JUDGE

SCHOFIELD
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF NEW YORK
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WESTCHESTER FIRE INSURANCE COMPANY
Plaintiff,
-against
M.V.M. CONSTRUCTION, LLC, VITO SECCHIANO,
GINO SECCHIANO and AMELIA SECCHIANO,
Defendants.
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Plaintiff, by its attorneys, Gottesman, Wolgel, Flynn, Weinberg & Lee, P.C., complaining
of the Defendants M.V.M. CONSTRUCTION, LLC, VITO SECCHIANO, GINO SECCHIANO
and AMELIA SECCHIANO, hereby alleges as follows:
1. PIaintiff, WESTCHESTER FIRE INSURANCE COMPANY (hereinafter
WESTCHESTER FIRE or Surety or Plaintiff) is a corporation organized and existing
under the laws of the Commonwealth of Pennsylvania and is duly authorized to conduct business
within the State of New York as a surety, and issue surety bonds in connection with construction
projects located within the State of New York. WESTCHESTER FIRE maintains an office at
1133 Avenue of the Americas, New York, New York, however, WESTCHESTER FIREs
corporate office is located in Philadelphia, Pennsylvania.
2. Upon information and belief, at all times hereinafter mentioned, the Defendant
M.V.M. CONSTRUCTION, LLC (MVM) is a limited liability company organized and
existing under the laws of the State of New York, maintaining its principal place of business at
100 Oak Street, Mt. Vernon, New York 10550.
3. Upon information and belief, the President of MVM is Defendant Vito Secchiano,
a resident of the State of New York.
Case 1:14-cv-06460-LGS Document 1 Filed 08/13/14 Page 1 of 8
4. Upon information and belief, the Managing Member of MVM is Defendant Gino
Secchiano, a resident of the State of New York.
5. Upon information and belief, at all times hereinafter mentioned, the Defendant
VITO SECCHIANO was and still is a resident of the State of New York, residing at 543 N. High
Street, Mt. Vernon. New York 10552.
6. Upon information and belief, at all times hereinafter mentioned, the Defendant
GINO SECCHIANO was and still is a resident of the State of New York, residing at 643
Bedford Road, Armonk, New York 10504.
7. Upon information and belief, at all times hereinafter mentioned, the Defendant
AMELIA SECCHIANO was and still is a resident of the State of New York, residing at 643
Bedford Road, Armonk, New York 10504.
VENUE AND JURISDICTION
8. Pursuant to 28 U.S.C.

1332, this Court possesses diversity jurisdiction over this

action against the MVM, VITO SECCHIANO, GINO SECCHIANO and AMELIA
SECCHIANO. The matter in controversy, exclusive of interest and costs, exceeds the sum of
Seventy-Five Thousand and 00/100 Dollars ($75,000.00).
9. Pursuant to 28 U.S.C.

139 1(a)(2), venue lies in the Southern District of New

York, the location of the Defendants.
AS AND FOR A FIRST CAUSE OF ACTION
10. WESTCHESTER FIRE, as surety, issued a Performance Bond and a Labor and
Material Payment Bonds (Payment Bond), under Bond No. K0814770A (collectively the
Bonds), on behalf of and at the request of MVM in connection with a contract entered into
between MVM and the City of Yonkers, as named Obligee in the Bonds, on or about May 20,
Case 1:14-cv-06460-LGS Document 1 Filed 08/13/14 Page 2 of 8
2011, for construction work located within the State of New York referred to in the Bonds as
Construction of Ampitheater [sic] at Trevor Park Contract No. X-8385.
11. The Bonds were made, executed and delivered by WESTCHESTER FIRE, as
surety, in consideration of and in reliance upon, among other things, a written Agreement of
Indemnity executed by the Defendants, jointly and severally. A copy of the Agreement of
Indemnity is annexed hereto, marked Exhibit A, and made a part hereof, with the reference to
the individual defendants Vito Secchiano, Gino Secchiano and Amelia Secchianos Social
Security Numbers redacted therefrom.
12. Under the Agreement of Indemnity, Defendants agreed, among other things, that
upon the event of default, jointly and severally, that:
THIRD: PRINCIPAL(s) and INDEMNITOR(s) shall exonerate, hold harmless,
indemnify and keep indemnified SURETY from and against any and 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, consultant fees, 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 herein;
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
selection or permits PRINCIPAL(s) or INDEMNITOR(s) to make arrangements for
SURETYs legal representation; and
Case 1:14-cv-06460-LGS Document 1 Filed 08/13/14 Page 3 of 8
G. Attempt to recover losses or expenses paid or incurred in connection with
this AGREEMENT, CONTRACTS(s) and/or BOND(s).
Payment shall be made to SURETY by the PRINCIPAL(s) and/or INDEMNITOR(s) as
soon as liability exists or is asserted against SURETY, whether or not SURETY shall
have made any payment therefore. Such payment shall be equal to whatever amount
SURETY, in its judgment, shall deem sufficient to protect it from loss. SURETY shall
have the right to use the payment or any part thereof, in payment or settlement of any
liability, loss or expense for which PRINCIPAL(s) and/or INDEMNITOR(s) would be
obligated to indemnify SURETY under the terms of this AGREEMENT.
In the event of payment by SURETY, SURETY shall be entitled in any accounting with
PRINCIPAL(s) or INDEMNITOR(s) to reimbursement for any and all disbursements
made by it in good faith in and bout the matters contemplated by this AGREEMENT
under the belief that it was liable for the sums and amounts so disbursed, or that it was
necessary or expedient to make such disbursements, whether or not such liability,
necessity or expediency existed. Vouchers or other evidence of any such payments made
by SURETY shall be prima facie evidence of the fact and amount of liability to SURETY.
PRINCIPAL(s) and INDEMNITOR(s) shall pay to SURETY interest on all
disbursements made by SURETY at the maximum rate permitted by calculated from the
date of each disbursement.
See Exhibit A at THIRD.
13. By reason of the foregoing, Defendants are jointly and severally obligated to
WESTCHESTER FIRE to exonerate, hold harmless, and indemnify WESTCHESTER FIRE and
resolve all claims against WESTCHESTER FIREs aforesaid Bonds all without any loss, cost or
expense to WESTCHESTER FIRE.
14. Claims have arisen from entities claiming to be parties entitled to claim under the
Payment Bond issued by WESTCHESTER FIRE, as Surety, and naming MVM as Principal, for
monies allegedly due and owing to them by MVM.
15. Those claims, when received, were reviewed by WESTCHESTER FIRE and
payments have heretofore been made by WESTCHESTER FIRE under its Payment Bond as
follows as of the date of this complaint:
a. C. Williams Electrical Construction Inc. $28,322.50
Case 1:14-cv-06460-LGS Document 1 Filed 08/13/14 Page 4 of 8
b. Duncan Industries Corp.
$13,300.00
c. Arc Limited
$17,173.25
d. Westchester Metal Works, Inc.
$163,518.33
e. Nations Roof, LLC
$13,622.05
f. Floor Logic, LLC
$ 2,237.50
g. Gotham Drywall, Inc.
$28,823.50
h. Omelio LLC d/b/a Backstage Lighting & $48,275.00
Rigging
Total: $315,272.13
16. In addition, Omelio LLC d/b/a Backstage Lighting & Rigging, has asserted a
claim in the amount of $30,435.84 for alleged extra work performed at the direction of MVM.
17. By reason of the foregoing, WESTCHESTER FIRE demands that Defendants
indemnify WESTCHESTER FIRE by in the amount of $345,707.97.
AS AND FOR A SECOND CAUSE OF ACTION
18. WESTCHESTER FIRE repeats and realleges each and every allegation set forth
in paragraphs I through 17 herein as if again set forth at length.
19. Additional sums were incurred and paid by WESTCHESTER FIRE in connection
with the completion of MVMs contractual obligations, and in resolving the claims under
WESTCHESTER FIREs Payment Bond for counsel fees and expenses. Although the matter has
not concluded attorneys fees and expenses in connection with the foregoing and this litigation
continue to be incurred by WESTCHESTER FIRE, WESTCHESTER FIRE has heretofore paid
its counsel expenses of $30,672.82 as of March 14, 2014.
20. By reason of the foregoing, Defendants are liable, jointly and severally, to
WESTCHESTER FIRE for all loss, cost, charge, consultants and attorneys fees, and expense
Case 1:14-cv-06460-LGS Document 1 Filed 08/13/14 Page 5 of 8
sustained or incurred by WESTCHESTER FIRE in connection with this litigation, including, but
not limited to, the consultants and attorneys fees heretofore incurred and paid in the amount of
$30,672.82, and such amounts as hereinafter incurred and paid in connection herewith.
AS AND FOR A THIRD CAUSE OF ACTION
21. WESTCHESTER FIRE repeats and realleges each and every allegation set forth
in paragraphs 1 through 20 herein as if again set forth at length.
22. Pursuant to the terms of the Agreement of Indemnity executed by the Defendants,
Defendants, jointly and severally, agreed to indemnify WESTCHESTER FIRE for counsel fees
incurred in enforcing the terms of the Agreement of Indemnity.
23. By reason of the foregoing, Defendants are liable, jointly and severally, to
WESTCHESTER FIRE for all loss, cost, charge, consultants and attorneys fees, and expense
sustained or incurred by WESTCHESTER FIRE in connection with this litigation for such
amounts incurred subsequent to March 14, 2014 together with interest thereon.
AS AND FOR A FOURTH CAUSE OF ACTION
24. WESTCHESTER FIRE repeats and realleges each and every allegation set forth
in paragraphs 1 through 23 herein as if again set forth at length.
25. Under the Agreement of Indemnity, Defendants also agreed, jointly and severally,
among other things, that at any time until such time as the liability of WESTCHESTER FIRE as
Surety under the Bonds is terminated and the Surety is fully reimbursed, that:
. . . SURETY shall have the right of access to the books, records, accounts, documents,
computer software, and other computer stored information of PRfNCIPAL9S) and
INDEMNITOR(s), wherever located, for the purpose of inspection, copying or
reproduction.
See Exhibit A at SIXTEENTH.
Case 1:14-cv-06460-LGS Document 1 Filed 08/13/14 Page 6 of 8
26. MVM assigned the balance of contract monies due from the City of Yonkers on
the Trevor Park Ampitheather Project to WESTCHESTER FIRE on or about August 13, 2013.
27. Upon information and belief, the Defendant MVM is in possession of documents
necessary to close out the Trevor Park Ampitheater Project, including but not limited to
warranties, manuals, as-builts, drawings.
28. Upon information and belief Defendant MVM has not turned over any of the
documents to the City of Yonkers necessary to close out the Trevor Park Ampitheater Project.
29. That MVM, by not turning over the close out documents frustrates the purpose of
the Agreement of Indemnity and the assignment of monies due that MVM provided to
WESTCHESTER FIRE.
30. Upon information and belief, final payment for the Trevor Park Ampitheater
Project cannot be released to WESTCHESTER FIRE until the close out documents are filed with
the City of Yonkers.
31. By reason of the foregoing and pursuant to the Agreement of Indemnity,
WESTCHESTER FIRE seeks a declaratory judgment directing MVM to turn over all records
regarding the Trevor Park Ampitheater Project that are required to be filed with the City of
Yonkers so that WESTCHESTER FIRE can receive the contract monies.
WHEREFORE, Plaintiff WESTCHESTER FIRE INSURANCE COMPANY demands
judgment for the entry of a money judgment against Defendants, jointly and severally, 1) on the
FIRST Cause of Action for an amount not less than $345,707.97, for the payments made to
resolve the claims and pending claims asserted against WESTCHESTER FIRE INSURANCE
COMPANYs Payment Bond, and 2) on the SECOND Cause of Action for an amount not less
than $30,672.82 for counsel fees and expenses incurred as of March 14, 2014, 3) on the THIRD
Case 1:14-cv-06460-LGS Document 1 Filed 08/13/14 Page 7 of 8
Cause of Action for such additional amounts as are incurred by WESTCHESTER FIRE
INSURANCE COMPANY as the matter progresses, 4) on the FOURTH Cause of Action for a
declaratory judgment directing MVM to turn over all records regarding the Trevor Park
Ampitheater Project, and 5) all with due and proper interest, together with the costs and
disbursements of this action and such other and further relief the Court deems just and proper.
Dated: New York, New York
August 12, 2014
SUSANNA REQUETS, ESQ.
GOTTESMAN, WOLGEL,FLYNN,
WEINBERG & LEE, P.C.
Attorneys for Plaintiff
WESTCHESTER FIRE INSURANCE COMPANY
11 Hanover Square, 4 Floor
New York, New York 10005
(212) 495-0100
Case 1:14-cv-06460-LGS Document 1 Filed 08/13/14 Page 8 of 8