On March 09, 2022 a
Exhibit,Appendix
was filed
involving a dispute between
Hybrid Advance,
and
Final Grade L.L.C. Dba Final Grade,
Martin Thomas Lumpp,
for Commercial - Contract
in the District Court of Kings County.
Preview
FILED: KINGS COUNTY CLERK 04/05/2022
06/27/2022 01:55
04:39 PM INDEX NO. 506997/2022
NYSCEF DOC. NO. 4
17 RECEIVED NYSCEF: 04/05/2022
06/27/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
________________________________________________X Index No.: 506997/2022
HYBRID ADVANCE,
Plaintiff,
vs. VERIFIED ANSWER
WITH AFFIRMATIVE
DEFENSES
FINAL GRADE L.L.C. DBA FINAL GRADE
and MARTIN THOMAS LUMPP,
Defendants.
________________________________________________X
Defendants FINAL GRADE L.L.C. DBA FINAL GRADE and MARTIN THOMAS
LUMPP by and through their attorneys, USHER LAW GROUP, P.C., for its answer to the
complaint herein, states upon information and belief as follows:
Answering “The Parties”
1. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 1 of the complaint.
2. Defendants admit the allegations contained in Paragraph 2 of the complaint.
3. Defendants admit the allegations contained in Paragraph 3 of the complaint.
4. Defendants deny the allegations contained in Paragraph 4 of the complaint.
Answering “The Facts”
5. Defendants deny the allegations contained in Paragraph 5 of the complaint. Specifically,
the “Agreement” to purchase all future receivables is a usurious loan.
6. Defendants deny the allegations contained in Paragraph 6 of the complaint.
7. Defendants deny the allegations contained in Paragraph 7 of the complaint.
8. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 8 of the complaint.
9. Defendants admit the allegations contained in Paragraph 9 of the complaint, only to the
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FILED: KINGS COUNTY CLERK 04/05/2022
06/27/2022 01:55
04:39 PM INDEX NO. 506997/2022
NYSCEF DOC. NO. 4
17 RECEIVED NYSCEF: 04/05/2022
06/27/2022
extent that Defendants met their obligations under the agreement.
10. Defendants deny the allegations contained in Paragraph 10 of the complaint.
11. Defendants deny the allegations contained in Paragraph 11 of the complaint.
12. Defendants deny the allegations contained in Paragraph 12 of the complaint.
13. Defendants deny the allegations contained in Paragraph 13 of the complaint.
14. Defendants deny the allegations contained in Paragraph 14 of the complaint.
15. Defendants deny the allegations contained in Paragraph 15 of the complaint.
16. Defendants deny the allegations contained in Paragraph 16 of the complaint.
17. Defendants deny the allegations contained in Paragraph 17 of the complaint.
18. Defendants deny the allegations contained in Paragraph 18 of the complaint.
19. Defendants deny the allegations contained in Paragraph 19 of the complaint.
Answering “As And For A First Cause Of Action – Breach of Contract”
20. Defendants deny the allegations contained in Paragraph 20 of the complaint.
21. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 21 of the complaint.
22. Defendants deny the allegations contained in Paragraph 22 of the complaint.
23. Defendants deny the allegations contained in Paragraph 23 of the complaint.
24. Defendants deny the allegations contained in Paragraph 24 of the complaint.
25. Defendants deny the allegations contained in Paragraph 25 of the complaint.
Answering “As And For A Second Cause Of Action – Personal Guarantee”
26. Defendants deny the allegations contained in Paragraph 26 of the complaint.
27. Defendants deny the allegations contained in Paragraph 27 of the complaint.
28. Defendants deny the allegations contained in Paragraph 28 of the complaint.
29. Defendants deny the allegations contained in Paragraph 29 of the complaint.
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FILED: KINGS COUNTY CLERK 04/05/2022
06/27/2022 01:55
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NYSCEF DOC. NO. 4
17 RECEIVED NYSCEF: 04/05/2022
06/27/2022
Answering “As And For A Third Cause Of Action – Attorney’s Fees”
30. Defendants deny the allegations contained in Paragraph 30 of the complaint.
31. Defendants deny the allegations contained in Paragraph 31 of the complaint.
32. Defendants deny the allegations contained in Paragraph 32 of the complaint.
AFFIRMATIVE DEFENSES
AND AS FOR A FIRST AFFIRMATIVE DEFENSE
33. Ambiguity, Plaintiff did not clearly state the amount and issues in this case, which makes
it difficult to respond. As Plaintiff has failed to state a claim pursuant to CPLR 3211(a)(7)
Defendants herein reserve the right to supplement this answer as may be required by the
circumstances.
AND AS FOR A SECOND AFFIRMATIVE DEFENSE
34. Mistake. The subject amount in the complaint was paid previously.
AND AS FOR A THIRD AFFIRMATIVE DEFENSE
35. Plaintiff being granted the relief requested would result in Unjust Enrichment on the part
of the Plaintiff.
AND AS FOR A FOURTH AFFIRMATIVE DEFENSE
36. Plaintiff violated the duty of good faith and fair dealing.
AND AS FOR A FIFTH AFFIRMATIVE DEFENSE
37. Plaintiff is suing for the wrong amount.
AND AS FOR A SIXTH AFFIRMATIVE DEFENSE
38. Plaintiff's filing of this matter against Defendants violates the doctrine of laches.
AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE
39. Plaintiff failed to mitigate damages.
AND AS FOR A EIGHTH AFFIRMATIVE DEFENSE
40. Plaintiff failed timely and properly to exhaust all necessary administrative, statutory,
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FILED: KINGS COUNTY CLERK 04/05/2022
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NYSCEF DOC. NO. 4
17 RECEIVED NYSCEF: 04/05/2022
06/27/2022
and/or jurisdictional prerequisites to commence this action.
AND AS FOR A NINTH AFFIRMATIVE DEFENSE
41. Plaintiff lacks standing.
AND AS FOR A TENTH AFFIRMATIVE DEFENSE
42. Excessive fees charged by Plaintiff which are impermissibly punitive.
AND AS FOR A ELEVENTH AFFIRMATIVE DEFENSE
43. The contract is unconscionable.
AND AS FOR A TWELTH AFFIRMATIVE DEFENSE
44. The Plaintiff Fraudulently Induced the Defendants into executing the agreement.
AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE
45. Plaintiff's filing of this matter against Defendants violates the doctrine of in pari delecto.
AND AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE
46. There is a lack of damages in this matter, or that the damages are inconsequential and de
minimis.
AND AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE
47. Plaintiff failed to comply with its obligations under the agreement.
AND AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE
48. The agreement which is the subject matter of this litigation is invalid because it lacks a
legal purpose.
AND AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
49. Plaintiff lacks personal jurisdiction pursuant to GENERAL OBLIGATIONS LAW 5-
1402.
AND AS FOR A EIGHTEENTH AFFIRMATIVE DEFENSE
50. The agreement which is the subject matter of this litigation represents a contract of
adhesion.
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FILED: KINGS COUNTY CLERK 04/05/2022
06/27/2022 01:55
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17 RECEIVED NYSCEF: 04/05/2022
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AND AS FOR A NINTEENTH AFFIRMATIVE DEFENSE
51. Plaintiff fails to state a claim upon which relief can be granted.
AND AS FOR A TWENTIETH AFFIRMATIVE DEFENSE
52. Plaintiff induced Defendant into entering into an unlawful usurious loan and not an asset
purchase agreement.
WHEREFORE, the Defendants herein respectfully requests: (i) Judgment in favor of
the Defendants; (ii) Disbursements and attorney’s fees incurred by Defendant in this proceeding,
and for any further relief this Honorable Court deems just, proper and equitable.
Dated: Brooklyn, New York Respectfully submitted,
March 29th, 2022
__/s/ Mikhail Usher______
Mikhail Usher, Esq
USHER LAW GROUP, P.C.
Attorneys for Defendants
1022 Avenue P, 2nd Fl.
Brooklyn, New York 11223
Tel.: (718) 484-7510
Fax: (718) 865-8566
To: Yana Chechelnitsky, Esq.
Attorneys for Plaintiff
61-43 186th Street, Suite 450
Fresh Meadows, New York 11365
877-464-8470
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Document Filed Date
June 27, 2022
Case Filing Date
March 09, 2022
Category
Commercial - Contract
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FILED: KINGS COUNTY CLERK 04/05/2022 06/27/2022 01:55 04:39 PM INDEX NO. 506997/2022 NYSCEF DOC. NO. 4 17 RECEIVED NYSCEF: 04/05/2022 06/27/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ________________________________________________X Index No.: 506997/2022 HYBRID ADVANCE, Plaintiff, vs. VERIFIED ANSWER WITH AFFIRMATIVE DEFENSES FINAL GRADE L.L.C. DBA FINAL GRADE and MARTIN THOMAS LUMPP, Defendants. ________________________________________________X Defendants FINAL GRADE L.L.C. DBA FINAL GRADE and MARTIN THOMAS LUMPP by and through their attorneys, USHER LAW GROUP, P.C., for its answer to the complaint herein, states upon information and belief as follows: Answering “The Parties” 1. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 1 of the complaint. 2. Defendants admit the allegations contained in Paragraph 2 of the complaint. 3. Defendants admit the allegations contained in Paragraph 3 of the complaint. 4. Defendants deny the allegations contained in Paragraph 4 of the complaint. Answering “The Facts” 5. Defendants deny the allegations contained in Paragraph 5 of the complaint. Specifically, the “Agreement” to purchase all future receivables is a usurious loan. 6. Defendants deny the allegations contained in Paragraph 6 of the complaint. 7. Defendants deny the allegations contained in Paragraph 7 of the complaint. 8. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 8 of the complaint. 9. Defendants admit the allegations contained in Paragraph 9 of the complaint, only to the 1 of 5 FILED: KINGS COUNTY CLERK 04/05/2022 06/27/2022 01:55 04:39 PM INDEX NO. 506997/2022 NYSCEF DOC. NO. 4 17 RECEIVED NYSCEF: 04/05/2022 06/27/2022 extent that Defendants met their obligations under the agreement. 10. Defendants deny the allegations contained in Paragraph 10 of the complaint. 11. Defendants deny the allegations contained in Paragraph 11 of the complaint. 12. Defendants deny the allegations contained in Paragraph 12 of the complaint. 13. Defendants deny the allegations contained in Paragraph 13 of the complaint. 14. Defendants deny the allegations contained in Paragraph 14 of the complaint. 15. Defendants deny the allegations contained in Paragraph 15 of the complaint. 16. Defendants deny the allegations contained in Paragraph 16 of the complaint. 17. Defendants deny the allegations contained in Paragraph 17 of the complaint. 18. Defendants deny the allegations contained in Paragraph 18 of the complaint. 19. Defendants deny the allegations contained in Paragraph 19 of the complaint. Answering “As And For A First Cause Of Action – Breach of Contract” 20. Defendants deny the allegations contained in Paragraph 20 of the complaint. 21. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 21 of the complaint. 22. Defendants deny the allegations contained in Paragraph 22 of the complaint. 23. Defendants deny the allegations contained in Paragraph 23 of the complaint. 24. Defendants deny the allegations contained in Paragraph 24 of the complaint. 25. Defendants deny the allegations contained in Paragraph 25 of the complaint. Answering “As And For A Second Cause Of Action – Personal Guarantee” 26. Defendants deny the allegations contained in Paragraph 26 of the complaint. 27. Defendants deny the allegations contained in Paragraph 27 of the complaint. 28. Defendants deny the allegations contained in Paragraph 28 of the complaint. 29. Defendants deny the allegations contained in Paragraph 29 of the complaint. 2 of 5 FILED: KINGS COUNTY CLERK 04/05/2022 06/27/2022 01:55 04:39 PM INDEX NO. 506997/2022 NYSCEF DOC. NO. 4 17 RECEIVED NYSCEF: 04/05/2022 06/27/2022 Answering “As And For A Third Cause Of Action – Attorney’s Fees” 30. Defendants deny the allegations contained in Paragraph 30 of the complaint. 31. Defendants deny the allegations contained in Paragraph 31 of the complaint. 32. Defendants deny the allegations contained in Paragraph 32 of the complaint. AFFIRMATIVE DEFENSES AND AS FOR A FIRST AFFIRMATIVE DEFENSE 33. Ambiguity, Plaintiff did not clearly state the amount and issues in this case, which makes it difficult to respond. As Plaintiff has failed to state a claim pursuant to CPLR 3211(a)(7) Defendants herein reserve the right to supplement this answer as may be required by the circumstances. AND AS FOR A SECOND AFFIRMATIVE DEFENSE 34. Mistake. The subject amount in the complaint was paid previously. AND AS FOR A THIRD AFFIRMATIVE DEFENSE 35. Plaintiff being granted the relief requested would result in Unjust Enrichment on the part of the Plaintiff. AND AS FOR A FOURTH AFFIRMATIVE DEFENSE 36. Plaintiff violated the duty of good faith and fair dealing. AND AS FOR A FIFTH AFFIRMATIVE DEFENSE 37. Plaintiff is suing for the wrong amount. AND AS FOR A SIXTH AFFIRMATIVE DEFENSE 38. Plaintiff's filing of this matter against Defendants violates the doctrine of laches. AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE 39. Plaintiff failed to mitigate damages. AND AS FOR A EIGHTH AFFIRMATIVE DEFENSE 40. Plaintiff failed timely and properly to exhaust all necessary administrative, statutory, 3 of 5 FILED: KINGS COUNTY CLERK 04/05/2022 06/27/2022 01:55 04:39 PM INDEX NO. 506997/2022 NYSCEF DOC. NO. 4 17 RECEIVED NYSCEF: 04/05/2022 06/27/2022 and/or jurisdictional prerequisites to commence this action. AND AS FOR A NINTH AFFIRMATIVE DEFENSE 41. Plaintiff lacks standing. AND AS FOR A TENTH AFFIRMATIVE DEFENSE 42. Excessive fees charged by Plaintiff which are impermissibly punitive. AND AS FOR A ELEVENTH AFFIRMATIVE DEFENSE 43. The contract is unconscionable. AND AS FOR A TWELTH AFFIRMATIVE DEFENSE 44. The Plaintiff Fraudulently Induced the Defendants into executing the agreement. AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE 45. Plaintiff's filing of this matter against Defendants violates the doctrine of in pari delecto. AND AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE 46. There is a lack of damages in this matter, or that the damages are inconsequential and de minimis. AND AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE 47. Plaintiff failed to comply with its obligations under the agreement. AND AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE 48. The agreement which is the subject matter of this litigation is invalid because it lacks a legal purpose. AND AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 49. Plaintiff lacks personal jurisdiction pursuant to GENERAL OBLIGATIONS LAW 5- 1402. AND AS FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 50. The agreement which is the subject matter of this litigation represents a contract of adhesion. 4 of 5 FILED: KINGS COUNTY CLERK 04/05/2022 06/27/2022 01:55 04:39 PM INDEX NO. 506997/2022 NYSCEF DOC. NO. 4 17 RECEIVED NYSCEF: 04/05/2022 06/27/2022 AND AS FOR A NINTEENTH AFFIRMATIVE DEFENSE 51. Plaintiff fails to state a claim upon which relief can be granted. AND AS FOR A TWENTIETH AFFIRMATIVE DEFENSE 52. Plaintiff induced Defendant into entering into an unlawful usurious loan and not an asset purchase agreement. WHEREFORE, the Defendants herein respectfully requests: (i) Judgment in favor of the Defendants; (ii) Disbursements and attorney’s fees incurred by Defendant in this proceeding, and for any further relief this Honorable Court deems just, proper and equitable. Dated: Brooklyn, New York Respectfully submitted, March 29th, 2022 __/s/ Mikhail Usher______ Mikhail Usher, Esq USHER LAW GROUP, P.C. Attorneys for Defendants 1022 Avenue P, 2nd Fl. Brooklyn, New York 11223 Tel.: (718) 484-7510 Fax: (718) 865-8566 To: Yana Chechelnitsky, Esq. Attorneys for Plaintiff 61-43 186th Street, Suite 450 Fresh Meadows, New York 11365 877-464-8470 5 of 5