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FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023
EXHIBIT G
FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
WASSERSTEIN ENTERPRISES LLC,
Plaintiff, Index No. 653391/2022
-against-
AMENDED VERIFIED ANSWER
JOSEPH A. PETRILLO, JR., WITH AFFIRMATIVE DEFENSES
Defendant.
Defendant JOSEPH A. PETRILLO, JR. (“Defendant”), by its attorneys, Sanvenero &
Cittadino, LLC., as and for its Amended Answer against Plaintiff WASSERSTEIN
ENTERPRISES LLC, alleges as follows:
1. Answering defendant denies the truth of each and every allegation contained in
the paragraphs numbered as “1”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”,
“17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, “25”, “26”, “27”, “28”, “29”, “30” “31”, “32”
“33” and “34” of the complaint, and refers all questions of law to the court and all questions of
fact to the trier thereof.
2. Answering defendant denies knowledge and information sufficient to form a
belief as to the truth of each and every allegation contained in the paragraph numbered as “2” “3”
and “4”, of the complaint, and refers all questions of law to the court and all questions of fact to
the trier thereof.
3. Answering defendant admits the truth of each and every allegation contained in
the paragraphs numbered as “5” of the complaint and refers all questions of law to the court and
all questions of fact to the trier thereof.
FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022
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AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION
4. With respect to the paragraph numbered as “35” of the complaint, answering
defendant repeats, reiterates and realleges each and every admission and denial set forth in the
paragraphs numbered as “1” through “4” of this verified answer with the same force and effect as
if fully asserted at length in full herein.
5. Answering defendant denies the truth of each and every allegation contained in
the paragraphs numbered as “36”, “37”, “38”, “39”, “40”, “41” and “42” of the complaint, and
refers all questions of law to the court and all questions of fact to the trier thereof.
AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION
6. With respect to the paragraph numbered as “43” of the complaint, answering
defendant repeats, reiterates and realleges each and every admission and denial set forth in the
paragraphs numbered as “1” through “4” of this verified answer with the same force and effect as
if fully asserted at length in full herein.
7. Answering defendant denies the truth of each and every allegation contained in
the paragraph numbered as “44”, “45” and “46” of the complaint and refers all questions of law
to the court and all questions of fact to the trier thereof.
AFFIRMATIVE DEFENSES
With respect to Petrillo’s affirmative defenses below, Petrillo repeats and realleges each
admission, denial and averment above, as well as each allegation set forth herein.
FIRST AFFIRMATIVE DEFENSE
1. Plaintiff fails to state a cause of action upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
2. Plaintiff’s claims are barred by documentary evidence.
FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022
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THIRD AFFIRMATIVE DEFENSE
3. Plaintiff’s complaint is time-barred by the Statute of Limitations.
FOURTH AFFIRMATIVE DEFENSE
4. Plaintiff’s complaint is barred by the doctrine of estoppel.
FIFTH AFFIRMATIVE DEFENSE
5. Plaintiff’s complaint is barred by the doctrine of laches.
SIXTH AFFIRMATIVE DEFENSE
6. Plaintiff’s complaint is barred by the doctrine of waiver.
SEVENTH AFFIRMATIVE DEFENSE
7. Plaintiff’s complaint is barred by the doctrine of unclean hands.
EIGHTH AFFIRMATIVE DEFENSE
8. Plaintiff failed to mitigate their alleged damages.
NINTH AFFIRMATIVE DEFENSE
9. Plaintiff’s complaint is barred by the doctrine of ratification.
TENTH AFFIRMATIVE DEFENSE
10. Plaintiff lacks capacity to sue.
ELEVENTH AFFIRMATIVE DEFENSE
11. Plaintiff’s complaint is barred by the doctrine of mistake.
TWELFTH AFFIRMATIVE DEFENSE
12. Plaintiff failed to join a necessary and indispensable party (Presher Fitness NY
LLC, the “Tenant”) to the lease agreement and therefore the complaint must be dismissed.
THIRTEENTH AFFIRMATIVE DEFENSE
13. Plaintiff lack standing to bring one or more of the causes of action set forth in the
FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023
complaint.
FOURTEENTH AFFIRMATIVE DEFENSE
14. Plaintiff’s claims are barred by the doctrine of setoff.
FIFTEENTH AFFIRMATIVE DEFENSE
15. The damages alleged to have been sustained by Plaintiff were caused by the
wrongdoing and culpable conduct of Plaintiff and such conduct requires diminution of any award,
verdict or judgment that Plaintiff may recover against Defendant.
SIXTEENTH AFFIRMATIVE DEFENSE
16. Plaintiff’s claims are barred, in whole or in part, by the doctrine of accord and
satisfaction.
SEVENTEENTH AFFIRMATIVE DEFENSE
17. Plaintiff’s claims are barred due to lack of consideration.
EIGHTEENTH AFFIRMATIVE DEFENSE
18. Plaintiff’s claims are barred by frustration of purpose. On behalf of the State of
New York, Governor Cuomo issued Executive Orders ceasing all operations of gyms/fitness
centers, frustrating the main purpose of the Lease Agreement and Guaranty at issue in that
Defendant was unable to perform.
NINETEENTH AFFIRMATIVE DEFENSE
19. Plaintiff’s claims are barred by impossibility. On behalf of the State of New York,
Governor Cuomo issued Executive Orders ceasing all operations of gyms/fitness centers, making
it impossible for Defendant to perform.
TWENTIETH AFFIRMATIVE DEFENSE
20. Plaintiff’s claims are barred by impracticability. On behalf of the State of New
FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023
York, Governor Cuomo issued Executive Orders ceasing all operations of gyms/fitness centers,
making it impracticable for Defendant to perform.
TWENTY-FIRST AFFIRMATIVE DEFENSE
21. Plaintiff’s claims are barred by unconscionability. On behalf of the State of New
York, Governor Cuomo issued Executive Orders ceasing all operations of gyms/fitness centers,
making it unconscionable for Defendant to perform.
TWENTY-SECOND AFFIRMATIVE DEFENSE
22. Plaintiff’s claim is barred by the statute of limitations.
TWENTY-THIRD AFFIRMATIVE DEFENSE
23. Defendant reserves its right to amend this Amended Answer to assert additional
defenses on the completion of its investigation and discovery.
WHEREFORE, defendant, JOSEPH A. PETRILLO, JR., demands judgment
dismissing plaintiff’s complaint in its entirety, over and together with the costs and disbursements
of this action and granting Defendant such other relief as the Court deems just and proper.
To the best of my knowledge, information and belief, formed after an inquiry reasonable under the
circumstances, the presentation of this paper of contentions herein are not frivolous, as that term
is defined in Part 130 of the Court Rules.
Dated: Red Bank, New Jersey SANVENERO & CITTADINO, LLC
January 17, 2023 Attorneys for Defendant
___________________________________
JOSHUA P. CITTADINO, ESQ.
228 Maple Avenue
Red Bank, NJ 07701
(732)743-9665
FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023
VERIFICATION
STATE OF NEW JERSEY )
) ss:
COUNTY OF MONMOUTH )
JOSHUA P. CITTADINO, ESQ., being duly sworn, states that he is a member of the law
firm of SANVENERO & CITTADINO LLC attorneys for the defendant JOSEPH A.
PETRILLO in this action, and that the foregoing AMENDED VERIFIED ANSWER WITH
AFFIRMATIVE DEFENSES, is true to his knowledge, except as to those matters therein stated
upon information and belief, and as to those matters he believes them to be true; that the grounds
of his belief as to all matters not stated upon his knowledge are correspondence and other writings
furnished by the answering defendant and other documentation maintained in the office of its
attorneys.
Dated: Red Bank, New Jersey
January 17, 2023
__________________________________
JOSHUA P. CITTADINO, ESQ.
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FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023 EXHIBIT G FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK WASSERSTEIN ENTERPRISES LLC, Plaintiff, Index No. 653391/2022 -against- AMENDED VERIFIED ANSWER JOSEPH A. PETRILLO, JR., WITH AFFIRMATIVE DEFENSES Defendant. Defendant JOSEPH A. PETRILLO, JR. (“Defendant”), by its attorneys, Sanvenero & Cittadino, LLC., as and for its Amended Answer against Plaintiff WASSERSTEIN ENTERPRISES LLC, alleges as follows: 1. Answering defendant denies the truth of each and every allegation contained in the paragraphs numbered as “1”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, “25”, “26”, “27”, “28”, “29”, “30” “31”, “32” “33” and “34” of the complaint, and refers all questions of law to the court and all questions of fact to the trier thereof. 2. Answering defendant denies knowledge and information sufficient to form a belief as to the truth of each and every allegation contained in the paragraph numbered as “2” “3” and “4”, of the complaint, and refers all questions of law to the court and all questions of fact to the trier thereof. 3. Answering defendant admits the truth of each and every allegation contained in the paragraphs numbered as “5” of the complaint and refers all questions of law to the court and all questions of fact to the trier thereof. FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023 AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION 4. With respect to the paragraph numbered as “35” of the complaint, answering defendant repeats, reiterates and realleges each and every admission and denial set forth in the paragraphs numbered as “1” through “4” of this verified answer with the same force and effect as if fully asserted at length in full herein. 5. Answering defendant denies the truth of each and every allegation contained in the paragraphs numbered as “36”, “37”, “38”, “39”, “40”, “41” and “42” of the complaint, and refers all questions of law to the court and all questions of fact to the trier thereof. AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION 6. With respect to the paragraph numbered as “43” of the complaint, answering defendant repeats, reiterates and realleges each and every admission and denial set forth in the paragraphs numbered as “1” through “4” of this verified answer with the same force and effect as if fully asserted at length in full herein. 7. Answering defendant denies the truth of each and every allegation contained in the paragraph numbered as “44”, “45” and “46” of the complaint and refers all questions of law to the court and all questions of fact to the trier thereof. AFFIRMATIVE DEFENSES With respect to Petrillo’s affirmative defenses below, Petrillo repeats and realleges each admission, denial and averment above, as well as each allegation set forth herein. FIRST AFFIRMATIVE DEFENSE 1. Plaintiff fails to state a cause of action upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 2. Plaintiff’s claims are barred by documentary evidence. FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023 THIRD AFFIRMATIVE DEFENSE 3. Plaintiff’s complaint is time-barred by the Statute of Limitations. FOURTH AFFIRMATIVE DEFENSE 4. Plaintiff’s complaint is barred by the doctrine of estoppel. FIFTH AFFIRMATIVE DEFENSE 5. Plaintiff’s complaint is barred by the doctrine of laches. SIXTH AFFIRMATIVE DEFENSE 6. Plaintiff’s complaint is barred by the doctrine of waiver. SEVENTH AFFIRMATIVE DEFENSE 7. Plaintiff’s complaint is barred by the doctrine of unclean hands. EIGHTH AFFIRMATIVE DEFENSE 8. Plaintiff failed to mitigate their alleged damages. NINTH AFFIRMATIVE DEFENSE 9. Plaintiff’s complaint is barred by the doctrine of ratification. TENTH AFFIRMATIVE DEFENSE 10. Plaintiff lacks capacity to sue. ELEVENTH AFFIRMATIVE DEFENSE 11. Plaintiff’s complaint is barred by the doctrine of mistake. TWELFTH AFFIRMATIVE DEFENSE 12. Plaintiff failed to join a necessary and indispensable party (Presher Fitness NY LLC, the “Tenant”) to the lease agreement and therefore the complaint must be dismissed. THIRTEENTH AFFIRMATIVE DEFENSE 13. Plaintiff lack standing to bring one or more of the causes of action set forth in the FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023 complaint. FOURTEENTH AFFIRMATIVE DEFENSE 14. Plaintiff’s claims are barred by the doctrine of setoff. FIFTEENTH AFFIRMATIVE DEFENSE 15. The damages alleged to have been sustained by Plaintiff were caused by the wrongdoing and culpable conduct of Plaintiff and such conduct requires diminution of any award, verdict or judgment that Plaintiff may recover against Defendant. SIXTEENTH AFFIRMATIVE DEFENSE 16. Plaintiff’s claims are barred, in whole or in part, by the doctrine of accord and satisfaction. SEVENTEENTH AFFIRMATIVE DEFENSE 17. Plaintiff’s claims are barred due to lack of consideration. EIGHTEENTH AFFIRMATIVE DEFENSE 18. Plaintiff’s claims are barred by frustration of purpose. On behalf of the State of New York, Governor Cuomo issued Executive Orders ceasing all operations of gyms/fitness centers, frustrating the main purpose of the Lease Agreement and Guaranty at issue in that Defendant was unable to perform. NINETEENTH AFFIRMATIVE DEFENSE 19. Plaintiff’s claims are barred by impossibility. On behalf of the State of New York, Governor Cuomo issued Executive Orders ceasing all operations of gyms/fitness centers, making it impossible for Defendant to perform. TWENTIETH AFFIRMATIVE DEFENSE 20. Plaintiff’s claims are barred by impracticability. On behalf of the State of New FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023 York, Governor Cuomo issued Executive Orders ceasing all operations of gyms/fitness centers, making it impracticable for Defendant to perform. TWENTY-FIRST AFFIRMATIVE DEFENSE 21. Plaintiff’s claims are barred by unconscionability. On behalf of the State of New York, Governor Cuomo issued Executive Orders ceasing all operations of gyms/fitness centers, making it unconscionable for Defendant to perform. TWENTY-SECOND AFFIRMATIVE DEFENSE 22. Plaintiff’s claim is barred by the statute of limitations. TWENTY-THIRD AFFIRMATIVE DEFENSE 23. Defendant reserves its right to amend this Amended Answer to assert additional defenses on the completion of its investigation and discovery. WHEREFORE, defendant, JOSEPH A. PETRILLO, JR., demands judgment dismissing plaintiff’s complaint in its entirety, over and together with the costs and disbursements of this action and granting Defendant such other relief as the Court deems just and proper. To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this paper of contentions herein are not frivolous, as that term is defined in Part 130 of the Court Rules. Dated: Red Bank, New Jersey SANVENERO & CITTADINO, LLC January 17, 2023 Attorneys for Defendant ___________________________________ JOSHUA P. CITTADINO, ESQ. 228 Maple Avenue Red Bank, NJ 07701 (732)743-9665 FILED: NEW YORK COUNTY CLERK 01/17/2023 10:59 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/17/2023 VERIFICATION STATE OF NEW JERSEY ) ) ss: COUNTY OF MONMOUTH ) JOSHUA P. CITTADINO, ESQ., being duly sworn, states that he is a member of the law firm of SANVENERO & CITTADINO LLC attorneys for the defendant JOSEPH A. PETRILLO in this action, and that the foregoing AMENDED VERIFIED ANSWER WITH AFFIRMATIVE DEFENSES, is true to his knowledge, except as to those matters therein stated upon information and belief, and as to those matters he believes them to be true; that the grounds of his belief as to all matters not stated upon his knowledge are correspondence and other writings furnished by the answering defendant and other documentation maintained in the office of its attorneys. Dated: Red Bank, New Jersey January 17, 2023 __________________________________ JOSHUA P. CITTADINO, ESQ.