Preview
FILED: WESTCHESTER COUNTY CLERK 07/01/2019 05:20 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 07/01/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
----------------------------------------------- X
PAMELA GOLDSTEIN,
ELLYN & TONY BERK, as Administrators ANSWER TO THIRD
of the Estate of Winifred Berk, and PAUL AMENDED COMPLAINT
BENJAMIN, on behalf of themselves
and all others similarly situated, Index No. 60767/2018
Plaintiffs, Hon. Linda S. Jamieson
-against-
HOULIHAN/LAWRENCE INC.,
Defendant.
----------------------------------------------X
Defendant Houlihan Lawrence, Inc. ("Houlihan Lawrence"), by and through itsattorneys,
Collier Halpern & Newberg, LLP and Barnes & Thornburg LLP, as and for its Answer to the
Third Amended Complaint dated June 10, 2019, hereby responds as follows:
1. No response to paragraphs 1, 2, 13, 14, 15, 16, 20, 21, 89, 90, 91, 92, 95, 96, and
98 is necessary as each allegation calls for a legal conclusion. To the extent a response is
required, Houlihan Lawrence denies the allegations set forth therein.
2. With respect to paragraph 3, denies knowledge and information sufficient to form
a belief as to the truth of the allegations set forth therein, except admits that on or about May 22,
2017, Pamela Goldstein purchased the identified property and that different Houlihan Lawrence
agents represented the buyer and the seller.
3. With respect to paragraph 4, denies knowledge and information sufficient to form
a belief as to the truth of the allegations set forth therein, except admits that the identified
property was sold on or about June 30, 2014 and that different Houlihan Lawrence agents
represented the buyer and the seller.
4. With respect to paragraph 5, denies knowledge and information sufficient to form
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a belief as to the truth of the allegations set forth therein, except admits that in or around July
2016, Paul Benjamin bought the identified property and that different Houlihan Lawrence agents
represented the buyer and the seller.
5. With respect to paragraph 6, admits the allegations set forth therein, except denies
"full-service"
knowledge and information sufficient to form a belief as to the meaning of as used
in paragraph 6 and denies that itwas purchased directly by HomeServices of America, Inc.
6. No response to paragraph 7 is necessary as it calls for a legal conclusion, and to
the extent a response is required, Houlihan Lawrence admits that this Court has jurisdiction.
7. No response to paragraph 8 is necessary as it calls for a legal conclusion, and to
the extent a response is required, Houlihan Lawrence denies knowledge and information
sufficient to form a belief as to where each named Plaintiff is currently domiciled.
8. No response to paragraph 9 is necessary as it calls for a legal conclusion, and to
the extent a response is required, Houlihan Lawrence admits that venue is proper in this Court.
9. No response to paragraph 10 isnecessary as it calls for a legal conclusion, and to
the extent a response is required, Houlihan Lawrence denies the allegations set forth therein,
except admits that real estate agents may owe clients certain fiduciary duties depending on a
number of factors.
10. No response to paragraph 11 isnecessary as it calls for a legal conclusion, and to
the extent a response is required, Houlihan Lawrence denies the allegations set forth therein,
except admits that real estate brokers that act for the buyer and seller in the same transaction
may, under certain circumstances, be referred to as dual agents.
11. No response to paragraphs 17, 18, and 19 isnecessary as each allegation calls for
a legal conclusion, and to the extent a response is required, Houlihan Lawrence denies the
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allegations set forth therein, and respectfully refers the Court to the referenced statute for the
language thereof.
12. With respect to paragraphs 22, 23, 24, 35, 56, 57, 59, 73, 74, and 86 denies
knowledge and information sufficient to form a belief as to the truth of the allegations set forth
therein.
13. With respect to paragraphs 12, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 38, 39,
40, 41, 42, 45, 46, 47, 48, 50, 51, 52, 53, 60, 64, 65, 67, 68, 69, 76, 80, 81, 82, 83, 84, 87, 99,
100, 101, 102, 103, 113, 114, and 115, Houlihan Lawrence denies the allegations set forth
therein.
14. Denies the premise of paragraph 34 - Houlihan Lawrence denies that it
i.e.,
breached fiduciary duties and engaged in consumer-oriented misconduct. Because the premise is
inaccurate, the remaining allegations make no sense, but to the extent a response is nevertheless
required Houlihan Lawrence denies the same.
15. With respect to paragraphs 43, 62, 78, 97, and 111, Houlihan Lawrence repeats
and realleges itsresponses to each and every allegation as if those paragraphs were more fully set
forth at length herein.
16. With respect to paragraph 44, denies the allegations set forth therein, except
admits that on or about May 22, 2017, Pamela Goldstein purchased the identified property for
the identified price.
17. With respect to paragraph 49, Houlihan Lawrence denies the allegations set forth
therein, except admits that the statutory disclosure form that Pamela Goldstein received
identified Cezimbra as affiliated with Houlihan Lawrence, that it indicated that Cezimbra was
agent,"
representing Goldstein as "Buyer's and that itwas marked to request Goldstein's advance
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informed consent to dual agency with designated sales agents.
18. With respect to paragraphs 54 and 66, Houlihan Lawrence admits the allegations
set forth therein.
19. With respect to paragraph 55, Houlihan Lawrence denies knowledge and
information sufficient to form a belief as to the truth of the allegations set forth therein, except
admits that Gino Bello led the identified team.
20. With respect to paragraph 58, Houlihan Lawrence denies the allegations set forth
therein except admits that itdid not disclose its intemal compensation structure to Goldstein.
21. With respect to paragraph 61, Houlihan Lawrence admits the allegations set forth
in the first sentence and denies knowledge and information sufficient to form a belief as to the
truth of the remaining allegations set forth in paragraph 61.
22. No response to paragraph 63 is necessary as it calls for a legal conclusion. To the
extent a response is required, Houlihan Lawrence denies knowledge and information sufficient to
form a belief as to whether the Berks were "duly appointed by order of the New York State
Court"
Surrogate's and admits that on or about June 30, 2014, the Berks sold the identified
property at the identified price; and denies allremaining allegations in paragraph 63.
23. With respect to paragraph 70, Houlihan Lawrence denies the allegations set forth
therein, except admits that the quoted language appears in a "Premium Marketing Plan For: 190
10605"
Davis Avenue White Plains, NY and respectfully refers the Court to that document for a
full and accurate recitation of itscontents.
24. With respect to paragraphs 71 and 72, Houlihan Lawrence denies the allegations
set forth therein, except admits that 190 Davis Avenue was not listed on the multiple listing
service.
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25. With respect to paragraph 75, Houlihan Lawrence denies the allegations set forth
therein, except admits that itdid not disclose its internal compensation structure to the Berks.
26. With respect to paragraph 77, Houlihan Lawrence admits the allegations set forth
in the firstsentence and denies knowledge and information sufficient to form a belief as to the
truth of the remaining allegations set forth in paragraph 77.
27. With respect to paragraph 79, Houlihan Lawrence denies knowledge and
information sufficient to form a belief as to the truth of the allegations set forth therein, except
admits that in or around July 2016, Paul Benjamin bought the identified property for the
identified price.
28. With respect to paragraph 85, Houlihan Lawrence denies the allegations set forth
therein, except admits that itdid not disclose itsinternal compensation structure to Benjamin.
29. With respect to paragraph 88, Houlihan Lawrence admits the allegations set forth
in the first sentence and denies knowledge and information sufficient to form a belief as to the
truth of the remaining allegations set forth in paragraph 88.
30. No response is necessary to the allegations set forth in paragraphs 93 and 94 as
Plaintiffs'
they set forth request for class certification. To the extent a response is required,
Houlihan Lawrence denies that Plaintiffs are entitled to class certification and denies each and
every allegation set forth therein.
31. No response is necessary to the allegations set forth in paragraphs 104, 105, 106,
107, 108, 109, and 110 as the Second Cause of Action has been dismissed in its entirety pursuant
to the Court's Order dated April 8, 2019 and located at NYSCEF Doc. No. 370, and Houlihan
Lawrence otherwise denies each and every allegation set forth therein.
32. No response is necessary to the allegations set forth in paragraph 112 as itcalls
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for a legal conclusion, and to the extent a response is required, Houlihan Lawrence denies the
allegations set forth therein, and respectfully refers the Court to the referenced statute for the
language thereof.
33. No response is necessary to the allegations set forth in paragraphs 116, 117, 118,
and 119 as the Fourth Cause of Action has been dismissed in its entirety pursuant to the Court's
order dated April 8, 2019 and located at NYSCEF Doc. No. 370, and Houlihan Lawrence
paragraphs'
otherwise denies the referenced allegations.
34. No response is necessary to the allegations set forth in paragraph 120 because it
Plaintiffs'
contains prayer for relief. Houlihan Lawrence denies Plaintiffs are entitled to the
relief sought in their prayer for relief.
FIRST AFFIRMATIVE DEFENSE
35. Plaintiffs may not pursue this action to the extent they consented to, acquiesced
to, or ratified Houlihan Lawrence's allegedly improper representation.
SECOND AFFIRMATIVE DEFENSE
36. Plaintiffs are not entitled to restitution of any portion of the commission that they
did not pay.
THIRD AFFIRMATIVE DEFENSE
37. The applicable statutory limitation periods, including the three-year period in
Plaintiffs'
CPLR 214(2), bar the named claims in whole or in part.
FOURTH AFFIRMATIVE DEFENSE
38, The doctrine of laches bars or limits this action.
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FIFTH AFFIRMATIVE DEFENSE
39. The Real Estate Settlement Procedures Act-codified in Title 12, Chapter27 of
Plaintiffs'
the UnitedStatesCode--preempts the named claims in whole or in part.
SIXTH AFFIRMATIVE DEFENSE
40. CPLR 901(b) bars or limits theextentto which this lawsuit may be "maintained
action."
as a class
SEVENTH AFFIRMATIVE DEFENSE
41. The named Plaintiffs failed to exhaust administrative remedies, including any
such remedies set forth in New York Real Property Law Article 12-A.
EIGHTH AFFIRMATIVE DEFENSE
42. Houlihan Lawrence provided disclosure forms in accordance with New York Real
Property Law Section 443.
NINTH AFFIRMATIVE DEFENSE
43. Plaintiffs fail to state a cause of action against Houlihan Lawrence.
TENTH AFFIRMATIVE DEFENSE
44. Plaintiffs and the putative class have suffered no damages.
ELEVENTH AFFIRMATIVE DEFENSE
45. Certain members of the putative class have signed arbitration agreements
precluding participation in this lawsuit.
TWELFTH AFFIRMATIVE DEFENSE
46. Houlihan Lawrence did not cause any injury to the named Plaintiffs or to the
putative class.
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THIRTEENTH AFFIRMATIVE DEFENSE
47. The doctrine of estoppel bars or limits this action.
FOURTEENTH AFFIRMATIVE DEFENSE
48. The named Plaintiffs and putative class have suffered no "actual
the meaning of New York General Business Law Section 349.
FIFTEENTH AFFIRMATIVE DEFENSE
49. The doctrine of waiver bars or limits this action.
WHEREFORE, Houlihan Lawrence respectfully requests that a Judgm
dismissing the remainder of the Third Amended Complaint with prejudice, to
other, further and different relief as the Court may deem just and proper in th
and the costs and disbursements of this action.
Dated: White Plains, New York
July 1, 2019
COLLIER HALPERN & NEWBERG, L
By:
Philip M. Halpern
A Member of the Firm
One North Lexington Avenue
White Plains, New York 10601
(914) 684-6800
Robert D. MacGill (Pro Hac Vice)
8 of 8 Jessica M. Lindemann (Pro Hac Vice
Preview
FILED: WESTCHESTER COUNTY CLERK 07/01/2019 05:20 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 07/01/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ----------------------------------------------- X PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators ANSWER TO THIRD of the Estate of Winifred Berk, and PAUL AMENDED COMPLAINT BENJAMIN, on behalf of themselves and all others similarly situated, Index No. 60767/2018 Plaintiffs, Hon. Linda S. Jamieson -against- HOULIHAN/LAWRENCE INC., Defendant. ----------------------------------------------X Defendant Houlihan Lawrence, Inc. ("Houlihan Lawrence"), by and through itsattorneys, Collier Halpern & Newberg, LLP and Barnes & Thornburg LLP, as and for its Answer to the Third Amended Complaint dated June 10, 2019, hereby responds as follows: 1. No response to paragraphs 1, 2, 13, 14, 15, 16, 20, 21, 89, 90, 91, 92, 95, 96, and 98 is necessary as each allegation calls for a legal conclusion. To the extent a response is required, Houlihan Lawrence denies the allegations set forth therein. 2. With respect to paragraph 3, denies knowledge and information sufficient to form a belief as to the truth of the allegations set forth therein, except admits that on or about May 22, 2017, Pamela Goldstein purchased the identified property and that different Houlihan Lawrence agents represented the buyer and the seller. 3. With respect to paragraph 4, denies knowledge and information sufficient to form a belief as to the truth of the allegations set forth therein, except admits that the identified property was sold on or about June 30, 2014 and that different Houlihan Lawrence agents represented the buyer and the seller. 4. With respect to paragraph 5, denies knowledge and information sufficient to form 1 of 8 FILED: WESTCHESTER COUNTY CLERK 07/01/2019 05:20 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 07/01/2019 a belief as to the truth of the allegations set forth therein, except admits that in or around July 2016, Paul Benjamin bought the identified property and that different Houlihan Lawrence agents represented the buyer and the seller. 5. With respect to paragraph 6, admits the allegations set forth therein, except denies "full-service" knowledge and information sufficient to form a belief as to the meaning of as used in paragraph 6 and denies that itwas purchased directly by HomeServices of America, Inc. 6. No response to paragraph 7 is necessary as it calls for a legal conclusion, and to the extent a response is required, Houlihan Lawrence admits that this Court has jurisdiction. 7. No response to paragraph 8 is necessary as it calls for a legal conclusion, and to the extent a response is required, Houlihan Lawrence denies knowledge and information sufficient to form a belief as to where each named Plaintiff is currently domiciled. 8. No response to paragraph 9 is necessary as it calls for a legal conclusion, and to the extent a response is required, Houlihan Lawrence admits that venue is proper in this Court. 9. No response to paragraph 10 isnecessary as it calls for a legal conclusion, and to the extent a response is required, Houlihan Lawrence denies the allegations set forth therein, except admits that real estate agents may owe clients certain fiduciary duties depending on a number of factors. 10. No response to paragraph 11 isnecessary as it calls for a legal conclusion, and to the extent a response is required, Houlihan Lawrence denies the allegations set forth therein, except admits that real estate brokers that act for the buyer and seller in the same transaction may, under certain circumstances, be referred to as dual agents. 11. No response to paragraphs 17, 18, and 19 isnecessary as each allegation calls for a legal conclusion, and to the extent a response is required, Houlihan Lawrence denies the 2 2 of 8 FILED: WESTCHESTER COUNTY CLERK 07/01/2019 05:20 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 07/01/2019 allegations set forth therein, and respectfully refers the Court to the referenced statute for the language thereof. 12. With respect to paragraphs 22, 23, 24, 35, 56, 57, 59, 73, 74, and 86 denies knowledge and information sufficient to form a belief as to the truth of the allegations set forth therein. 13. With respect to paragraphs 12, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 38, 39, 40, 41, 42, 45, 46, 47, 48, 50, 51, 52, 53, 60, 64, 65, 67, 68, 69, 76, 80, 81, 82, 83, 84, 87, 99, 100, 101, 102, 103, 113, 114, and 115, Houlihan Lawrence denies the allegations set forth therein. 14. Denies the premise of paragraph 34 - Houlihan Lawrence denies that it i.e., breached fiduciary duties and engaged in consumer-oriented misconduct. Because the premise is inaccurate, the remaining allegations make no sense, but to the extent a response is nevertheless required Houlihan Lawrence denies the same. 15. With respect to paragraphs 43, 62, 78, 97, and 111, Houlihan Lawrence repeats and realleges itsresponses to each and every allegation as if those paragraphs were more fully set forth at length herein. 16. With respect to paragraph 44, denies the allegations set forth therein, except admits that on or about May 22, 2017, Pamela Goldstein purchased the identified property for the identified price. 17. With respect to paragraph 49, Houlihan Lawrence denies the allegations set forth therein, except admits that the statutory disclosure form that Pamela Goldstein received identified Cezimbra as affiliated with Houlihan Lawrence, that it indicated that Cezimbra was agent," representing Goldstein as "Buyer's and that itwas marked to request Goldstein's advance 3 3 of 8 FILED: WESTCHESTER COUNTY CLERK 07/01/2019 05:20 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 07/01/2019 informed consent to dual agency with designated sales agents. 18. With respect to paragraphs 54 and 66, Houlihan Lawrence admits the allegations set forth therein. 19. With respect to paragraph 55, Houlihan Lawrence denies knowledge and information sufficient to form a belief as to the truth of the allegations set forth therein, except admits that Gino Bello led the identified team. 20. With respect to paragraph 58, Houlihan Lawrence denies the allegations set forth therein except admits that itdid not disclose its intemal compensation structure to Goldstein. 21. With respect to paragraph 61, Houlihan Lawrence admits the allegations set forth in the first sentence and denies knowledge and information sufficient to form a belief as to the truth of the remaining allegations set forth in paragraph 61. 22. No response to paragraph 63 is necessary as it calls for a legal conclusion. To the extent a response is required, Houlihan Lawrence denies knowledge and information sufficient to form a belief as to whether the Berks were "duly appointed by order of the New York State Court" Surrogate's and admits that on or about June 30, 2014, the Berks sold the identified property at the identified price; and denies allremaining allegations in paragraph 63. 23. With respect to paragraph 70, Houlihan Lawrence denies the allegations set forth therein, except admits that the quoted language appears in a "Premium Marketing Plan For: 190 10605" Davis Avenue White Plains, NY and respectfully refers the Court to that document for a full and accurate recitation of itscontents. 24. With respect to paragraphs 71 and 72, Houlihan Lawrence denies the allegations set forth therein, except admits that 190 Davis Avenue was not listed on the multiple listing service. 4 4 of 8 FILED: WESTCHESTER COUNTY CLERK 07/01/2019 05:20 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 07/01/2019 25. With respect to paragraph 75, Houlihan Lawrence denies the allegations set forth therein, except admits that itdid not disclose its internal compensation structure to the Berks. 26. With respect to paragraph 77, Houlihan Lawrence admits the allegations set forth in the firstsentence and denies knowledge and information sufficient to form a belief as to the truth of the remaining allegations set forth in paragraph 77. 27. With respect to paragraph 79, Houlihan Lawrence denies knowledge and information sufficient to form a belief as to the truth of the allegations set forth therein, except admits that in or around July 2016, Paul Benjamin bought the identified property for the identified price. 28. With respect to paragraph 85, Houlihan Lawrence denies the allegations set forth therein, except admits that itdid not disclose itsinternal compensation structure to Benjamin. 29. With respect to paragraph 88, Houlihan Lawrence admits the allegations set forth in the first sentence and denies knowledge and information sufficient to form a belief as to the truth of the remaining allegations set forth in paragraph 88. 30. No response is necessary to the allegations set forth in paragraphs 93 and 94 as Plaintiffs' they set forth request for class certification. To the extent a response is required, Houlihan Lawrence denies that Plaintiffs are entitled to class certification and denies each and every allegation set forth therein. 31. No response is necessary to the allegations set forth in paragraphs 104, 105, 106, 107, 108, 109, and 110 as the Second Cause of Action has been dismissed in its entirety pursuant to the Court's Order dated April 8, 2019 and located at NYSCEF Doc. No. 370, and Houlihan Lawrence otherwise denies each and every allegation set forth therein. 32. No response is necessary to the allegations set forth in paragraph 112 as itcalls 5 5 of 8 FILED: WESTCHESTER COUNTY CLERK 07/01/2019 05:20 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 07/01/2019 for a legal conclusion, and to the extent a response is required, Houlihan Lawrence denies the allegations set forth therein, and respectfully refers the Court to the referenced statute for the language thereof. 33. No response is necessary to the allegations set forth in paragraphs 116, 117, 118, and 119 as the Fourth Cause of Action has been dismissed in its entirety pursuant to the Court's order dated April 8, 2019 and located at NYSCEF Doc. No. 370, and Houlihan Lawrence paragraphs' otherwise denies the referenced allegations. 34. No response is necessary to the allegations set forth in paragraph 120 because it Plaintiffs' contains prayer for relief. Houlihan Lawrence denies Plaintiffs are entitled to the relief sought in their prayer for relief. FIRST AFFIRMATIVE DEFENSE 35. Plaintiffs may not pursue this action to the extent they consented to, acquiesced to, or ratified Houlihan Lawrence's allegedly improper representation. SECOND AFFIRMATIVE DEFENSE 36. Plaintiffs are not entitled to restitution of any portion of the commission that they did not pay. THIRD AFFIRMATIVE DEFENSE 37. The applicable statutory limitation periods, including the three-year period in Plaintiffs' CPLR 214(2), bar the named claims in whole or in part. FOURTH AFFIRMATIVE DEFENSE 38, The doctrine of laches bars or limits this action. 6 6 of 8 FILED: WESTCHESTER COUNTY CLERK 07/01/2019 05:20 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 07/01/2019 FIFTH AFFIRMATIVE DEFENSE 39. The Real Estate Settlement Procedures Act-codified in Title 12, Chapter27 of Plaintiffs' the UnitedStatesCode--preempts the named claims in whole or in part. SIXTH AFFIRMATIVE DEFENSE 40. CPLR 901(b) bars or limits theextentto which this lawsuit may be "maintained action." as a class SEVENTH AFFIRMATIVE DEFENSE 41. The named Plaintiffs failed to exhaust administrative remedies, including any such remedies set forth in New York Real Property Law Article 12-A. EIGHTH AFFIRMATIVE DEFENSE 42. Houlihan Lawrence provided disclosure forms in accordance with New York Real Property Law Section 443. NINTH AFFIRMATIVE DEFENSE 43. Plaintiffs fail to state a cause of action against Houlihan Lawrence. TENTH AFFIRMATIVE DEFENSE 44. Plaintiffs and the putative class have suffered no damages. ELEVENTH AFFIRMATIVE DEFENSE 45. Certain members of the putative class have signed arbitration agreements precluding participation in this lawsuit. TWELFTH AFFIRMATIVE DEFENSE 46. Houlihan Lawrence did not cause any injury to the named Plaintiffs or to the putative class. 7 7 of 8 FILED: WESTCHESTER COUNTY CLERK 07/01/2019 05:20 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 559 RECEIVED NYSCEF: 07/01/2019 THIRTEENTH AFFIRMATIVE DEFENSE 47. The doctrine of estoppel bars or limits this action. FOURTEENTH AFFIRMATIVE DEFENSE 48. The named Plaintiffs and putative class have suffered no "actual the meaning of New York General Business Law Section 349. FIFTEENTH AFFIRMATIVE DEFENSE 49. The doctrine of waiver bars or limits this action. WHEREFORE, Houlihan Lawrence respectfully requests that a Judgm dismissing the remainder of the Third Amended Complaint with prejudice, to other, further and different relief as the Court may deem just and proper in th and the costs and disbursements of this action. Dated: White Plains, New York July 1, 2019 COLLIER HALPERN & NEWBERG, L By: Philip M. Halpern A Member of the Firm One North Lexington Avenue White Plains, New York 10601 (914) 684-6800 Robert D. MacGill (Pro Hac Vice) 8 of 8 Jessica M. Lindemann (Pro Hac Vice