an order quashing bank and other related relief. dismissing (Fraudulent the non-party That same Order also considered the Plaintiff's Motion for Summary Judgment on the various causes of action. Within the November 2016 Decision and Order the Court denied Defendant's motion for partial summary judgment, Bank subpoena Plaintiff's and denied motion to compel verified statement for the construction a protective order and the motion to quash the Sterling National Plaintiff's motion for summary and the Defendant's framed-issue judgment. were directed The Court granted to furnish and provide access to books and records which constituted project Biret Drive Subdivision Project in Airmont, the Court directed the parties to appear for a framed-issue and twelfth aforementioned cause of action in the Complaint Plaintiffs with a the lien law trust New York. Additionally, hearing as to the tenth, eleventh two weeks after the Decision and Order. hearing has not occurred and has been adjourned The numerous times over the past year. Pursuant to the above November 2016 Decision and Order, the Defendants forwarded copies of Defendants Airmont Woods, LLC and Kenneth Bergstol's banking records from Sterling Bank. Plaintiff's filed a motion for leave to amend the Complaint issued a Decision and Order on February Complaint. Plaintiffe-filed defendants and causes of action. the newly added defendants Defendant Airmont. Defendants to the Second Amended plaintiff's and served the Second Amended Complaint which added the additional alleged that 14, 2017 granting in December 2016. The Court Airmont Complaint were recipients motion to amend the on February 21,2017, The Second Amended Complaint of fraudulent conveyances from Woods and Kenneth Bergstol filed a Verified Answer on March 13,2017. Defendants Denton Acres, LLC, KDJ realty Inc., Jon Bergstol and Susan Bergstol filed Verified Answers to the Second Amended Complaint on March 13, 2017. 3 3 of 6 [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:08 PM 4] INDEX NO. 031983/2015 NYSCEF DOC. NO. 277 RECEIVED NYSCEF: 12/05/2017 Defendants Susan Bergstol has filed the instant and 12 of the Plaintiff's forth with particularity Second Amended Complaint which if any fraudulent Practice Law and Rules Pursuant 9 based upon the Plaintiff's conveyances "any Defendant alleged to have received from Defendant Airmont Bergstol is seeking a stay of any further motion seeking to dismiss Counts 11 Woods, LLC. In addition, discovery in the interest of justice failure to set named therein". is Defendant Susan pursuant to Civil 3214(b). to Civil Practice Law and Rules 9 3211(e) there are certain grounds for dismissal of an action that are waived if not asserted in the responsive pleading or in a motion to dismiss brought prior to the time service of the responsive pleading is required. dismissal based on a lack of subject matter jurisdiction, Motions for failure to state a cause of action or the absence of a person who should be a party may be brought at any time even if that objection 9 is not raised in the party's answer. [Civil Practice Law and Rules 3211(e)]. In the instant action Defendant Susan Bergstol filed an Answer to the Second Amended Complaint on March 13, 2017 and raised seven (7) affirmative Prior to filing the aforementioned file a pre-answer Rules 9 Further, a review of Defendant failed to raise the affirmative within the Second Amended required for a fraud cause of action. Complaint) 3211(a)(1). instant 3211, but fails to delineate is seeking a dismissal. The Defendant the particularity motion to dismiss is which subsection Susan Bergstol has which she alleges demonstrate causes of action are not plead with particularity, assessment that the Defendant's 9 Answer reveals that she were not plead with evidence in the form of bank statements that the eleventh and twelfth Rules 9 Civil Practice Law and conveyance causes of action (eleven Defendant Susan Bergstol's made pursuant to Civil Practice Law and Rules included documentary within Susan Bergstol's defense that the fraudulent within the statute the Defendant that Answer. Answer on March 13, 2017, Defendant Susan Bergstol did not Motion to Dismiss on any grounds delineated 3211(a). and twelve defenses within it is the Court's motion to dismiss could be pursuant to Civil Practice Law and However, the Court need not guess which subsection 4 4 of 6 Defendant Susan [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:08 PM 5] NYSCEF DOC. NO. 277 INDEX NO. 031983/2015 RECEIVED NYSCEF: 12/05/2017 Accordingly, it is hereby ORDERED that Defendant Susan Bergstol's Motion to Dismiss and for a Stay of 5 5 of 6 [*FILED: ROCKLAND COUNTY CLERK 12/05/2017 02:08 PM 6] NYSCEF DOC. NO. 277 further RECEIVED NYSCEF: 12/05/2017 disclosure (Motion #7) The foregoing Dated: INDEX NO. 031983/2015 fJJ.w New City, December-t--, is denied constitutes in its entirety. the Decision and Order of this Court on Motion #7. York 2017 HON. OMAS E. WAL H II Justice of the Supreme Court TO: GREGG VERRILLI, ESQ. ROGERS, MCCARRON & HABAS, P.c. Attorneys for Plaintiff (via e-file) JOSEPH J. HASPEL, ESQ. Attorney for Defendants AIRMONT WOODS, LLC and KENNETH BERGSTOL (via e-file) ANTHONY X. ARTURI, ESQ. ARTURI, D'ARGENIO, GUAGLARDI & MELITI, LLP Attorney for Defendants SUSAN BERGSTOL, JON BERGSTOL, DENTON ACRES, LLC and KDJ REALTY INC. (via e-file) 6 6 of 6

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