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FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
361 BROADWAY ASSOCIATES HOLDINGS,
LLC,
Index No. 151711/2018
Plaintiff,
-against-
AMENDED ANSWER
JAVIER MORALES,
Defendant.
Defendant Javier Morales (“Defendant”), by his attorneys, Schwartz Sladkus Reich
Greenberg Atlas LLP, as and for his amended answer to Plaintiff’s complaint, dated May 18,
2018 (the “Complaint”), alleges as follows.
Answering the “Preliminary Statement” Section
1. Denies the allegations contained in paragraph 1 of the Complaint.
2. Denies the allegations contained in paragraph 2 of the Complaint.
3. Denies the allegations contained in paragraph 3 of the Complaint.
4. Denies the allegations contained in paragraph 4 of the Complaint.
5. Denies the allegations contained in paragraph 5 of the Complaint.
6. Denies the allegations contained in paragraph 6 of the Complaint.
Answering the “Parties, Jurisdiction, and Venue” Section
7. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 7 of the Complaint.
8. Denies the allegations contained in paragraph 8 of the Complaint.
9. The allegations contained in paragraph 9 of the Complaint consist of legal
conclusions to which no response is required; to the extent a response is required, Defendant
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respectfully refers the Court to the documents referenced therein for a complete and accurate
characterization of their contents.
Answering the “Statement of Facts” Section
10. Denies the allegations contained in paragraph 10 of the Complaint.
11. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 11 of the Complaint.
12. Denies the allegations contained in paragraph 12 of the Complaint.
13. Denies the allegations contained in paragraph 13 of the Complaint.
14. Denies the allegations contained in paragraph 14 of the Complaint.
15. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 15 of the Complaint.
16. As and for a response to the allegations contained in paragraph 16 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 16 of the Complaint.
17. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 17 of the Complaint.
18. Denies the allegations contained in paragraph 18 of the Complaint.
19. As and for a response to the allegations contained in paragraph 19 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 19 of the Complaint.
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20. As and for a response to the allegations contained in paragraph 20 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 20 of the Complaint.
21. As and for a response to the allegations contained in paragraph 21 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 21 of the Complaint.
22. As and for a response to the allegations contained in paragraph 22 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 22 of the Complaint.
23. As and for a response to the allegations contained in paragraph 23 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 23 of the Complaint.
24. As and for a response to the allegations contained in paragraph 24 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 24 of the Complaint.
25. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 25 of the Complaint.
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26. As and for a response to the allegations contained in paragraph 26 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 26 of the Complaint.
27. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 27 of the Complaint.
28. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 28 of the Complaint.
29. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 29 of the Complaint.
30. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 30 of the Complaint.
31. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 31 of the Complaint.
32. As and for a response to the allegations contained in paragraph 32 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 32 of the Complaint.
33. As and for a response to the allegations contained in paragraph 33 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 33 of the Complaint.
34. Denies the allegations contained in paragraph 34 of the Complaint.
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35. As and for a response to the allegations contained in paragraph 35 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 35 of the Complaint.
36. Denies the allegations contained in paragraph 36 of the Complaint.
37. Denies the allegations contained in paragraph 37 of the Complaint.
38. As and for a response to the allegations contained in paragraph 38 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 38 of the Complaint.
39. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 39 of the Complaint.
40. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 40 of the Complaint.
41. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 41 of the Complaint.
42. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 42 of the Complaint.
43. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 43 of the Complaint.
44. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 44 of the Complaint.
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45. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 45 of the Complaint.
46. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 46 of the Complaint.
47. As and for a response to the allegations contained in paragraph 47 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 47 of the Complaint.
48. As and for a response to the allegations contained in paragraph 48 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 48 of the Complaint.
49. As and for a response to the allegations contained in paragraph 49 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 49 of the Complaint.
50. As and for a response to the allegations contained in paragraph 50 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 50 of the Complaint.
51. As and for a response to the allegations contained in paragraph 51 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
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accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 51 of the Complaint.
52. As and for a response to the allegations contained in paragraph 52 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 52 of the Complaint.
53. As and for a response to the allegations contained in paragraph 53 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 53 of the Complaint.
54. As and for a response to the allegations contained in paragraph 54 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 54 of the Complaint.
55. As and for a response to the allegations contained in paragraph 55 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 55 of the Complaint.
56. As and for a response to the allegations contained in paragraph 56 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 56 of the Complaint.
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57. Denies the allegations contain in paragraph 57 of the Complaint, except admits
that—due to the fraud and other wrongdoings of Plaintiff (including its principals and agents)—
Defendant did not close title to the Unit by January 15, 2018.
58. Admits the allegations contained in paragraph 58 of the Complaint.
59. The allegations contained in paragraph 59 of the Complaint consist of legal
conclusion to which no response is required; to the extent a response is required, denies
knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in
paragraph 59 of the Complaint.
Answering the First Cause of Action
60. In response to paragraph 60 of the Complaint, repeats and realleges the responses
to paragraphs 1-59 of the Complaint as if fully set forth herein.
61. Denies the allegations contained in paragraph 61 of the Complaint.
62. Denies the allegations contained in paragraph 62 of the Complaint.
63. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 63 of the Complaint.
64. Denies the allegations contained in paragraph 64 of the Complaint.
65. As and for a response to the allegations contained in paragraph 65 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 65 of the Complaint.
66. As and for a response to the allegations contained in paragraph 66 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
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accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 66 of the Complaint.
67. Denies the allegations contained in paragraph 67 of the Complaint.
68. Denies the allegations contained in paragraph 68 of the Complaint.
69. Denies the allegations contained in paragraph 69 of the Complaint.
70. Denies the allegations contained in paragraph 70 of the Complaint.
71. Denies the allegations contained in paragraph 71 of the Complaint.
72. Denies the allegations contained in paragraph 72 of the Complaint.
73. Denies the allegations contained in paragraph 73 of the Complaint.
Answering the Second Cause of Action
74. In response to paragraph 74 of the Complaint, repeats and realleges the responses
to paragraphs 1-73 of the Complaint as if fully set forth herein.
75. Denies the allegations contained in paragraph 75 of the Complaint.
76. Denies the allegations contained in paragraph 76 of the Complaint.
77. Denies the allegations contained in paragraph 77 of the Complaint.
78. As and for a response to the allegations contained in paragraph 78 of the
Complaint, respectfully refers the Court to the documents referenced therein for a complete and
accurate characterization of their contents; to the extent a response is required, Defendant denies
the allegations contained in paragraph 78 of the Complaint.
79. Denies the allegations contained in paragraph 79 of the Complaint.
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DEFENDANT DENIES THE ALLEGATIONS CONTAINED
IN THE COMPLAINT’S PRAYER FOR RELIEF AND FURTHER DENIES ANY
ALLEGATIONS IN THE COMPLAINT NOT EXPRESSLY ADMITTED HEREIN
AFFIRMATIVE DEFENSES
First Affirmative Defense
The Complaint fails to state a claim upon which relief may be granted.
Second Affirmative Defense
Plaintiff’s claims are not pleaded with the requisite specificity.
Third Affirmative Defense
A defense is founded upon documentary evidence.
Fourth Affirmative Defense
Plaintiff’s claims are barred by the doctrines of release, laches, waiver, setoff, and
estoppel.
Fifth Affirmative Defense
Plaintiff’s claims are barred, in whole or in part, by the statute of limitations.
Sixth Affirmative Defense
To the extent Plaintiff claims it relied upon Defendant’s representations, such reliance
was unreasonable.
Seventh Affirmative Defense
Plaintiff’s claims are barred by the doctrines of mistake and impossibility.
Eighth Affirmative Defense
Plaintiff lacks standing to assert all or some of the claims set forth in the Complaint.
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Ninth Affirmative Defense
Plaintiff and Defendant are not in privity with each another with respect to the facts
alleged in the Complaint.
Tenth Affirmative Defense
Plaintiff has suffered no damages at all; to the extent it has, Plaintiff has failed to prevent,
minimize, or mitigate such damages.
Eleventh Affirmative Defense
To the extent Plaintiff suffered any damages at all, all such damages were caused, in
whole or in part, by the affirmative wrongdoing, negligence, want of care, and other culpable
conduct and/or comparative fault and/or contributory negligence of Plaintiff and/or Plaintiff’s
agents and/or Plaintiff’s attorneys and/or persons or entities other than Defendant.
Twelfth Affirmative Defense
To the extent Plaintiff’s claims are predicated upon a duty owed to Plaintiff by
Defendant, Defendant owed no such duty.
Thirteenth Affirmative Defense
Plaintiff’s claims are barred by virtue of its own breaches and anticipatory repudiation of
the subject contracts.
Fifteenth Affirmative Defense
To the extent Plaintiff relies upon oral agreements or oral modifications that were not
documented by signed writing, Plaintiff’s claims are barred by the statute of frauds.
DEFENDANT RESERVE THE RIGHT TO ADD ADDITIONAL
AFFIRMATIVE DEFENSES AND COUNTERCLAIMS
AS THEY MAY COME TO KNOW DURING AND THROUGH DISCLOSURE
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COUNTERCLAIMS
Defendant, by his attorneys, Schwartz Sladkus Reich Greenberg Atlas LLP, as and for his
counterclaims against plaintiff 361 Broadway Associates Holdings, LLC (“Plaintiff”), alleges as
follows:
Facts Common to All Counterclaims
1. Defendant repeats and realleges the allegations contained in his answer and
affirmative defenses as if fully set forth herein.
2. Plaintiff is the sponsor-developer of the Cast Iron House Condominium (the
“Condominium”), a residential condominium apartment building located in New York, New
York.
3. Defendant Javier Morales (“Defendant”) was the prospective purchaser of Unit
4A (the “Unit”) in the Condominium.
4. On or about June 30, 2015, Plaintiff and Defendant entered into an agreement for
the purchase of the Unit (the “Agreement”) at a price of $7,450,000.
5. Under the Agreement, Defendant was to pay the purchase price in three payments,
the third of which was to be paid at closing.
6. On or about June 30, 2015, in accordance with the terms of the Agreement,
Defendant paid the first payment of $745,000 to Plaintiff.
7. Around December 2015, in accordance with the terms of the Agreement,
Defendant paid the second payment of $745,000 to Plaintiff.
8. Nearly a year later, by letter dated November 3, 2016, Plaintiff notified Defendant
that the closing of the Unit would take place on December 7, 2016.
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9. Despite Plaintiff’s representations, however, upon information and belief, the
Condominium was not ready for occupancy inasmuch as the Condominium building had not
been completed and Plaintiff was unable to obtain a temporary certificate of occupancy (the
“TCO”).
10. As such, Plaintiff adjourned the closing.
11. Upon information and belief, Plaintiff knew that it would be unable to close on its
sale of the Unit for many months.
12. On or about January 10, 2017, Plaintiff disseminated to prospective purchasers,
including Defendant, a copy of the ninth amendment to the Condominium’s offering plan (the
“Ninth Amendment”).
13. The Ninth Amendment gave Defendant the option to rescind the Agreement
within a specified rescission period, ending not earlier than January 25, 2017.
14. Had Defendant known that the closing of the Unit would not take place until
nearly a year later, Defendant would have exercised his option to rescind the Agreement.
15. Not wanting Defendant to rescind the Agreement, however, Plaintiff set out to
reassure Defendant that the closing on the Unit would take place imminently—thereby
deceiving Defendant and lulling Defendant into not exercising his right of rescission.
16. So, on January 11, 2017, within the rescission period, Plaintiff represented to
Defendant that it was very close to completing the Condominium building, that the
Condominium would receive its TCO imminently, and that the closing would proceed in
February 2017.
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17. Once again on January 19, 2017, stillwithin the rescission period, Plaintiff yet
again made multiple representations to Defendant that the TCO would be obtained imminently
and that the closing would proceed on February 27, 2017.
18. Upon information and belief, at the time Plaintiff made these repeated
representations to Defendant about an “immediate closing,” Plaintiff knew full-well that it
could not and would not proceed with a closing until many months later.
19. Upon information and belief, Plaintiff made these repeated representations to
Defendant about an “immediate closing” to deceive Defendant from not exercising his
rescission rights and to lull him into inaction.
20. Despite Plaintiff’s numerous representations to Defendant in January 2017 (i.e.,
during the rescission period) that the closing was imminent—which was false, and, upon
information and belief, Plaintiff knew to be false—the closing, ultimately, was scheduled for
December 2017—nearly a year later.
21. The parties did not close on the sale of the Unit in December 2017.
22. On December 18, 2017, Defendant demanded and was entitled to the rescission
right he had been granted—but fraudulently induced into foregoing—by Plaintiff.
23. Plaintiff refuses to refund to Defendant the nearly $1.5 million he paid for the
Unit, pocketing Defendant’s monies while seeking to resell the Unit to another purchaser.
First Counterclaim
(Fraud in the Inducement)
24. Defendant repeats and realleges the allegations contained in paragraphs 1 through
23 of the counterclaims as if set forth fully herein.
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25. As alleged hereinabove, in January 2017, Plaintiff made numerous representations
to Defendant as material inducements to have Defendant refrain from exercising his right to
rescission.
26. Among other representations, Plaintiff represented to Defendant that Plaintiff was
near the completion of the Condominium building, near obtaining the TCO, and near being in a
position to close on the sale of the Unit.
27. At the time Plaintiff made them, these representations were false, and, upon
information, Plaintiff knew (and should have known) them to be false.
28. At the time Plaintiff made these representations to Defendant, Plaintiff knew that
it was nowhere near the completion of the Condominium building, nowhere near obtaining the
TCO, and nowhere near being able to close on the sale of the Unit.
29. Upon information and belief, Plaintiff’s misrepresentations were made to induce
Defendant to refrain from exercising his right of rescission and to lull Defendant into inaction.
30. Defendant reasonably relied upon Plaintiff’s representations.
31. By reason of Plaintiff’s fraud, Defendant has been injured in an amount to be
determined at trial, but in no event less than $1,490,000, together with interest thereon, for
which sum Plaintiff is liable to Defendant.
Second Counterclaim
(Money Had And Received)
32. Defendant repeats and realleges the allegations contained in paragraphs 1 through
31 of the counterclaims as if set forth fully herein.
33. As alleged hereinabove, Defendant paid $1,490,000 towards the Unit’s purchase
price.
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34. Plaintiff acknowledges receipt of Defendant’s $1,490,000, and it has benefitted
therefrom.
35. The parties did not close on the sale of the Unit because Plaintiff induced
Defendant fraudulently into not exercising his right of rescission.
36. Defendant is thus entitled to the refund of his $1,490,000 payments.
37. Despite due demand, Plaintiff has failed and refused to return to Defendant his
$1,490,000 payments.
38. Plaintiff has no right to these monies, and, under principles of equity and good
conscience, it is unjust and inequitable for Plaintiff to retain them.
39. By reason of such money had and received, Defendant has been injured in an
amount to be determined at trial, but in no event less than $1,490,000, together with interest
thereon, for which sum Plaintiff is liable to Defendant.
Third Counterclaim
(Promissory Estoppel)
40. Defendant repeats and realleges the allegations contained in paragraphs 1 through
39 of the Counterclaims as if set forth fully herein.
41. As alleged hereinabove, in January 2017—during the period in which Defendant
had the right to rescind the Agreement—Plaintiff repeatedly assured Defendant that Plaintiff
would complete the Condominium building imminently, that Plaintiff would obtain the TCO
imminently, and that Plaintiff would close on the sale of the Unit imminently.
42. In reasonable, foreseeable, and justifiable reliance upon Plaintiff’s clear and
unambiguous promises, including as described above, Defendant refrained from exercising his
right to rescind.
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43. As alleged hereinabove, had Defendant known that the closing of the Unit would
not take place until nearly a year after Plaintiff promised it would occur, Defendant would have
exercised his option to rescind the Agreement.
44. As a direct result of Plaintiff’s clear and unambiguous promises and Defendant’s
reasonable and foreseeable reliance thereupon, Defendant has been damaged inasmuch as he
paid $1,490,000 towards the purchase of the Unit, which Plaintiff refuses to refund.
45. By reason of such promissory estoppel, Defendant has been injured in an amount
to be determined at trial,but in no event less than $1,490,000, together with interest thereon,
for which sum Plaintiff is liable to Defendant.
Fourth Counterclaim
(Unjust Enrichment)
46. Defendant repeats and realleges the allegations contained in paragraphs 1 through
45 of the counterclaims as if set forth fully herein.
47. As alleged hereinabove, Defendant paid to Plaintiff $1,490,000 towards the
purchase of the Unit.
48. Plaintiff fraudulently induced and lulled Defendant into foregoing his right to
rescind the Agreement to purchase.
49. Plaintiff refuses to refund Defendant’s payments of $1,490,000.
50. As a result, Plaintiff has been enriched at Defendant’s expense, as Plaintiff has
not returned Defendant’s $1,490,000, the closing on the sale of the Unit has not occurred, and
Plaintiff has extinguished Defendant’s rescission rights.
51. In light of Plaintiff’s fraudulent inducement, it would violate equity and good
conscience to permit Plaintiff to retain the monies paid by Defendant.
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52. By reason of such unjust enrichment, Defendant has been injured in an amount to
be determined at trial, but in no event less than $1,490,000, together with interest thereon, for
which sum Plaintiff is liable to Defendant.
WHEREFORE, Defendant demands judgment against Plaintiff as follows:
On the First Counterclaim for breach of contract, in an amount to be
determined at trial but not less than $1,490,000, plus interest thereon;
On the Second Counterclaim for fraud in the inducement, in an amount to be
determined at trial but not less than $1,490,000, plus interest thereon;
On the Third Counterclaim for money had and received, in an amount to be
determined at trial but not less than $1,490,000, plus interest thereon;
On the Fourth Counterclaim for promissory estoppel, in an amount to be
determined at trial but not less than $1,490,000, plus interest thereon;
Granting to Defendant such other and further relief as the Court deems just
and proper, including the costs, disbursements, and reasonable attorneys’ fees
incurred in connection with this action.
Dated: New York, New York
October 18, 2018
SCHWARTZ SLADKUS REICH
GREENBERG ATLAS LLP
Preview
FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 361 BROADWAY ASSOCIATES HOLDINGS, LLC, Index No. 151711/2018 Plaintiff, -against- AMENDED ANSWER JAVIER MORALES, Defendant. Defendant Javier Morales (“Defendant”), by his attorneys, Schwartz Sladkus Reich Greenberg Atlas LLP, as and for his amended answer to Plaintiff’s complaint, dated May 18, 2018 (the “Complaint”), alleges as follows. Answering the “Preliminary Statement” Section 1. Denies the allegations contained in paragraph 1 of the Complaint. 2. Denies the allegations contained in paragraph 2 of the Complaint. 3. Denies the allegations contained in paragraph 3 of the Complaint. 4. Denies the allegations contained in paragraph 4 of the Complaint. 5. Denies the allegations contained in paragraph 5 of the Complaint. 6. Denies the allegations contained in paragraph 6 of the Complaint. Answering the “Parties, Jurisdiction, and Venue” Section 7. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 7 of the Complaint. 8. Denies the allegations contained in paragraph 8 of the Complaint. 9. The allegations contained in paragraph 9 of the Complaint consist of legal conclusions to which no response is required; to the extent a response is required, Defendant 1 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents. Answering the “Statement of Facts” Section 10. Denies the allegations contained in paragraph 10 of the Complaint. 11. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 11 of the Complaint. 12. Denies the allegations contained in paragraph 12 of the Complaint. 13. Denies the allegations contained in paragraph 13 of the Complaint. 14. Denies the allegations contained in paragraph 14 of the Complaint. 15. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 15 of the Complaint. 16. As and for a response to the allegations contained in paragraph 16 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 16 of the Complaint. 17. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 17 of the Complaint. 18. Denies the allegations contained in paragraph 18 of the Complaint. 19. As and for a response to the allegations contained in paragraph 19 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 19 of the Complaint. 2 2 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 20. As and for a response to the allegations contained in paragraph 20 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 20 of the Complaint. 21. As and for a response to the allegations contained in paragraph 21 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 21 of the Complaint. 22. As and for a response to the allegations contained in paragraph 22 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 22 of the Complaint. 23. As and for a response to the allegations contained in paragraph 23 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 23 of the Complaint. 24. As and for a response to the allegations contained in paragraph 24 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 24 of the Complaint. 25. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 25 of the Complaint. 3 3 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 26. As and for a response to the allegations contained in paragraph 26 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 26 of the Complaint. 27. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 27 of the Complaint. 28. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 28 of the Complaint. 29. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 29 of the Complaint. 30. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 30 of the Complaint. 31. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 31 of the Complaint. 32. As and for a response to the allegations contained in paragraph 32 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 32 of the Complaint. 33. As and for a response to the allegations contained in paragraph 33 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 33 of the Complaint. 34. Denies the allegations contained in paragraph 34 of the Complaint. 4 4 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 35. As and for a response to the allegations contained in paragraph 35 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 35 of the Complaint. 36. Denies the allegations contained in paragraph 36 of the Complaint. 37. Denies the allegations contained in paragraph 37 of the Complaint. 38. As and for a response to the allegations contained in paragraph 38 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 38 of the Complaint. 39. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 39 of the Complaint. 40. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 40 of the Complaint. 41. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 41 of the Complaint. 42. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 42 of the Complaint. 43. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 43 of the Complaint. 44. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 44 of the Complaint. 5 5 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 45. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 45 of the Complaint. 46. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 46 of the Complaint. 47. As and for a response to the allegations contained in paragraph 47 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 47 of the Complaint. 48. As and for a response to the allegations contained in paragraph 48 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 48 of the Complaint. 49. As and for a response to the allegations contained in paragraph 49 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 49 of the Complaint. 50. As and for a response to the allegations contained in paragraph 50 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 50 of the Complaint. 51. As and for a response to the allegations contained in paragraph 51 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and 6 6 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 51 of the Complaint. 52. As and for a response to the allegations contained in paragraph 52 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 52 of the Complaint. 53. As and for a response to the allegations contained in paragraph 53 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 53 of the Complaint. 54. As and for a response to the allegations contained in paragraph 54 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 54 of the Complaint. 55. As and for a response to the allegations contained in paragraph 55 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 55 of the Complaint. 56. As and for a response to the allegations contained in paragraph 56 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 56 of the Complaint. 7 7 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 57. Denies the allegations contain in paragraph 57 of the Complaint, except admits that—due to the fraud and other wrongdoings of Plaintiff (including its principals and agents)— Defendant did not close title to the Unit by January 15, 2018. 58. Admits the allegations contained in paragraph 58 of the Complaint. 59. The allegations contained in paragraph 59 of the Complaint consist of legal conclusion to which no response is required; to the extent a response is required, denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in paragraph 59 of the Complaint. Answering the First Cause of Action 60. In response to paragraph 60 of the Complaint, repeats and realleges the responses to paragraphs 1-59 of the Complaint as if fully set forth herein. 61. Denies the allegations contained in paragraph 61 of the Complaint. 62. Denies the allegations contained in paragraph 62 of the Complaint. 63. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 63 of the Complaint. 64. Denies the allegations contained in paragraph 64 of the Complaint. 65. As and for a response to the allegations contained in paragraph 65 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 65 of the Complaint. 66. As and for a response to the allegations contained in paragraph 66 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and 8 8 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 66 of the Complaint. 67. Denies the allegations contained in paragraph 67 of the Complaint. 68. Denies the allegations contained in paragraph 68 of the Complaint. 69. Denies the allegations contained in paragraph 69 of the Complaint. 70. Denies the allegations contained in paragraph 70 of the Complaint. 71. Denies the allegations contained in paragraph 71 of the Complaint. 72. Denies the allegations contained in paragraph 72 of the Complaint. 73. Denies the allegations contained in paragraph 73 of the Complaint. Answering the Second Cause of Action 74. In response to paragraph 74 of the Complaint, repeats and realleges the responses to paragraphs 1-73 of the Complaint as if fully set forth herein. 75. Denies the allegations contained in paragraph 75 of the Complaint. 76. Denies the allegations contained in paragraph 76 of the Complaint. 77. Denies the allegations contained in paragraph 77 of the Complaint. 78. As and for a response to the allegations contained in paragraph 78 of the Complaint, respectfully refers the Court to the documents referenced therein for a complete and accurate characterization of their contents; to the extent a response is required, Defendant denies the allegations contained in paragraph 78 of the Complaint. 79. Denies the allegations contained in paragraph 79 of the Complaint. 9 9 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 DEFENDANT DENIES THE ALLEGATIONS CONTAINED IN THE COMPLAINT’S PRAYER FOR RELIEF AND FURTHER DENIES ANY ALLEGATIONS IN THE COMPLAINT NOT EXPRESSLY ADMITTED HEREIN AFFIRMATIVE DEFENSES First Affirmative Defense The Complaint fails to state a claim upon which relief may be granted. Second Affirmative Defense Plaintiff’s claims are not pleaded with the requisite specificity. Third Affirmative Defense A defense is founded upon documentary evidence. Fourth Affirmative Defense Plaintiff’s claims are barred by the doctrines of release, laches, waiver, setoff, and estoppel. Fifth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, by the statute of limitations. Sixth Affirmative Defense To the extent Plaintiff claims it relied upon Defendant’s representations, such reliance was unreasonable. Seventh Affirmative Defense Plaintiff’s claims are barred by the doctrines of mistake and impossibility. Eighth Affirmative Defense Plaintiff lacks standing to assert all or some of the claims set forth in the Complaint. 10 10 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 Ninth Affirmative Defense Plaintiff and Defendant are not in privity with each another with respect to the facts alleged in the Complaint. Tenth Affirmative Defense Plaintiff has suffered no damages at all; to the extent it has, Plaintiff has failed to prevent, minimize, or mitigate such damages. Eleventh Affirmative Defense To the extent Plaintiff suffered any damages at all, all such damages were caused, in whole or in part, by the affirmative wrongdoing, negligence, want of care, and other culpable conduct and/or comparative fault and/or contributory negligence of Plaintiff and/or Plaintiff’s agents and/or Plaintiff’s attorneys and/or persons or entities other than Defendant. Twelfth Affirmative Defense To the extent Plaintiff’s claims are predicated upon a duty owed to Plaintiff by Defendant, Defendant owed no such duty. Thirteenth Affirmative Defense Plaintiff’s claims are barred by virtue of its own breaches and anticipatory repudiation of the subject contracts. Fifteenth Affirmative Defense To the extent Plaintiff relies upon oral agreements or oral modifications that were not documented by signed writing, Plaintiff’s claims are barred by the statute of frauds. DEFENDANT RESERVE THE RIGHT TO ADD ADDITIONAL AFFIRMATIVE DEFENSES AND COUNTERCLAIMS AS THEY MAY COME TO KNOW DURING AND THROUGH DISCLOSURE 11 11 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 COUNTERCLAIMS Defendant, by his attorneys, Schwartz Sladkus Reich Greenberg Atlas LLP, as and for his counterclaims against plaintiff 361 Broadway Associates Holdings, LLC (“Plaintiff”), alleges as follows: Facts Common to All Counterclaims 1. Defendant repeats and realleges the allegations contained in his answer and affirmative defenses as if fully set forth herein. 2. Plaintiff is the sponsor-developer of the Cast Iron House Condominium (the “Condominium”), a residential condominium apartment building located in New York, New York. 3. Defendant Javier Morales (“Defendant”) was the prospective purchaser of Unit 4A (the “Unit”) in the Condominium. 4. On or about June 30, 2015, Plaintiff and Defendant entered into an agreement for the purchase of the Unit (the “Agreement”) at a price of $7,450,000. 5. Under the Agreement, Defendant was to pay the purchase price in three payments, the third of which was to be paid at closing. 6. On or about June 30, 2015, in accordance with the terms of the Agreement, Defendant paid the first payment of $745,000 to Plaintiff. 7. Around December 2015, in accordance with the terms of the Agreement, Defendant paid the second payment of $745,000 to Plaintiff. 8. Nearly a year later, by letter dated November 3, 2016, Plaintiff notified Defendant that the closing of the Unit would take place on December 7, 2016. 12 12 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 9. Despite Plaintiff’s representations, however, upon information and belief, the Condominium was not ready for occupancy inasmuch as the Condominium building had not been completed and Plaintiff was unable to obtain a temporary certificate of occupancy (the “TCO”). 10. As such, Plaintiff adjourned the closing. 11. Upon information and belief, Plaintiff knew that it would be unable to close on its sale of the Unit for many months. 12. On or about January 10, 2017, Plaintiff disseminated to prospective purchasers, including Defendant, a copy of the ninth amendment to the Condominium’s offering plan (the “Ninth Amendment”). 13. The Ninth Amendment gave Defendant the option to rescind the Agreement within a specified rescission period, ending not earlier than January 25, 2017. 14. Had Defendant known that the closing of the Unit would not take place until nearly a year later, Defendant would have exercised his option to rescind the Agreement. 15. Not wanting Defendant to rescind the Agreement, however, Plaintiff set out to reassure Defendant that the closing on the Unit would take place imminently—thereby deceiving Defendant and lulling Defendant into not exercising his right of rescission. 16. So, on January 11, 2017, within the rescission period, Plaintiff represented to Defendant that it was very close to completing the Condominium building, that the Condominium would receive its TCO imminently, and that the closing would proceed in February 2017. 13 13 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 17. Once again on January 19, 2017, stillwithin the rescission period, Plaintiff yet again made multiple representations to Defendant that the TCO would be obtained imminently and that the closing would proceed on February 27, 2017. 18. Upon information and belief, at the time Plaintiff made these repeated representations to Defendant about an “immediate closing,” Plaintiff knew full-well that it could not and would not proceed with a closing until many months later. 19. Upon information and belief, Plaintiff made these repeated representations to Defendant about an “immediate closing” to deceive Defendant from not exercising his rescission rights and to lull him into inaction. 20. Despite Plaintiff’s numerous representations to Defendant in January 2017 (i.e., during the rescission period) that the closing was imminent—which was false, and, upon information and belief, Plaintiff knew to be false—the closing, ultimately, was scheduled for December 2017—nearly a year later. 21. The parties did not close on the sale of the Unit in December 2017. 22. On December 18, 2017, Defendant demanded and was entitled to the rescission right he had been granted—but fraudulently induced into foregoing—by Plaintiff. 23. Plaintiff refuses to refund to Defendant the nearly $1.5 million he paid for the Unit, pocketing Defendant’s monies while seeking to resell the Unit to another purchaser. First Counterclaim (Fraud in the Inducement) 24. Defendant repeats and realleges the allegations contained in paragraphs 1 through 23 of the counterclaims as if set forth fully herein. 14 14 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 25. As alleged hereinabove, in January 2017, Plaintiff made numerous representations to Defendant as material inducements to have Defendant refrain from exercising his right to rescission. 26. Among other representations, Plaintiff represented to Defendant that Plaintiff was near the completion of the Condominium building, near obtaining the TCO, and near being in a position to close on the sale of the Unit. 27. At the time Plaintiff made them, these representations were false, and, upon information, Plaintiff knew (and should have known) them to be false. 28. At the time Plaintiff made these representations to Defendant, Plaintiff knew that it was nowhere near the completion of the Condominium building, nowhere near obtaining the TCO, and nowhere near being able to close on the sale of the Unit. 29. Upon information and belief, Plaintiff’s misrepresentations were made to induce Defendant to refrain from exercising his right of rescission and to lull Defendant into inaction. 30. Defendant reasonably relied upon Plaintiff’s representations. 31. By reason of Plaintiff’s fraud, Defendant has been injured in an amount to be determined at trial, but in no event less than $1,490,000, together with interest thereon, for which sum Plaintiff is liable to Defendant. Second Counterclaim (Money Had And Received) 32. Defendant repeats and realleges the allegations contained in paragraphs 1 through 31 of the counterclaims as if set forth fully herein. 33. As alleged hereinabove, Defendant paid $1,490,000 towards the Unit’s purchase price. 15 15 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 34. Plaintiff acknowledges receipt of Defendant’s $1,490,000, and it has benefitted therefrom. 35. The parties did not close on the sale of the Unit because Plaintiff induced Defendant fraudulently into not exercising his right of rescission. 36. Defendant is thus entitled to the refund of his $1,490,000 payments. 37. Despite due demand, Plaintiff has failed and refused to return to Defendant his $1,490,000 payments. 38. Plaintiff has no right to these monies, and, under principles of equity and good conscience, it is unjust and inequitable for Plaintiff to retain them. 39. By reason of such money had and received, Defendant has been injured in an amount to be determined at trial, but in no event less than $1,490,000, together with interest thereon, for which sum Plaintiff is liable to Defendant. Third Counterclaim (Promissory Estoppel) 40. Defendant repeats and realleges the allegations contained in paragraphs 1 through 39 of the Counterclaims as if set forth fully herein. 41. As alleged hereinabove, in January 2017—during the period in which Defendant had the right to rescind the Agreement—Plaintiff repeatedly assured Defendant that Plaintiff would complete the Condominium building imminently, that Plaintiff would obtain the TCO imminently, and that Plaintiff would close on the sale of the Unit imminently. 42. In reasonable, foreseeable, and justifiable reliance upon Plaintiff’s clear and unambiguous promises, including as described above, Defendant refrained from exercising his right to rescind. 16 16 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 43. As alleged hereinabove, had Defendant known that the closing of the Unit would not take place until nearly a year after Plaintiff promised it would occur, Defendant would have exercised his option to rescind the Agreement. 44. As a direct result of Plaintiff’s clear and unambiguous promises and Defendant’s reasonable and foreseeable reliance thereupon, Defendant has been damaged inasmuch as he paid $1,490,000 towards the purchase of the Unit, which Plaintiff refuses to refund. 45. By reason of such promissory estoppel, Defendant has been injured in an amount to be determined at trial,but in no event less than $1,490,000, together with interest thereon, for which sum Plaintiff is liable to Defendant. Fourth Counterclaim (Unjust Enrichment) 46. Defendant repeats and realleges the allegations contained in paragraphs 1 through 45 of the counterclaims as if set forth fully herein. 47. As alleged hereinabove, Defendant paid to Plaintiff $1,490,000 towards the purchase of the Unit. 48. Plaintiff fraudulently induced and lulled Defendant into foregoing his right to rescind the Agreement to purchase. 49. Plaintiff refuses to refund Defendant’s payments of $1,490,000. 50. As a result, Plaintiff has been enriched at Defendant’s expense, as Plaintiff has not returned Defendant’s $1,490,000, the closing on the sale of the Unit has not occurred, and Plaintiff has extinguished Defendant’s rescission rights. 51. In light of Plaintiff’s fraudulent inducement, it would violate equity and good conscience to permit Plaintiff to retain the monies paid by Defendant. 17 17 of 18 FILED: NEW YORK COUNTY CLERK 10/18/2018 05:52 PM INDEX NO. 151711/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/18/2018 52. By reason of such unjust enrichment, Defendant has been injured in an amount to be determined at trial, but in no event less than $1,490,000, together with interest thereon, for which sum Plaintiff is liable to Defendant. WHEREFORE, Defendant demands judgment against Plaintiff as follows: On the First Counterclaim for breach of contract, in an amount to be determined at trial but not less than $1,490,000, plus interest thereon; On the Second Counterclaim for fraud in the inducement, in an amount to be determined at trial but not less than $1,490,000, plus interest thereon; On the Third Counterclaim for money had and received, in an amount to be determined at trial but not less than $1,490,000, plus interest thereon; On the Fourth Counterclaim for promissory estoppel, in an amount to be determined at trial but not less than $1,490,000, plus interest thereon; Granting to Defendant such other and further relief as the Court deems just and proper, including the costs, disbursements, and reasonable attorneys’ fees incurred in connection with this action. Dated: New York, New York October 18, 2018 SCHWARTZ SLADKUS REICH GREENBERG ATLAS LLP