Preview
FILED: NEW YORK COUNTY CLERK 06/16/2020 10:56 AM INDEX NO. 656346/2018
NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 06/16/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JAMES DAVIS II and MEDISALE, INC.
Plaintiffs,
Index No. 656346/2018
- against –
RICHMOND CAPITAL GROUP, LLC; ANSWER TO COUNTERCLAIMS
INFLUX CAPITAL GROUP, LLC a/k/a
INFLUX CAPITAL, LLC; GTR SOURCE,
LLC; ADDY SOURCE, LLC; YES
CAPITAL FUNDING GROUP, LLC d/b/a
YES FUNDING SERVICES, LLC;
JONATHAN BRAUN; MICHELLE
GREGG; TSVI REICH a/k/a STEVE REICH;
ROBERT GIARDINA; BRYAN BAKER
a/k/a BAKER CAP FUNDING d/b/a BAKER
CAPITAL FUNDING; REBAR CAPITAL,
LLC; SPG ADVANCE, LLC; AZRIEL
INZELBUCH a/k/a DAVID B. FRANK; and
TZVI DAVIS a/k/a STEVEN DAVIS,
Defendants.
Plaintiffs James Davis, II and Medisale Inc. (“Plaintiffs”), by and through its attorneys
Colonna Cohen Law, PLLC, for its answer to Defendants Influx Capital Group LLC a/k/a Influx
Capital LLC (“Influx”), GTR Source, LLC (“GTR”), Addy Source LLC (“Addy”), Tzvi Reich
and Tsvi Davis’ (the “Answering Defendants’”) Counterclaims (“Counterclaims”) alleges as
follows:
FIRST COUNTERCLAIM
BREACH OF THE SECOND ADDY SOURCE AGREEMENT
1. Plaintiffs deny the allegations in Paragraph 214 of the Counterclaims and any and all
liability therefrom.
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2. Plaintiffs deny the allegations in Paragraph 215 of the Counterclaims and any and all
liability therefrom.
3. Plaintiffs deny the allegations in Paragraph 216 of the Counterclaims and any and all
liability therefrom.
4. Plaintiffs deny the allegations in Paragraph 217 of the Counterclaims and any and all
liability therefrom, except admit that Addy Source unlawfully ACH debited funds in
excess of the ACH authorization directly from Medisale’s bank account causing the bank
to close the account.
5. Plaintiffs deny the allegations in Paragraph 218 of the Counterclaims and any and all
liability therefrom as Addy Source did not perform any obligations pursuant to the
Second Addy Source Agreement; Addy Source inflated the balance owed pursuant to the
Fist Addy Agreement by $47,992, failed to deliver $46,660 to Medisale, and unlawfully
accelerated collections taking at least $55,798 from Medisale without authority.
6. Plaintiffs deny the allegations in Paragraph 219 of the Counterclaims and any and all
liability therefrom.
7. Plaintiffs deny the allegations in Paragraph 220 of the Counterclaims and any and all
liability therefrom.
SECOND COUNTERCLAIM
BREACH OF THE GTR AGREEMENT
8. Plaintiffs deny the allegations in Paragraph 221 of the Counterclaims and any and all
liability therefrom.
9. Plaintiffs deny the allegations in Paragraph 222 of the Counterclaims and any and all
liability therefrom.
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10. Plaintiffs deny the allegations in Paragraph 223 of the Counterclaims and any and all
liability therefrom
11. Plaintiffs deny the allegations in Paragraph 224 of the Counterclaims and any and all
liability therefrom except admit that GTR unlawfully ACH debited funds in excess of the
ACH authorization directly from Medisale’s bank account causing the bank to close the
account.
12. Plaintiffs deny the allegations in Paragraph 225 of the Counterclaims and any and all
liability therefrom as GTR did not perform any obligations pursuant to the GTR
Agreement; GTR failed to deliver $223,187 to Medisale and unlawfully accelerated
collections from Medisale by doubling the amount taken from Medisale’s account
without authority.
13. Plaintiffs deny the allegations in Paragraph 226 of the Counterclaims and any and all
liability therefrom.
14. Plaintiffs deny the allegations in Paragraph 227 of the Counterclaims and any and all
liability therefrom.
THIRD COUNTERCLAIM
BREACH OF GUARANTY (Addy against Plaintiffs)
15. Plaintiffs deny the allegations in Paragraph 229 of the Counterclaims and any and all
liability therefrom, except admit that they signed the Second Addy Source Agreement.
16. Plaintiffs deny the allegations in Paragraph 230 of the Counterclaims and any and all
liability therefrom, except admit that they signed the Second Addy Source Agreement.
17. Plaintiffs admit the allegations in Paragraph 231; the Second Addy Source Agreement
provides that business slow down, business failure and/or shutdown, and
voluntary/involuntary bankruptcy, as well Medisale’s admission of the inability to pay its
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debts constitutes a default under the Second Addy Source Agreement and provides Addy
Source with full recourse against Mr. Davis.
18. Plaintiffs deny the allegations in Paragraph 232 of the Counterclaims and any and all
liability therefrom.
19. Plaintiffs deny the allegations in Paragraph 233 of the Counterclaims and any and all
liability therefrom.
20. Plaintiffs deny the allegations in Paragraph 234 of the Counterclaims and any and all
liability therefrom.
21. Plaintiffs deny the allegations in Paragraph 235 of the Counterclaims and any and all
liability therefrom.
FOURTH COUNTERCLAIM
BREACH OF GUARANTY (GTR against Plaintiffs)
22. Plaintiffs deny the allegations in Paragraph 237 of the Counterclaims and any and all
liability therefrom as the Security Agreement and Guaranty are invalid.
23. Plaintiffs deny the allegations in Paragraph 238 of the Counterclaims and any and all
liability therefrom, except admit Plaintiffs signed the GTR Agreement.
24. Plaintiffs admit the allegations in Paragraph 239; the GTR Agreement provides that
business slow down, business failure and/or shutdown, and voluntary/involuntary
bankruptcy, as well Medisale’s admission of the inability to pay its debts constitutes a
default under the GTR Agreement and provides GTR with full recourse against Mr.
Davis.
25. Plaintiffs deny the allegations in Paragraph 240 of the Counterclaims and any and all
liability therefrom.
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26. Plaintiffs deny the allegations in Paragraph 241 of the Counterclaims and any and all
liability therefrom.
27. Plaintiffs deny the allegations in Paragraph 242 of the Counterclaims and any and all
liability therefrom.
28. Plaintiffs deny the allegations in Paragraph 243 of the Counterclaims and any and all
liability therefrom.
FIFTH COUNTERCLAIM
UNJUST ENRICHMENT (Addy against Plaintiffs)
29. Plaintiffs deny the allegations in Paragraph 245 of the Counterclaims and any and all
liability therefrom.
30. Plaintiffs lack knowledge or information sufficient to form a belief of the allegations
in Paragraph 246 of the Counterclaims.
31. Plaintiffs deny the allegations in Paragraph 247 of the Counterclaims and any and all
liability therefrom.
SIXTH COUNTERCLAIM
UNJUST ENRICHMENT (GTR against Plaintiffs)
32. Plaintiffs deny the allegations in Paragraph 249 of the Counterclaims and any and all
liability therefrom.
33. Plaintiffs lack knowledge or information sufficient to form a belief of the allegations
in Paragraph 250 of the Counterclaims.
34. Plaintiffs lack knowledge or information sufficient to form a belief of the allegations
in Paragraph 251 of the Counterclaims as they are misstated; Plaintiffs deny any and all
allegations regarding the unjust enrichment claims by GTR.
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35. The allegations in the WHEREFORE Paragraph of the Counterclaims constitute legal
conclusions such that no response is required. To the extent a response is required, the
Plaintiffs deny any and all liability from the allegations contained therein.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
36. The Counterclaims are barred by documentary evidence.
SECOND AFFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
37. The Counterclaims are barred as the underlying contracts are not Merchant Cash
Advances but illegal criminally usurious loans with interest rates of over 235%; more
than ten times New York’s legal limit of 25% violating New York Penal Law 190.40.
Neither Influx, GTR, nor Addy assumed the risk that Medisale would have less than
expected or no revenues. The monies loaned by Influx, GTR, and Addy to Medisale were
never truly at hazard of not being repaid. Influx, GTR, and Addy have full recourse
against Plaintiffs in the event that (1) Medisale’s business slows down, or fails,
preventing it from making the fixed daily payments and (2) if Medisale files for
bankruptcy, has any bankruptcy proceeding filed against it, or if Medisale admits its
inability to pay its debts. The reconciliation provision contained in each contract does not
shield Influx, GTR, or Addy from usury as it is insufficient, discretionary, and illusory.
There is no reasonable possibility that the underlying contracts would be non-usurious or
that the money advanced would not be repaid.
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THIRD AFFIRAMTIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
38. The Counterclaims are barred as the underlying contracts are not Merchant Cash
Advances but unlawful usurious loans with interest rates of over 235% in violation of
New York General Obligations Law §5-501.
FOURTH AFFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
39. The Counterclaims are barred as the Answering Defendants are collecting upon an
unlawful debt as defined by 18 U.S.C. 1962(c) with the usurious rate at least twice the
enforceable rate in breach of 18 U.S.C. §1961(6).
FIFTH AFFIRAMTIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
40. The Counterclaims are barred as the Answering Defendants use deceptive acts and
practices as their regular way of doing business in breach of General Business Law §349.
SIXTH AFFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
41. The Counterclaims fail to state a claim against the Plaintiffs upon which relief can be
granted.
SEVENTH AFFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
42. The Counterclaims are barred, in whole or in part, because of arbitration and award,
collateral estoppel, discharge in bankruptcy, payment, release, res judicata, statute of
limitations, statute of frauds, equitable estoppel, collateral estoppel, acquiescence, laches,
unclean hands, statute of limitations, and/or the Answering Defendants’ culpable
conduct.
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EIGHTH AFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
43. The Counterclaims are barred by the Answering Defendants’ fraud, fraud in the
inducement, and fraud against the court as the Answering Defendants materially
misrepresented their financing products, financing amounts, previous balances, fees,
amounts of daily ACH withdrawals, what constituted a default, and the recourse available
to Influx, Addy, and GTR against the Plaintiffs if held in default.
NINTH AFIRMATIVE DEFENSE
(Plaintiffs against GTR)
44. The Counterclaims are barred by GTR’s fraudulent filing of the Confession of Judgment
amounting to fraud on the Court.
TENTH AFFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
45. Answering Defendants did not sustain any damages arising from the allegations set forth
in the Counterclaims.
ELEVENTH AFFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
46. Answering Defendants’ damages, if any, are subject to offset by amounts owed by
Answering Defendants to Plaintiffs.
TWELFTH AFFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
47. Any amounts purportedly due by the Plaintiffs are offset by the amounts owed by
Answering Defendants.
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THIRTEENTH AFFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
48. Any agreement pursuant to which Answering Defendants seek damages was first
breached by Answering Defendants, thereby relieving the Plaintiffs of that contract and
any purported obligations to Answering Defendants thereunder.
FOURTEENTH AFFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
49. Plaintiffs fully performed all of their obligations to pursuant to applicable agreements or
otherwise and did not breach any of the underlying agreements.
FIFTEENTH AFFIRMATIVE DEFENSE
(Plaintiffs against Influx, Addy, and GTR)
50. Because Answering Defendants’ allegations are couched in conclusory terms, Plaintiffs
presently do not have sufficient information or knowledge upon which to form a belief as
to additional and as yet stated affirmative defenses. Plaintiffs reserve the right to
supplement the aforementioned Affirmative Defenses upon further discovery in this
matter.
WHEREFORE, the Plaintiffs respectfully request that the Court enter an Order
dismissing the Counterclaims as against them with prejudice in its entirety; awarding the
Plaintiffs the costs, disbursements and attorneys’ fees incurred, and such other and further
relief as the Court deems just and proper.
Dated: June 10, 2020
Brooklyn, New York
COLONNA COHEN LAW, PLLC
/s/Ashlee Colonna Cohen
Ashlee Colonna Cohen, Esq.
46 N Henry St
Brooklyn NY 11222
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516-567-0885
ashlee@colonnacohenlaw.com
Attorney for Plaintiffs Medisale, Inc.
and James Davis, II
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FILED: NEW YORK COUNTY CLERK 06/16/2020 10:56 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 06/16/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JAMES DAVIS II and MEDISALE, INC. Plaintiffs, Index No. 656346/2018 - against – RICHMOND CAPITAL GROUP, LLC; ANSWER TO COUNTERCLAIMS INFLUX CAPITAL GROUP, LLC a/k/a INFLUX CAPITAL, LLC; GTR SOURCE, LLC; ADDY SOURCE, LLC; YES CAPITAL FUNDING GROUP, LLC d/b/a YES FUNDING SERVICES, LLC; JONATHAN BRAUN; MICHELLE GREGG; TSVI REICH a/k/a STEVE REICH; ROBERT GIARDINA; BRYAN BAKER a/k/a BAKER CAP FUNDING d/b/a BAKER CAPITAL FUNDING; REBAR CAPITAL, LLC; SPG ADVANCE, LLC; AZRIEL INZELBUCH a/k/a DAVID B. FRANK; and TZVI DAVIS a/k/a STEVEN DAVIS, Defendants. Plaintiffs James Davis, II and Medisale Inc. (“Plaintiffs”), by and through its attorneys Colonna Cohen Law, PLLC, for its answer to Defendants Influx Capital Group LLC a/k/a Influx Capital LLC (“Influx”), GTR Source, LLC (“GTR”), Addy Source LLC (“Addy”), Tzvi Reich and Tsvi Davis’ (the “Answering Defendants’”) Counterclaims (“Counterclaims”) alleges as follows: FIRST COUNTERCLAIM BREACH OF THE SECOND ADDY SOURCE AGREEMENT 1. Plaintiffs deny the allegations in Paragraph 214 of the Counterclaims and any and all liability therefrom. 1 of 10 FILED: NEW YORK COUNTY CLERK 06/16/2020 10:56 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 06/16/2020 2. Plaintiffs deny the allegations in Paragraph 215 of the Counterclaims and any and all liability therefrom. 3. Plaintiffs deny the allegations in Paragraph 216 of the Counterclaims and any and all liability therefrom. 4. Plaintiffs deny the allegations in Paragraph 217 of the Counterclaims and any and all liability therefrom, except admit that Addy Source unlawfully ACH debited funds in excess of the ACH authorization directly from Medisale’s bank account causing the bank to close the account. 5. Plaintiffs deny the allegations in Paragraph 218 of the Counterclaims and any and all liability therefrom as Addy Source did not perform any obligations pursuant to the Second Addy Source Agreement; Addy Source inflated the balance owed pursuant to the Fist Addy Agreement by $47,992, failed to deliver $46,660 to Medisale, and unlawfully accelerated collections taking at least $55,798 from Medisale without authority. 6. Plaintiffs deny the allegations in Paragraph 219 of the Counterclaims and any and all liability therefrom. 7. Plaintiffs deny the allegations in Paragraph 220 of the Counterclaims and any and all liability therefrom. SECOND COUNTERCLAIM BREACH OF THE GTR AGREEMENT 8. Plaintiffs deny the allegations in Paragraph 221 of the Counterclaims and any and all liability therefrom. 9. Plaintiffs deny the allegations in Paragraph 222 of the Counterclaims and any and all liability therefrom. 2 of 10 FILED: NEW YORK COUNTY CLERK 06/16/2020 10:56 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 06/16/2020 10. Plaintiffs deny the allegations in Paragraph 223 of the Counterclaims and any and all liability therefrom 11. Plaintiffs deny the allegations in Paragraph 224 of the Counterclaims and any and all liability therefrom except admit that GTR unlawfully ACH debited funds in excess of the ACH authorization directly from Medisale’s bank account causing the bank to close the account. 12. Plaintiffs deny the allegations in Paragraph 225 of the Counterclaims and any and all liability therefrom as GTR did not perform any obligations pursuant to the GTR Agreement; GTR failed to deliver $223,187 to Medisale and unlawfully accelerated collections from Medisale by doubling the amount taken from Medisale’s account without authority. 13. Plaintiffs deny the allegations in Paragraph 226 of the Counterclaims and any and all liability therefrom. 14. Plaintiffs deny the allegations in Paragraph 227 of the Counterclaims and any and all liability therefrom. THIRD COUNTERCLAIM BREACH OF GUARANTY (Addy against Plaintiffs) 15. Plaintiffs deny the allegations in Paragraph 229 of the Counterclaims and any and all liability therefrom, except admit that they signed the Second Addy Source Agreement. 16. Plaintiffs deny the allegations in Paragraph 230 of the Counterclaims and any and all liability therefrom, except admit that they signed the Second Addy Source Agreement. 17. Plaintiffs admit the allegations in Paragraph 231; the Second Addy Source Agreement provides that business slow down, business failure and/or shutdown, and voluntary/involuntary bankruptcy, as well Medisale’s admission of the inability to pay its 3 of 10 FILED: NEW YORK COUNTY CLERK 06/16/2020 10:56 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 06/16/2020 debts constitutes a default under the Second Addy Source Agreement and provides Addy Source with full recourse against Mr. Davis. 18. Plaintiffs deny the allegations in Paragraph 232 of the Counterclaims and any and all liability therefrom. 19. Plaintiffs deny the allegations in Paragraph 233 of the Counterclaims and any and all liability therefrom. 20. Plaintiffs deny the allegations in Paragraph 234 of the Counterclaims and any and all liability therefrom. 21. Plaintiffs deny the allegations in Paragraph 235 of the Counterclaims and any and all liability therefrom. FOURTH COUNTERCLAIM BREACH OF GUARANTY (GTR against Plaintiffs) 22. Plaintiffs deny the allegations in Paragraph 237 of the Counterclaims and any and all liability therefrom as the Security Agreement and Guaranty are invalid. 23. Plaintiffs deny the allegations in Paragraph 238 of the Counterclaims and any and all liability therefrom, except admit Plaintiffs signed the GTR Agreement. 24. Plaintiffs admit the allegations in Paragraph 239; the GTR Agreement provides that business slow down, business failure and/or shutdown, and voluntary/involuntary bankruptcy, as well Medisale’s admission of the inability to pay its debts constitutes a default under the GTR Agreement and provides GTR with full recourse against Mr. Davis. 25. Plaintiffs deny the allegations in Paragraph 240 of the Counterclaims and any and all liability therefrom. 4 of 10 FILED: NEW YORK COUNTY CLERK 06/16/2020 10:56 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 06/16/2020 26. Plaintiffs deny the allegations in Paragraph 241 of the Counterclaims and any and all liability therefrom. 27. Plaintiffs deny the allegations in Paragraph 242 of the Counterclaims and any and all liability therefrom. 28. Plaintiffs deny the allegations in Paragraph 243 of the Counterclaims and any and all liability therefrom. FIFTH COUNTERCLAIM UNJUST ENRICHMENT (Addy against Plaintiffs) 29. Plaintiffs deny the allegations in Paragraph 245 of the Counterclaims and any and all liability therefrom. 30. Plaintiffs lack knowledge or information sufficient to form a belief of the allegations in Paragraph 246 of the Counterclaims. 31. Plaintiffs deny the allegations in Paragraph 247 of the Counterclaims and any and all liability therefrom. SIXTH COUNTERCLAIM UNJUST ENRICHMENT (GTR against Plaintiffs) 32. Plaintiffs deny the allegations in Paragraph 249 of the Counterclaims and any and all liability therefrom. 33. Plaintiffs lack knowledge or information sufficient to form a belief of the allegations in Paragraph 250 of the Counterclaims. 34. Plaintiffs lack knowledge or information sufficient to form a belief of the allegations in Paragraph 251 of the Counterclaims as they are misstated; Plaintiffs deny any and all allegations regarding the unjust enrichment claims by GTR. 5 of 10 FILED: NEW YORK COUNTY CLERK 06/16/2020 10:56 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 06/16/2020 35. The allegations in the WHEREFORE Paragraph of the Counterclaims constitute legal conclusions such that no response is required. To the extent a response is required, the Plaintiffs deny any and all liability from the allegations contained therein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 36. The Counterclaims are barred by documentary evidence. SECOND AFFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 37. The Counterclaims are barred as the underlying contracts are not Merchant Cash Advances but illegal criminally usurious loans with interest rates of over 235%; more than ten times New York’s legal limit of 25% violating New York Penal Law 190.40. Neither Influx, GTR, nor Addy assumed the risk that Medisale would have less than expected or no revenues. The monies loaned by Influx, GTR, and Addy to Medisale were never truly at hazard of not being repaid. Influx, GTR, and Addy have full recourse against Plaintiffs in the event that (1) Medisale’s business slows down, or fails, preventing it from making the fixed daily payments and (2) if Medisale files for bankruptcy, has any bankruptcy proceeding filed against it, or if Medisale admits its inability to pay its debts. The reconciliation provision contained in each contract does not shield Influx, GTR, or Addy from usury as it is insufficient, discretionary, and illusory. There is no reasonable possibility that the underlying contracts would be non-usurious or that the money advanced would not be repaid. 6 of 10 FILED: NEW YORK COUNTY CLERK 06/16/2020 10:56 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 06/16/2020 THIRD AFFIRAMTIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 38. The Counterclaims are barred as the underlying contracts are not Merchant Cash Advances but unlawful usurious loans with interest rates of over 235% in violation of New York General Obligations Law §5-501. FOURTH AFFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 39. The Counterclaims are barred as the Answering Defendants are collecting upon an unlawful debt as defined by 18 U.S.C. 1962(c) with the usurious rate at least twice the enforceable rate in breach of 18 U.S.C. §1961(6). FIFTH AFFIRAMTIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 40. The Counterclaims are barred as the Answering Defendants use deceptive acts and practices as their regular way of doing business in breach of General Business Law §349. SIXTH AFFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 41. The Counterclaims fail to state a claim against the Plaintiffs upon which relief can be granted. SEVENTH AFFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 42. The Counterclaims are barred, in whole or in part, because of arbitration and award, collateral estoppel, discharge in bankruptcy, payment, release, res judicata, statute of limitations, statute of frauds, equitable estoppel, collateral estoppel, acquiescence, laches, unclean hands, statute of limitations, and/or the Answering Defendants’ culpable conduct. 7 of 10 FILED: NEW YORK COUNTY CLERK 06/16/2020 10:56 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 06/16/2020 EIGHTH AFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 43. The Counterclaims are barred by the Answering Defendants’ fraud, fraud in the inducement, and fraud against the court as the Answering Defendants materially misrepresented their financing products, financing amounts, previous balances, fees, amounts of daily ACH withdrawals, what constituted a default, and the recourse available to Influx, Addy, and GTR against the Plaintiffs if held in default. NINTH AFIRMATIVE DEFENSE (Plaintiffs against GTR) 44. The Counterclaims are barred by GTR’s fraudulent filing of the Confession of Judgment amounting to fraud on the Court. TENTH AFFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 45. Answering Defendants did not sustain any damages arising from the allegations set forth in the Counterclaims. ELEVENTH AFFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 46. Answering Defendants’ damages, if any, are subject to offset by amounts owed by Answering Defendants to Plaintiffs. TWELFTH AFFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 47. Any amounts purportedly due by the Plaintiffs are offset by the amounts owed by Answering Defendants. 8 of 10 FILED: NEW YORK COUNTY CLERK 06/16/2020 10:56 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 06/16/2020 THIRTEENTH AFFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 48. Any agreement pursuant to which Answering Defendants seek damages was first breached by Answering Defendants, thereby relieving the Plaintiffs of that contract and any purported obligations to Answering Defendants thereunder. FOURTEENTH AFFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 49. Plaintiffs fully performed all of their obligations to pursuant to applicable agreements or otherwise and did not breach any of the underlying agreements. FIFTEENTH AFFIRMATIVE DEFENSE (Plaintiffs against Influx, Addy, and GTR) 50. Because Answering Defendants’ allegations are couched in conclusory terms, Plaintiffs presently do not have sufficient information or knowledge upon which to form a belief as to additional and as yet stated affirmative defenses. Plaintiffs reserve the right to supplement the aforementioned Affirmative Defenses upon further discovery in this matter. WHEREFORE, the Plaintiffs respectfully request that the Court enter an Order dismissing the Counterclaims as against them with prejudice in its entirety; awarding the Plaintiffs the costs, disbursements and attorneys’ fees incurred, and such other and further relief as the Court deems just and proper. Dated: June 10, 2020 Brooklyn, New York COLONNA COHEN LAW, PLLC /s/Ashlee Colonna Cohen Ashlee Colonna Cohen, Esq. 46 N Henry St Brooklyn NY 11222 9 of 10 FILED: NEW YORK COUNTY CLERK 06/16/2020 10:56 AM INDEX NO. 656346/2018 NYSCEF DOC. NO. 301 RECEIVED NYSCEF: 06/16/2020 516-567-0885 ashlee@colonnacohenlaw.com Attorney for Plaintiffs Medisale, Inc. and James Davis, II 10 of 10