Motion for Child Support in Wasserstein Enterprises Llc v. Joseph A. Petrillo Jr.| Trellis.Law

On September 16, 2022 a Motion-Secondary was filed involving a dispute between Wasserstein Enterprises Llc, and Joseph A. Petrillo Jr., for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/23/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
–––––––––––––––––––––––––––––X
:
WASSERSTEIN ENTERPRISES LLC, : Index No. 653391/2022
:
Plaintiff, :
Motion Seq. No. 001
:
-against- :
:
JOSEPH A. PETRILLO, JR.,
:
Defendant. :
:
–––––––––––––––––––––––––––––X

MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

ROSENBERG & ESTIS, P.C.
Attorneys for Plaintiff
733 Third Avenue
New York, New York 10017
(212) 867-6000

ALEX M. ESTIS
TRAVIS S. ROHER
Of Counsel

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .....................................................................................................2

FACTS ..................................................................................................................................3

POINT I LANDLORD IS ENTITLED TO SUMMARY JUDGMENT AGAINST
GUARANTOR ........................................................................................................4

A. The Applicable Standard..........................................................................................4

B. Landlord Should Be Granted Summary Judgment Against Guarantor for
the Total Outstanding Rent Arrears and Damages Owed by Tenant .......................5

POINT II LANDLORD IS ENTITLED TO AN ORDER STRIKING
GUARANTOR’S AFFIRMATIVE DEFENSES ....................................................8

POINT III LANDLORD IS ALSO ENTITLED TO AN AWARD OF ITS
ATTORNEYS’ FEES ............................................................................................15

A. The Applicable Standard........................................................................................15

B. The Court Should Sever Landlord’s Claims for Attorneys’ Fees For a
Hearing ...................................................................................................................16

CONCLUSION ..............................................................................................................................18

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TABLE OF AUTHORITIES

Page(s)

Cases

Alvarez v Prospect Hospital,
68 NY2d 320 (1986) ..................................................................................................................4

Andre v Pomeroy,
35 NY2d 361 (1974) ..................................................................................................................4

Banco Popular North Am. v Victory Taxi Mgt., Inc.,
1 NY3d 381 (2004) ....................................................................................................................4

Bank of America v Solow,
59 AD3d 304 (1st Dept 2009) ....................................................................................................7

Chicago Dressed Beef Co., Inc. v Gold Medal Packing Corporation,
22 AD2d 1010, 254 NYS2d 717 (App Div, 4th Dept 1964) .....................................................8

Citizens and Southern Commercial Corporation v Catapano,
164 AD2d 812 (1st Dept 1990) ................................................................................................16

City of New York v Clarose Cinema Corp.,
256 AD2d 69 (1st Dept 1998) ....................................................................................................4

Cooperatieve Centrale Reiffeisen-Boerenleenbank, B.A. v Navarro,
25 NY3d 485 (2015) ..................................................................................................................5

Flemming v Barnwell Nursing Home & Health Facilities, Inc.,
15 NY3d 375 (2010) ................................................................................................................16

Fremont v Hooper,
NYLJ, 9/14/89............................................................................................................................9

Fusco v Kraumlap Realty Corp.,
1 AD3d 189 (1st Dept 2003) ....................................................................................................14

Gerard v Inglese,
11 AD2d 381 (2d Dept 1960) ....................................................................................................4

Holy Properties Ltd., L.P. v Kenneth Cole Productions, Inc.,
87 NY2d 130 (1995) ................................................................................................................13

International Plaza Assoc., L.P. v Lacher,
104 AD3d 578 (1st Dept 2013) ..................................................................................................7

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Kronish Lieb Weiner & Hellman LLP v Tahari, Ltd.,
35 AD3d 318 (1st Dept 2006) ..................................................................................................11

Manufacturers Hanover Trust Co. v Restivo,
169 AD2d 413 (1st Dept 1991) ................................................................................................10

Moon 170 Mercer, Inc. v Vella,
122 AD3d 544 (1st Dept 2014) ..................................................................................................7

New York International Hostel, Inc. v Curry,
NYLJ, 3/20/91............................................................................................................................9

O’Keefe v Young & Rubicam, Inc., et al.,
275 AD 141, 12 NYS2d 31 (1939) ..........................................................................................10

One Ten West Fortieth Associates v Isabel Ardee, Inc.,
124 AD3d 500 (1st Dept 2015) ................................................................................................16

Raven Elevator Corp. v Finkelstein,
223 AD2d 378 (1st Dept 1996) ..................................................................................................7

Reliance Construction Ltd v Kennelly,
70 AD3d 418 (1st Dept 2010) ................................................................................................5, 6

Riland v Frederick S. Todman & Co.,
56 AD2d 350 (1st Dept 1977) ..................................................................................................12

Robbins v Growney,
229 AD2d 356 (1st Dept 1996) ................................................................................................12

RSB Bedford Associates, LLC v Ricky’s Williamsburg, Inc.,
91 AD3d 16 (1st Dept 2011) ....................................................................................................16

S.J. Capelin Assocs., Inc. v Globe Mfg. Corp.,
34 NY2d 338 (1974) ..................................................................................................................4

Scholastic, Inc. v Pace Plumbing Corp.,
129 AD3d 75 (1st Dept 2015). .......................................................................................................13

Sterling Nat. Bank v Biaggi,
47 AD3d 436 (1st Dept 2008) ....................................................................................................7

Stroock Plush Co. v Talcott,
129 AD 14, 113 NYS 214 (App Div, 2d Dept 1908) ................................................................8

Vandergrand Properties Co., L.P. v Warnock,
206 AD3d 597 (1st Dept 2022) ..................................................................................................7

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Zuckerman v City of New York,
49 NY2d 557 (1980) ..................................................................................................................4

Other Authorities

CPLR 603.......................................................................................................................................17

CPLR 3013.......................................................................................................................................8

CPLR 3018.......................................................................................................................................9

CPLR 3211(b) ..............................................................................................................................1, 8

CPLR 3212.......................................................................................................................................1

CPLR 4545.....................................................................................................................................13

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
–––––––––––––––––––––––––––––X
:
WASSERSTEIN ENTERPRISES LLC, : Index No. 653391/2022
:
Plaintiff, :
Motion Sequence 001
:
-against- :
:
JOSEPH A. PETRILLO, JR.,
:
Defendant. :
:
–––––––––––––––––––––––––––––X

MEMORANDUM OF LAW IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

Plaintiff Wasserstein Enterprises LLC (“Plaintiff” or “Landlord”) submits this

Memorandum of Law1 in support of Landlord’s motion for an Order, as follows:

(a) pursuant to CPLR 3212, awarding Plaintiff summary judgment against
defendant Joseph A. Petrillo, Jr., (“Defendant” or “Guarantor”) on the
first cause of action in Plaintiff’s complaint dated September 16, 2022 (the
“Complaint”), and awarding Plaintiff a money judgment against Guarantor
in an amount to be determined by the Court, but no less than $1,448,067.40,
plus interest;

(b) pursuant to CPLR 3212 and/or CPLR 3211(b), dismissing Guarantor’s
affirmative defenses asserted in his answer dated November 2, 2022
(“Answer”); awarding Plaintiff its attorneys’ fees, costs and disbursements,
in an amount to be subsequently determined upon submission to the Court
or at a hearing; and

1
All capitalized terms herein shall have the same meaning ascribed to them in the accompanying Affidavit of Jenifer
S. Brooks, sworn to on December __, 2022 (the “Brooks Affidavit”) unless specifically defined herein.

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PRELIMINARY STATEMENT

This is a straightforward action for damages and attorneys’ fees based upon a breach of a

guaranty agreement by Guarantor in connection with Tenant’s ongoing failure and refusal to pay

Fixed Rent and Additional Rent due to Landlord under Tenant’s commercial lease.

Landlord is the owner and landlord of the building known as and located at 113-133 West

18th Street, New York, New York (the “Building”). Annexed as Exhibit “A” to the Affidavit of

Jenifer S. Brooks (the “Brooks Aff.”) is a copy of the deed. Non-party tenant Presher Fitness NY

LLC (“Tenant”) is the tenant of office space in the Building (the “Premises”) pursuant to an

Office Lease dated August 24, 2018 (the “Original Lease”), by and between Landlord, as

landlord, and Tenant, as tenant, which Original Lease was modified by that certain Rent Deferral

Agreement dated as of April 29, 2020 (the “Modification”), as amended by a Second Lease

Modification Agreement made as of “the ___ day of October 2020” (the “Second Modification”,

collectively with the Original Lease and the Modification, the “Lease”). The Lease term

commenced on August 24, 2018 and is scheduled to expire on September 30, 2029 (the “Term”).

See Brooks Aff. ¶ 6, Exhibit “B”.

As a material inducement for Landlord to enter into the Lease with Tenant, Guarantor

executed and delivered a Guaranty agreement dated August 24, 2018 (the “Guaranty”) to

Landlord. Brooks Aff. ¶ 21. Under the terms of the Guaranty, Guarantor agreed to unconditionally

guarantee the performance by Tenant of all the terms, covenants, conditions, obligations and

agreements contained in the Lease on the Tenant’s part to be performed (collectively, the

“Obligations”). Brooks Aff. ¶ 23, Exhibit “C”. Landlord entered into the Lease in reliance on

the Guaranty and the Obligations contained therein. Id.

In breach of the Guaranty, Guarantor failed to pay Landlord Rent for the period May 15,

2020 through and including September 1, 2022, and is currently in arrears to Landlord in the

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amount of $1,448,067.40 (the “Rent Arrears”) representing unpaid Rent and Use and Occupancy.

Brooks Aff. ¶ 35, Exhibit “D”. As a result of Guarantor’s breach of the Guaranty, Landlord has

incurred damages and is entitled to a money judgment in Landlord’s favor, and against Guarantor,

in an amount to be determined by the Court, but not less than $1,448,067.40, plus interest.

The Guaranty also allows Landlord to recover all of its expenses, inclusive of reasonable

attorneys’ fees, incurred by Landlord in connection with its enforcement of the Guaranty. Brooks

Aff. ¶ 37, Exhibit “C”. Landlord has incurred and will continue to incur fees, costs and

disbursements, including attorneys’ fees, in connection with its enforcement of the Guaranty. As

such, Landlord is entitled to a money judgment, in its favor and against Guarantor, for Landlord’s

attorneys’ fees, costs, disbursements and expenses incurred in connection with Landlord’s

enforcement of the Guaranty, in an amount to be determined by the Court, but believed to be not

less than $25,000.00. Id.

Further, as established below, Guarantor’s affirmative defenses are completely irrelevant

and legally insufficient to preclude the relief Landlord seeks. See Exhibit “B” to the Affirmation

of Alex M. Estis (the “Estis Aff.”) (NYSCEF Doc. No. 2). Thus, Guarantor’s twenty-four

affirmative defenses -- all of them fact-free, conclusory and boilerplate -- are utterly without merit.

Accordingly, Landlord’s motion for summary judgment should be granted in all respects, and

Guarantor’s affirmative defenses should be stricken.

Moreover, there are no material issues of fact in dispute and, as such, the motion should be

granted, and judgment entered in favor of Landlord and against Guarantor.

FACTS

For the sake of brevity, the Court is respectfully referred to the accompanying affirmation

of Alex M. Estis (the “Estis Aff.”), the affidavit of Jenifer S. Brooks, sworn to the 9th day of

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December 2022 (the “Brooks Aff.”), the exhibits annexed thereto, and the accompanying

Rule 19-a Statement of Undisputed Material Facts for a recitation of the relevant facts.

POINT I

LANDLORD IS ENTITLED TO
SUMMARY JUDGMENT AGAINST GUARANTOR

A. The Applicable Standard

Summary judgment is designed to expedite civil litigation by eliminating claims from the

trial calendar that could be properly resolved as a matter of law. See Andre v. Pomeroy, 35 NY2d

361, 364 (1974). Summary judgment should only be denied where material facts are in dispute or

if incompatible inferences may be reasonably drawn from the undisputed facts themselves. See

Gerard v Inglese, 11 AD2d 381, 382 (2d Dept 1960).

A motion for summary judgment cannot be defeated by conclusory or unsupported

allegations, but only by evidentiary proof in admissible form. See S.J. Capelin Assocs., Inc. v

Globe Mfg. Corp., 34 NY2d 338 (1974).

A motion for summary judgment must be granted where the movant has established a

prima facie case entitling the movant to the relief requested as a matter of law, and the opposition

fails to rebut this showing or create an issue of fact. See Zuckerman v. City of New York, 49 NY2d

557, 562 (1980). Accordingly, mere conclusions of law or fact are insufficient to defeat a motion

for summary judgment. See Banco Popular North Am. v. Victory Taxi Mgt., Inc., 1 NY3d 381

(2004); Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986).

Summary judgment is especially appropriate, and is routinely granted, in actions based on

absolute and unconditional guaranty agreements. “On a motion for summary judgment to enforce

a written guaranty, all that the creditor need prove is an absolute and unconditional guaranty, the

underlying debt, and the guarantor’s failure to perform under the guaranty.” City of New York v

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Clarose Cinema Corp., 256 AD2d 69, 71 (1st Dept 1998). Here, the Guaranty is, by its terms,

absolute and unconditional, and was expressly given so as to induce Landlord to enter into the

Lease with Tenant.

As the Appellate Division, First Department, stated in Reliance Construction Ltd v

Kennelly, 70 AD3d 418, 419 (1st Dept 2010), “Plaintiff made a prima facie showing for summary

judgment by proving the absolute and unconditional guaranties and the guarantors’ failure to

perform.” See also Cooperatieve Centrale Reiffeisen-Boerenleenbank, B.A. v Navarro, 25 NY3d

485, 492 (2015) (“To meet its prima facie burden on its summary judgment motion, [Plaintiff]

must prove the existence of the guaranty, the underlying debt and the guarantor’s failure to perform

under the guaranty” [internal quotations and citations omitted]).

B. Landlord Should Be Granted Summary Judgment Against Guarantor
for the Total Outstanding Rent Arrears and Damages Owed by Tenant

As a material inducement for Landlord to enter into the Lease with Tenant, Guarantor

executed and delivered the Guaranty to Landlord. Brooks Aff. ¶ 21. Landlord would not have

entered into the Lease with Tenant unless Guarantor executed and delivered the Guaranty to

Landlord. Brooks Aff. ¶ 22.

Under the terms of the Guaranty, Guarantor agreed to be personally liable to Landlord for

all payments that Tenant is obligated to pay Landlord under the terms of the Lease, including but

not limited to, the Arrears and disbursements incurred and to be incurred by Landlord with respect

to: (a) any default by Tenant under the Lease, and (b) Landlord’s enforcement of the Guaranty.

Brooks Aff. ¶ 24 and Exhibit “C.”

There can be no disputing Guarantor’s liability to Landlord for the $1,448,067.40, plus

interest thereon for the period of May 15, 2020 through September 1, 2022. See Exhibit “C” to

the Brooks Aff.; Exhibit “A” to the Estis Aff. (NYSCEF Doc. No. 1). As explained in detail in

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the Brooks Affidavit, under the terms of the Guaranty, Guarantor unconditionally agreed to be

personally liable to Tenant for the full and prompt payment of all Fixed Rent and Additional Rent

due and owing under the Lease. See Brooks Aff., ¶ 25, Exhibit “C”. Landlord has established that

Tenant has defaulted in the payment of the Arrears and all other charges, attorneys’ fees and

expenses as required by the Lease. See Brooks Aff., ¶ 36.

Section 2.02 of the Original Lease requires Tenant to pay Landlord fixed rent for the

Premises (“Fixed Rent”), pursuant to the schedule set forth in Section 2.02(a) of the Original

Lease, in equal monthly installments, in advance, no later than the first day of each calendar month

during the Term, without any set-off or deduction whatsoever. Brooks Aff., ¶ 8, Exhibit “B”.

Pursuant to Section 2.02 of the Original Lease, the Fixed Rent due and owed by Tenant for

the Premises is: (i) $35,295.08 per month for the Lease Months from 44 through 55. Brooks Aff.,

¶ 9, Exhibit “B”.

Upon the occurrence of any Event of Default, in addition to all other remedies that Landlord

may have under the Original Lease and applicable law, all Fixed Rent reduced under this

Agreement shall become immediately due and payable. Brooks Aff., ¶ 10, Exhibit “B”.

Upon the default triggering full recourse against Guarantor, Guarantor failed to pay sums

due under the Lease. Guarantor has not made any payments on account of the Tenant as required

by the Lease. Brooks Aff., ¶ 26. Landlord has therefore proven the existence of the Guaranty, the

underlying debt, and Guarantor’s failure to perform, which is all Landlord needs to prove to

establish its entitlement to judgment as a matter of law. See Reliance Construction Ltd, 70 AD3d

at 419. Id.

In addition, and pursuant to the terms of the Guaranty, Guarantor: (i) consented to the

jurisdiction of the Courts of the State of New York, (ii) agreed that all rights, obligations and

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liabilities arising out of the Guaranty shall be construed according to the laws of the State of New

York and (iii) consented that the Guaranty shall be binding on the undersigned and his or its

successors, assigns and legal representatives. See Brooks Aff., ¶¶ 33-34, Exhibit “C”.

Landlord has clearly demonstrated its entitlement to summary judgment. As the Appellate

Term, First Department, stated in Bank of America v Solow, 59 AD3d 304, 304-05 (1st Dept 2009):

Plaintiff demonstrated its entitlement to summary judgment by
establishing the existence of a guaranty and submitting an affidavit
of nonpayment (see JP Morgan Chase Bank, N.A. v. Complete
Envtl. Servs., Inc., 21 Misc3d 1113A [Sup Ct Nassau Cty 2008]).
The guaranty was absolute and unconditional, expressly waived
demand or presentment and was expressly made a primary
obligation of the defendant, so that no formal demand, beyond the
motion in lieu of complaint itself, was necessary to state a cause of
action on the guaranty (cf. First Natl. Bank v. Story, 200 NY 346,
354 [1911]).

See also, Sterling Nat. Bank v Biaggi, 47 AD3d 436, 437 (1st Dept 2008); Raven Elevator Corp.

v Finkelstein, 223 AD2d 378, 378 (1st Dept 1996).

Here, as in Bank of America, Sterling, and Raven Elevator, Guarantor’s liability under the

Guarantee of Payment is absolute and unconditional. There can be no disputing the existence of

the Guaranty and Tenant’s default in payment and in performance under the now-terminated

Lease.

Accordingly, Landlord has satisfied its prima facie burden on summary judgment on its

counterclaim for breach of Guaranty, and Landlord is entitled to a money judgment against

Guarantor for the Rent Arrears, in an amount to be determined by the Court, but in a sum no less

than $$1,181,556.02, plus interest. See Vandergrand Properties Co., L.P. v Warnock, 206 AD3d

597, 597 (1st Dept 2022); Moon 170 Mercer, Inc. v Vella, 122 AD3d 544, 544 (1st Dept 2014);

International Plaza Assoc., L.P. v. Lacher, 104 AD3d 578, 579 (1st Dept 2013).

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POINT II

LANDLORD IS ENTITLED TO AN ORDER
STRIKING GUARANTOR’S AFFIRMATIVE DEFENSES

Additionally, and as discussed in depth below, each of Guarantor’s conclusory affirmative

defenses have been waived and should be stricken. None of these “defenses” are legally sufficient

or substantial by any facts which is grounds for dismissal (see CPLR 3013 [“[s]tatements in a

pleading shall be sufficiently particular to give the court and parties notice of the transactions,

occurrences, or series of transaction or occurrences, intended to be proved and the material

elements of each cause of action or defense”].

CPLR Section 3211(b) provides that a party may move for judgment dismissing one or

more defenses on the ground that a defense is not stated or has no merit. The language concerning

a lack of merit of a defense was added to CPLR Section 3211(b) by amendment effective

September 1, 1965 and was designed to give explicit sanction to a party, such as the movant herein,

to obtain early disposition of objections raised in appropriate actions.

A motion directed to strike affirmative defenses is proper under CPLR 3211(b) where, as

here, the affirmative defenses have set up no new facts that are sufficient in law. Chicago Dressed

Beef Co., Inc. v. Gold Medal Packing Corporation, 22 AD2d 1010, 254 NYS2d 717 (AD, 4th Dept

1964). Generally speaking, a defense is “a statement of any new matter constituting a defense.”

See Stroock Plush Co. v. Talcott, 129 AD14, 113 NYS 214 (AD 2d Dept. 1908), where the court

discussed the difference between a defense and a denial, recognizing that:

“A defense, by the said express terms of the Code, must be of new
matter, i.e., of matter which cannot be proved under a denial, such
as payment, accord and satisfaction, general release, fraud or duress
in the making of the contract sued upon, the truth of the charge in an
action of libel or slander, another action pending, former
adjudication, and so on. If the matter can be proved under a denial
which is or could be pleaded, it is not new matter, and should not be
pleaded as a defense, and is not a defense, but belongs under a

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denial, which is negative, and not affirmative, which latter all
defenses are. If there be no such new matter, the answer should end
with a denial or denials. Frank v. Miller, 116 App. Div. 855, 102 N.
Y. Supp. 277; Stern v. Marcuse, 119 App. Div. 478, 103 N. Y. Supp.
1026; Cruikshank v. Press Pub. Co., 32 Misc.Rep.152, 65 N. Y.
Supp. 678; Flack v. O’Brien, 19 Misc.Rep.399, 43 N. Y. Supp. 854;
Green v. Brown, 22 Misc.Rep.279, 49 N. Y. Supp. 163; Von Hagen
v. Waterbury Mfg. Co., 22 Misc.Rep.580, 49 N. Y. Supp. 465;
Laurie v. Duer, 30 Misc.Rep.154, 61 N. Y. Supp. 930; Staten I. M.
R. Co. v. Hinchcliffe, 34 Misc.Rep.49, 68 N. Y. Supp. 556; **217
Schmidt v. McCaffrey, 34 Misc.Rep.693, 70 N. Y. Supp. 1011;
Pascekwitz v. Richards, 37 Misc.Rep.250, 75 N. Y. Supp. 291;
Jaeger v. City of N. Y., 39 Misc.Rep.543, 80 N. Y. Supp. 356;
Sanford v. Rhoads, 39 Misc.Rep.548, 80 N. Y. Supp. 404; Carpenter
v. Mergert, 39 Misc.Rep.634, 80 N. Y. Supp. 615; Leonorovitz v.
Ott, 40 Misc.Rep.551, 82 N. Y. Supp. 880; Schultz v. Greenwood
Cem. Ass’n, 46 Misc.Rep.299, 93 N. Y. Supp. 180; South Dakota v.
McChesney, 87 Hun, 293, 34 N. Y. Supp. 362.”

The affirmative “defenses” asserted herein are not affirmative defenses at all (see, e.g.,

CPLR 3018). Rather, they are simply denials of Landlord’s allegations, and may be stricken upon

this basis. Indeed, a review of the “affirmative defenses” confirms the foregoing. Guarantors’

mere attempt to avoid or apportion liability is not appropriate based upon the express provisions

of the Guaranty.

A party is required, as a matter of law, to allege with specificity the evidentiary facts in

support of the party’s claim. New York International Hostel, Inc. v. Curry, NYLJ, 3/20/91, p. 21,

col. 1 (AT, 1st Dept). Where, as here, the answer consists entirely of conclusory statements,

unsupported by factual allegations, the defenses must be dismissed. Fremont v. Hooper, NYLJ,

9/14/89, p. 22, col. 4 (AT, 1st Dept).

Defenses that are really nothing more than a denial of the Plaintiff’s allegations, are not

appropriately interposed as affirmative defenses. Where, as here, the purported “affirmative

defenses” merely enlarge upon the denials contained in the answer, the affirmative defenses should

be stricken. See, e.g., O’Keefe v. Young & Rubicam, Inc., et al., 275 AD 141, 12 NYS2d 31 (1939).

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Guarantor sets forth twenty-four (24) affirmative defenses in its Answer, which are either

without legal merit or wholly irrelevant. In any event, Guarantor’s defenses are all expressly

waived and, in addition are expressly barred under the Guaranty. See Estis Aff., Exhibit “B”

(NYSCEF Doc. No. 3). All of the affirmative defenses are pleaded in conclusory fashion, without

any substantiating facts. This, in and of itself, justifies the dismissal of all twenty-four affirmative

defenses. Manufacturers Hanover Trust Co. v Restivo, 169 AD2d 413, 413 (1st Dept 1991).

Additionally, Guarantor references “plaintiffs” in a majority of its affirmative defenses, which

underscores Guarantor’s copy-and-paste, boilerplate “defenses”, given that there is only one

plaintiff in this action. Furthermore, Guarantor references a “verified complaint” in its affirmative

defenses. Landlord’s complaint was not verified and further proof that all of the below affirmative

defenses were thrown together without any basis.

Guarantor asserts a litany of affirmative defenses that are conclusory, inapplicable, and

without merit as a matter of law. To this end, Guarantor asserts the following affirmative defenses:

First Affirmative Defense: “Answering defendant reserves the right to claim the
limitations of liability pursuant to Article 16 of the New York Civil Practice Law and Rules
(hereinafter CPLR), for any recovery herein by plaintiffs for non-economic loss.”

Sixth Affirmative Defense: “That in the event of any award made to plaintiffs [sic],
answering defendant is entitled to a set-off with respect to the amounts of any and all
payments made to plaintiffs [sic] in settlement of any claims arising out of the claims of
damages or injuries alleged in this action pursuant to N.Y. General Obligations Law
§15-108.”

Seventh Affirmative Defense: “If plaintiffs [sic] sustained damages as alleged, such
damages occurred while plaintiffs [sic] engaged in an activity into which he/they entered,
knowing the hazard, risk and danger of the activity and he/they assumed the risks incidental
to and attending the activity.”

Ninth Affirmative Defense: “The damages alleged to have been sustained by the plaintiffs
[sic] were caused in whole or in part by the culpable conduct of the plaintiffs [sic] or other
parties without any culpable conduct on the part of the answering defendant and, therefore,
the amount of damages, if any, recovered by the plaintiffs [sic] from the answering
defendant should be reduced pursuant to Article 14 and Article 14-A of the New York Civil
Practice Law and Rules in that proportion to which the culpable conduct attributed to the

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FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022
NYSCEF DOC. NO. 14 RECEI

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Gerald Lebovits Track Judge’s New Case

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Document Filed Date

December 09, 2022

Case Filing Date

September 16, 2022

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Motion-Secondary: Wasserstein Enterprises Llc v. Joseph A. Petrillo Jr.

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