In the Circuit Court of Cook County, Illinois s1

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION MECHANICS LIEN SECTION

THE CHICAGO TRANSIT ) AUTHORITY, a Public Body ) of Illinois for the use and benefit of ) TRIUMPH RESTORATION, INC. ) an Illinois Corporation, ) ) Plaintiff, ) -vs- ) No. 08 CH 29938 ) CASTLE CONSTRUCTION ) Judge Carolyn Quinn CORPORATION, and TRAVELERS ) CASUALTY AND SURETY COMPANY ) OF AMERICA, ) ) Defendants. )

TRIUMPH RESTORATION, INC.’S AMENDED REPLY TO CASTLE CONSTRUCTION CORPORATION’S ANSWER AND AFFIRMATIVE DEFENSES

NOW COMES the Plaintiff, TRIUMPH RESTORATION, INC. (“Triumph”), through its attorneys, THE LAW OFFICES OF BURTON A. BROWN, and for its Amended Reply to

Castle Construction Corporation’s Answer and Affirmative Defenses, states as follows:

Affirmative and Other Defenses

1. The subcontract agreement between plaintiff and Castle Construction Corporation does not require payment to the plaintiff in the absence of acceptance of the plaintiff’s work by the CTA, receipt of CTA’s waiver of all claims, and receipt by Castle of final payment from the

Reply: Triumph denies that the subcontract agreement does not require payment to

Triumph in the absence of payment to Castle by CTA. This alleged defense is expressly disallowed by Section 21(e) of the Mechanics Lien Act, which provides as follows:

1 Any provision in a contract, agreement, or understanding, when payment from a contractor to a subcontractor or supplier is conditioned upon receipt of the payment from any other party including a private or public owner, shall not be a defense by the party responsible for payment to a claim brought under Section 21, 22, 23 or 28 of this Act against the party.

770 ILCS 60/21(e).

Triumph further states that, upon information and belief, Castle’s applications for payment to CTA were rejected by CTA, and Castle’s own failure to complete its obligations under the general contract with CTA has resulted in delay of payment from CTA, which is not the fault of or within the control of Triumph. Castle’s failure to take the proper steps to obtain payment from CTA, however, in no way affect Triumph’s right to obtain payment for its work from Castle under the subcontract.

2. As payment by the CTA to Castle is a condition precedent to Castle’s obligation, if any, to pay the plaintiff, no payment is due and owing as the CTA has not paid Castle for its work or the work of the subcontractors on the project described.

Reply: Triumph denies that payment by the CTA to Castle is a condition precedent to

Castle’s obligation to pay Triumph, and denies that no payment is due and owing to Triumph.

Again this alleged defense is barred by Section 21(e) of the Mechanics Lien Act, which provides that a conditional payment from “any other party,” including a “public owner,” “shall not be a defense by the party responsible for payment to a claim.” 770 ILCS 60/21(e).

WHEREFORE, Plaintiff, Triumph Restoration, Inc. requests that Castle Construction

Corporation’s Affirmative Defenses be denied and judgment be entered for Plaintiff.

2 Respectfully Submitted,

______Law Offices of Burton A. Brown Attorneys for the Plaintiff

Burton A. Brown Babak Bakhtiari LAW OFFICES OF BURTON A. BROWN 205 West Wacker Drive, Suite 922 Chicago, Illinois 60606 (312) 236-5582 Atty. No. 91197

3 VERIFICATION

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil

Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that she verily believes the same to be true.

Triumph Restoration, Inc.

By: ______Alice Watrobka Its: President

LAW OFFICES OF BURTON A. BROWN 205 West Wacker Drive, Suite 922 Chicago, Illinois 60606 (312) 236-5582 Atty. No. 91197