Case l:13-cv-00781-BMC

Document 1 Filed 02/12/13 Page .1 of 33" Pag/elD#: 1

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK Civ. No. ANTHONY LONG AND LONG INDUSTRIES CONSTRUCTION CORP., Plaintiffs, -againstWESTCHESTER FIRE INSURANCE COMPANY AND L-C CONSTRUCTION CONSULTING CORPORATION, Defendants. NOTICE OF R E M O V A L
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VFFALIANO, J.
SCANLON, M.J.

PLEASE TAKE NOTICE that pursuant to 28 U.S.C. 1332, 1441 and 1446 and Lo:al Civil Rule 81.1, Defendant Westchester Fire Insurance Company ("Westchester Fire") hereby gives notice of removal of the above-captioned action; which was commenced by the filing of a summons with notice by plaintiffs Anthony Long ("Long") and Long Industries Construction Corp. ("LICC") (collectively the "Plaintiffs") in the Supreme Court of the State of New York, County of Kings under Index No. 500035/2013 to the United States District Court for the Eastern District of New York. In support of removal, Westchester states as follows: 1. This Notice of Removal is timely filed pursuant to 28 U.S.C. 1446(b) in that it

is being filed within thirty (30) days of the first date on which any one of the defendants was served with a copy of the Summons with Notice (the "Summons"). Defendants were both served with the Summons on January 14, 2013. 2. The Supreme Court of the State New York, County of Kings is located within

Eastern District of New York.

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3.

Pursuant to 28 U.S.C. 1446(a), copies of all records, orders, process and

pleadings that have been served on the Defendants, and which are known to exist, are attached hereto as Exhibit A. 4. Pursuant to 28 U.S.C. 1446(d), a copy of this Notice of Removal is being filed

with the Kings County Clerk of the Supreme Court of the State of New York. A copy of the unexecuted Notice of Filing, without attachments, is attached hereto as Exhibit B. 5. defenses. THIS COURT HAS DIVERSITY JURISDICTION 6. This Court has original jurisdiction over this action pursuant to 28 U.S.C. 13 32, By filing this Notice of Removal, Westchester does not waive any available

and therefore, this action is removable to this Court pursuant to 28 U.S.C. 1441. 7. diverse. 8. Upon information and belief, at the time the Plaintiffs commenced the state court As set forth more fully below, the proper parties to this action are completely

action, Plaintiff Long was an individual residing at 12 Homewood Lane, Dix Hills, New York. 9. Upon information and belief, at the time the Plaintiffs commenced the state court

action, Plaintiff LICC is an alleged business entity with its principal place of business supposedly located at 948 East 92nd Street, Brooklyn, New York. 10. At the time the Plaintiffs commenced the state court action, Westchester Fire

Insurance Company was a corporation organized and existing under and by virtue of the laws of the Commonwealth of Pennsylvania, and was duly authorized to transact surety business in the State of New York by the New York State Department of Financial Services. Westchester File's principal place of business is in Philadelphia, Pennsylvania.

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11.

Defendant L-C Construction Consulting Corp. ("L-C") is not a proper party to

this action. At the time the Plaintiffs commenced the state court action, L-C was (and is) a corporation organized under the laws of the State of New York with its principal place of business in New York. L-C is a nominal party who is not required to be named in this action because the full relief that is sought in the Summons can be granted without L-C as a party. 12. Plaintiffs have improperly joined L-C as a party in an attempt to defeat diversity

jurisdiction and to impede Westchester from removing this action to federal court, where a prior related action in the E.D.NY. captioned "THE C.I.A. CONSTRUCTION GROUP CORP. v. WESTCHESTER FIRE INSURANCE COMPANY", case number 11-0468 (the "C.I.A. action") was tried before Judge Cogan and involved substantially similar claims by C.I.A. Construction Group, Inc. ("C.I.A."), an entity owned and/or controlled by Steven Long, the father of Plaintiff Long. After trial, the claims against Westchester Fire were dismissed and L-C was awarded damages against C.I.A. for breach of contract. 13. Plaintiffs state in the Summons that this is an action for "breach of contract by

virtue of Defendants' failure to pay sums lawfully due Plaintiffs under a certain payment bond ("Payment Bond") entered into by defendant Westchester Fire Insurance Company, as surety and defendant L-C Construction Consulting Corporation, as principal. Pursuant to the Payment Bond, Defendant Westchester Fire Insurance Company is obligated to pay monies due and owing to Plaintiffs in connection with work, labor and services provided at, and incorporated into, the public improvement project entitled Reconstruction of Field 4 and various locations at the Parade Ground Park, Brooklyn New York, Contract number B068-107M [the "Project"]."

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14.

Plaintiffs seek: a. "[cjompensatory damages in favor of Plaintiff Anthony Long in the amount of $17,156.40 for unpaid wages and fees, together with applicable interest thereon." b. "Compensatory damages in favor of Plaintiff Long Industries Construction Corp in the amount of $130,750.00 for unpaid fees owed for the rental of caterpillars, bobcats and certain other equipment used at the above-referenced public improvement project, together with applicable interest thereon." c. "The costs and disbursements in connection with the prosecution of this action." d. "Plaintiffs' reasonable attorneys' fees, costs and expenses." e. "Such other and further relief as to the Court deems just and proper under Ihe circumstances."

15.

The amount in controversy, according to the Summons, is $ 147,906.40. See

Summons. This satisfies the requirement of 28 U.S.C. 1332 that the amount in controversy exceed $75,000.00. 16. Westchester Fire issued and executed, as surety, the Payment Bond (annexed

hereto as Exhibit C) naming L-C as principal in connection with the Project. 17. Upon information and belief, Plaintiffs were, at best, subcontractors to C.I.A. on

the Project and had no direct contractual relationship with L-C. 18. Upon information and belief, Plaintiffs claims were directly related and part of the

claims that were asserted by C.I.A. in the C.I.A. action which action was commenced only

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against Westchester Fire. L-C was subsequently added as a third-party defendant to the C.I.A. action, with whom L-C had a direct contract. 19. Notably, upon information and belief, the owner of C.I.A. is Steven Long, the

father of Anthony Long in this action and that this action was not commenced until after judgment was entered dismissing C.I.A.'s claims against Westchester Fire and entering judgment in favor of third-party defendant L-C against C.I.A. 20. Upon information and belief, there is no direct contract between defendant L-C

and the Plaintiffs for this Project, who were at best subcontractors of C.I. A. 21. Upon information and belief, among other defenses, LICC is not a company th at

is authorized to conduct business in the State of New York. 22. The Summons asserts only a claim sounding in breach of contract based on

Westchester Fire's alleged failure to pay an alleged claim under the Payment Bond. No claims are asserted against L-C in the Summons. 23. Because no claims are asserted against L-C in the Summons and the only claim

asserted is against the Payment Bond, and because there is no contract between L-C and the Plaintiffs, Plaintiffs cannot assert a claim against L-C in state court. See Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296 (2d. Cir. 2004) cert, denied 544 U.S. 949, 125 S.Ct. 1704, 161 L. Ed. 2d 525 (2005) ("The doctrine of fraudulent joinder is meant to prevent plaintiffs from joining non-diverse parties in an effort to defeat federal jurisdiction. Under the doctrine, courts overlook the presence of a non-diverse defendant if from the pleadings there is no possibility that the claims against that defendant could be asserted in state court.") 24. The "generally accepted practice is to 'evaluate a defendant's right to remove :i

case to federal court at the time the removal notice' was filed, ignoring any later-filed

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amendments to the complaint." DNJLogistic Group, Inc. v. DHL Express (USA), Inc., 727 F.Supp.2d 160,165 (E.D.N.Y. 2010) quoting Vera v. Sacks & Co., 335 F.3d 109, 116 n.2 (2d. Cir. 2003)(per curiam); see also, Federal Ins. Co. v. Tyco Int'l Ltd., All F.Supp.2d 357, 368 (S.D.N.Y. 2006)("propriety of removal is to be determined by the pleadings at the time of removal."); see also, In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 399 F.Supp.2d 356, 363 ("A court must thus consider the complaint at the time of removal to determine if removal was appropriate in the first place."). 25. New York State law permits the commencement of an action by summons wilh

notice. See CPLR 304. If the summons with notice sets forth the information necessary for the defendant to intelligently ascertain removal from the face of the pleading, the summons with notice qualifies as an "initial pleading" under 28 U.S.C. 1446. See Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206 (2d. Cir. 2001)(finding that the defendants could not have ascertained diversity jurisdiction from the face of summons with notice at issue and thus it did not qualify as an initial pleading). Further, the Whitaker Court stated that in "cases where removal is based upon diversity, the facts required to support the removal petition include the amount in controversy and the address of each party." Id. at 208. 26. Because Plaintiffs commenced this action in state court by summons with notice,

for purposes of analyzing the claims the Court can only consider those claims asserted in the Summons, because the evaluation of the Defendants' right to removal is made at the time the removal notice was filed and not when any claims that may be raised in a proposed complainl which claims were not referenced in the Summons. See MBIA Insurance Corp. v. Royal Bank of Canada, 706 F.Supp.2d 380, 397 (S.D.N.Y. 2009) ("the Court will consider the Proposed

Case f:13-cv-00781-BMC Document 1 Filed 02/12/13 Page 7 of 36 PagelD #: 7

Complaint and the other submitted documents only to evaluate the specific contract claims alleged in the Summons with Notice".) ALL DEFENDANTS CONSENT TO REMOVAL OF THIS ACTION 27. To the extent that the consent of all properly served defendants is required, all

such properly served defendants in this action join in and consent to this removal. See Zerafa v. Montefiore Hospital Housing Co., Inc., 403 F.Supp.2d 320, 328 (S.D.N.Y. 2005)("An exception to the general requirement [of unaminity of joinder of defendants to removal of action] occurs: where the nonjoining defendant is nominal." Annexed hereto as Exhibit D, please find a letter from counsel for L-C consenting to removal. Dated: New York, New York February 11, 2013

STEVEN WEINBERG, ESQ. Member of Gottesman, Wolgel, Malamy, Flynn & Weinberg, P.C. Attorneys for Defendant Westchester Fire Insurance Company 11 Hanover Square, 4th Floor New York, NY 10005 Tele: 212-495-0100 Fax: 212-480-9797 Email: sweinbergcStgottesmanlaw.com To: RIVKIN RADLER LLP Attorneys for Plaintiffs 555 Madison Avenue, 26th Floor New York, NY 10022 Tele: 212-455-9555 PINKS ARBEIT & NEMETH, ESQS. Attorneys for Defendant t*, S ^ ^ L-C Construction Consulting Corp. 140 Fell Court, Suite 103 Hauppauge, NY 11788 Tele: 631-234-4400

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Case l:l3-cv-00781-BMC

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L-C Construction Consulting Corp. 69-61 Juniper Boulevard So. Middle Village, NY 11379

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Case l:l3-cv-0078l-BMC Document 1 Filed 02/12/13 Page 10 of 33 PagelD #: 10

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS, Anthony Long and Long Industries Construction Corp.
PlaintitBPetitioneri Index No, 50003671,3

Fire Insurance Company (Westchester Consulting Corporation and L-C Construction

Defendant/Respondent.

NOTICE OF COMMENCEMENT OF ACTION SUBJECT TO MANDATORY ELECTRONIC FILING

PLEASE TAKE NOTICE that the matter captioned above, which has been commenced by filing of the accompanying documents with (he County Clerk, is subject to rnaiidatoiy electronicfilingpursuant tg Section 202.5-bb of the Uniform Rules for the Trial Courts. This notice is being served as required by Subdivision (b) (3) of that Section. The New York State Courts Electronic Filing System ("NYSCEF") is designed for the electronic filing of documents with the County Clerk and (he court and for the electronic service of those documents, court documents, and court notices upon counsel and self-represented parties. Counsel and/or parties who do not notify the cdurt of a claimed exempti on (see below) as required by Section 202.5^b(e)imistinimea^teryi^ordtheirr^csentarton^thii] the e-filcd matter on the Consent page in NYSCEF. Failure to do so may result in an inability to receive electronic notice of document filings. Exemptions from mandatory e-filing are limited to: 1) attorneys who certify in good faith that they lack the computer equipment and (along with all employees) the requisite knowledge to comply; and 2) setf-represented patties who choose not to participate in e-filing, For additio oal information about electronicfiling,including access (O Section 202.5-bb, consult the NYSCEF website at www.riycourts.gov/efiJe or contact the NYSCEF Resource Center at 646386-3033 or efile@courts.state.ny.iis.
Dated: 1/11/2013

(Signature)

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(Address)

David |D M. Grill Kivkin Radler LLP

(Name) (Finn Name) (Phone)

(E-MBII)

To:

.WBfttrihBsler Flm... Insurance Company L-C Construction Consulting Corporation

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Case l:13-cv-00781-BMC Document 1 Filed 02/12/13 Page 11 of 33 PagelD #: 11

IFJLEDi KINGS COUKTY CLBRK 0 1 / 0 3 / 2 0 1 3 1

HYSCEF DOC, (TO. 1

liSDEX MO. 00035/201; RECEIVED NY3CEF: 01/03/2013

SUPREME COtIRT OF TUB STATE OF NEW YORK COUNTY OP JONGS ANTHONY LONG AND LONG INDUSTRIES CONSTRUCTION CORP., Plaintfflfe,
-agaitist-

Index No. Date filed: SUMMONS wrra NOTICE Plaintiffs designate King* County as the place of trial. Venae is based upon the sfcdi of Are dispute and the project at tone. Plaintiffs' Addresses:

WESTCHESTER FIRE INSURANCE COMPANY and L-C CONSTRUCTION CONSULTING CORPORATION, Defendants.

Anthony Long: 12 Homewood Lime Dix Hills, New York Long Industries Constmcfiob Corp. 94* East nM Street Brooklyn, New York TO THE ABOVE NAMED DEFENDANTS: YOU ARE HERESY SUMMONED to answer the complaint in this action and serve a copy of your answer, or, if the complaint is not served with this summons, to serve anotice of appearance, on the attorneys for the plaintiff within twenty days afterthe service of this summons, exclusive of the date of service (or within mirty days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment wiU be taken against you by default for the relief demanded herein. NOTICE: This is an action for, among other things, breach of contract by virtue of

Defendants' Mime to pay sums law&Qy due Plaintiffs under a Certain payment bond CTayment Bond") entered into by defendant Westchester Fire Insurance Company, as

Case l:13-cv-00781-BMC Document 1 Filed 02/12/13 Page 12 of 33 PagelD #: 12

surely, and defendant L-C Construction Consulting Corporation, as principal. Pursuant to the .Payment Bond, Defendant Westchester Fire Insurance Company is obligated to pay monies due and Owing to Plaintifls in connection with work, labor and services provided at, and incorporated into, the public inrprovemenl project entitled Reconstruction of Field 4 and various locations at fee Parade Ground Park, Brooklyn New York, Contract number B068-107M. Plaintiffs seek an award of: A. Compensatory dainages infeVorof Plaintiff Anthony Lou g in the amount of $17,156.40 for unpaid wages and fees, togttljcr With applicable interest thereon. Compensatory darna^ in favor of PlairttifTEx^ Corp. in the amount of $130,750.00 for unpaid fees owed for the rental of caterpillars, bobcats and certain other equipment used at the abovereferenced public improvement project, together with applicable interest thereon. The costs and disbursements in connection with the prosecution of this action. plflinrifrV reasonable attorneys' fees, eoste and expenses. Such other and farther relief as to the Court deems just and proper Under the circumstances.

B.

C. D. "E.

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Upon your failure to appear, judgment will he taken against you be default for the relief sought above and the costs of this actionDated: New York, New York December 27, 2012 WVKmRADLBR, Atiot

York 10022

(212J3S5-9S55

Defendants' Addresses: Westchester Fire Insurance Company 1133 Avenue of die Americas New York, New York 10036 L-C Construction Consulting Corporation 69*61 Juniper Boulevard South Middle Village, New York II379

269WS9*]

Case l:'13-cv-0078l-BMC Document 1 Filed 02/12/13 Page 14 of 33 PagelD #: 14

NYSCEF - Kings County Supreme Court Confirmation Notice

This is an automated responseforSupreme Court / Court of Claims cases. The NYSCEF site has received your electronically filed documents) for Anthony Long et at*v. > Westchester Fife insurance Company et at Index Number NOT assigned

Doc #
1

Document Type
SUMMONS WITH NOTICE

Motion #

Date 01/02 01/03/2013 05:18 PM

Rlrng User
Name: Phone Faxtt DAVID M GRILL 516-357-3000 516-357-5333 E-mail Address: Work Address: david.griirigrivlctri.cwri RIvKJn Radler Lip 926 RXR Plaza Uniortdate, NY 11556

E-rhatJ Notifieaitorfs
An e-mail notification regarding this filing has been sent to thefollowingaddress(es) DO 01/03/2013 05:16 PM: GRILL, DAVID M -davtd.grlll@rlvkin.com

NOTE.- If submitting a working copy of this filing to the court, you must include as a notification page firmly affixed thereto a copy of this Confirmation Notice. " . ... M E-mail: EFae@nycourts.gov Phone:(646)386-3033 Fax:(212)401-9146 website: www.nycOurls.gov/efile Page 1 of 1

Case l:l3-cv-'00781-BMC Document 1 Filed 02/12/13 Page 15 of 33 Page ID #: 15

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RECEIVED DVPT?Ttn?n w y s c E F ; 01/23/2013

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State of New York - Department of State Receipt for Service

Receipt #; 201301150288 Cash #: 201301150237 Date of Service.: 01/14/2013 Fee Paid: $40 - DRAWDOWN Service Company: 08 COLBY ATTORNEYS SERVICE COMPANY - 08 Service, was directed to be made pursuant to: , CORPORATION LAW Party Served: SECTION 3 06 OF THE BUSINESS

L-C CONSTRUCTION CONSULTING CORPORATION

Plaintiff/Petitioner: LONG, ANTHONY

Service of Process Address: L-JC CONSTRUCTION CONSULTING CORPORATION PQ BOX 878 MANORVILLE,. NY 1194 8 i ', ; ' ;

',

Secretary of State By CHAD MATICE

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Case l:13-cv-00781-BMC

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Supreme Court of the State of New York County of Kings Anthony Long and Long Industries Construction Corp., PlaintifT(s)
-against-

AFFIDAVIT OF SERVICE Index No. 500035/2013 Date Filed 01/03/2013

Westchester Fire Insurance Company and L-C Construction Consulting Coporation, Defendants) State of New York ) County of Albany ) ss:

Mary M. Bonville, being duly sworn, deposes and sayS: Deponent is over the age of eighteen and is a resident of New York State and is not a party to this action. That on January 14, 2014 at approximately 1:45 PM deponent served the following specific papers pursuant to Section 306 of the Business Corporation Law: Summons with Notice (endorsed with the index number and date of pisrchase) WithNYSCEF - Kings County Supreme Court Confirmation Notice, and Notice of Coramenceirient of Action Subject to Mandatory Electronic Filing, that the parry served was L-C Construction Consulting Corporation, a domestic business corporation, one of the defendants in this, action, by personally serving two copies of the aforesaid papers at the office of the NYS Secretary of State located at 99 Washington Avenue, 6th Floor, in the City of Albany, New York by delivering to and leaving the papers with Chad Malice, a white male ; with black hair, being approximately 21-35 years of age; height of 5'9" - 6'0", weight of 180-200 lbs., being an authorized person in the Corporation Division of the Department of State and empowered to receive such service. That at the time of making such service, deponent paid the fee prescribed by Law in the amount OJ" $40.00.

^TJ^JW^Q^JIKJ
Mary M. Bonville Sworn to before me day of January, 2014

Ruth A. Dennchey Notary Public State of New York Qualified in Albany County Registration No. 01DE4729775 Commission Expires: 11-30-2014

' FILEP fc3SE | g& smm&m%o&M&itf^

NYSCEF DOC. NO. 3

02/12/13 p a g e is of 33 mm^.

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RECEIVED NYSCEF: 01/23/2013

Supreme Court of the State of New York County of Kings Anthony Long and Long Industries Construction Corp., Plaintiff(s) -againstWestchester Fire Insurance Company and L-C Construction Consulting Coporation.; Defendants) State of New York) County of Albany) ss:

AFFIDAVIT OF SERVICE Index No. 500035/2013 Date Filed 01/03/2013

Mary M. Bonville, being duly sworn, deposes and says: Deponent is over the age of eighteen and is a resident of New York State and is not a party to this action. That on January 14,2014 at approximately 10:15 AM deponent served the following specific papers pursuant to Section 1212 of the Insurance Law: Summons with Notice (endorsed with the index number and date of purchase) With NYSCEF - Kings County Supreme Court Confirmation Notice, and Notice of Commencement of Action Subject to Mandatory Electronic Filing, mat the party served was Westchester Fire Insurance Company, an insurance company licensed in New York State, one of the defendants in this action, by personally serving one copy of the aforesaid papers at the office of the NYS Department of Financial Services located at 99 Washington Avenue, 20th Floor, in the City of Albany, New York by delivering to and leaving the papers with Patrick Harrigan, a white male with gray balding hair, being approximately 56-65 years of age; height of over &, weight of 160-190 lbs., being an authorized person in NYS Department of Financial Services and empowered to receive such service. That at the time of making such service, deponent paid the fee prescribed by Law in lie amount of $40.00.

Mary M. Bonville Sworn to/6efore mejhisr^

/

day of January, 2014

Ruth A. Dennehey Notary Public State of New York Qualified in Albany County Registration No. 01DE4729775 Commission Expires: 11-30-2014

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ANTHONY LONG AND LONG INDUSTRIES CONSTRUCTION CORP., Plaintiffs, -againstWESTCHESTER FIRE INSURANCE COMPANY and L-C CONSTRUCTION CONSULTING CORPORATION, Defendants.
x

Index No: 500035/2013 NOTICE OF FILING OF NOTICE OF REMOVAL

PLEASE TAKE NOTICE that defendants Westchester Fire Insurance Company and LC Construction Casualty Corporation have, pursuant to federal law, filed with the Clerk of the United States District Court for the Eastern District of New York a Notice of Removal. Pursuant to 28 U.S.C. 1446, this Court is respectfully requested to proceed no further in this action, unless and , until the action is remanded by the United States District Court.
l

A copy of the Notice of Removal filed with the United States District Court is attached and filed with this document. Notice of the Removal has also been given to the plaintiffs in this action. This action was removed to the United States District Court under the authority of 28 U.S.C 1332,1441 and 1446. Dated: New York, New York February 11,2013

RICHARD B. DEMAS ESQ. Gottesman, Wolgel, Malamy Flynn & Weinberg P.C. Attorneys for Defendant Westchester Fire Insurance Company 11 Hanover Square, 4th Fir. New York, NY 10005

Case l:13-cv-00781-BMC

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(212)495-0100 Email: rdemas@gottesmanlaw.com

Steven G. Pinks, Esq. Pinks, Arbeit & Nemeth Esqs. Attorneys for Defendant L-C Construction Consulting Corp. 140 Fell Court, Suite 103 Hauppauge, NY 11788 Tele: (631) 234-4400 Email: stevenfaipinksarbeit.com TO: Rivkin Radler LLP Attorneys for Plaintiffs ;th 555 Madison Avenue, 26in Floor New York, NY 10022

Case l:'l3-cv'-00781-BMC

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Case l:13-cv-00781-BMC Document 1 Filed 02/12/13 Page 26 of 33 PagelD #: 26

B5/23/20BS .16:59 7167686B84 OLMSTED LESflL PASE 18/15

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Case l:13-cv-0078l-BMC Document 1 Filed 02/12/13 Page 27 of 33 PagelD #: 27

H/23/2KG 16:59

71B760S884

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Motary Public, State of Mew York NO.01KH6108233 Qualified In Queens Cpunty Expires April 12, 2015
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<to HkifettJ'WB-anfifcabwnID awfto <bs owe c&e niwiflsas efQa> &m-a ,' . -aKaotted'die same as-acd fortiic act jaaSj'ftsoI af sasct fintu

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Case l:13-cv-00781-BMC Document 1 Filed 02/12/13 Page 28 of 33 Page ID #: 28

05/23/2006 16;59

71B768B8B4

OLMSTED LEGAL

. PAGE 12/15

PAYMENT BOmCfy.6) AC^O&LEDGMENT OF matc^AL'-TFANismvmvAi'

Stats Qa Siis; tff . . Cbraty df__, ^jMy pf .,
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before me

paawiaMyfflpacBd.. _ . toowg,tpgiet6befoe peacm described is cud -wise executedfeeforegoingajsmaneni end aclaun^edged thai he executed tiiesanrej

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(a)

appropriate actopisi3gpiRn,ts of Sbe n^pectivs parties;

00 ajiprojaisos dn3y mjtifieil copy, ofppwerof ,A$OBifiybr-other certificate of atithoriiyTObere^oadis-eaecated by agaA, officer or ofe^itpsss^stireofprfne^ialor Sasty, ' ' (a) a duly certified extead^ffrmby-&w5Tr^^ Pevrar.ofAttonwy < r other certificate of aiifliarity of i s ^geat officer or tejsresentative was S
t

(d)' s duty certified copy of lasa polishedfinancialstatement of assets asd liahffitiesdfSarEiy.

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AFFIX ACKNOWLEDGMENTS AND JUSTIFICATIONS OF SURETIES

127

Case l:13-cv-00781-BMC Document 1 Filed 02/12/13 Page 29 of 33 Page ID #: 29

05/23/2006 IS: 59 71876.05884
OLMSTED LEGAL

PAGE 13/15

AOK^TOWIJIOOMKNT BY PRINCIPAL TNOTVUHJAL STATE OP County 6f_ as. jTjQiiltt 06, oa-flria^ _day of. _ j.snotaiypnfcJJe in and ftirflieCacnty and State aforesad,.iC4Jciiing thereto, daly conttoissioned and' sworn, personally appeared _ kooro to me to be the person whose name is subscribed to the within instrument, and acknowledged that he/she executed the straw. IN WfTNESS TVHEREOF, 1 have hsrrairto set my hand and affixed my official seal the day and year ia this certifies^ first above written. (Seal) ; Notary Public PARTNERSHIP STAXfcOF 55County of^ j before me,. _day ofi. no titis ___^______ , a notary raMc to ami ^ f l B C o r o t y and State aforesaid, residing Sterefcyduly wnmrissicflcd and swam, persansBy appeared known EHBetobeutepetswa wioss jams is subscribed to the w i t o instnrarent, sMacknflwlodgedthal hafehe ssEenfcd the same, IN WITNESS 'WHEREOF, 1 have heiamw set my hand aad affiswi my offraal saal, the day and year jn this certificate first above written. (SeaO Notary Public

CORPORATION , ^

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STATED?

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:Qnedand swoia, tome to be the he/abe execoted the

County of on this notary pnbHe in aad fin personally appeared person whose iwme is sabstafi same.' IN "WITNESS 'WHEHBOF,1 have hereunto set my hand year in this certificate fitstabove written. (Seal)

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affixed toy 6fScM seal, fee day and

ACKNOWLEDGMENT BY SURETY STATE OF Delaware Commission Expires April Comity of flew Casije ss, on this rf^-dayof hfyP&rrOto* , &# 7 . before m GmaM: SemeneUe. aaotervpnbBe in and for the Cotmty.and State aforesaid, residing therein, duly coTrHnissioned and swan, personally appeared
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-^SSHARKHAN Notary public, State of New York No. 0tKH6108233 Qualified in Queens County
12,2012

acknowledgeftiathe^abJCTectitedifaesaine. . W WlTkBSS WHERBOT^ it have herennto set; rny^ certificate first above written. "tetaryPrfbfle I

Case l:'13-cv-0078l-BMC Document 1 Filed 02/12/13 Page 30 of 3*3 Page ID #: 30

65/23/2006 IE: 59 7187606884

OLMSTED LESAL

PAQE 14/15'"

Case l":13-cv-0078l-BMC Document 1 Filed 02/12/13 Page 31 of 33 PagelD #: 31

85/23/2086 16:5971B7S86884 OLMSTED LESAL PAGE 15/15

WESTCHESTER RRSINSURAHCE COMPANYFINANCIAL STATES/TENT ADMIT ITsU ASSETS BONDS SHORT-TERM INVESTMENTS STOCKS REAL ESTATE CASH ON HAND AND IN BANK PREMIUM IN COURSE OF COLLECTION* INTEREST ACCRUED OTHER'ASSETS TOTAL ASSETS 25,152,122119,791,289 124,330,544 86,054,200 18,288,962

DECEMBER t 008

23g5l,068
$2,542,889,887

. usBiLmEg

1237,073,174 7515,344,728 772.244,093

RESERVE POR U N E A R N H : P R E M I U M S

.RESERVE FOR ROSSES RESERVE FOR TAXES FUNDS HELD UNDER REINSURANCE TREATIES OTHER LiABIUTlES TOTAL UABlLfTIES CAPITAL: SPECIAL SURPLUS CAPITAL: 928,582 SHARES, $4.85 PAR VALUE CAPITAL PAID-(N SURPLUS (UNASSJQNED) SURPLUS TO POLICYHOLDERS ' TOTAL (-EXCLUDES PREMIUM MORE THAN BO DAYS; DUE.) STATE OF PENNSYLVANIA COUNTY OF PKTLADELPfflA' -

4,603,671 135,200,474 4SQ^53/B9D 759,534,1888 $2ei,317.16S

JoftnP,.T^Ior,beine^si^ 1 sayslhflthels\firePr9islclBntof' Wssfcjftester Fire Insurance Company and that to ifta best of fas knpwlBdgfe ari teHef the foregoing is atrus and attract statement of tl# said Oompany^s Bnandal cpwftflofl as of ffte 31 atdey of December, 2008

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COMMOiWSALTH bPPENMSYLVAMA ffctajWSwl liwsTiVtfflllLNoteijrftiae

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Case l:'l3-cv-00781-BMC

Document 1 Filed 02/12/13 Page 32 of 3'3 PagelD #: 32

Case l:13-cv-00781-BMC Document 1 Filed 02/12/13 Page 33 of 33 PagelD #: 33 PINKS, ARBEIT & NEMETH
ATTORNEYS AT LAW 140 FEU. COURT, SUITE 303 HAUPPAUGE, NEW YORK 11788 (631) 234-4400 Fax (631)234-4445
OF COUNSEL STEVEN G. PrNKS ROBERTS. ARBEIT JOSEPH G. NEMETH, JR. JONATHAN W. LIPSHIE TERESA A. WHITE DAVID V. FALKNER

February 8, 2013 Steven Weinberg, Esq. Gottesman, Wolgel, Malamy, Flynn & Weinberg, P.C. 11 Hanover Square, 4th Floor New York, New York 10005 Re: Anthony Long and Long Industries Construction Corp. v. Westchester Fire Insurance Company Kings County Supreme Court Index No. 500035/13

Dear Steve: This letter will confirm that L-C Construction Consulting Corp. consents to the removal of the above-referenced case to the United States District Court, Eastern District of New York. If you should have any questions, please do not hesitate to contact me. Very truly yours,

/ JpNATHAN W. LIPSHIE JWLkr Enc. cc: Joe Passanante

/ /
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