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FILED: ONONDAGA COUNTY CLERK 01/13/2023 03:24 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 01/13/2023
EXHIBIT C
FILED: ONONDAGA COUNTY CLERK 06/18/2021
01/13/2023 12:10
03:24 PM INDEX NO. 003917/2021
NYSCEF DOC. NO. 3
80 RECEIVED NYSCEF: 06/18/2021
01/13/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
COSTELLO, COONEY & FEARON, PLLC,
Plaintiff,
ANSWER TO VERIFIED
vs. COMPLAINT
MELINDA BURDICK BOWE, Index No.: 003917/2021
Defendant.
Defendant, Melinda Burdick Bowe (referred to as "Ms. Bowe" herein), by her attorneys,
Woods Oviatt Gilman LLP, for her Answer to the Complaint of Costello, Cooney & Fearon, PLLC
(referred to as "Plaintiff' and/or "CC&F") herein, alleges as follows:
1. Denies knowledge or information 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 referenced documents that are inconsistent with the actual terms of the
documents themselves, and relies upon the actual language of the referenced documents.
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 fails to 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 information 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, Plaintiff is estopped from claiming entitlement 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 failures and
omissions or its own conduct or negligence.
SEVENTH AFFIRMATIVE DEFENSE
11. Upon information 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 documents 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 information 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 all necessary parties.
THIRTEENTH AFFIRMATIVE DEFENSE
17. Upon information and belief, Plaintiffs claims are barred by the failure of Plaintiff to
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 information 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 enrichment 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 information and belief, Plaintiffs causes of action for conversion must be
dismissed 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 fiduciary 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 liable for the debts, liabilities, contracts or any other obligations
of the Company."
TWENTY-FIRST AFFIRMATIVE DEFENSE
25. Upon information and belief, Section 2 of the Of Counsel Agreement provides that
Ms. Bowe is "released, indemnified and held harmless from any and all obligations of the Firm."
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TWENTY-SECOND AFFIRMATIVE DEFENSE
26. Upon information and belief, Plaintiff drafted the Operating Agreement it seeks to
enforce. To the extent that any ambiguity exists in the Operating Agreement, or in any of its terms,
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 unlawful withholding of compensation from Ms. Bowe and collection of
Ms. Bowe's percentage 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
if fully set forth herein.
29. On or about November 23, 2020, Ms. Bowe entered into an Of Counsel Agreement
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
promised continued compensation for clients which she originated for the benefit of CC&F, and that
compensation was included in 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 it no 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 rightfully earned under the
terms of the Of Counsel Agreement.
34. By these actions and by failing to fulfill its contractual obligations, CC&F's actions
and omissions constituted a breach of the terms of the Of Counsel Agreement.
35. As a direct result of CC&F's 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
if fully set forth herein.
37. CC&F was bound by the implied covenant of good faith and fair dealing, pursuant to
which neither party to a contract shall do anything which has the effect of destroying or injuring the
right of the other party to receive the fruits of the contract.
38. Upon information and belief, CC&F's actions and omissions were taken 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&F's breach of the implied duty of good faith and fair dealing,
Ms. Bowe has suffered damages, including monetary damages in an amount to be determined at trial.
AS AND FOR A THIRD COUNTERCLAIM
(CONVERSION)
40. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as
if fully set forth herein.
41. Following Ms. Bowe's separation from CC&F as a Partner, Ms. Bowe entered into an
Of Counsel relationship with the firm.
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42. Pursuant to the Of Counsel relationship, Ms. Bowe was contractually entitled to
receive a percentage compensation for work performed by other CC&F attorneys on client matters
for clients for whom she was responsible for originating.
43. CC&F advised Ms. Bowe that it would not pay her any compensation earned by Ms.
Bowe pursuant to the Of Counsel Agreement.
44. Upon information and belief, CC&F's actions were taken intentionally to convert
clients originated by Ms. Bowe and deprive her of all legal title to or interest in the origination fees
and other compensation agreed upon.
45. By virtue of the foregoing, Ms. Bowe has been damaged by CC&F in an amount to
be determined at a trial of this matter based upon the value of legal services rendered to the wrongfully
converted clients, together with interest thereon.
AS AND FOR A FOURTH COUNTERCLAIM
(QUANTUM MERUIT)
46. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as
if fully 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, knowing that Ms. Bowe expected to be compensated for
them.
49. CC&F has refused to pay Ms. Bowe for the value of the legal services and other
consideration, and Ms. Bowe has not received the value of the payment or merit that she is entitled
to.
50. By virtue of the foregoing, Ms. Bowe has been damaged in an amount to be
determined at a trial of this matter.
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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
if fully set forth herein.
52. Upon information and belief, Ms. Bowe entered into a valid contract 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 account from a former partner.
54. Upon information and belief, CC&F's actions and inactions in attempting to collect a
claimed debt from Ms. Bowe constitute a breach of contract of the Operating Agreement, together
with additional acts and omissions 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
if fully set forth herein.
57. In the alternative, Ms. Bowe sets forth this claim 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, including the ability to obtain profit on clients originated by Ms. Bowe, and knowingly
accepting those benefits without any intention of fairly compensating Ms. Bowe for those benefits,
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 relationships with clients for the benefit of CC&F was illusory.
60. CC&F has been unjustly enriched by obtaining Ms. Bowe's substantial labor, work
product, skills, time, and business contacts.
61. As a result of the foregoing, Ms. Bowe has sustained actual damages for which CC&F
is liable, and Ms. Bowe is entitled to disgorgement of the monetary value of all of the benefits received
by CC&F from her without fair and equitable compensation.
62. As result of the foregoing, Ms. Bowe seeks an award of damages for compensatory
damages with costs, expenses, and attorneys' fees in an amount to be determined at trial.
WHEREFORE, Ms. Bowe respectfully requests judgment dismissing the Complaint in
its entirety, and, if a 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 amount 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
judgment for the costs and disbursements of this action, attorneys' 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.
Attorneysfor 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.:
Greta K. Kolcon, Esq., being duly sworn, deposes and says that she is an attorney admitted
to practice in the State of New 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 deponent, except as to matters
alleged upon information and belief, and as to those matters, deponent believes the allegations are
true. The basis for deponent's belief is her review of documents related to this action, as well as
communications with the Defendant's officers 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 i5
day of June, 2021.
ilqUADOMaA
Not P Public
JENNIFER M. SCHAUERMAN
Notary Public, State of New York
Qualified In Monroe County
No. 02SC6284871
Commission Expires July 2, 2024
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FILED: ONONDAGA COUNTY CLERK 01/13/2023 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 01/13/2023 EXHIBIT C FILED: ONONDAGA COUNTY CLERK 06/18/2021 01/13/2023 12:10 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 3 80 RECEIVED NYSCEF: 06/18/2021 01/13/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA COSTELLO, COONEY & FEARON, PLLC, Plaintiff, ANSWER TO VERIFIED vs. COMPLAINT MELINDA BURDICK BOWE, Index No.: 003917/2021 Defendant. Defendant, Melinda Burdick Bowe (referred to as "Ms. Bowe" herein), by her attorneys, Woods Oviatt Gilman LLP, for her Answer to the Complaint of Costello, Cooney & Fearon, PLLC (referred to as "Plaintiff' and/or "CC&F") herein, alleges as follows: 1. Denies knowledge or information 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 referenced documents that are inconsistent with the actual terms of the documents themselves, and relies upon the actual language of the referenced documents. 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 fails to 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 06/18/2021 01/13/2023 12:10 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 3 80 RECEIVED NYSCEF: 06/18/2021 01/13/2023 SECOND AFFIRMATIVE DEFENSE 6. Upon information 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, Plaintiff is estopped from claiming entitlement 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 failures and omissions or its own conduct or negligence. SEVENTH AFFIRMATIVE DEFENSE 11. Upon information 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 documents of Plaintiff. {8512203: } 2 2 of 11 FILED: ONONDAGA COUNTY CLERK 06/18/2021 01/13/2023 12:10 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 3 80 RECEIVED NYSCEF: 06/18/2021 01/13/2023 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 information 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 all necessary parties. THIRTEENTH AFFIRMATIVE DEFENSE 17. Upon information and belief, Plaintiffs claims are barred by the failure of Plaintiff to 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 information 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 06/18/2021 01/13/2023 12:10 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 3 80 RECEIVED NYSCEF: 06/18/2021 01/13/2023 SIXTEENTH AFFIRMATIVE DEFENSE 20. Upon information and belief, the claims of unjust enrichment 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 information and belief, Plaintiffs causes of action for conversion must be dismissed 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 fiduciary 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 liable for the debts, liabilities, contracts or any other obligations of the Company." TWENTY-FIRST AFFIRMATIVE DEFENSE 25. Upon information and belief, Section 2 of the Of Counsel Agreement provides that Ms. Bowe is "released, indemnified and held harmless from any and all obligations of the Firm." {8512203: 4 4 of 11 FILED: ONONDAGA COUNTY CLERK 06/18/2021 01/13/2023 12:10 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 3 80 RECEIVED NYSCEF: 06/18/2021 01/13/2023 TWENTY-SECOND AFFIRMATIVE DEFENSE 26. Upon information and belief, Plaintiff drafted the Operating Agreement it seeks to enforce. To the extent that any ambiguity exists in the Operating Agreement, or in any of its terms, 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 unlawful withholding of compensation from Ms. Bowe and collection of Ms. Bowe's percentage 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 if fully set forth herein. 29. On or about November 23, 2020, Ms. Bowe entered into an Of Counsel Agreement 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 promised continued compensation for clients which she originated for the benefit of CC&F, and that compensation was included in 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 it no 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 06/18/2021 01/13/2023 12:10 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 3 80 RECEIVED NYSCEF: 06/18/2021 01/13/2023 33. CC&F refused to provide to Ms. Bowe compensation rightfully earned under the terms of the Of Counsel Agreement. 34. By these actions and by failing to fulfill its contractual obligations, CC&F's actions and omissions constituted a breach of the terms of the Of Counsel Agreement. 35. As a direct result of CC&F's 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 if fully set forth herein. 37. CC&F was bound by the implied covenant of good faith and fair dealing, pursuant to which neither party to a contract shall do anything which has the effect of destroying or injuring the right of the other party to receive the fruits of the contract. 38. Upon information and belief, CC&F's actions and omissions were taken 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&F's breach of the implied duty of good faith and fair dealing, Ms. Bowe has suffered damages, including monetary damages in an amount to be determined at trial. AS AND FOR A THIRD COUNTERCLAIM (CONVERSION) 40. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as if fully set forth herein. 41. Following Ms. Bowe's separation from CC&F as a Partner, Ms. Bowe entered into an Of Counsel relationship with the firm. {8512203: } 6 6 of 11 FILED: ONONDAGA COUNTY CLERK 06/18/2021 01/13/2023 12:10 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 3 80 RECEIVED NYSCEF: 06/18/2021 01/13/2023 42. Pursuant to the Of Counsel relationship, Ms. Bowe was contractually entitled to receive a percentage compensation for work performed by other CC&F attorneys on client matters for clients for whom she was responsible for originating. 43. CC&F advised Ms. Bowe that it would not pay her any compensation earned by Ms. Bowe pursuant to the Of Counsel Agreement. 44. Upon information and belief, CC&F's actions were taken intentionally to convert clients originated by Ms. Bowe and deprive her of all legal title to or interest in the origination fees and other compensation agreed upon. 45. By virtue of the foregoing, Ms. Bowe has been damaged by CC&F in an amount to be determined at a trial of this matter based upon the value of legal services rendered to the wrongfully converted clients, together with interest thereon. AS AND FOR A FOURTH COUNTERCLAIM (QUANTUM MERUIT) 46. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as if fully 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, knowing that Ms. Bowe expected to be compensated for them. 49. CC&F has refused to pay Ms. Bowe for the value of the legal services and other consideration, and Ms. Bowe has not received the value of the payment or merit that she is entitled to. 50. By virtue of the foregoing, Ms. Bowe has been damaged in an amount to be determined at a trial of this matter. {8512203: } 7 7 of 11 FILED: ONONDAGA COUNTY CLERK 06/18/2021 01/13/2023 12:10 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 3 80 RECEIVED NYSCEF: 06/18/2021 01/13/2023 AS AND FOR A FIFTH COUNTERCLAIM (BREACH OF THE OPERATING AGREEMENT) 51. Ms. Bowe repeats, realleges, and reincorporates each of the foregoing paragraphs as if fully set forth herein. 52. Upon information and belief, Ms. Bowe entered into a valid contract 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 account from a former partner. 54. Upon information and belief, CC&F's actions and inactions in attempting to collect a claimed debt from Ms. Bowe constitute a breach of contract of the Operating Agreement, together with additional acts and omissions 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 if fully set forth herein. 57. In the alternative, Ms. Bowe sets forth this claim 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, including the ability to obtain profit on clients originated by Ms. Bowe, and knowingly accepting those benefits without any intention of fairly compensating Ms. Bowe for those benefits, CC&F has been unjustly enriched. {8512203: } 8 8 of 11 FILED: ONONDAGA COUNTY CLERK 06/18/2021 01/13/2023 12:10 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 3 80 RECEIVED NYSCEF: 06/18/2021 01/13/2023 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 relationships with clients for the benefit of CC&F was illusory. 60. CC&F has been unjustly enriched by obtaining Ms. Bowe's substantial labor, work product, skills, time, and business contacts. 61. As a result of the foregoing, Ms. Bowe has sustained actual damages for which CC&F is liable, and Ms. Bowe is entitled to disgorgement of the monetary value of all of the benefits received by CC&F from her without fair and equitable compensation. 62. As result of the foregoing, Ms. Bowe seeks an award of damages for compensatory damages with costs, expenses, and attorneys' fees in an amount to be determined at trial. WHEREFORE, Ms. Bowe respectfully requests judgment dismissing the Complaint in its entirety, and, if a 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 amount 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 judgment for the costs and disbursements of this action, attorneys' 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 06/18/2021 01/13/2023 12:10 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 3 80 RECEIVED NYSCEF: 06/18/2021 01/13/2023 DATED: June 15, 2021 Rochester, New York WOODS OVIATT GILMAN LLP By: s:/ Greta K. Kolcon Greta K. Kolcon, Esq. Attorneysfor 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 06/18/2021 01/13/2023 12:10 03:24 PM INDEX NO. 003917/2021 NYSCEF DOC. NO. 3 80 RECEIVED NYSCEF: 06/18/2021 01/13/2023 ATTORNEY VERIFICATION STATE OF NEW YORK ) COUNTY OF MONROE ) ss.: Greta K. Kolcon, Esq., being duly sworn, deposes and says that she is an attorney admitted to practice in the State of New 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 deponent, except as to matters alleged upon information and belief, and as to those matters, deponent believes the allegations are true. The basis for deponent's belief is her review of documents related to this action, as well as communications with the Defendant's officers 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 i5 day of June, 2021. ilqUADOMaA Not P Public JENNIFER M. SCHAUERMAN Notary Public, State of New York Qualified In Monroe County No. 02SC6284871 Commission Expires July 2, 2024 {8512203:} 11 11 of 11