STATE OF NEW YORK. SUPREME COURT. COUNTY OF OSWEGO METRO FENCE OF UPSTATE NY, LLC, Plaintiff, ANSWERAND _, COUNTERCLAIMS 73 -against- 2 Index No.: 14-1719 B & H WHOLESALE FENCE CO., LLC, 5 Defendant. Defendant, B & H Wholesale Fence Co., LLC (hereinafter “Defendant”), by its attorneys, McNamee, Lochner, Titus & Williams, P.C., for its Answer to Plaintiff's Amended Complaint (the “Amended Complaint”), hereby states the following upon information and belief as to the allegations within the Complaint: 1, Defendant denies that it has knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraphs 1, 3, 5, 6, 10, 13, 14, 15, 16, 17, 18, 20, 21, 23, 34, 35, 39, 41, 43, 44, 46, and 51 of the Amended Complaint, 2. Defendant denies the allegations of Paragraphs 2, 4, 12, 19, 22, 26, 27, 28, 29, 30, 36, 37, 38, 45, 49, and 50 of the Amended Complaint. 3. Defendant admits the allegations of Paragraphs 7, 8, 9, 11, 25, 32, 33, 42, and 48 of the Amended Complaint. 4. With respect to the allegations of Paragraph 25, Defendant admits that a warranty does typically accompany fence parts sold by B & H. However, Defendant denies that the alleged warranty is applicable to Plaintiff, denies that any warranty registrations were completed by Plaintiff for fence parts sold to it by Defendant, and denies that any warranty was created. 5. With respect to the allegations of Paragraphs 24, 31, 40, and 47 of the Amended wounsrs)Complaint, Defendant states that no response is required of it. If it is deemed that a response is necessary to any such allegations, Defendant repeats all admissions and denials of the incorporated paragraphs as though fully stated herein. 6. Defendant denies that the Plaintiff is entitled to the relief requested in the Complaint, or to any relief at all AFFIRMATIVE DEFENSES 7. Plaintiff's Complaint fails to state a claim upon which relief may be granted against this Defendant. 8. Plaintiff lacks personal jurisdiction over the Defendant. 9. Upon information and belief, some or all of Plaintiff's claims are barred by the applicable statutes of limitations. 10. Plaintiff's alleged damages are barred in whole or in part against this answering Defendant to the extent that they were proximately caused by or contributed to by the acts, omissions, breaches of contract and/or other legal duties of Plaintiff. 11. Plaintiff has failed to mitigate or otherwise act to lessen or reduce the damages alleged in this Complaint. 12. Upon information and belief, Defendant's products were fit for the purpose intended and were of merchantable quality. If said produets did not perform as intended it was not due to the Defendant and said defects were caused by the Plaintiff's or some other third- party’s failure to use and/or install said products properly. 13, Plaintiffs guilty of unclean hands. 14. Upon information and belief, Plaintiff's claims are barred, in whole or in part, by the terms and conditions of the parties’ written agreement, wows)15. Upon information and belief, Plaintiff's claims are barred, in whole or in part, by its own breach of conduct and/or other culpable conduct, or the culpable conduct of its employees, agents, servants or other representatives. 16, Plaintif?°s Complaint is barred, in whole or in part, by reason of documentary evidence. 17. Plaintiff's claims are barred in whole or in part due to its failure to satisfy conditions precedent related to any warranties associated with products purchased from Defendant. 18. Some orall of the Plaintiff's claims are not ripe for adjudication and have been brought prematurely. 19. Some or all of Plaintiff's claims are barred by principles of waiver, laches and/or estoppel. 20. Some or all of Plaintiff's claims are barred by the statute of frauds 21. Plaintiff's alleged damages are barred in whole or in part against this answering Defendant to the extent that they were proximately caused by or contributed to by the acts, omissions, breaches of contract and/or other legal duties of third parties over whom Defendant had no control. 22. Plaintiff has failed to join all necessary parties. 23. To the extent that Plaintiff relies upon any alleged warranties, all such claims are barred by the applicable statute of frauds and/or UCC. WHEREFORE, Defendant B& H Wholesale Fence Co., LLC hereby demands judgment dismissing Plaintiff’'s Amended Complaint together with the fees, costs and disbursements of this action and such other and further relief as the court may deem just and proper.AS FOR THE DEFENDANT'S FIRST COUNTERCLAIM. BREACH OF CONTRACT 1. Defendant/counterclaim plaintiff B&H Wholesale Fence Co., LLC (“B&H”) repeats all of its prior responses and allegations as though fully stated herein. 2. Defendant/counterclaim plaintiff is a New York Limited Liability Company doing business at 1900 Maxon Road Ext., Schenectady, New York. 3. Upon information and belief, at all relevant times, plaintifi/counterclaim defendant Metro Fence of Upstate New York, LLC (“Metro Fence”) did business at 1460 Country Route 22, Altmar, New York. 4. As set forth in more detail below, Metro Fence contracted for and was sold various fence components by B&H. Said materials and goods were delivered to Metro Fence and were not rejected or otherwise returned, Specifically, B&H invoiced Metro Fence as follows (hereinafier the “Invoices”): a. June 3, 2013, invoice number 11360 in the amount of $503.50; b. June 3, 2013, invoice number 11361 in the amount of $1,532.95; ©. June 3, 2013, invoice number 11362 in the amount of $233.55; 4. June 7, 2013, invoice number 11449 in the amount of $6,236.77; e. June 7, 2013, invoice number 11450 in the amount of $1,140.48; f. June 17, 2013, invoice number 11571 in the amount of $4,632.68; g. June 17, 2013, invoice number 11572 in the amount of $2,024.91; h. June 17, 2013, invoice number 11573 in the amount of $664.20; i. June 26, 2013, invoice number 11731 in the amount of $2,613.02; j. June 26, 2013, invoice number 11732 in the amount of $3,976.97; k. July 16, 2013, invoice number 12020 in the amount of $1,126.41. August 2, 2013, invoice number 12331 in the amount of $1.767.59; m. August 2, 2013, invoice number 12332 in the amount of $1,707.49; n. September 5, 2013, invoice number 12864 in the amount of $2,442.93; 60. September 5, 2013, invoice number 12865 in the amount of $1,453.26; p. September 5, 2013, invoice number 12866 in the amount of $1,149.53; 4. September 5, 2013, invoice number 12867 in the amount of $5,492.56; r. September 5, 2013, invoice number 12868 in the amount of $1,475.82; s. September 5, 2013, invoice number 12869 in the amount of $370.94; 5. Copies of the Invoices are attached hereto as Exhibit “A”. 6. The total principle due under the Invoices is $40,738.37. Metro Fence has failed and refused to tender good payment to B&H, 7. The fence materials set forth within the aforementioned invoices were delivered to Metro Fence and accepted. 8. As stated on the Invoices, interest at 1.5% accrues on balances not paid after the due date. As of December 31, 2014, a total of $10,731.35 in interest is due on the Invoices as reflected on the December 31, 2014 statement attached hereto as Exhibit 9. B&H has demanded payment and Metro Fence has failed to make further and complete payment on the account. 10, Metro Fence now owes B&H the sum of $40,738.37 together with interest thereon in the amount of $10,731.35 as of December 31, 2014. 11. By reason of the foregoing, Plaintiff has been damaged in the amount of $51,469.72 together with interest thereon as of December 31, 2014.AS AND FOR THE DEFENDANT’S SECOND COUNTERCLAIM ACCOUNT STATED 12, B&H repeats and realleges the preceding allegations as though fully set forth herein. 13. Upon delivery of the fence materials, B&H sent to Metro Fence the invoice attached hereto as Exhibit “A” that identified the materials de ered and the amount owed. 14. B&H also sent to Metro Fence monthly statements of account similar to Exhibit “BY hereto that identified the invoices and the total amount owed from Metro Fence. 15. Upon information and belief, Metro Fence received and accepted said invoices and statements of account without taking exception, objecting thereto or reserving any rights therefrom and, accordingly, is responsible for such sums as are stated in said invoices and statements of account which remain due and owing. 16, Based upon the foregoing, B&H has been damaged in the amount of $40,738.37, plus interest $10,731.35 on said account as of December 31, 2014, along any accumulated interest since December 31, 2014. AS AND FOR THE DEFENDANT'S THIRD COUNTERCLAIM Quantum Meruit/Unjust Enrichment 17. B&H repeats and realleges the preceding paragraphs as though fully set forth herein. 18. Metro Fence has failed to pay B&H for the value of the goods and materials provided to it as indicated within Exhibit “A”. 19. Metro Fence received a monetary benefit when B&H provided such goods and materials. 73)20. ‘The monetary benefit to Metro Fence by virtue of the goods and materials B&H provided is at least $40,738.37 plus applicable interest. 21. Metro Fence has been unjustly enriched by virtue of having failed to pay for the goods and materials B&H provided to it. 22. By reason of the foregoing, B&H has been damaged in the total sum of $40,738.37 together with interest thereon. WHEREFORE, defendant/counterclaim plaintiff B&H Wholesale Fence Co., LLC demands judgment against the plaintiff/counterclaim defendant Metro Fence; (1) on its first, second and third causes of action for the sum of $51,469.72 together with interest thereon from December 31, 2014, and (2) on all of the causes of actions, for its court costs, disbursements, attorneys’ fees and such other relief the Court shall seem just and proper. DATED: January 16, 2015 McNAMEE, LOCHNER, TITUS & WILLIAMS, P.C. By: MLE co a Mathew P- Attorneys for B & H Wholesale Fence Co., LLC 677 Broadway, 5" Floor Albany, NY 12207 To: David G. Burch, Jr., Esq. wewens3)B&H Wholesale Fence Co, LLC. Invoice # 11360 1900 Maxon Rd Ext Schenectady. NY 12308 a an Ph S18-346-8515 Fax 519-346-8518 a enw bnhfence,com Ship Via cy $.0.No, Tost Customer Fax 13152987668, ex ) (eer 4) Mico Fenee Mato Fence 1460 COUNTRY ROUTE 22 Rich 315-298-7377 ALTMAR, NY 13302 1460 County Route 22 ‘Aimar, NY 13302 ‘ustomer PH # 315298.7377 Terms Due Date 62013 P.O. No. Ship Date | «01s | Account # METI628 item Description ar Price Level Total 361-38 5° X 5° NEW ENGLAND CAP WHITE 180 239 4620 Sales Tax (8.0%) $3730 Total 503.50 Payments/Credits $000 After Due Date Add 1.5% To Balance Due Balance Due $503.30B&H Wholesale Fence Co, LLC. Invoice # 11361 fo abana Ra Ee Schenectady, NY 12308 a aa Ph $18-346-8515 Fax 518-346-8518 poten www bnhfence.com Ship Vie ae (are ae 7 Gaomernie | auanrm [Tow Desbaw | eaann PO indo [sans | Aamo sacs ser Sate Ta 89 as Tot a8 Payments Grate a After Due Date Add 1.5% To Balance Due Baines winsB&H Wholesale Fence Co, LLC. Invoice # 11362 {20 Navn Ra Ee Schenectady, NY 12308 =e Ce Paste tassels Fax sl8-46-918 www. bnhfence.com Ship Via Bal SOME is Castner ox | ise (aire (are >} casune PP aspera [Toms Duo ato | arora FO te saooue | evaun | peoune | erie = ae Snes Tax 09 sn Tota was Paymenticreas wa After Due Date Add 1.5% To Balance DueB&H Wholesale Fence Co, LLC. Invoice # aid 1900 Maxon Ra Ext Schenectady, NY 12308 oe — Ph SI8-346-8515 Fax $18-346-8518 mo cae www buhfence.comn Ship Via nae 5.0. No. 1625 Customer Fax 15152987668 (sure (stio To ) Niro Fence Metro Fence 1460 COUNTRY ROUTE 22 Rich 315-298-7377 ALTMAR, NY 13302 1460 County Route 22 Aimar, NY 13302 Customer PH # 315-298-7377 Terms Due Date enrois P.O.No. Shipdate | o7n013 | Account METI626 tem Description ary Price Level Total NEED BY UNET 1008.We 8x8 PRIVACY SOLID T& G PANEL RAIL WHITE, 9 158.67 1428.03 FT&GGRAY ) ssiwiire ——[5x5X 12" POST WHITE STYLE 100-8 0 2980 298.00 END LINE MFG 7H x BW PRIVACY SOLID T&G PANEL( RAIL 4 13883 55532 WHITE, T&G GRAY } ssiownire [5X5 10" POST WHITE STYLE 100-7 4 28.09 11236 END 106.Wo J6x8 PRIVACY SOLID TS G PANEL( RAIL WHITE, 19) 98.16 1865.04 rraG GRAY) wo10.s6.WG | 4W xX 6H PRIVACY SOLID Te G (WHITE RALS, 2 13925 21850 loRay T&G) Gate 559.WHITE-GREEN] 5X 5 X 9" POST WHITE STYLE 100-6 4 80 a0 [END 5-CORNER 1B.LINE 2-BLANK 361-55 5° X 5" NEW ENGLAND CAP WHITE 38 259 ssa ALS39 5°X 5" X 108" ALUMINUM INSERT 4 5680 22120 405-0 (COMMERCIAL SELF CLOSING HINGE SET BLACK. ‘ 2999 11996 Sales Tax (8.0%) Total PaymentsiCredits After Due Date Add 1.5% To Balance Due Balance Due Page tB&H Wholesale Fence Co, LLC. Invoice # 1449, ib inven Ra Schenectady, NY 12308 pas) Ge Ph 518-346-8515 Fax $18-346-85 iro ae www bnhfence.com nia Ban Sone ra (ane ) Gee 5 Taare ara so P aaaarm [Teme Due bate | anna wen oie oy | fmt [vo Sales Fax Barn Paymentireats wa After Due Date Add 1.5% To Balance Due Balance Due er Page 2B&H Wholesale Fence Co, LLC. Invoice # 11450 11900 Maxon Rd Ext Schenectady, NY 12 “4 cen) Ph 518-346-8815 Fax 518-3. a cn ‘wwew.bnhfence.com Ship Via Bes 5.0.No, Tos Customer Fax 13152987668 Cane (stie to Meico Fence Mato Fence go COUNTRY ROUTE 22 ich 315-298-7377 JALTMAR, NY 13302 1460 County Route 22 Almas, NY 13302 Customer PH # 315-298-7377 Terms Due Date ennois P.O.No. Ship Date | «7013 | Account MET1628 item Description ary rice Level Total ARWGASS [#'W x50 H RESIDENTIAL GATE BLACK STYLE a 220 wa80 s20.s% ARCH TOP ARWG-SH 4’ x 54° RESIDENTIAL GATE BLACK STYLE 21120 21120 sisse WiaRCH TOP ‘Sales Tax (8.0%) 33448 Total S140.48 PaymentsiCredits $000 After Due Date Add 1.5% To Balance Due Balance Due $1,140.48B&H Wholesale Fence Co, LLC. Invoice # List Ibo Nason a Ea Sohencndy NY 15308 = ETD Ph $18-346-8815 Fax $18-346-8518 eb Name pone www. bnhfence.com Ship Via B&H Guionerrax | ___ ison (Care ex Gaon Pk veaenm [Towne Due Gate | arraona Pane Sipoaw | arvana | Anoms | vanes re = ew | Femtet [Ta Tor buat alee Ta) man Tota ne Peymeniirede ne After Due Date Add 1.5% To Balance Due Balance Ovo sasB&H Wholesale Fence Co, LLC. Invoice # 4373, ise ainson aE Sobel 13808 a= CED PUSIS-S45 8815 Fax S18-40.8518 ena www. bnhfence.comn ip Vit Batt Guster Fox | sis ex ex Naren ‘ire casunar Pre ro c Ouebate | arnois wen = ov | pein [Te ACI TOF came Abowe sT¥LE 4236 ules Tax 00%) 020 Total $664.20 Paymenticreate a After Due Date Add 1.5% To Balance DueB&H Wholesale Fence Co, LLC. Invoice # 1731 1900 Mazon Ra Ext Schenectady, NY 12308 Dae S28 Ph $18-346-8515 Fax 518-346-9818 eaters) oui www. buhfence.coun Sie Ve Ban $.0.No. 13164 Customer Fax 13152987668 Cea snip to B) Mai Fence Mewo Fe 1460 COUNTRY ROUTE 22 Rich 315.298.7377 ALTMAR, NY 13302 1460 Couny Route 22 Alar, NY 13302 Customer PH # 315-298-7377 Tems Due date | 6262013, P.O.No. Ship date | o26n03 | Account METI tem Deserition ary Price Level Total ARS SHG W RESIDENTIAL SECTION BLACK STYLE a Bo Tia S305 ARWG-4s 0 W x H RESIDENTIAL GATE BLACK STYLE930-5 2 158.20 16.40 apz2-88 2° X 2" X 88 ALUM POST 060 BLACK STYLE 20) 14s 30900 20-ank APa22-88 2° x 2" x 88" ALUM GATE POST 125 BLACK STYLE 4 aso3 war BLANK o03-22 2X 2" FLAT POST CAP BLACK 2 so 3600 1006-8 5-34" SELF-CLOSE HINGE BLACK ‘ 996 sae 07208 I MAGNA-LATCH 20 14° BLACK. ey s325 8650 sorta 1X1’ SWIVEL BRACKET HORIZONTAL BLACK 126 20 s1s00 Sales Tax (8.0%) $193.56 Total 261302 PaymentsiCredits 3000 After Due Date Add 1.5% To Balance Due Balance Due 261302B&H Wholesale Fence Co, LLC. Invoice # 1732 1900 Moxon Ra Est Schenectady, NY 12308 —!= seeois Ph SI8-346-8515 Fax 518-345-8518 ob Name www bnfence.corn Ship Via on $.0.No, 16539 Customer Fax 13152987668 (carte ‘Ship To ) Mato Fence Miro Fence 460 COUNTRY ROUTE 22 Rich 315-298-7377 ALTMAR, NY 13302 1490 County Route 22 ‘Almas, NY 13302, ‘Customer PH # 315.298.7377 Terms Due Date 6726/2013 P.O.No Ship Date | s6n013. | Account MET1628 tem Description ary Price Level Total B76Se158DEB | STH X SW THROUGH RAIL SCALLOPED > PICKET a TOA 20868 W/DOG BAR CAP /1-3/4 SPACING BEIGE wo276.489.134-.. |W X S4°H THROUGH RAIL SCALLOPED 3 PICKET 2 4 266.58 DOG EAR CAP GATE 1-14 SPACING BEIGE ss7.REIGE SX5X 7" POST BEIGE STYLE 2768 25 2023 505.8 S-END S-CORNER 17-LINE es 6X8 BOTTOM STYLE 295.5.138 SECTION Wr 3 1s9.95| 4198 DIAGONAL 2-38" BEIGE ss9.ne1Ge $X'5X 9 POST BEIGE STYLE TO MATCH SECTION 4 2363 vase END 2-LINE Sales Tax (8.0%) $294.59 Total $3,97697 PaymentsiCredits $0.00 After Due Date Add 1.5% To Balance Due Balance Due $3976.97B&H Wholesale Fence Co, LLC. Invoice # 12020 Be nner bate Setanta) NY 12508 aes meas Ph 518-346-8515 Fax $18-346-8518 = ame www.bnhfence.cou io Via ee aot aH (ane >} en cee mee aaa re = = re esos Panna aeetane asain) ee Seca Tox) = ra ioe ance a After Due Date Add 1.5% To Balance Due = ciaBal H Wholesale Fence Co, LLC. 1900 Maxon Rd Ext Schenectady, NY 12308 Ph 518-346-8815 Fax 518-346-8518 www buhfence.com, Invoice # 12331 Date anos ob Nam NICOLS. ‘Ship Via GAH S.O.No. 16909) (Customer Fax 13152987668 ante ) Caer Mero Fence Meio Fence 1460 COUNTRY ROUTE 22 Rich 315-298-7377 ALTMAR, NY 13302 1460 County Route 22 Almas, NY 13302 Customer PH # 315-298-7377 Terms Due Date 87272013 P.O. No, ship Date | s2n0i3 | Account # METIORS hem Description | av Price Level Total ARS 54" HX W RESIDENTIAL SECTION BLACK STYLE 6 4850 2100 520-54 JARWG-488 Wx $4 H RESIDENTIAL GATE BLACK STYLE 2 146.20 2280) 520-54 Apa22.s8 2 X 2" X 88" ALUM GATE POST .125 BLACK STYLE 4 35.93 13.72 520-58 BLANK JAp22.88 X 2" X 88" ALUM POST ,060 BLACK STYLE 920-54 26| eas 479.70 26.BLANK 907-1 1 XI SWIVEL BRACKET HORIZONTAL BLACK 156] 250] 390.00 1006-BK 5-314" SELF-CLOSE HINGE BLACK 4 9.96 3984 Sales Tax (8.0%) 313093 Total $1,767.59 PaymentsiCredits $0.00 After Due Date Add 1.5% To Balance Due Balance Due $1,767.59B&H Wholesale Fence Co, LLC. Invoice # 12332 eee ne Date ‘8722013 Schenectady, NY 12308 “LOSE Ph 518-346-8815 Fax 518-346-8518 aot om www. bnhfence.com Ship Via told Sone ia (are ) Cer D Pane cipoaw | eaamn | Aconne | amin te oi av | Piste [va favors [rwastntsiexniaexreaLace srs : wazo] 300 Sales Tax @a% aaa Tota eam Payments wm After Due Date Add 1.5% To Balance Due Balance Ove ameB&H Wholesale Fence Co, LLC. 1900 Maxon Rd Ext Schenectady, NY 13308 Ph 518-346-8815 Fax 518-346-8518 wow buhfence.comn Invoice # red Date Taos Tob Nae FAKONEALYAN Ship Via Ban $.0.No. Trai Customer Fax 13152987668 (ante Metro Fence 460 COUNTRY ROUTE 22 Rich 315-298-7377 ALTMAR, NY 13302 1460 County Route 22 Almaz, NY 13302 Customer PH # 315-298-7377 Terms Due Date 91812013, P.O. No. Ship Date | 9152013 | Account # METI6S tem Description av Price Level Total T00-6-GREEN PRO [6x8 PRIVACY SOLID TONGUE & GROVE PANEL B 710 170830 'wG100-46 4W x 6H PRIVACY SOLID T&G GATE 1 121.06) 109 559-WHITE-GREEN | 5 X 5 X 9" POST WHITE STYLE 100-6 2s 1730] 445.00, END S:CORNER I6LINE ALSS9 5 °X 5° 108" ALUMINUM INSERT 2 56.80 113.60 405-BK | COMMERCIAL SELF CLOSING HINGE SET BLACK 1 29.09 29.99 402-BK HATCHET LATCH BLACK 1 2895 24.95 Sales Tax (0.0%) $0.00 Total 32,482.93 Payments/Credits $0.00 After Due Date Add 1.5% To Balance Due Balance Due $2,442.93B&H Wholesale Fence Co, LLC, Invoice # 12865 1900 Maxon Ra Ext Das at Schenectady, NY 12308, Ph 518-346-8515 Fax 518-346-8518 ee ers an wewrw.bmfence.com Ship Via BaH 3.0.No. Trea Customer Fax 13152987668 (_eate ) ‘Ship To >) Mato Fone Mew Fence 1460 COUNTRY ROUTE 22 Rich 315-298-7377 JALTMAR, NY 13302 1460 County Rose 22 Alumar, NY 13302 Customer PH # 3152987377 Terms Due Date 9152013 P.O.No. Ship Date | 9sr2013 | Account METI62 tom Description ary Price Level Total 100-6-GREEN PRO [6x 8 PRIVACY SOLID TONGUE & GROVE PANEL 5 Ta TAO S59.WHITE-GREEN| 5 X 5X 9! POST WHITE STYLE 100.6 is 1780] 284.80 IBLINE END 1-CORNER 366555 5° X'° CLASSIC NE CAP.WHITE 6 356 5696 ‘Sales Tax (0.0%) 50.00 Total $1,453.26 PaymentsiCredits, 80.00 After Due Date Add 1.5% To Balance Due Balance Due $1.48326B&H Wholesale Fence Co, LLC. Invoice # 12866 1900 Maxon Ra Ext Schenectady, NY 12308 pee eet Ph 518-346-8815 Fax 518-346-8518 ro aos www bnifence.com Sie Mia Bai 3.0.No, Tiere Customer Fax 1315298768 (auto ) ‘Ship To ) Miro Fence Mewo Fence M60 COUNTRY ROUTE 22 Rich 315-298-7377 JALTMAR, NY 13302 1460 County Route 22 Alimar, NY 13302 Customer PH # 315.298.7377 Terms Due Date 9152013 P.0.No. Ship Date | ovs013 | Account METION tom Descristion| ary Price Level Total crs [6x8 PRIVACY SOLID TONGUE & GROVE PANEL 9 35 wae BEIGE SS9-BEIGE 5X5X9 POST BEIGESTYLE 1006 0 236 23630 2-ENDs Lives 361-55-8 5° X'5° NEW ENGLAND CaP BEIGE o 2979 2379 Sales Tax (0.0%) s0.00 Total $1,149.83 PaymentsiCredits 80.00 After Due Date Add 1.5% To Balance Due Balance Due $1,149353B&H Wholesale Fence Co, LLC. Invoice # 12867 1900 Maxon Ra Ext Schenectady. NY 12308, te Sis0l8 Ph $18-346-8615 Fax 518-346-8518 job Name paulk i Ship Via Ball veww bnfence.comn 3.0.No. i788 Customer Fax 15152987668 (enrte Ship To ) Metro Fence ‘Miro Fence 1460 COUNTRY ROUTE 22 Rich 315-298-7377 ALTMAR, NY 13302 1440 County Route 22 ‘Alar, NY 13302 Customer PH # 315-298-7377 Terms Due Date 9/5/2013 P.O.No, Ship Date | 9152013 | Account # METI628 tem Description ory Price Level Total TSADE [¢X @ THROUGH RAIL STRAIGHT 3 PICKET DOG w 7823 375508 EAR CAPS worrs.44.bE | 4X 4W THROUGH RAIL STRAIGHT TOP 3" PICKET s 9936 499.30 DOG EAR CAP GATE s7-warre J2X4X 7 POST WHITE STYLE 275.4 33 14060 73.80 39-LINE S-CORNER I-END sans 4° 4° GOTHIC CAP WaHITE 3 324 mn 405-5 (COMMERCIAL SELF CLOSING HINGE SET BLACK. 5 2999 14995 202.8K HATCHET LATCH BLACK 4 2895 uso 203.288 DROP ROD ASSEMBLY STAINLESS STEEL." BLACK 1 2698 2695 Sales Tax (0.0%) $0.00 Total 35,9256 PaymentsiCredits S000 After Due Date Add 1.5% To Balance Due Balance Due $5.492.56B&H Wholesale Fence Co, LLC. Invoice # 12868, ic Stvon Ba ; Seedy NY 1308 = a Ph $18-346-8515 Fax S18-346-8518 eb Name a www bulfence.com Ship Via B&H sot waar (Cam Ger ten = ov | mtn [al Sidaoexe oar Sodeaenont coer Sats Tox 0059 won Tota aa PaymonlGeaie wa After Due Date Add 1.5% To Balance Due Balance Due namaB&H Wholesale Fence Co, LLC. Invoice # 12869 1900 Maxon Rd Ext Schenectady, NY 13308 os Ena Ph $18-346-8815 Fax S18-346-8518 eee hete ae www bnbfence.com Sti Via Bei $0.No. 1922 Gustomer Fax 13152987668 (en To ) Caer. ) Nira Fence Mei Fence 1460 COUNTRY ROUTE 22 Rich 315-298-7377 JALTMAR, NY 13302 1460 County Route 22 Alomar, NY 13302 Customer PH # 315-298-7377 Terms Due Date 9/5/2013 P.0.No. Stip Date | 91872013 | Account # MET628 item Description ory Prige Level Total Dawe [SW 6H SEMI PRIVACY © WIDE BOARD W7 3 Tas] ar0Be ]BOXED VICTORIAN TOP GATE JOXTE HAVE TO RETURN TO SEE IF COVER UNDER WARRANTY Ie Sales Tax (0.0%) $0.00 Total s37094 Payments/Credits $000 Afier Due Date Add 1.5% To Balance Due Balance Due 337098B&H Wholesale Fence CO, LLC. 1900 Maxon Rd Ext. Schenectady, NY 12308 Te: Meo Fense 1460 COUNTRY ROUTE 22 ALTMAR, NY 13302 Statement reso. “Amount Doe “Amount Ene, $51,469.72 Date Transaction ‘Amount Balance ‘QGOSIRDIS J INV #IT3SB, Dus 0605/2013, Ong. Amount $4,159.63. CRAIG 1317 1957 9032013 {INV #11360. Due 0610/2013. Orig, Amount $503.50 696.67 (0572013 | INV W1136I, Due 061092013. Ong. Amount $1,532.95. 2222962 (9103/2013 | INV #11362. Duc 0603/2013. Orig. Amount $233.55 2463.17 0610772013 INV #11449, Due 06072013. Orig. Amount $6,236.77, REALE 69 94 (9610772013 INV #11450, Due 061072013. Orig. Amount $1,140.48, BRANH 9.8w0.a2 061772013] INV #11571. Duc 0617/2013. Orig. Amount $4,632.68, ROMANO 14.473.10 172013 | INV 11572. Duc 5172013, Ong. Amount $2024.91, Bouter 1649801 6172013 {INV #11573. Duc 0611772013. Ong. Amount $668.20. HUGES 1716221 067262013 | INV #11731, Due 06252013. Orig. Amount $2,613.02. 0° HEM. 19.775.23 6262013 | INV #11732. Duc 0626/2013. Orig. Amount $3,976.97. KOHL 077162013 INV #12020. Due 07/16/2013. Orig. Amount $1,126.46. MCPEAK (0810272013 J INV #12331, Due 08/02/2013. Org. Amount $1,767.59. NICOLS 26,616.25, (0810222013 | INV #12332, Due 08/02/2013. Orig. Amount $1,707.49. CLOSE 2383.78 9705/2013 | INV #12864, Due 0905/2013. Orig. Amount $2,442.93 30,796.67 9ins2013 | INV #12865. Duc 0905/2013. Orig. Amount SI 483.26. HEFFERN 3224993, (9705/2013 ] INV #12866, Due 0910/2013. Orig. Amount $1,149.53. JONES 33,399.46, 9705/2013 | INV #12867, Due 0905/2013. Orig. Amount $5,492.56. paulk 3839202 (0010872013 | INV #12868, Due 09/08/2013. Orig. Amount $1475.82. KINA 406788 ‘0910872013 | INV #12869, Due 09/08/2013. Ong, Amount $370.9, 80,738.78, oors2013 | pMT #1490. 15215.33, 8073877 om9013 | CREDMEM #12912. 8073837 12512018 | INV #FC 307. Due 12/31/2014. Orig. Amount $10,731.35. inance Charge 51,469.72 TSODAYSPAST | STOODAYSPAST | 6TS0DAYSPAST | VERSO DAYS CURRENT nel a mas ery ‘Amount Due 0.00 0.00 000 4073837 $51,460.72RECEIVED STATE ORNEW.VORIG OSWEGO CO. CLERKS OFFICE SUPREME COURT COUNTY OF GR AGP}1 sp) 1126 METRO FENCE OF UPSTATE NY, LLC, MICHAEL ©. BACKUS OSWEGS COUNTY CLERK. Plaintiff, PLAINTIFF'S REPLY TO COUNTERCLAIMS -vs- CONTAINED IN ANSWER AND COUNTERCLAIMS B & H WHOLESALE FENCE CO., LLC, Index No.: 14-1719 Defendant. Plaintiff, by its attorneys, Hiscock & Barclay, LLP, as and for its Reply to Counterclaims asserted by Defendant B & H Wholesale Fence Co,, LLC in its Answer and Counterclaims dated January 16, 2015, alleges and states as follows: 1. Paragraph 1 of Defendant's Counterclaims requires no response from Plaintiff. 2. Plaintiff denies knowledge or information sufficient to form a bel ‘as to the truth or falsity of the allegations contained in Paragraph 2 of Defendant's Counterclaims. 3. Plaintiff denies the allegations contained in Paragraph 3 of Defendant's Counterclaims, except admits it does business at 1460 County Route 22, Altmar, New York. 4, Plaintiff denies the allegations contained in Paragraph 4 of Defendant’s Counterelaims, except admits it contracted for and was sold various fence components by B&H. 5. With respect to the allegation contained in Paragraph 5, of Defendant's Counterelaims, Plaintiff states the exhibit is a document, which speaks for itself. 6. Plaintiff denies the allegations contained in Paragraph 6 of Defendant's Counterclaims. 905727. Plaintiff denies the allegations contained in Paragraph 7 of Defendant's Counterclaims. 8. Plaintiff denies the allegations contained in Paragraph 8 of Defendant's Counterelaims, 9. Plaintiff denies the allegations contained in Paragraph 9 of Defendant's Counterclaims. 10, Plaintiff denies the allegations contained in Paragraph 10 of Defendant’s Counterclaims. 11, Plaintiff denies the allegations contained in Paragraph 11 of Defendant's Counterclaims. 12, Plaintiff repeats and realleges its responses to Paragraphs 1 through 11 for its response to Paragraph 12. 13, Plaintiff denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 13 of Defendant's Counterclaims. 14, Plaintiff denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph 14 of Defendant’s Counterelaims. 15, Plaintiff denies the allegations contained in Paragraph 15 of Defendant’s Counterelaims. 16, Plaintiff denies the allegations contained in Paragraph 16 of Defendant's Counterelaims. 17 Pia {T repeats and realleges its responses to Paragraph 1 through 16 for its response to Paragraph 17. suoeas7.218, Plaintiff denies the allegations contained in Paragraph 18 of Defendant's Counterclaims. 19, Plaintiff denies the allegations contained in Paragraph 19 of Defendant's ‘Counterclaims. 20. Plaintiff denies the allegations contained in Paragraph 20 of Defendant’s Counterclaims. 21. Plaintiff denies the allegations contained in Paragraph 21 of Defendant’s Counterelaims. 22. Plaintiff’ denies the allegations contained in Paragraph 22 of Defendant's Counterclaims. AS AND FOR A FIR! ST AFFIRMATIVE DEFENSE 23. Some or alll of Defendant's counterclaims fail to state a cause of at which relief may be granted. AS.AND FOR A SECOND AFFIRMATIVE DEFED 24, Some or all of Defendant’s counterclaims are barred by the applicable statutes of limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 25. Defendant's counterclaims are barred because Defendant frustrated the performance of the agreement(s) and/or contract(s). AS AND FOR A FOUR’ AFFIRMATIVE DE E, 26. Defendant's counterclaims are barred because Defendant caused the agreement(s) and/or contract(s) not to be performed. sass21. 28, action. 29. 30. fraudulent. the accounts. 32. AS AND FOR A FIRTH AFFIRMATIVE DEFENSE, Defendant breached its contractual agreements with Plaintiff. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Some or all of Defendant's counterclaims may not properly bs AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, Some or all of Defendant’s counterclaims are barred by the doctrine of set off. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE, Defendant's Account Stated countere! barred because the accounts are AS AND FOR A NINTH AFFIRMATIVE DEFENSE Defendant's Account Stated counterclaim is barred because Plaintiff objected to S AND FOR A TENTH AFFIRMATIVE DEFENSE Defendant's Quantum Meruit/Unjust Enrichment counterclaim is barred because there is a contract that governed the subject matter involved. ssoass72WHEREFORE, Plaintiff is entitled to dismissal of each and every counterclaim asserted by Defendant and for such other and further relief as this Court deems just and proper. Dated: March 9, 2015 HISCOCK & BARCPAY, LLP By: —— avid G. Burch, Jr, Esq, Attorney for Plaintiff Metro Fence of Upstate NY, LLC ‘One Park Place 300 South State Street Syracuse, New York 13202 Telephone: (315) 425-2788 TO: Matthew P. Barry, Esq. McNamee, Lochner, Titus & Williams, P.C. Attorney for Defendant B & H Wholesale Fence Co., LLC 677 Broadway, Suite S00 Albany, New York 12207 (518) 447-3200 sa2ss72Fences that have been replaced: [Installation Date_ | Customer Name Initial Cost Replacement Cost {o7i2011 Clear Path for Vets $33,510.00 $40,212.00 (097302011 Prontowski $4,320.00 $5, 184.00 l a Total Replacement Cost: | $45,396.00 | Fences that will be replaced in the immediate fut jure: Installation Date _| Customer Name Initial Cost _ Replacement Cost _| 10/20/2011 | Brown, C. $5,759.12 —Ts6911.00 O7A92011 [Kessel 355/355 00 mesemetaeeata |(96 426,00 memaem (09/06/2011 (08/03/2011 12/12/2011 osi2011 —_| 06/24/2011 $15,834.00 [Unknown [$12,582.00 | [10/22/2012 esate 1 05/25/2012 06/09/2012, Unknown [09/20/2012 = [39,172.80 [Unknown | Humiston [813,028.00 | Unknown Laurenti Unknown 06/14/2013 Craig. $17,957.00 | 07/26/2013 Romano $14,454.00 | $180,100.80