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Of Counsel:
436877-1
Case 1:16-cv-00114-JAO-RT Document 15 Filed 05/27/16 Page 2 of 31 PageID #: 63
“Plaintiff” or “Gramercy”), by and through their attorneys, Bays Lung Rose &
LLC a/k/a D.A. BUILDERS (“DA”), DAVID A. ALCOS III (“David Alcos”), and
JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE
PARTIES
corporation formed under the laws of the State of New York. Gramercy has its
headquarters and its principal place of business in the State of New York.
times relevant herein, a limited liability corporation formed under the laws of the
State of Hawaii, with its principal place of business located in the City and County
in drywall installation.
was, at all times relevant herein, a resident of the City and County of Honolulu,
State of Hawaii.
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4. John Does 1-10, Jane Does 1-10, Doe Corporations 1-10, Doe
Partnerships 1-10, and Other Entities 1-10 (collectively, “Doe Defendants”) are
sued herein under fictitious names for the reason that their true names and
identities are presently unknown to Plaintiffs except that they caused, contributed
to causing or were substantial factors in causing one or more of the injuries sued
for herein and Plaintiff prays for leave to certify their true names, identities,
§ 1332 in that at the time this action is being commenced, there is complete
within this district and because the property that is the subject of this action is
PROPERTY
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FACTUAL ALLEGATIONS
10. The owner of the Property, TRG IMP LLC (“Owner”), entered
Gramercy whereby Gramercy was to furnish certain scope of work necessary for
subcontract with DA, dated February 13, 2015 (“DA Subcontract”), whereby DA
was to provide, among other things, a scope of work for the Project that included
installation of the Project’s drywall and other interior and exterior features of the
Project.
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David Alcos, represented to Gramercy that DA was solvent and in good standing
(“DCCA”).
David Alcos, represented to Gramercy that DA would not perform any other
contract work for any other entities or projects during the course of DA’s work on
the Project.
Hawaii.
SCOPE OF WORK, requires, among other things, that DA complete all work in
strict accordance with the DA Subcontract and all documents attached to the DA
Subcontract, and that all work be completed in a good workmanlike manner with
compliance with the scope of work contained in the DA Subcontract and its
attached documents.
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a good workmanlike manner and failed to use materials of the highest grade or
quality.
ETC., requires, among other things, DA to complete all work on the Project and
under the DA Subcontract in strict compliance with all Federal, State, Local, and
Municipal laws, as well as the laws, rules, regulations, statues, ordinances, and
indemnify and hold harmless Gramercy to the extent of any claims, loss, or
Federal, State, Local, and Municipal laws, as well as the laws, rules, regulations,
provided;
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under the DA Subcontract in a timely manner, did not adhere to its own
construction schedule, and, as a direct and proximate result thereof, delayed the
Project.
requires, among other things, DA indemnify, defend, and hold harmless Gramercy,
the Owner, and anyone else acting for or on behalf of any of them from any claims,
liability, damage, losses, expenses, demands and causes of action of any nature
whatsoever which arise out of or are connected with or are claimed to arise out of
employees.
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ETC., requires, among other things, DA to pay any and all taxes, costs, fees, etc.,
substantiate, on demand, that all taxes and other charges are being properly paid.
and local taxes, fees, insurance costs, labor union costs, and other necessary
applicable federal, state and local taxes, fees, bond costs, insurance costs, union
dues and other necessary expenses and to complete the scope of work in a timely
30. Upon information and belief, DA did not pay all applicable
federal, state, and local taxes, labor union costs, vendor invoices and other
necessary expenses, and did not perform the work in a workmanlike manner in
accordance with the plans and specifications and best construction practices.
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31. Upon information and belief, DA did not pay all taxes and other
costs set forth above according to the DA Subcontract, Section 16, and was not
able to substantiate that such taxes and costs were paid upon Gramercy’s demand.
provides that Gramercy may deem the DA Subcontract materially breached if DA:
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that in the case of a material breach, Gramercy may, at its own discretion,
terminate the DA Subcontract, by giving DA three (3) days written notice. In the
case of such a termination, Gramercy may take and use any and all materials,
Project.
that upon the occurrence of a termination for cause, Gramercy may, at its own
discretion, withhold from DA any monies otherwise due under the DA Subcontract
breach by DA, DA is liable to Gramercy for any and all additional costs, expenses,
attorneys’ fees, and other damages, both liquidated and unliquidated, which
that if it is determined that a termination for cause under Section 20 was wrongful
CONVENIENCE, states that Gramercy shall have the right to terminate and cancel
the DA Subcontract by three (3) days written notice. Such a termination is for
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to the DA Subcontract price and not for any other costs, including prospective
39. Upon information and belief, DA was not solvent at the time
contracts and at other projects during the course DA’s work at the Project.
perform all of its work under the DA Subcontract and DA failed to exert its best
employees for work performed on the Project and under the DA Subcontract’s
scope of work for the weeks ending in February 12, 2016, February, 19, 2016, and
obligations as they became due, including, but not limited to, failure to fully
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compensate or pay union trust funds, failure to fully compensate or pay DA’s own
staff and supervision to maintain the job schedule under the DA Subcontract such
that Gramercy, at its own expense had to supplement both supervision and workers
expenses, and materials and supplies which were not used on the Project or under
the DA Subcontract.
workers’ wages including union and statutory benefits, administrative wages and
expenses, and materials and supplies which were used for the benefit of other DA
contracts that were not the DA Subcontract, not for the Project, and not for
Gramercy’s benefit.
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2016.
Property and at the Project and executed unsanctioned job actions on February 25,
relations at the Project and to prevent strikes or other labor disputes. DA’s failure
included, but are not limited to, DA workers destroyed work already in place and
encouraged the Unsanctioned Job Actions including, but not limited to, the
54. February 25, 2016 was a milestone turnover date under the
Prime Contract.
55. DA was aware that February 25, 2016 was a milestone turnover
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by any union, disrupted the Project, and caused Gramercy to miss the Prime
Gramercy by email that DA’s workers’ Unsanctioned Job Actions had “totally
disrupted the Project,” that a separate electrical contractor is “now forced to work
extended hours today and all through the weekend to make up the lost production
in an attempt to stave off consequential damages,” that “there will be more impacts
that have been caused by the DA Builders [Unsanctioned] Job Action,” and that
Gramercy is “hereby advised that any impact costs associated with the job action
by Gramercy or your subordinate subcontractor (past and current) that disrupts the
all times, provide first-quality new materials, and workmanship conforming to the
59. Upon information and belief, DA did not at all times provide
with the best standards of the construction industry where the Project is located.
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standing with the State of Hawaii throughout the duration of DA’s work on the
standing with the DCCA throughout the duration of DA’s work on the Project and
DA’s Principal, on May 7, 2015, and pledged as security the real property located
at 91857 Pohakupuna Road, Ewa Beach, Hawaii 96706 (“Pledged Ewa Beach Real
Property”).
65. Upon information and belief, David Alcos caused the Pledged
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into the DA Subcontract as a result of the pledge of this asset for which it has now
been damaged.
68. The DA Subcontract Sections 7, 12, 13, and 23, among other
things, all include clauses that require DA to indemnify, defend, and hold harmless
for claims, losses, and expenses arising from DA’s performance under the DA
Subcontract.
69. Upon information and belief, Gramercy has suffered and shall
suffer damages for which DA is obligated to indemnify, defend, and hold harmless
Gramercy.
70. Upon information and belief, DA has been paid certain amounts
for work not performed and advanced amounts for materials, work, or services not
rendered.
workers’ wages and administrative wages and expenses that were paid to David
Alcos, friends and family members of David Alcos, and workers who were
working on projects for DA other than the Project for work that was never
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reimbursement or approval that were not supported or which it was not entitled
work that was already specified in the base contract under the FM Global
work that was not approved or not paid to Gramercy by the Owner.
the DA Subcontract.
COUNT I
(Breach of Contract)
ready, willing, and able to perform its obligations under the DA Subcontract.
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necessity, or otherwise.
be determined at trial.
COUNT II
(Breach of Good Faith and Fair Dealing)
covenant of good faith and fair dealing, Gramercy has been damaged in an amount,
COUNT III
(Promissory Estoppel)
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of completing the work under the DA Subcontract, and that DA was, at that time,
both solvent and in good standing with the DCCA, and that DA would maintain
solvency and good standing with the DCCA throughout the duration of DA’s
work on the Project and under the DA Subcontract and DA would not perform
work on any other job and/or project throughout the duration of DA’s work on the
Project.
chose DA over other subcontractor’s bids and executed the DA Subcontract with
promises as set for the above would induce Gramercy to enter into the DA
promises when they executed the DA Subcontract with DA rather than executing
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COUNT IV
(Unjust Enrichment)
Subcontract.
administrative wages and expense and materials and supplies which were not used
at trial.
COUNT V
(Fraud in the Inducement/Misrepresentation)
Beach Real Property, and represented that DA or David Alcos was the owner of
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$400,000.00.
correctly reflected work actually preformed on the Project and under the DA
Subcontract.
administrative staff who had not worked on the Project or under the DA
Subcontract, DA was both solvent and in good standing with the DCCA.
103. Upon information and belief, DA was not solvent at the time
104. DA did not maintain good standing with the DCCA throughout
that they were false, or made the representations with a reckless disregard for their
truth or falsity.
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with the intent to deceive Gramercy and for the purpose of inducing Gramercy to
execute the DA Subcontract and to continue with its obligations under the DA
Subcontract.
representations, Gramercy executed and continued with its obligations under the
DA Subcontract.
COUNT VI
(Interference With Contract)
111. DA and David Alcos were aware of the existence of the Prime
conduct, were responsible for the Unsanctioned Job Action, including, but not
limited to, destroying work already in place and inciting an illegal strike among
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Project.
Contract.
COUNT VII
(Conversion)
workers’ wages, materials, supplies, and other items which were not used on the
workers’ wages, materials, supplies, and other items which were used on other DA
contracts. These materials, supplies, and other items were not used on the Project,
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workers’ wages, materials, supplies, and other items, which DA used for jobs and
be proven at trial.
COUNT VIII
(Declaratory and Injunctive Relief)
allegations set forth in this Complaint and that an actual controversy, within the
jurisdiction of this Court, exists with regard to the relative rights, duties, and
is prohibited from enforcing any other provisions of the DA Subcontract, and that
DA is liable to Gramercy for any and all additional costs, expenses, attorneys’ fees,
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and other damages, both liquidated and unliquidated, which directly or indirectly
any back charge by the Construction Manager and Owner as well as any costs
Gramercy from any and all third party damages incurred as a result of DA’s
enjoining, restraining and prohibiting DA, and each of its agents, officers,
concert with any of them, from taking any further action with regards to the
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injunction enjoining, restraining and prohibiting DA, and each of its agents,
behalf of or in concert with any of them, from taking any further action with
based on the irreparable injuries and harm to Gramercy that has not yet been
realized. Gramercy expressly reserves the right to supplement its request for
actions.
COUNT IX
(Gramercy’s Interests in the Pledged Ewa Beach Property)
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DA’s Principal, on May 7, 2015, and pledged as security to the DA Subcontract the
real property located at 91-857 Pohakupuna Road, Ewa Beach, Hawaii 96706
Real Property.
132. Gramercy seeks an order that Defendants must hold the Pledged
Ewa Beach Real Property as trustees in constructive trust for Gramercy’s benefit
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COUNT X
(Fraudulent Transfers – Violation of HRS § 651C-4(a)(1))
Complaint.
651C-2.
136. DA funds that, upon information and belief, were used to pay
David Alcos’ friends and family members’ salaries for alleged administration of
transfers were to “insiders” and DA did not receive reasonably equivalent value or
this Complaint were made with the actual intent to hinder, delay or defraud future
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COUNT XI
(Fraudulent Transfers – Violation of HRS § 651C-4(a)(2))
Complaint.
142. DA funds that, upon information and belief, were used to pay
transfers were to “insiders” and DA did not receive reasonably equivalent value for
these transfers.
business or transactions for which the remaining assets of the debtor would
that it would incur debts beyond its ability to pay as they came due.
the preceding paragraphs of this Complaint under HRS § 651C-4(a)(1), and other
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COUNT XII
(Pierce the Corporate Veil – Alter Ego)
Complaint.
necessary cash to reimburse Gramercy for amounts that may result from judgments
his friends and family members’ salary from DA funds for work that was never
completed.
150. David Alcos treated and used the assets and property of DA as
153. Because David Alcos has treated DA as his alter ego, DA now
lacks the cash and/or guaranty and security to meet its obligations to Gramercy,
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veil and imposes DA’s liability owed to Gramercy on Davis Alcos in his personal
capacity.
D. For its experts’ fees and attorneys’ fees and costs; and
E. For any and all further relief that this Court may deem just and
proper.
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