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FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/28/2021
EXHIBIT “B”
FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021
NYSCEF
FILED
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NO. 8
ONONDAGA
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STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
COSTELLO, COONEY & FEARON, PLLC,
Plaintiff,
ANSWER TO VERIFIED
vs. COMPLAINT
MELINDA BURDICK BOWE, Index No.: 603917/2021
Defendant.
Melinda Bowe"
Defeñdañt, Burdick Bowe (referred to as "Ms. herein), by her attorneys,
Woods Oviatt Gilman LLP, for her Answer to the Complaint of Coate!!o, Cooney & Fearon, PLLC
"Plaintiff"
(referred to as and/or "CC&F") herein, alleges as follows.
1. Denies knowledge or infarmation sufficient to form a belief as to the truth of the
allegations of paragraphs 1, 4,5, 6, 8, 9, 10, 11, 12, 16, 18 and 27 of the Complaint.
2. With respect to paragraphs 7, 15, 39 and 53, denies all representations and
characterizations of the vaferanced documents that are inconsistent with the actual terms of the
documents themselves, and relies upon the actual language of the referenced doc"=.ents.
3. Denies paragraphs 2, 3, 13, 14, 17, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 32, 33,
34, 35, 36, 38, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 54, 55, 56, 57, 58, 60, 61, 62, 63 and 64.
4. With respect to paragraphs 31, 37, 45, 52 and 59, answers as elsewhere answered.
FIRST AFFIRMATIVE DEFENSE
5. Upon information and belief,Plaintiff failsto state a cause of action upon which relief
may be granted with respect to one or more causes of action.
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SECOND AFFIRMATIVE DEFENSE
6. Upon infhrmation and belief, one or more of the causes of action are barred by the
doctrine of unclean hands.
THIRD AFFIRMATIVE DEFENSE
7. Upon information and belief, one or more of the causes of action are barred because
Plaintiff lacks standing and/or capacity to assert them.
FOURTH AFFIRMATIVE DEFENSE
8. Upon information and belief, by reason of the acts and omissions of Plaintiff and
Plaintiffs agents and representatives, Plaintiffis w-opped from claiming e-+tt-ment to any recovery.
FIFTH AFFIRMATIVE DEFENSE
9. Upon information and belief, one or more causes of action are barred in whole or in
part by Plaintiffs waiver of any right to recovery.
SIXTH AFFIRMATIVE DEFENSE
10. Upon information and belief, Plaintiffs claims for damages are barred in whole or in
part because any claimed losses or injuries sustained by Plaintiff are due to its own fd!=s and
omissions or itsown conduct or negligence.
SEVENTH AFFIRMATIVE DEFENSE
11. Upon infounation and belief,one or more of the causes of action are barred in whole
or in part by Plaintiffs failure to mitigate damages claimed.
EIGHTH AFFIRMATIVE DEFENSE
12. Upon information and belief,one or more of the causes of action are barred in whole
or in part by the governing doctments of Plaintiff.
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NINTH AFFIRMATIVE DEFENSE
13. Upon information and belief, one or more of the causes of action are barred in whole
or in part by consent, ratification,and/or acquiescence.
TENTH AFFIRMATIVE DEFENSE
14. Upon information and belief,one or more of the causes of action are barred on the
grounds that Plaintiff seeks equitable relief when there is an adequate remedy at law.
ELEVENTH AFFIRMATIVE DEFENSE
15. Upon infor=stion and belief,if Plaintiff suffered injury, such injury was due to the
acts or omissions of persons other than Ms. Bowe.
TWELFTH AFFIRMATIVE DEFENSE
16. Upon information and belief, one or more of the causes of action are barred due to
failure to include allnecessary parties.
THIRTEENTH AFFIRMATIVE DEFENSE
17. Upon information and belief, Plaintiffs claims are barred by the failure of Plaintiffto
have suffered any damage or injury.
FOURTEENTH AFFIRMATIVE DEFENSE
18. Upon information and belief, one or more of the causes of.action are barred by
anticipatory breach of contract on behalf of Plaintiff.
FIFTEENTH AFFIRMATIVE DEFENSE
19. Upon ir aimation and belief, one or more of the causes of action are barred by breach
of contract due to failure to comply with contractual obligations.
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SIXTEENTH AFFIRMATIVE DEFENSE
20. Upon information and belief, the claims of unjust enrich_ment in the first and second
causes of action must be dismissed as duplicative of Plaintiffs breach of contract claim.
SEVENTEENTH AFFIRMATIVE DEFENSE
21. Upon information and belief, Plaintiffs causes of action for conversion must be
dismissed as duplicative of Plaintiffs breach of contract claim.
EIGHTEENTH AFFIRMATIVE DEFENSE
22. Upon as informatioñ and belief, Plaintiffs causes of action for conversion must be
disñsed as failing to identify particular assets, but rather simply asserting a claim for money.
NINETEENTH AFFIRMATIVE DEFENSE
23. Upon information and belief, Plaintiffs claim of breach of fidüciary duty must be
dismissed due to the absence of any fiduciary duty, in law, equity, or contract, currently owed by Ms.
Bowe to Plaintiff.
TWENTIETH AFFIRMATIVE DEFENSE
24. Upon information and belief, the Operating Agreement upon which Plaintiff relies
provides that "Members shall not be liablefor the contract• or other obligations
debts, listilities, any
Company."
of the
TWENTY-FIRST AFFIRMATIVE DEFENSE
25. Upon information and belief, Section 2 of the Of Counsel Agreement provides that
Firm."
Ms. Bowe is "released, indemnified and held harmless from any and allobligations of the
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TWENTY-SECOND AFFIRMATIVE DEFENSE
26. Upon information and belief, Plaintiff drafted the Operating Agreement itseeks to
enforce. To the extent that any ambiguity exists in the Operating Agreement, or in any of itsterms,
that ambiguity must be construed against the interest of Plaintiff and in favor of Ms. Bowe.
TWENTY-THIRD AFFIRMATIVE DEFENSE
27. Upon information and belief, one or more of Plaintiffs causes of action are barred in
whole or in part by the doctrine of set-off and/or recruitment, including, without limitation, in
connection with Plaintiffs üñlawfùl withhnMingofcompenSation from Ms. Bowe and collection of
Ms. Bowe's percêñtagc of fees from clients she originated pursuant to the Of Counsel Agreement.
AS AND FOR A FIRST COUNTERCLAIM
(BREACH OF CONTRACT)
28. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as
iffully set forth herein.
29. On or about November 23, 2020, Ms. Bowe entered into an Of Counsel Ag-ement
with Plaintiff CC&F to, among other things, provide legal services.
30. As part of the inducement to enter into the Of Counsel Agreement, Ms. Bowe was
promJsed ceñtiñücd compensation forclients which she originated for the benefit of CC&F, and that
compensation was inch3dedin the Of Counsel Agreement.
31. From November 23, 2020, Ms. Bowe fully complied with her obligations under the
Of Counsel Agreement with Plaintiff CC&F.
32. In or about April, 2021, CC&F advised Ms. Bowe that itno longer intended to provide
her with compensation pursuant to the Of Counsel Agreement. On April 15, 2021, CC&F failed to
make payment of the bi-monthly draw amount required to be paid pursuant to the Of Counsel
Agreement.
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33. CC&F refused to provide to Ms. Bowe compensation rightfi:!!y earned under the
terms of the Of Counsel Agreement.
34. By these actions and by failing to fulfillitscontrachial obligations, CC&Ps actions
and omissions ec=ti+"ted a breach of the terms of the Of Counsel Agreement.
35. As a direct result of CC&Fs breach of contract, Ms. Bowe has suffered damages,
including monetary damages in an amount to be determined at trial.
AS AND FOR A SECOND COUNTERCLAIM
(BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING)
36. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as
iffully set forth herein.
37. CC&F was bound by the implied covenant of good faith and fairdealing, pursuant to
which neither party to a c0ñtract shall do anything which has the effect of destroying or injuring the
right of the other party to receive the fruitsof the contract.
38. Upon information and CC&F's actions and amissinna were taken
belief, intentionally
to frustrate the purpose of the contract and deprive Ms. Bowe of the benefits of the Of Counsel
Agreement and of the express terms of the Operating Agreement.
39. As a direct result of CC&Fs breach of the implied duty of good faithand fair dealing,
Ms. Bowe has suffered damages, iñcinding monetary damages in an amoüñ‡ to be determined at trial.
AS AND FOR A THIRD COUNTERCLAIM
(CONVERSION)
40. Ms. Bowe repeats, realleget and reincorporates each of the foregoing paragraphs as
iffully set forthherein.
41. Ms. Bowe's sep-a*ian from CC&F as a Partner, Ms. Bowe entered into an
Following
Of Counsel relationship with the firm.
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42. Pumnant to the Of Counsel relatianship, Ms. Bowe was contractually entitled to
receive a percentage compensatioñ for work performed by other CC&F attorneys on client matters
for clients for whom she was resposible for originating.
43. CC&F advised Ms. Bowe that itwould not pay her any compeæadon eamed by Ms.
Bowe pursuant to the Of Counsel Agreement.
44. Upon information and belief, CC&F's actions were taken intendonally to convert
clients originated by Ms. Bowe and deprive her of alllegal title to or interest in the origiration fees
and other compensation agreed upon.
45. By virtue of the foregning Ms. Bowe has been damaged by CC&F in an amount to
be determined at a trial
of thismatter based upon the value of legal services rendered to the ver.ngal:ÿ
converted clients, together with interest thereon.
AS AND FOR A FOURTH COUNTERCLAIM
(QUANTUM MERUIT)
46. Ms. Bowe repeats, raelleges, and reincorporates each of the foregoing paragraphs as
iffully set forth herein.
47. Ms. Bowe provided legal services, as well as other valuable consideration, to CC&F.
48. CC&F accepted the legal services and other consideration rendered by Ms. Bowe for
the benefit of CC&F and/or CC&F's clients, that Ms. Bowe expected to be compcasated for
knowing
them.
49. CC&F has refused to Ms. Bowe for the value of the legal services and other
pay
consideration, and Ms. Bowe has not received the value of the payment or merit that she isêñtitled
to.
50. virtue of the foregoing, Ms. Bowe has been damaged in an amount to be
By
determined at a trialof thismatter.
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AS AND FOR A FIFTH COUNTERCLAIM
(BREACH OF THE OPERATING AGREEMENT)
51. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as
iffully set forthherein.
52. Upon information and belief,Ms. Bowe entered into a valid con+Pact when she became
a party to the CC&F Operating Agreement.
53. Upon information and belief,no provision of the Operating Agreement allows CC&F
to demand reimbursement of a negative capital acecüñt from a former partner.
54. Upon infor-ation and belief, CC&F's actions and inacticñs in attempting to collect a
claimed debt from Ms. Bowe constitute a breach of contract of the Agraamant together
Operating
with additional acts and omissicñs of CC&F which constitute a breach of contract of the Operating
Agreement.
55. By virtue of the foregoing, Ms. Bowe has been damaged in an amount to be
determined at a trial
of this matter.
AS AND FOR A SIXTH COUNTERCLAIM
(UNJUST ENRICHMENT)
56. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as
iffully set forth herein.
57. In the alternative, Ms. Bowe sets forth thisclaim in equity pursuant to the doctrines of
unclean hands and unjust enrichment.
58. In setting up an arrangement to obtain the benefit of the services provided by Ms.
Bowe, includiñg the ability to obtain profit on clients origiñated by Ms. Bowe, and knGwingly
accepting those bcñêfits without any intention of fairly compeñseting Ms. Bowe for those beneñts,
CC&F has been unjustly enriched.
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59. If CC&F is not required to comply with the aforementioned Agreements made with
Ms. Bowe, then the compensation promised to her to induce her to perform legal services and
maintain relationahips with clients for the benefit of CC&F was illusory.
60. CC&F has been unjustly enriched by obeining Ms. Bowe's substâñtial labor, work
product, skills,time, and business contact.c.
61. As a resultof the foregaing Ms. Bowe has sustained actual damages for which CC&F
isliable, and Ms. Bowe isantitiad todisgorgamentofthe monetary value of allof the benefits received
by CC&F from her without fairand equitable compensation.
62. As result of the foregoing, Ms. Bowe seeks an award of damages for compensatory
attorneys'
damages with costs, expanses, and fees in an amount to be determined at trial.
WHEREFORE, Ms. Bowe respectfùlly requests judgment dismissing the Complaint in
its entirety, and, ifa judgment is rendered in favor of Plaintiff and against said Defendant, that the
relative responsibilities of all parties and non-parties be determined at the trial of this action, that
all reductions and offsets as required under the Civil Practice Law and Rules be taken, that a
judgment for money damages in an =2=_eunt to be determined at trial be entered in Ms. Bowe's
favor, together with such other further relief as the Court may deem just and proper, including
attorneys'
judgment for the costs and disbursements of this action, fees, and, where appropriate,
interest at the statutory rate, together with such other and further relief as the Court may deem just
and proper.
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DATED: June 15,2021
Rochester, New York
WOODS OVIATT GILMAN LLP
By: s:/Greta K. Kolcon ___
Greta K. Kolcon, Esq.
Attorneys for Defendant
1900 Bausch & Lomb Place
Rochester, New York 14604
585.987.2800
TO: Robert J. Smith, Esq.
Attorneys for Plaintiff
211 West Jefferson Street
Syracuse, NY 13202
315.422.1152
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
COUNTY OF MONROE) ss.i
Greta K. Kelcon, Esq., being duly sworn, deposes and says that she isan attorney admitted
to practice inthe State ofNew York, and as a member of Woods Oviatt Gilman LLP, the attorneys
for Defendant. Deponent has read the foregoing Answer to Verified Complaint, and knows the
contents thereof; and that the same is true to the knowledge of depormat, except as to matters
alleged upon information and belief,and as to those matters, deponent believes the allegations are
true. The basis for depanent's beliefisher review of documents related to thisaction, as well as
commmications with the Defendant's o em and agents. Deponent makes this Verification
pursuant to CPLR §3020(d)(iii) because Defendant is not located in the county where deponent
maintains her office.
Greta K. Kolcon, Esq.
Sworn to before me this Ó
day of June, 2021.
No Public
JENNIFERM.SCHAUERMAN
Nota PubHe,StatoofNewYerk
antedin MontooCowsgr
. No.02SC6264871
CounmisslantinggesJulgr%W
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FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/28/2021 EXHIBIT “B” FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF FILED DOC. : NO. 8 ONONDAGA 3' COUNTY CLERK 06/18 /2021 12 : 10 W RECEIVED , INDEy NYSCEF: NO. 06/28/2021 003917/2021 NYSCEP DOC. NO. RECEIVED NYSCEF: 06/18/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA COSTELLO, COONEY & FEARON, PLLC, Plaintiff, ANSWER TO VERIFIED vs. COMPLAINT MELINDA BURDICK BOWE, Index No.: 603917/2021 Defendant. Melinda Bowe" Defeñdañt, Burdick Bowe (referred to as "Ms. herein), by her attorneys, Woods Oviatt Gilman LLP, for her Answer to the Complaint of Coate!!o, Cooney & Fearon, PLLC "Plaintiff" (referred to as and/or "CC&F") herein, alleges as follows. 1. Denies knowledge or infarmation sufficient to form a belief as to the truth of the allegations of paragraphs 1, 4,5, 6, 8, 9, 10, 11, 12, 16, 18 and 27 of the Complaint. 2. With respect to paragraphs 7, 15, 39 and 53, denies all representations and characterizations of the vaferanced documents that are inconsistent with the actual terms of the documents themselves, and relies upon the actual language of the referenced doc"=.ents. 3. Denies paragraphs 2, 3, 13, 14, 17, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 32, 33, 34, 35, 36, 38, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 54, 55, 56, 57, 58, 60, 61, 62, 63 and 64. 4. With respect to paragraphs 31, 37, 45, 52 and 59, answers as elsewhere answered. FIRST AFFIRMATIVE DEFENSE 5. Upon information and belief,Plaintiff failsto state a cause of action upon which relief may be granted with respect to one or more causes of action. (8512203:) 1 of 11 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 8 RECEIVED , INDEX NYSCEF: NO. 06/28/2021 003917/2021 FILED : ONONDAGA COUNTY CLERK O 6 /18 / 2 O21 12 : 1O PM| NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2021 SECOND AFFIRMATIVE DEFENSE 6. Upon infhrmation and belief, one or more of the causes of action are barred by the doctrine of unclean hands. THIRD AFFIRMATIVE DEFENSE 7. Upon information and belief, one or more of the causes of action are barred because Plaintiff lacks standing and/or capacity to assert them. FOURTH AFFIRMATIVE DEFENSE 8. Upon information and belief, by reason of the acts and omissions of Plaintiff and Plaintiffs agents and representatives, Plaintiffis w-opped from claiming e-+tt-ment to any recovery. FIFTH AFFIRMATIVE DEFENSE 9. Upon information and belief, one or more causes of action are barred in whole or in part by Plaintiffs waiver of any right to recovery. SIXTH AFFIRMATIVE DEFENSE 10. Upon information and belief, Plaintiffs claims for damages are barred in whole or in part because any claimed losses or injuries sustained by Plaintiff are due to its own fd!=s and omissions or itsown conduct or negligence. SEVENTH AFFIRMATIVE DEFENSE 11. Upon infounation and belief,one or more of the causes of action are barred in whole or in part by Plaintiffs failure to mitigate damages claimed. EIGHTH AFFIRMATIVE DEFENSE 12. Upon information and belief,one or more of the causes of action are barred in whole or in part by the governing doctments of Plaintiff. (8512203:) 2 2 of 11 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 8 RECEIVED · INDEX NYSCEF: NO. 06/28/2021 003917/2021 FILED : ONONDAGA GOUNTY CLERK 06/18/2021 12 :10 PM| 3' NYSCEF DOC. NO. RECEIVED NYSCEF: 06/18/2021 NINTH AFFIRMATIVE DEFENSE 13. Upon information and belief, one or more of the causes of action are barred in whole or in part by consent, ratification,and/or acquiescence. TENTH AFFIRMATIVE DEFENSE 14. Upon information and belief,one or more of the causes of action are barred on the grounds that Plaintiff seeks equitable relief when there is an adequate remedy at law. ELEVENTH AFFIRMATIVE DEFENSE 15. Upon infor=stion and belief,if Plaintiff suffered injury, such injury was due to the acts or omissions of persons other than Ms. Bowe. TWELFTH AFFIRMATIVE DEFENSE 16. Upon information and belief, one or more of the causes of action are barred due to failure to include allnecessary parties. THIRTEENTH AFFIRMATIVE DEFENSE 17. Upon information and belief, Plaintiffs claims are barred by the failure of Plaintiffto have suffered any damage or injury. FOURTEENTH AFFIRMATIVE DEFENSE 18. Upon information and belief, one or more of the causes of.action are barred by anticipatory breach of contract on behalf of Plaintiff. FIFTEENTH AFFIRMATIVE DEFENSE 19. Upon ir aimation and belief, one or more of the causes of action are barred by breach of contract due to failure to comply with contractual obligations. (8512203:} 3 ! 3 of 11 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 8 RECEIVED , INDEX NYSCEF: NO. 06/28/2021 003917/2021 FILED : ONONDAGA COUNTY CLERK 0 6 /18 /2 O21 12 : 10 PNl NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2021 SIXTEENTH AFFIRMATIVE DEFENSE 20. Upon information and belief, the claims of unjust enrich_ment in the first and second causes of action must be dismissed as duplicative of Plaintiffs breach of contract claim. SEVENTEENTH AFFIRMATIVE DEFENSE 21. Upon information and belief, Plaintiffs causes of action for conversion must be dismissed as duplicative of Plaintiffs breach of contract claim. EIGHTEENTH AFFIRMATIVE DEFENSE 22. Upon as informatioñ and belief, Plaintiffs causes of action for conversion must be disñsed as failing to identify particular assets, but rather simply asserting a claim for money. NINETEENTH AFFIRMATIVE DEFENSE 23. Upon information and belief, Plaintiffs claim of breach of fidüciary duty must be dismissed due to the absence of any fiduciary duty, in law, equity, or contract, currently owed by Ms. Bowe to Plaintiff. TWENTIETH AFFIRMATIVE DEFENSE 24. Upon information and belief, the Operating Agreement upon which Plaintiff relies provides that "Members shall not be liablefor the contract• or other obligations debts, listilities, any Company." of the TWENTY-FIRST AFFIRMATIVE DEFENSE 25. Upon information and belief, Section 2 of the Of Counsel Agreement provides that Firm." Ms. Bowe is "released, indemnified and held harmless from any and allobligations of the (8512203:} 4 4 of 11 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 8 RECEIVED . INDEX NYSCEF: NO. 06/28/2021 003917/2021 IFILED : ONONDAGA COUNTY CLERK 06 /18 /2021 12 : 10 P1 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2021 TWENTY-SECOND AFFIRMATIVE DEFENSE 26. Upon information and belief, Plaintiff drafted the Operating Agreement itseeks to enforce. To the extent that any ambiguity exists in the Operating Agreement, or in any of itsterms, that ambiguity must be construed against the interest of Plaintiff and in favor of Ms. Bowe. TWENTY-THIRD AFFIRMATIVE DEFENSE 27. Upon information and belief, one or more of Plaintiffs causes of action are barred in whole or in part by the doctrine of set-off and/or recruitment, including, without limitation, in connection with Plaintiffs üñlawfùl withhnMingofcompenSation from Ms. Bowe and collection of Ms. Bowe's percêñtagc of fees from clients she originated pursuant to the Of Counsel Agreement. AS AND FOR A FIRST COUNTERCLAIM (BREACH OF CONTRACT) 28. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as iffully set forth herein. 29. On or about November 23, 2020, Ms. Bowe entered into an Of Counsel Ag-ement with Plaintiff CC&F to, among other things, provide legal services. 30. As part of the inducement to enter into the Of Counsel Agreement, Ms. Bowe was promJsed ceñtiñücd compensation forclients which she originated for the benefit of CC&F, and that compensation was inch3dedin the Of Counsel Agreement. 31. From November 23, 2020, Ms. Bowe fully complied with her obligations under the Of Counsel Agreement with Plaintiff CC&F. 32. In or about April, 2021, CC&F advised Ms. Bowe that itno longer intended to provide her with compensation pursuant to the Of Counsel Agreement. On April 15, 2021, CC&F failed to make payment of the bi-monthly draw amount required to be paid pursuant to the Of Counsel Agreement. (8512203: } 5 5 of 11 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 8 RECEIVED , INDEX NYSCEF: NO. 06/28/2021 003917/2021 IFILED : ONONDAGA COUNTY CLERK O 6 /18 / 2021 12 : 10 P$ 3© NYSCEF DOC. NO. RECEIVED NYSCEF: 06/18/2021 33. CC&F refused to provide to Ms. Bowe compensation rightfi:!!y earned under the terms of the Of Counsel Agreement. 34. By these actions and by failing to fulfillitscontrachial obligations, CC&Ps actions and omissions ec=ti+"ted a breach of the terms of the Of Counsel Agreement. 35. As a direct result of CC&Fs breach of contract, Ms. Bowe has suffered damages, including monetary damages in an amount to be determined at trial. AS AND FOR A SECOND COUNTERCLAIM (BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING) 36. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as iffully set forth herein. 37. CC&F was bound by the implied covenant of good faith and fairdealing, pursuant to which neither party to a c0ñtract shall do anything which has the effect of destroying or injuring the right of the other party to receive the fruitsof the contract. 38. Upon information and CC&F's actions and amissinna were taken belief, intentionally to frustrate the purpose of the contract and deprive Ms. Bowe of the benefits of the Of Counsel Agreement and of the express terms of the Operating Agreement. 39. As a direct result of CC&Fs breach of the implied duty of good faithand fair dealing, Ms. Bowe has suffered damages, iñcinding monetary damages in an amoüñ‡ to be determined at trial. AS AND FOR A THIRD COUNTERCLAIM (CONVERSION) 40. Ms. Bowe repeats, realleget and reincorporates each of the foregoing paragraphs as iffully set forthherein. 41. Ms. Bowe's sep-a*ian from CC&F as a Partner, Ms. Bowe entered into an Following Of Counsel relationship with the firm. {8512203:) 6 6 of 11 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF FILED DOC. NO. 8 RECEIVED , INDEX NYSCEF: NO. 06/28/2021 003917/2021 : ONONDAGA COUNTY CLERK O 6 /18 /2 021 12 : 10 PM| NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2021 42. Pumnant to the Of Counsel relatianship, Ms. Bowe was contractually entitled to receive a percentage compensatioñ for work performed by other CC&F attorneys on client matters for clients for whom she was resposible for originating. 43. CC&F advised Ms. Bowe that itwould not pay her any compeæadon eamed by Ms. Bowe pursuant to the Of Counsel Agreement. 44. Upon information and belief, CC&F's actions were taken intendonally to convert clients originated by Ms. Bowe and deprive her of alllegal title to or interest in the origiration fees and other compensation agreed upon. 45. By virtue of the foregning Ms. Bowe has been damaged by CC&F in an amount to be determined at a trial of thismatter based upon the value of legal services rendered to the ver.ngal:ÿ converted clients, together with interest thereon. AS AND FOR A FOURTH COUNTERCLAIM (QUANTUM MERUIT) 46. Ms. Bowe repeats, raelleges, and reincorporates each of the foregoing paragraphs as iffully set forth herein. 47. Ms. Bowe provided legal services, as well as other valuable consideration, to CC&F. 48. CC&F accepted the legal services and other consideration rendered by Ms. Bowe for the benefit of CC&F and/or CC&F's clients, that Ms. Bowe expected to be compcasated for knowing them. 49. CC&F has refused to Ms. Bowe for the value of the legal services and other pay consideration, and Ms. Bowe has not received the value of the payment or merit that she isêñtitled to. 50. virtue of the foregoing, Ms. Bowe has been damaged in an amount to be By determined at a trialof thismatter. (8512203:) 7 7 of 11 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 8 RECEIVEDINDEX NYSCEF: NO. 06/28/2021 003917/2021 IFILED : ONONDAGA COUNTY CLERK O 6 / 18 /20 21 12 : 10 . PM| 3' NYSCEF DOC. NO. RECEIVED NYSCEF: 06/18/2021 , AS AND FOR A FIFTH COUNTERCLAIM (BREACH OF THE OPERATING AGREEMENT) 51. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as iffully set forthherein. 52. Upon information and belief,Ms. Bowe entered into a valid con+Pact when she became a party to the CC&F Operating Agreement. 53. Upon information and belief,no provision of the Operating Agreement allows CC&F to demand reimbursement of a negative capital acecüñt from a former partner. 54. Upon infor-ation and belief, CC&F's actions and inacticñs in attempting to collect a claimed debt from Ms. Bowe constitute a breach of contract of the Agraamant together Operating with additional acts and omissicñs of CC&F which constitute a breach of contract of the Operating Agreement. 55. By virtue of the foregoing, Ms. Bowe has been damaged in an amount to be determined at a trial of this matter. AS AND FOR A SIXTH COUNTERCLAIM (UNJUST ENRICHMENT) 56. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as iffully set forth herein. 57. In the alternative, Ms. Bowe sets forth thisclaim in equity pursuant to the doctrines of unclean hands and unjust enrichment. 58. In setting up an arrangement to obtain the benefit of the services provided by Ms. Bowe, includiñg the ability to obtain profit on clients origiñated by Ms. Bowe, and knGwingly accepting those bcñêfits without any intention of fairly compeñseting Ms. Bowe for those beneñts, CC&F has been unjustly enriched. (8512203:} 8 8 of 11 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 8 RECEIVED . INDEX NYSCEF: NO. 06/28/2021 003917/2021 IFILED : ONONDAGA GOUNTY CLERK O 6/18 / 2021 12 : 10 P1d NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/18/2021 59. If CC&F is not required to comply with the aforementioned Agreements made with Ms. Bowe, then the compensation promised to her to induce her to perform legal services and maintain relationahips with clients for the benefit of CC&F was illusory. 60. CC&F has been unjustly enriched by obeining Ms. Bowe's substâñtial labor, work product, skills,time, and business contact.c. 61. As a resultof the foregaing Ms. Bowe has sustained actual damages for which CC&F isliable, and Ms. Bowe isantitiad todisgorgamentofthe monetary value of allof the benefits received by CC&F from her without fairand equitable compensation. 62. As result of the foregoing, Ms. Bowe seeks an award of damages for compensatory attorneys' damages with costs, expanses, and fees in an amount to be determined at trial. WHEREFORE, Ms. Bowe respectfùlly requests judgment dismissing the Complaint in its entirety, and, ifa judgment is rendered in favor of Plaintiff and against said Defendant, that the relative responsibilities of all parties and non-parties be determined at the trial of this action, that all reductions and offsets as required under the Civil Practice Law and Rules be taken, that a judgment for money damages in an =2=_eunt to be determined at trial be entered in Ms. Bowe's favor, together with such other further relief as the Court may deem just and proper, including attorneys' judgment for the costs and disbursements of this action, fees, and, where appropriate, interest at the statutory rate, together with such other and further relief as the Court may deem just and proper. (8512203:} 9 9 of 11 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 8 RECEIVEDINDEX NYSCEF: NO. 06/28/2021 003917/2021 [FILED : ONONDAGA COUNTY CLERK 06/18/2021 12:10 PM , 3' NYSCEF DOC. NO. RECEIVED NYSCEF: 06/18/2021 DATED: June 15,2021 Rochester, New York WOODS OVIATT GILMAN LLP By: s:/Greta K. Kolcon ___ Greta K. Kolcon, Esq. Attorneys for Defendant 1900 Bausch & Lomb Place Rochester, New York 14604 585.987.2800 TO: Robert J. Smith, Esq. Attorneys for Plaintiff 211 West Jefferson Street Syracuse, NY 13202 315.422.1152 (8512203: ) 10 10 of 11 FILED: ONONDAGA COUNTY CLERK 06/28/2021 04:55 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 8 RECEIVEDINDEX NYSCEF: NO. 06/28/2021 003917 /2021 IFILED : ONONDAGA COUNTY CLERK 06/18/2021 12:10 PM NYSCEE' DOC. NO. 3 RECEIVED NYSCEF: 06/18/2021 ATTORNEY VERIFICATION STATE OF NEW YORK ) COUNTY OF MONROE) ss.i Greta K. Kelcon, Esq., being duly sworn, deposes and says that she isan attorney admitted to practice inthe State ofNew York, and as a member of Woods Oviatt Gilman LLP, the attorneys for Defendant. Deponent has read the foregoing Answer to Verified Complaint, and knows the contents thereof; and that the same is true to the knowledge of depormat, except as to matters alleged upon information and belief,and as to those matters, deponent believes the allegations are true. The basis for depanent's beliefisher review of documents related to thisaction, as well as commmications with the Defendant's o em and agents. Deponent makes this Verification pursuant to CPLR §3020(d)(iii) because Defendant is not located in the county where deponent maintains her office. Greta K. Kolcon, Esq. Sworn to before me this Ó day of June, 2021. No Public JENNIFERM.SCHAUERMAN Nota PubHe,StatoofNewYerk antedin MontooCowsgr . No.02SC6264871 CounmisslantinggesJulgr%W (8512203:} . . . . ... . 11 of 11