Preview
FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022
NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022
SUPREME COURT OF THE STATE OF NEW YORK Index No. 150993/2022
COUNTY OF NEW YORK
X VERIFIED AMENDED ANSWER with
AFFIRMATIVE DEFENSES and
ALI BABA HOTEL CORP. d/b/a AMSTERDAM COURT HOTEL COUNTERCLAIMS
And EAST SIDE INN, L.L.C. d/b/a THE MARCEL AT GRAMERCY
Plaintiffs
-Against-
ALEXANDER PROSE, REHAN KAPADIA, BELLA MANDOKl, CARLOS
CARILLO, and THALIA HERRERA
Defendants
X
("Carillo"
I Defendant Carlos Carillo, or "Defendant"), appear on my own behalf PRO SE. As and
for this Verified Answer with Affirmative Defenses and Counterclaim to the Complaint of ALI
BABA HOTEL CORP. d/b/a AMSTERDAM COURT HOTEL ("Ali Baba") and EAST SIDE INN, LLC.
d/b/a THE MARCEL AT GRAMERCY ("East Side") (collectively, "Plaintiffs") sets forth and states
as follows:
"lNTRODUCTION"
1. Defendant Denies knowledge or information sufficient to form a belief as to the truth of
"1"
the allegation(s) of Paragraph(s) of the Complaint.
"2"
2. Defendant denies the allegations contained in Paragraph of the Complaint.
3. Defendant denies knowledge or information sufficient to form a belief as-to the allegations
"3"
contained in Paragraph of the Complaint.
4. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"4"
contained in Paragraph of the Complaint.
5. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"5"
contained in Paragraph of the Complaint.
6. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"6"
contained in Paragraph of the complaint.
7. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"7"
contained in Paragraph of the complaint.
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8. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"8"
contained in Paragraph of the Complaint.
9. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"9"
contained in Paragraph of the Complaint.
10. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"10"
contained in Paragraph of the Complaint.
11. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"11"
contained in Paragraph of the Complaint.
"12"
12. Defendant admits to the allegations contained in Paragraph of the Complaint.
"13"
13. Defendant admits to the allegations in paragraph of the Complaint.
14. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"14"
contained in Paragraph of the Complaint.
15. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"15"
contained in Paragraph of the Complaint.
16. Defendant denies knowledge or information sufficient to form a belief as to the ownership,
"12"
management and operations of both hotels referenced in Paragraph of the Complaint,
but expressly denies that the Amsterdam Hotel and the Marcel Hotel are affiliated hotels.
THE SURRENDER AGREEMENT AND PROSE'S BREACH THEREOF
17. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"17"
contained in Paragraph of the Complaint.
18. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"18"
contained in Paragraph of the Complaint.
19. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"19"
contained in Paragraph of the Complaint and leaves allquestions of law to the Court.
20. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"20"
contained in Paragraph of the Complaint and leaves allquestions of law to the Court.
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DEFENDANTS'
CAMPAIGN OF HARASSMENT, ANNOYANCE AND NUISANCE
21. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"21"
contained in Paragraph of the Complaint.
"22"
22. Defendant denies the allegations contained in Paragraph of the Complaint.
23. . Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 23, and Sub-paragraphs (a), (b), (c),(d), (e), (f),(g), (h), (i),(j),(k),(I),(m), (n), (o),
(p), (q), (r),(s).
24. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 24, and Sub-paragraphs (a), (b), (c),(d), (e), (f),(g), (h), (i),(j).
25. Defendant admits the allegations in paragraph 25 subsection (a)and (b) only. Defendant
"25" Sub-
denies the allegations contained in Paragraph of the Complaint and and
paragraphs (c),(d), (e), (f),(g), (b).
26. Denies knowledge or information sufficient to form a belief as to the allegations in
"26"
paragraph and Sub-paragraphs (a), (b), (c),(d).
27. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph "27", and Sub-paragraphs (a), (b).
"28"
28. Defendant denies the allegations contained in Paragraph of the Complaint.
29. . Defendant denies knowledge or information sufficient to form a belief as to the
"29"
allegations contained in Paragraph of the Complaint.
30. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"30"
contained in Paragraph of the Complaint, but denies any allegations coordinating
and/or otherwise acting in concert for any improper purpose.
31. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"31"
contained in Paragraph of the Complaint.
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ACTION"
"AS AND FOR A FIRST CAUSE OF
Contract)"
"(Amsterdam Hotel Against Prosefor Breach of
32. Defendant repeats and realleges each of the foregoing paragraphs.
33. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"33"
contained in Paragraph of the Complaint and leaves allquestions of law to the Court.
34. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"34"
contained in Paragraph of the Complaint and leaves allquestions of law to the Court.
35. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"35"
contained in Paragraph of the Complaint and leaves allquestions of law to the Court.
36. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"36"
contained in Paragraph of the Complaint and leaves allquestions of law to the Court.
ACTION"
"AS AND FOR A SECOND CAUSE OF
Agreement"
"Rescission of the Surrender
37. Defendant repeats and realleges each of the foregoing paragraphs.
38. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"38"
contained in Paragraph of the Complaint and leaves allquestions of law to the Court.
39. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"39"
contained in Paragraph of the Complaint and leaves allquestions of law to the Court.
ACTION"
"AS AND FOR A THIRD CAUSE OF
Enrichment"
"Unjust
40. Defendant repeats and realleges each of the foregoing paragraphs.
41. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"41"
contained in Paragraph of the Complaint.
42. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"42"
contained in Paragraph of the Complaint.
43. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"43"
contained in Paragraph of the Complaint and leaves allquestions of law to the Court.
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ACTION"
"AS AND FOR A FOURTH CAUSE OF
Deceit"
"Fraud and
44. Defendant repeats and realleges each of the foregoing paragraphs.
45. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"45"
contained in Paragraph of the Complaint.
46. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"46"
contained in Paragraph of the Complaint.
47. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"47"
contained in Paragraph of the Complaint and leaves allquestions of law to the Court.
48. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"48"
contained in Paragraph of the Complaint and leaves allquestions of law to the Court.
ACTION"
"AS AND FOR A FIFTH CAUSE OF
Defendants"
"Extortion, Harassment, Annoyance and Nuisance Against All
49. Defendant repeats and realleges each of the foregoing paragraphs.
"50"
50. Defendant denies the allegations contained in Paragraph of the Complaint.
"51"
51. Defendant denies the allegations contained in Paragraph of the Complaint.
"52"
52. Defendant denies the allegations contained in Paragraph of the Complaint.
"53"
53. Defendant denies the allegations contained in Paragraph of the Complaint.
"54"
54. Defendant denies the allegations contained in Paragraph of the Complaint.
"55"
55. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
allquestions of law to the court.
"56"
56. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
all questions of law to the Court.
AS AND FOR A SIXTH CAUSE OF ACTION
Permanent Injunction
57. Defendant repeats and realleges each of the foregoing paragraphs.
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"58"
58. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
allquestions of law to the Court.
"59"
59. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
allquestions of law to the Court.
"60"
60. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
all questions of law to the Court.
"61"
61. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
all questions of law to the Court.
"62"
62. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
all questions of law to the Court.
"63"
63. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
all questions of law to the Court.
AS AND FOR A SEVENTH CAUSE OF ACTION
Declaratory Judgment
64. Defendant repeats and realleges each of the foregoing paragraphs.
"65"
65. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
all questions of law to the Court.
"66"
66. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
all questions of law to the Court.
"67"
67. Defendant admits the allegations contained in Paragraph of the Complaint and leaves
all questions of law to the Court.
"67"
68. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
all questions of law to the Court.
69. Defendant denies knowledge or information sufficient to form a belief as to the allegations
"69"
contained in Paragraph of the Complaint.
"70"
70. Defendant denies the allegations contained in Paragraph of the Complaint and leaves
all matter of law to the court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
Plaintiffs'
71. action, in whole or in part, fails to state a claim upon which relief may be granted.
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AS AND FOR A SECOND AFFIRMATIVE DEFENSE
Plaintiffs'
72. claims are barred by the doctrines of unclean hands, estoppel, ratification,
performance, waiver, laches, impossibility, unenforceability, want of standing, lack of
capacity to sue, illegality, release, collateral estoppel, fraud and/or are time barred by
applicable statutes of limitation.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
73. The Marcel at Gramercy is not affiliated with the owner of the Amsterdam Court Hotel.
as'
Plaintiff Ali Baba does not 'do business Amsterdam Court Hotel and Plaintiff East Side
as'
does not 'do business the Marcel at Gramercy. Furthermore, there is no affiliation
whatsoever between Ali Baba and East Side. To the extent itis determined there is
common ownership of, by or between any Plaintiff parties, that does not constitute
"affiliation"
for any purpose.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
74. The surrender agreement is lacking in one or more material terms and thus cannot be used
as a basis for Prose's liability in this action. Additionally, defendant(s) were not party to the
agreement.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
75. Plaintiffs have failed to meet the stringent pleading requirements of CPLR 3016 and its
deceit'
articulation of 'fraud and claim lacks sufficient particularity as a matter of law. As
such this claim must be dismissed.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
76. Plaintiffs have failed to name a necessary party to this action, namely an Albert Faks,
signatory on the surrender agreement who has no affiliation with any Plaintiff herein.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
77. Plaintiffs have not sustained any damages. To the extent they have, Plaintiffs caused them,
permitted them, and/or failed to mitigate them.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
78. By virtue of his occupancy at the Marcel Hotel, which isSingle-Room-Occupancy ("SRO")
restricted under applicable law, and defendant's demand for a lease thereat to agents of
East Side and/or the Marcel Hotel on or about December 8th, 2021, defendant's tenancy
thereat is rent regulated and is protected. Plaintiffs, knowing any attempt to dispossess
defendant(s) or seek his ejectment would be fruitless, bring this action only as an illegal
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attempt to side-step the law with utterly frivolous claims designed only to harass, annoy,
intimidate or to impose undue hardship, cost and expense upon defendant(s) and as such
must be dismissed.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
79. Plaintiffs have not demanded defendant(s) relinquish occupancy at the Marcel, and have
not complied with other applicable law regarding any notices due us or other due process
or predicate notices required under applicable law.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
80. Plaintiff(s) Ali Baba and/or the Amsterdam Hotel have failed to allege the elements of a
proper rescission claim by failing to allege, either generally or with any particularity, any of
the elements to state a prima facie claim for rescission including misrepresentation of
material fact(s), concealment of material fact(s), mistake of material fact(s), or mistake of
law. Accordingly, this claim must be dismissed.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs' deceit'
81. 'fraud and claim is duplicative of their breach of contract claim and
therefore must be dismissed.
AS AND FOR A TWELVTH AFFIRMATIVE DEFENSE
Harassment','Extortion' 'Annoyance'
82. and/or are not cognizable causes of action in New
Plaintiffs'
York and/or are duplicative of unsupportable nuisance claim, and as such these
claims must be dismissed.
AS AND FOR A THRTEENTH AFFIRMATIVE DEFENSE
83. Nothing alleged in the Complaint constitutes an ongoing pattern of behavior as required by
New York law; rather, allegations of individual, isolated, distinct purported acts or
occurrences, even when taken together, do not constitute a cognizable claim for nuisance.
Plaintiffs'
As such claim for nuisance must be dismissed.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
several'
84. Plaintiffs falsely allege an unsupportable basis for 'joint and liabilityagainst
defendants as alleged tortfeasors without any basis in fact or law and as such, all related
claims must be dismissed.
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AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
Plaintiffs' --
85. To the extent allegations of defendant's acts whether alone or together with
other hotel or permanent tenants thereof - are proven as do
guests, licensees, true, they
not constitute anything illegal, unsafe, dangerous, harmful, or threatening in any manner.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
86. There is no basis to allege or award punitive damages in any amount as against
defendant(s) since defendant(s) did not engage in any malicious act whatsoever; rather,
Plaintiffs'
action is a pretext, seeking to impose financial liability upon defendants for duly
demanding a lease at the Marcel hotel, which istheir right under various provisions of the
Vent Stabilization Code and/or NYC Administrative Code et seq.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
87. The Complaint fails to allege any actual or threatened injury to Plaintiffs; to the extent any
injury is alleged, itis wholly conclusory or speculative.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
88. Plaintiffs have failed to allege any cognizable basis for injunctive relief and have failed to
Plaintiffs'
identify any imminent or irreparable injury to any of guests, premises or
reputation. Plaintiff East Side and/or Marcel hotel has further failed to particularize any
allegations with regard to such purported reputational damage or other imminent harm. As
such, this claim must be dismissed.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
attorneys'
89. Plaintiffs have improperly demanded an award of fees on allcauses of action in
the Complaint but neither contract nor statute supports such a claim or award.
Accordingly, such demand isfrivolous and unsupported, and none of the Plaintiffs are
attorneys'
entitled to fees in any amount for any reason.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
90. Plaintiff East Side has failed to file for an Assumed Name at the New York State Department
Gramercy"
of State for a d/b/a as "The Marcel at or any other trade name(s). Accordingly,
East Side is powerless to enforce any claims on behalf of the Marcel and any business done
"as"
by East Side the Marcel violates applicable law including but not limited to New York's
Limited Liability Company Law.
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AS AND FOR AN NINETEENTH AFFIRMATIVE DEFENSE
91. Plaintiff Ali Baba is inviolation of New York's Business Corporation Law and therefore is not
permitted to enforce any contract or other claim in the courts of New York.
AS AND FOR AN TWENTIETH AFFIRMATIVE DEFENSE
92. Plaintiffs are not entitled to pierce their own corporate veil to impute common ownership
or affiliation for self-serving ends, as that would defeat the purpose of the separation
between distinct corporate entities and limitation on liability based thereon. Unless at the
time the surrender agreement was executed, or Plaintiffs were ever subsidiaries of a parent
entity prior to the commencement of this action, there is no affiliation simply due to
commonality of unit owners or shareholders and the action must fail.
RESERVATION OF RIGHTS
93. Defendant reserves his right to interpose additional, alternative affirmative defenses as
additional evidence becomes available in the course of the defense and/or prosecution of
claims in this action.
COUNTERCLAIMS
FACTS COMMON TO ALL COUNTERCLAIMS
94. Defendant is an individual, currently occupying and residing in Unit 814 of the Marcel hotel,
located at 201 East. 24th Street, in the County and State of New York.
95. Defendant took up occupancy at the Marcel Hotel when he checked in on or about the
night of October 19, 2021.
96. The building in which the Marcel Hotel issituated was built in or about 1925.
97. The building in which the Marcel Hotel issituated contains six or more housing
accommodations.
98. The building in which the Marcel Hotel issituated isa Class B Multiple Dwelling and/or
contains units that qualify as such.
99. The Marcel Hotel contains rooms that do not have both a kitchen and a bathroom,
including defendant's unit.
100. As such and pursuant to the NYC department of buildings, and/or applicable law,
including without limitation the Multiple dwelling law, rent stabilization code, the Marcel
hotel is a Single Room Occupancy ("SRO") housing accommodation.
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101. Because of the designation of the building by virtue of the forgoing, defendant's unit is
rent stabilized.
8th
102. On December 2021, defendant requested a least in writing to agents of the marcel
hotel.
103. Pursuant to applicable law, defendant is entitled to a rent stabilized lease and allthe
protections of rent stabilization laws in New York
104. The hotel and its agents, owners, managers or anyone else who may have any thing to do
with the operations of or delivery of leases, have to this date, not furnished defendant(s)
rent stabilized lease(s). their failure to provide such a lease after 15 days constitutes
tenant harassment.
105. During defendant's occupancy at the Marcel hotel, defendant has not violated any law,
code, statute, policy, procedure, or other rule or regulation codified anywhere in New
York, and his occupancy and tenancy thereat isentirely legal, as is his right to have guests
or a roommate, and to occupy common areas of the hotel. Although the Complaint
alleges that defendant(s) have engaged in behavior endangering the safety of the hotel
guests, nobody at the Marcel ever called the police, or attempted to dispossess
defendants through any means, which iswhy the Complaint lacks such allegations.
Instead, Plaintiffs commenced this action hoping to intimidate defendants into
surrendering legal rights to a rent-regulated tenancy at the Marcel hotel.
106. Notwithstanding this action, defendant(s) have a right to stay in their rooms at the
Marcel hotel at the legal, rent-regulated rate without being charged more; defendants
are entitled to continuous and uninterrupted services without diminution, and cannot be
evicted or dispossessed without court order. By virtue of this action, Plaintiffs further
their campaign of harassment by seeking to intimidate defendants through legal process
and to burden them with legal fees, excessive mental anguish, in an attempt to get him
to vacate the Marcel hotel through a war of attrition.
AS AND FOR A FIRST COUNTERCLAIM
(Declaratory Judgment)
107. Defendant repeats and realleges each and every allegation as stated in the above
paragraphs as if fullyset forth herein.
108. Pursuant to applicable law, defendant(s) may continue his occupancy at the Marcel
hotel which is protected by the Rent Stabilization Law and related laws applicable to SRO
restricted buildings, of which the Marcel hotel isone.
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109. As discussed above, and pursuant to applicable law, defendant is entitled to a rent
regulated lease at the Marcel hotel and renewal leases thereafter; he duly demanded in
writing a lease from the Marcel hotel who refused to issue one to him.
110. Rather than comply with the law, the Marcel Hotel and itsowners initiated this action
based upon frivolous claims and utter falsehoods, alla pretext to harass and intimidate
defendant who is a rent-regulated tenant.
111. defendant is entitled to a declaratory judgment that (a) he is a rent-regulated tenant
afforded allthe protections under the law; (b) Marcel hotel's refusal to tender a lease to
Plaintiffs'
defendant coupled with initiation of this action, constitutes harassment of a rent
regulated tenant, which is prohibited by law; (c) that defendant isentitled to continued
occupancy and a rent-regulated lease at the Marcel hotel.
Plaintiffs'
112. As a result of actions and/or those of itsagents, defendant has suffered
statutory damages including without limitation being compelled to expend considerable
legal fees to defend a meritless suit.
113. Defendant has no adequate remedy at law.
114. Without a declaratory judgment, defendant(s) will continue to suffer damages and
Plaintiffs will continue harassing defendant(s) with impunity.
WHEREFORE, Defendant pleads for a judgment dismissing the Complaint in itsentirety with
prejudice and granting Defendant's counterclaim against Plaintiffs, the costs and
disbursements of this action, a judgement of harassment against the petitioner, a rent
stabilized lease, and any other relief the Court may deem
Preview
FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 SUPREME COURT OF THE STATE OF NEW YORK Index No. 150993/2022 COUNTY OF NEW YORK X VERIFIED AMENDED ANSWER with AFFIRMATIVE DEFENSES and ALI BABA HOTEL CORP. d/b/a AMSTERDAM COURT HOTEL COUNTERCLAIMS And EAST SIDE INN, L.L.C. d/b/a THE MARCEL AT GRAMERCY Plaintiffs -Against- ALEXANDER PROSE, REHAN KAPADIA, BELLA MANDOKl, CARLOS CARILLO, and THALIA HERRERA Defendants X ("Carillo" I Defendant Carlos Carillo, or "Defendant"), appear on my own behalf PRO SE. As and for this Verified Answer with Affirmative Defenses and Counterclaim to the Complaint of ALI BABA HOTEL CORP. d/b/a AMSTERDAM COURT HOTEL ("Ali Baba") and EAST SIDE INN, LLC. d/b/a THE MARCEL AT GRAMERCY ("East Side") (collectively, "Plaintiffs") sets forth and states as follows: "lNTRODUCTION" 1. Defendant Denies knowledge or information sufficient to form a belief as to the truth of "1" the allegation(s) of Paragraph(s) of the Complaint. "2" 2. Defendant denies the allegations contained in Paragraph of the Complaint. 3. Defendant denies knowledge or information sufficient to form a belief as-to the allegations "3" contained in Paragraph of the Complaint. 4. Defendant denies knowledge or information sufficient to form a belief as to the allegations "4" contained in Paragraph of the Complaint. 5. Defendant denies knowledge or information sufficient to form a belief as to the allegations "5" contained in Paragraph of the Complaint. 6. Defendant denies knowledge or information sufficient to form a belief as to the allegations "6" contained in Paragraph of the complaint. 7. Defendant denies knowledge or information sufficient to form a belief as to the allegations "7" contained in Paragraph of the complaint. - 1 - 1 of 13 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 8. Defendant denies knowledge or information sufficient to form a belief as to the allegations "8" contained in Paragraph of the Complaint. 9. Defendant denies knowledge or information sufficient to form a belief as to the allegations "9" contained in Paragraph of the Complaint. 10. Defendant denies knowledge or information sufficient to form a belief as to the allegations "10" contained in Paragraph of the Complaint. 11. Defendant denies knowledge or information sufficient to form a belief as to the allegations "11" contained in Paragraph of the Complaint. "12" 12. Defendant admits to the allegations contained in Paragraph of the Complaint. "13" 13. Defendant admits to the allegations in paragraph of the Complaint. 14. Defendant denies knowledge or information sufficient to form a belief as to the allegations "14" contained in Paragraph of the Complaint. 15. Defendant denies knowledge or information sufficient to form a belief as to the allegations "15" contained in Paragraph of the Complaint. 16. Defendant denies knowledge or information sufficient to form a belief as to the ownership, "12" management and operations of both hotels referenced in Paragraph of the Complaint, but expressly denies that the Amsterdam Hotel and the Marcel Hotel are affiliated hotels. THE SURRENDER AGREEMENT AND PROSE'S BREACH THEREOF 17. Defendant denies knowledge or information sufficient to form a belief as to the allegations "17" contained in Paragraph of the Complaint. 18. Defendant denies knowledge or information sufficient to form a belief as to the allegations "18" contained in Paragraph of the Complaint. 19. Defendant denies knowledge or information sufficient to form a belief as to the allegations "19" contained in Paragraph of the Complaint and leaves allquestions of law to the Court. 20. Defendant denies knowledge or information sufficient to form a belief as to the allegations "20" contained in Paragraph of the Complaint and leaves allquestions of law to the Court. - 2 - 2 of 13 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 DEFENDANTS' CAMPAIGN OF HARASSMENT, ANNOYANCE AND NUISANCE 21. Defendant denies knowledge or information sufficient to form a belief as to the allegations "21" contained in Paragraph of the Complaint. "22" 22. Defendant denies the allegations contained in Paragraph of the Complaint. 23. . Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 23, and Sub-paragraphs (a), (b), (c),(d), (e), (f),(g), (h), (i),(j),(k),(I),(m), (n), (o), (p), (q), (r),(s). 24. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 24, and Sub-paragraphs (a), (b), (c),(d), (e), (f),(g), (h), (i),(j). 25. Defendant admits the allegations in paragraph 25 subsection (a)and (b) only. Defendant "25" Sub- denies the allegations contained in Paragraph of the Complaint and and paragraphs (c),(d), (e), (f),(g), (b). 26. Denies knowledge or information sufficient to form a belief as to the allegations in "26" paragraph and Sub-paragraphs (a), (b), (c),(d). 27. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph "27", and Sub-paragraphs (a), (b). "28" 28. Defendant denies the allegations contained in Paragraph of the Complaint. 29. . Defendant denies knowledge or information sufficient to form a belief as to the "29" allegations contained in Paragraph of the Complaint. 30. Defendant denies knowledge or information sufficient to form a belief as to the allegations "30" contained in Paragraph of the Complaint, but denies any allegations coordinating and/or otherwise acting in concert for any improper purpose. 31. Defendant denies knowledge or information sufficient to form a belief as to the allegations "31" contained in Paragraph of the Complaint. - 3 - 3 of 13 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 ACTION" "AS AND FOR A FIRST CAUSE OF Contract)" "(Amsterdam Hotel Against Prosefor Breach of 32. Defendant repeats and realleges each of the foregoing paragraphs. 33. Defendant denies knowledge or information sufficient to form a belief as to the allegations "33" contained in Paragraph of the Complaint and leaves allquestions of law to the Court. 34. Defendant denies knowledge or information sufficient to form a belief as to the allegations "34" contained in Paragraph of the Complaint and leaves allquestions of law to the Court. 35. Defendant denies knowledge or information sufficient to form a belief as to the allegations "35" contained in Paragraph of the Complaint and leaves allquestions of law to the Court. 36. Defendant denies knowledge or information sufficient to form a belief as to the allegations "36" contained in Paragraph of the Complaint and leaves allquestions of law to the Court. ACTION" "AS AND FOR A SECOND CAUSE OF Agreement" "Rescission of the Surrender 37. Defendant repeats and realleges each of the foregoing paragraphs. 38. Defendant denies knowledge or information sufficient to form a belief as to the allegations "38" contained in Paragraph of the Complaint and leaves allquestions of law to the Court. 39. Defendant denies knowledge or information sufficient to form a belief as to the allegations "39" contained in Paragraph of the Complaint and leaves allquestions of law to the Court. ACTION" "AS AND FOR A THIRD CAUSE OF Enrichment" "Unjust 40. Defendant repeats and realleges each of the foregoing paragraphs. 41. Defendant denies knowledge or information sufficient to form a belief as to the allegations "41" contained in Paragraph of the Complaint. 42. Defendant denies knowledge or information sufficient to form a belief as to the allegations "42" contained in Paragraph of the Complaint. 43. Defendant denies knowledge or information sufficient to form a belief as to the allegations "43" contained in Paragraph of the Complaint and leaves allquestions of law to the Court. - 4 - 4 of 13 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 ACTION" "AS AND FOR A FOURTH CAUSE OF Deceit" "Fraud and 44. Defendant repeats and realleges each of the foregoing paragraphs. 45. Defendant denies knowledge or information sufficient to form a belief as to the allegations "45" contained in Paragraph of the Complaint. 46. Defendant denies knowledge or information sufficient to form a belief as to the allegations "46" contained in Paragraph of the Complaint. 47. Defendant denies knowledge or information sufficient to form a belief as to the allegations "47" contained in Paragraph of the Complaint and leaves allquestions of law to the Court. 48. Defendant denies knowledge or information sufficient to form a belief as to the allegations "48" contained in Paragraph of the Complaint and leaves allquestions of law to the Court. ACTION" "AS AND FOR A FIFTH CAUSE OF Defendants" "Extortion, Harassment, Annoyance and Nuisance Against All 49. Defendant repeats and realleges each of the foregoing paragraphs. "50" 50. Defendant denies the allegations contained in Paragraph of the Complaint. "51" 51. Defendant denies the allegations contained in Paragraph of the Complaint. "52" 52. Defendant denies the allegations contained in Paragraph of the Complaint. "53" 53. Defendant denies the allegations contained in Paragraph of the Complaint. "54" 54. Defendant denies the allegations contained in Paragraph of the Complaint. "55" 55. Defendant denies the allegations contained in Paragraph of the Complaint and leaves allquestions of law to the court. "56" 56. Defendant denies the allegations contained in Paragraph of the Complaint and leaves all questions of law to the Court. AS AND FOR A SIXTH CAUSE OF ACTION Permanent Injunction 57. Defendant repeats and realleges each of the foregoing paragraphs. - 5 - 5 of 13 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 "58" 58. Defendant denies the allegations contained in Paragraph of the Complaint and leaves allquestions of law to the Court. "59" 59. Defendant denies the allegations contained in Paragraph of the Complaint and leaves allquestions of law to the Court. "60" 60. Defendant denies the allegations contained in Paragraph of the Complaint and leaves all questions of law to the Court. "61" 61. Defendant denies the allegations contained in Paragraph of the Complaint and leaves all questions of law to the Court. "62" 62. Defendant denies the allegations contained in Paragraph of the Complaint and leaves all questions of law to the Court. "63" 63. Defendant denies the allegations contained in Paragraph of the Complaint and leaves all questions of law to the Court. AS AND FOR A SEVENTH CAUSE OF ACTION Declaratory Judgment 64. Defendant repeats and realleges each of the foregoing paragraphs. "65" 65. Defendant denies the allegations contained in Paragraph of the Complaint and leaves all questions of law to the Court. "66" 66. Defendant denies the allegations contained in Paragraph of the Complaint and leaves all questions of law to the Court. "67" 67. Defendant admits the allegations contained in Paragraph of the Complaint and leaves all questions of law to the Court. "67" 68. Defendant denies the allegations contained in Paragraph of the Complaint and leaves all questions of law to the Court. 69. Defendant denies knowledge or information sufficient to form a belief as to the allegations "69" contained in Paragraph of the Complaint. "70" 70. Defendant denies the allegations contained in Paragraph of the Complaint and leaves all matter of law to the court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE Plaintiffs' 71. action, in whole or in part, fails to state a claim upon which relief may be granted. - 6 - 6 of 13 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 AS AND FOR A SECOND AFFIRMATIVE DEFENSE Plaintiffs' 72. claims are barred by the doctrines of unclean hands, estoppel, ratification, performance, waiver, laches, impossibility, unenforceability, want of standing, lack of capacity to sue, illegality, release, collateral estoppel, fraud and/or are time barred by applicable statutes of limitation. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 73. The Marcel at Gramercy is not affiliated with the owner of the Amsterdam Court Hotel. as' Plaintiff Ali Baba does not 'do business Amsterdam Court Hotel and Plaintiff East Side as' does not 'do business the Marcel at Gramercy. Furthermore, there is no affiliation whatsoever between Ali Baba and East Side. To the extent itis determined there is common ownership of, by or between any Plaintiff parties, that does not constitute "affiliation" for any purpose. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 74. The surrender agreement is lacking in one or more material terms and thus cannot be used as a basis for Prose's liability in this action. Additionally, defendant(s) were not party to the agreement. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 75. Plaintiffs have failed to meet the stringent pleading requirements of CPLR 3016 and its deceit' articulation of 'fraud and claim lacks sufficient particularity as a matter of law. As such this claim must be dismissed. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 76. Plaintiffs have failed to name a necessary party to this action, namely an Albert Faks, signatory on the surrender agreement who has no affiliation with any Plaintiff herein. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 77. Plaintiffs have not sustained any damages. To the extent they have, Plaintiffs caused them, permitted them, and/or failed to mitigate them. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 78. By virtue of his occupancy at the Marcel Hotel, which isSingle-Room-Occupancy ("SRO") restricted under applicable law, and defendant's demand for a lease thereat to agents of East Side and/or the Marcel Hotel on or about December 8th, 2021, defendant's tenancy thereat is rent regulated and is protected. Plaintiffs, knowing any attempt to dispossess defendant(s) or seek his ejectment would be fruitless, bring this action only as an illegal - 7 - 7 of 13 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 attempt to side-step the law with utterly frivolous claims designed only to harass, annoy, intimidate or to impose undue hardship, cost and expense upon defendant(s) and as such must be dismissed. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 79. Plaintiffs have not demanded defendant(s) relinquish occupancy at the Marcel, and have not complied with other applicable law regarding any notices due us or other due process or predicate notices required under applicable law. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 80. Plaintiff(s) Ali Baba and/or the Amsterdam Hotel have failed to allege the elements of a proper rescission claim by failing to allege, either generally or with any particularity, any of the elements to state a prima facie claim for rescission including misrepresentation of material fact(s), concealment of material fact(s), mistake of material fact(s), or mistake of law. Accordingly, this claim must be dismissed. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs' deceit' 81. 'fraud and claim is duplicative of their breach of contract claim and therefore must be dismissed. AS AND FOR A TWELVTH AFFIRMATIVE DEFENSE Harassment','Extortion' 'Annoyance' 82. and/or are not cognizable causes of action in New Plaintiffs' York and/or are duplicative of unsupportable nuisance claim, and as such these claims must be dismissed. AS AND FOR A THRTEENTH AFFIRMATIVE DEFENSE 83. Nothing alleged in the Complaint constitutes an ongoing pattern of behavior as required by New York law; rather, allegations of individual, isolated, distinct purported acts or occurrences, even when taken together, do not constitute a cognizable claim for nuisance. Plaintiffs' As such claim for nuisance must be dismissed. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE several' 84. Plaintiffs falsely allege an unsupportable basis for 'joint and liabilityagainst defendants as alleged tortfeasors without any basis in fact or law and as such, all related claims must be dismissed. - 8 - 8 of 13 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE Plaintiffs' -- 85. To the extent allegations of defendant's acts whether alone or together with other hotel or permanent tenants thereof - are proven as do guests, licensees, true, they not constitute anything illegal, unsafe, dangerous, harmful, or threatening in any manner. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 86. There is no basis to allege or award punitive damages in any amount as against defendant(s) since defendant(s) did not engage in any malicious act whatsoever; rather, Plaintiffs' action is a pretext, seeking to impose financial liability upon defendants for duly demanding a lease at the Marcel hotel, which istheir right under various provisions of the Vent Stabilization Code and/or NYC Administrative Code et seq. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 87. The Complaint fails to allege any actual or threatened injury to Plaintiffs; to the extent any injury is alleged, itis wholly conclusory or speculative. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 88. Plaintiffs have failed to allege any cognizable basis for injunctive relief and have failed to Plaintiffs' identify any imminent or irreparable injury to any of guests, premises or reputation. Plaintiff East Side and/or Marcel hotel has further failed to particularize any allegations with regard to such purported reputational damage or other imminent harm. As such, this claim must be dismissed. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE attorneys' 89. Plaintiffs have improperly demanded an award of fees on allcauses of action in the Complaint but neither contract nor statute supports such a claim or award. Accordingly, such demand isfrivolous and unsupported, and none of the Plaintiffs are attorneys' entitled to fees in any amount for any reason. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 90. Plaintiff East Side has failed to file for an Assumed Name at the New York State Department Gramercy" of State for a d/b/a as "The Marcel at or any other trade name(s). Accordingly, East Side is powerless to enforce any claims on behalf of the Marcel and any business done "as" by East Side the Marcel violates applicable law including but not limited to New York's Limited Liability Company Law. 9 - 9 of 13 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 AS AND FOR AN NINETEENTH AFFIRMATIVE DEFENSE 91. Plaintiff Ali Baba is inviolation of New York's Business Corporation Law and therefore is not permitted to enforce any contract or other claim in the courts of New York. AS AND FOR AN TWENTIETH AFFIRMATIVE DEFENSE 92. Plaintiffs are not entitled to pierce their own corporate veil to impute common ownership or affiliation for self-serving ends, as that would defeat the purpose of the separation between distinct corporate entities and limitation on liability based thereon. Unless at the time the surrender agreement was executed, or Plaintiffs were ever subsidiaries of a parent entity prior to the commencement of this action, there is no affiliation simply due to commonality of unit owners or shareholders and the action must fail. RESERVATION OF RIGHTS 93. Defendant reserves his right to interpose additional, alternative affirmative defenses as additional evidence becomes available in the course of the defense and/or prosecution of claims in this action. COUNTERCLAIMS FACTS COMMON TO ALL COUNTERCLAIMS 94. Defendant is an individual, currently occupying and residing in Unit 814 of the Marcel hotel, located at 201 East. 24th Street, in the County and State of New York. 95. Defendant took up occupancy at the Marcel Hotel when he checked in on or about the night of October 19, 2021. 96. The building in which the Marcel Hotel issituated was built in or about 1925. 97. The building in which the Marcel Hotel issituated contains six or more housing accommodations. 98. The building in which the Marcel Hotel issituated isa Class B Multiple Dwelling and/or contains units that qualify as such. 99. The Marcel Hotel contains rooms that do not have both a kitchen and a bathroom, including defendant's unit. 100. As such and pursuant to the NYC department of buildings, and/or applicable law, including without limitation the Multiple dwelling law, rent stabilization code, the Marcel hotel is a Single Room Occupancy ("SRO") housing accommodation. - 10 - 10 of 13 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 101. Because of the designation of the building by virtue of the forgoing, defendant's unit is rent stabilized. 8th 102. On December 2021, defendant requested a least in writing to agents of the marcel hotel. 103. Pursuant to applicable law, defendant is entitled to a rent stabilized lease and allthe protections of rent stabilization laws in New York 104. The hotel and its agents, owners, managers or anyone else who may have any thing to do with the operations of or delivery of leases, have to this date, not furnished defendant(s) rent stabilized lease(s). their failure to provide such a lease after 15 days constitutes tenant harassment. 105. During defendant's occupancy at the Marcel hotel, defendant has not violated any law, code, statute, policy, procedure, or other rule or regulation codified anywhere in New York, and his occupancy and tenancy thereat isentirely legal, as is his right to have guests or a roommate, and to occupy common areas of the hotel. Although the Complaint alleges that defendant(s) have engaged in behavior endangering the safety of the hotel guests, nobody at the Marcel ever called the police, or attempted to dispossess defendants through any means, which iswhy the Complaint lacks such allegations. Instead, Plaintiffs commenced this action hoping to intimidate defendants into surrendering legal rights to a rent-regulated tenancy at the Marcel hotel. 106. Notwithstanding this action, defendant(s) have a right to stay in their rooms at the Marcel hotel at the legal, rent-regulated rate without being charged more; defendants are entitled to continuous and uninterrupted services without diminution, and cannot be evicted or dispossessed without court order. By virtue of this action, Plaintiffs further their campaign of harassment by seeking to intimidate defendants through legal process and to burden them with legal fees, excessive mental anguish, in an attempt to get him to vacate the Marcel hotel through a war of attrition. AS AND FOR A FIRST COUNTERCLAIM (Declaratory Judgment) 107. Defendant repeats and realleges each and every allegation as stated in the above paragraphs as if fullyset forth herein. 108. Pursuant to applicable law, defendant(s) may continue his occupancy at the Marcel hotel which is protected by the Rent Stabilization Law and related laws applicable to SRO restricted buildings, of which the Marcel hotel isone. - 11 - 11 of 13 FILED: NEW YORK COUNTY CLERK 11/02/2022 10:58 AM INDEX NO. 150993/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 11/02/2022 109. As discussed above, and pursuant to applicable law, defendant is entitled to a rent regulated lease at the Marcel hotel and renewal leases thereafter; he duly demanded in writing a lease from the Marcel hotel who refused to issue one to him. 110. Rather than comply with the law, the Marcel Hotel and itsowners initiated this action based upon frivolous claims and utter falsehoods, alla pretext to harass and intimidate defendant who is a rent-regulated tenant. 111. defendant is entitled to a declaratory judgment that (a) he is a rent-regulated tenant afforded allthe protections under the law; (b) Marcel hotel's refusal to tender a lease to Plaintiffs' defendant coupled with initiation of this action, constitutes harassment of a rent regulated tenant, which is prohibited by law; (c) that defendant isentitled to continued occupancy and a rent-regulated lease at the Marcel hotel. Plaintiffs' 112. As a result of actions and/or those of itsagents, defendant has suffered statutory damages including without limitation being compelled to expend considerable legal fees to defend a meritless suit. 113. Defendant has no adequate remedy at law. 114. Without a declaratory judgment, defendant(s) will continue to suffer damages and Plaintiffs will continue harassing defendant(s) with impunity. WHEREFORE, Defendant pleads for a judgment dismissing the Complaint in itsentirety with prejudice and granting Defendant's counterclaim against Plaintiffs, the costs and disbursements of this action, a judgement of harassment against the petitioner, a rent stabilized lease, and any other relief the Court may deem