Answer: Melange Registered Nurse And Nurse Practitioner In Family Health Pllc v. Margarita Shub

On April 13, 2022 a Answer was filed involving a dispute between Melange Registered Nurse And Nurse Practitioner In Family Health, Melange Registered Nurse And Nurse Practitioner In Family Health Pllc, and Margarita Shub, for Commercial - Contract in the District Court of Rockland County.

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FILED: ROCKLAND COUNTY CLERK 01/26/2023 12:31 PM INDEX NO. 031650/2022
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/26/2023

Preston J. Postlethwaite, Esq.
THE POSTLETHWAITE LAW FIRM PLLC
450 Park Avenue South, 3rd Floor
New York, New York 10016
PJP@postlethwaitelaw.com

Attorneys for Defendant
Margarita Shub

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
MELANGE REGISTERED NURSE AND NURSE Index No. 031650/2022
PRACTITIONER IN FAMILY HEALTH, PLLC,
The Honorable Thomas P. Zugibe, J.S.C.
Plaintiff,
ANSWER TO AMENDED
-against- COMPLAINT WITH AFFIRMATIVE
DEFENSES
MARGARITA SHUB,
JURY TRIAL DEMANDED
Defendant.

Defendant Margarita Shub (“Shub” or “Defendant”), by her undersigned counsel of

record, The Postlethwaite Law Firm PLLC, hereby answers the Amended Complaint (the

“Complaint”), and asserts affirmative defenses against Plaintiff Melange Registered Nurse and

Nurse Practitioner in Family Health, PLLC (“Plaintiff”), as follows:

ANSWER

NATURE OF THE ACTION

1. Denies the allegations in paragraph 1 of the Complaint.

PARTIES

2. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 2 of the Complaint.

3. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 3 of the Complaint.

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4. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 4 of the Complaint.

5. Denies the allegations in paragraph 5 of the Complaint.

6. Denies the allegations in paragraph 6 of the Complaint.

7. Admits that Shub is a Registered Nurse licensed in New York and New Jersey, and further

admits that Shub worked as a Registered Nurse in New Jersey, but denies knowledge or

information sufficient to form a belief concerning Shub’s work as a Registered Nurse in New

Jersey during “all relevant times set forth” as alleged in paragraph 7 of the Complaint.

8. Denies the allegations in paragraph 8 of the Complaint.

9. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 9 of the Complaint, and otherwise respectfully refers all questions of

law concerning Shub’s status as an independent contractor or employee as contained in this

paragraph 9 to the Court.

VENUE

10. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 10 of the Complaint, and otherwise respectfully refers all questions

of law as contained in this paragraph 10 to the Court.

FACTS

11. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 11 of the Complaint, and otherwise respectfully refers all questions

of law concerning Shub’s business relationship with Plaintiff as that of an independent

contractor as contained in this paragraph 11 to the Court.

12. Denies the allegations in paragraph 12 of the Complaint.

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13. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 13 of the Complaint, and otherwise respectfully refers all questions

of law concerning whether Shub entered into the agreement purporting to be a

“Confidentiality/Security Agreement” as contained in this paragraph 13 to the Court.

14. Denies the allegations in paragraph 14 of the Complaint.

15. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 15 of the Complaint, and otherwise respectfully refers all questions

of law concerning whether Shub “agreed” to any of the terms of the purported

“Confidentiality/Security Agreement” as contained in this paragraph 15 to the Court.

16. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 16 of the Complaint, and otherwise respectfully refers all questions

of law concerning whether Shub entered into the agreement purporting to be a “Covenant

Not to Compete and Confidentiality Agreement” as contained in this paragraph 16 to the

Court.

17. Denies the allegations in paragraph 17 of the Complaint.

18. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 18 of the Complaint and, otherwise, the terms of the purported

“Covenant Not to Compete Agreement” and “Confidentiality Agreement” speak for

themselves.

19. Denies the allegations in paragraph 19 of the Complaint, and otherwise respectfully refers all

questions of law concerning whether the “Covenant Not to Compete Agreement” and

“Confidentiality Agreement” provide for any restrictions or limitations as contained in this

paragraph 19 to the Court.

20. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 20 of the Complaint and, otherwise, the terms of the purported
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“Covenant Not to Compete Agreement” and “Confidentiality Agreement” speak for

themselves.

21. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 21 of the Complaint and, otherwise, the terms of the purported

“Covenant Not to Compete Agreement” and “Confidentiality Agreement” speak for

themselves.

22. Denies the allegations in paragraph 22 of the Complaint.

23. Denies the allegations in paragraph 23 of the Complaint.

24. Admits that on or about March 2021, Shub advised an agent of Plaintiff that Shub was

considering opening a facility providing general spa services, but otherwise denies the

allegations in paragraph 24 of the Complaint.

25. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 25 of the Complaint.

26. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 26 of the Complaint.

27. Denies the allegations in paragraph 27 of the Complaint.

28. Denies the allegations in paragraph 28 of the Complaint.

29. Denies the allegations in paragraph 29 of the Complaint.

30. Denies the allegations in paragraph 30 of the Complaint.

31. Denies the allegations in paragraph 31 of the Complaint.

32. Denies the allegations in paragraph 32 of the Complaint.

ANSWERING THE FIRST CAUSE OF ACTION

33. Shub repeats and realleges her responses to paragraphs 1 – 32 of the Complaint, denies the

allegations in paragraph 33 of the Complaint, and otherwise respectfully refers all questions

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of law concerning the existence of a breach of the “Covenant Not to Compete Agreement”

and “Confidentiality Agreement” as contained in this paragraph 33 to the Court.

34. Denies the allegations in paragraph 34 of the Complaint, and otherwise respectfully refers all

questions of law concerning the existence of a violation of the “Covenant Not to Compete

Agreement” and “Confidentiality Agreement” as contained in this paragraph 34 to the Court.

35. Denies the allegations in paragraph 35 of the Complaint, and otherwise respectfully refers all

questions of law concerning the existence of a violation of the “Covenant Not to Compete

Agreement” and “Confidentiality Agreement” as contained in this paragraph 35 to the Court.

36. Denies the allegations in paragraph 36 of the Complaint.

ANSWERING THE SECOND CAUSE OF ACTION

37. Shub repeats and realleges her responses to paragraphs 1 – 36 of the Complaint.

38. Denies the allegations in paragraph 38 of the Complaint, and otherwise respectfully refers all

questions of law concerning the existence of agreements purporting to be the “Covenant Not

to Compete Agreement” and the “Confidentiality Agreement” as contained in this paragraph

38 to the Court.

39. Denies the allegations in paragraph 39 of the Complaint.

40. Denies the allegations in paragraph 40 of the Complaint.

41. Denies the allegations in paragraph 41 of the Complaint, and otherwise respectfully refers all

questions of law concerning the existence of a violation of the “Confidentiality and Security

Agreement” as contained in this paragraph 41 to the Court.

42. Denies the allegations in paragraph 42 of the Complaint.

ANSWERING THE THIRD CAUSE OF ACTION

43. Shub repeats and realleges her responses to paragraphs 1 – 42 of the Complaint.

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44. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 44 of the Complaint, and otherwise respectfully refers all questions

of law concerning Shub’s business relationship with Plaintiff as that of an independent

contractor as contained in this paragraph 44 to the Court.

45. Denies the allegations in paragraph 45 of the Complaint.

46. Denies the allegations in paragraph 46 of the Complaint.

47. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 47 of the Complaint and, otherwise, the terms of the purported

“Independent Contractor Agreement” speaks for itself.

48. Denies knowledge or information sufficient to form a belief concerning the truth of the

allegations in paragraph 48 of the Complaint and, otherwise, the terms of the purported

“Independent Contractor Agreement” speaks for itself.

49. Denies the allegations in paragraph 49 of the Complaint.

ANSWERING THE FOURTH CAUSE OF ACTION

50. Shub repeats and realleges her responses to paragraphs 1 – 49 of the Complaint.

51. Denies the allegations in paragraph 51 of the Complaint, and otherwise respectfully refers all

questions of law concerning the existence of a fiduciary relationship between the parties as

contained in this paragraph 51 to the Court.

52. Denies the allegations in paragraph 52 of the Complaint, and otherwise respectfully refers all

questions of law concerning the existence of an adequate remedy at law as contained in this

paragraph 52 to the Court.

ANSWERING THE FIFTH CAUSE OF ACTION

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Dismissed per Decision and Order (Hon. Thomas P. Zugibe, J.S.C., dated December

28, 2022).

DEMAND FOR RELIEF

Shub responds to Plaintiff’s Demand for Relief as follows:

Denies that Plaintiff is entitled to any of the relief Plaintiff seeks in paragraphs 1, 2, 3,

and 4.

SHUB’S AFFIRMATIVE DEFENSES

Shub asserts the following affirmative and other defenses as follows:

FIRST AFFIRMATIVE DEFENSE

1. Plaintiff’s claims are barred in whole or in part as the Complaint fails to state a cause of

action against Shub upon which relief may be granted for breach of contract of the covenant

not to compete and confidentiality agreement; breach of contract of confidentiality and

security agreement; breach of independent contractor agreement; and accounting.

SECOND AFFIRMATIVE DEFENSE

2. Plaintiff’s claims are barred by equitable principles, including, but not limited to, waiver,

estoppel, laches, ratification, the unclean hands doctrine, and the election of remedies

doctrine.

THIRD AFFIRMATIVE DEFENSE

3. Plaintiff’s claims are barred by the doctrine of recoupment.

FOURTH AFFIRMATIVE DEFENSE

4. Plaintiff’s claims are barred by the applicable statute of limitations.

FIFTH AFFIRMATIVE DEFENSE

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5. Plaintiff’s claims are barred to the extent that Plaintiff failed to mitigate or avoid the damages

alleged in the Complaint and if Plaintiff is found to have sustained any damages as alleged in

the Complaint, such damages were caused, aggravated, or contributed to by Plaintiff’s failure

to take reasonable efforts to mitigate damages, and any award made to Plaintiff must be

reduced in such proportion and to the extent that the injuries complained of were caused,

aggravated, or contributed to by Plaintiff’s failure to mitigate or avoid damages.

SIXTH AFFIRMATIVE DEFENSE

6. Plaintiff’s claims are barred because they are duplicative of each other.

SEVENTH AFFIRMATIVE DEFENSE

7. Plaintiff’s claims are barred because any recovery from Shub would result in the unjust

enrichment of Plaintiff.

EIGHTH AFFIRMATIVE DEFENSE

8. Plaintiff’s claims are barred because no confidential relationship or fiduciary relationship

existed between Plaintiff and Shub.

NINTH AFFIRMATIVE DEFENSE

9. Any damages Plaintiff suffered as alleged in the Complaint were caused in whole or in part

by culpable conduct of third parties who did not act under Shub’s supervision or control.

TENTH AFFIRMATIVE DEFENSE

10. Plaintiff is not entitled to attorneys’ fees because there exists no contractual or statutory

provision entitling Plaintiff to attorneys’ fees.

ELEVENTH AFFIRMATIVE DEFENSE

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11. The Complaint is barred, in whole or in part, because Shub did not breach any legal duty or

obligation owed to Plaintiff.

TWELFTH AFFIRMATIVE DEFENSE

12. Plaintiff’s claims are barred, in whole or in part, to the extent that any alleged breach was not

the proximate cause of Plaintiff’s injuries alleged.

THIRTEENTH AFFIRMATIVE DEFENSE

13. Plaintiff’s claims are barred by the statute of frauds.

FOURTEENTH AFFIRMATIVE DEFENSE

14. Plaintiff’s claims are barred because the purported agreements and contracts are void or

voidable because the purpose of said purported agreements and contracts was illegal under

state or common law.

FIFTEENTH AFFIRMATIVE DEFENSE

15. This Court lacks subject matter jurisdiction over this matter.

RESERVATION OF RIGHTS

Shub reserves the right to amend her Verified Answer, to add additional defenses, to

withdraw defenses, and to add any claims as they may become necessary after a reasonable

opportunity for appropriate discovery.

SHUB’S PRAYER FOR RELIEF

WHEREFORE, Shub seeks judgment in her favor:

A. Dismissing Plaintiff’s claims in their entirety; and

B. For such other and further relief as may be necessary, just, and proper.

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Dated: New York, New York
January 26, 2023 THE POSTLETHWAITE LAW FIRM PLLC

_______________________________
Preston J. Postlethwaite, Esq.
450 Park Avenue South, 3rd Floor
New York, New York 10016
(646) 389-3202 (phone)
(646) 619-4733 (fax)
PJP@postlethwaitelaw.com
Attorneys for Defendant Margarita Shub

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ATTORNEY CERTIFICATION

I, PRESTON J. POSTLETHWAITE, ESQ., hereby certify, under penalty of perjury and
as an officer of the Court, that to the best of my knowledge, information and belief, formed after
an inquiry reasonable under the circumstances, the presentation of the foregoing paper or the
contentions made therein are not frivolous as defined in subsection (c) of section 130-1.1 of the
Rules of the Chief Administrator of the Courts.

Dated: New York, New York
January 26, 2023
____________________________
Preston J. Postlethwaite, Esq.

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Case Info

Judge

Thomas P Zugibe Track Judge’s New Case

Case No.

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Document Filed Date

January 26, 2023

Case Filing Date

April 13, 2022

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Answer: Melange Registered Nurse And Nurse Practitioner In Family Health Pllc v. Margarita Shub

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