Preview
FILED: KINGS COUNTY CLERK 10/20/2022 05:33 PM INDEX NO. 516855/2022
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/20/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
_ _ _ _ _ - - - - - - ______________ _ _ _ _ _ _ _ _ _ _ _ _ Ç
MMMD WLAN, INDEX NO.: 516855/2022
Plaintiff,
VERIFIED ANSWER AND
COUNTERCLAIMS
-against-
JOSEPH PAUKMAN, LEV PAUKMAN, AVE X
PRIMARY MEDICAL CARE, AVEX TESTING
CORP, AVEX MEDICAL TESTING CORP,
AVEX MEDICAL TESTING, PC, and
AVEX MEDICAL MANAGEMENT, PC,
Defendants.
_ _ _ _ - - - - - - _ ______________ _ _ _ - _ _ - _ _ _ _ _ x
Defendants, by their attorneys, Heller, Horowitz & Feit, P.C., as and for their Verified
Answer to the Plaintiff's Verified Complaint, state as follows:
1. Deny the allegations in paragraphs 1 and 2 of the Complaint.
2. Admit the allegations in paragraphs 3 and 4 of the Complaint.
3. Deny the allegations in paragraph 5 of the Complaint, except admit that Joseph
Paukman was a 1099 independent contractor Avex who worked off-site.
4. Deny the allegations in paragraph 6 of the Complaint, except admit that Lev Paukman
exercises control over the subject entities.
5. Deny the allegations in paragraph 7 of the Complaint, except admit that Lev Paukman
had ultimate supervisory control over Plaintiff.
6. Deny the allegations in paragraphs 8 and 9 of the Complaint, except admit that the
Defendants are subject to the personal jurisdiction of this Court and that venue is proper in this
Court.
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7. Deny the allegations in paragraph 9 of the Complaint, except admit that Plaintiff
began to perform certain functions for the benefit of Defendants in or about November 2020.
8. Admit the allegations in paragraph 11 of the Complaint.
9. Deny the allegations in paragraph 12 of the Complaint, except admit that there were
parties'
no written contracts or written restrictive covenants governing the relationship, but that such
relationship was governed by a number of implied in law and implied in fact obligations on the part
of Plaintiff, including a duty of loyalty and a duty not to exploit confidential and proprietary business
or patient information belonging to Defendants that was acquired in the course of Plaintiff's
performance of work for Defendants.
10. Deny the allegations in paragraph 13 of the Complaint.
11. Admit the allegations in paragraph 14 of the Complaint.
12. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 15 of the Complaint.
13. Deny the allegations in paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28,
29, 30, 31, 34, 35, 36 and 37 of the Complaint.
14. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraphs 32, 33 and 38 of the Complaint.
15. In response to paragraph 39 of the Complaint, refer to the charging documents and the
Order of Protection and the conviction documents, and state that Joseph Paukman pled guilty to such
charge of disorderly conduct.
16. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 40 of the Complaint.
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17. Deny the allegations in paragraph 41 of the Complaint, except admit that in or about
December 2021, Plaintiff's business relationship with Defendants was voluntarily terminated by
Plaintiff.
18. Deny the allegations in paragraphs 42, 43 and 44 of the Complaint, except admit that
Joseph Paukman commenced litigation against Plaintiff after the Order of Protection was issued, and
refers to the pleadings.
19. Deny the allegations in paragraphs 46, 47 and 48 of the Complaint.
20. Deny the allegations in paragraph 49 of the Complaint, except admit that Plaintiff has
filed an action in Richmond County.
21. Deny the allegations in paragraphs 51, 52, 54, 55, 56, 57, 58, 60, 61, 62, 63, 64, 65,
66, 67, 68, 69, 72 and 73 of the Complaint.
22. Admit the allegations in paragraph 75 of the Complaint.
23. Deny the allegations in paragraph 76 of the Complaint, except admit that Avex
accepted Plaintiff's performance of a service, and state further that Plaintiff breached his duty of
loyalty to Avex by using confidential patient information acquired while performing a service for
Axex for the purpose of soliciting such patients for his own economic benefit.
24. Deny the allegations in paragraphs 77, 78, 80, 81, 83 and 84 of the Complaint.
25. Admit the allegations in paragraph 86 of the Complaint.
26. Deny the allegations in paragraphs 87, 88, 89, 90, 91, 92, 94, 95, 96, 97, 98, 99, 100,
101, 102, 103 and 104 of the Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
27. Any recovery against any Defendants other than Joseph Paukman is barred or limited
by CPLR 1601.
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AS AND FOR A SECOND AFFIRMATIVE DEFENSE
28. Joseph Paukman did not commit any of the acts alleged in the Complaint, or make
any of the statements alleged in the Complaint, within the scope of the performance of any
employment or other business relationship which he had with any of the other Defendants.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
29. Plaintiff was an independent contractor of only Avex, and had no relationship of any
kind with, and was not owed a duty by, any of the other Defendants.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
30. Lev Paukman conducted all of his business affairs through the Defendant entities and
accordingly has no personal liability for any of the acts alleged in the Complaint. Nor does Lev
Paukman individually owe a duty of any kind to the Plaintiff.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
31. Joseph Paukman was not an independent contractor or employee of any of the
"hired" "retained"
Defendants besides Avex, and was not or by any of the other Defendants.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
32. Plaintiff is barred from any recovery by virtue of his wrongful and unlawful conduct
in obtaining confidential business information while performing services for Avex concerning
patients, which information was thereafter wrongfully exploited by Plaintiff for his own economic
benefit.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
33. The claims are barred because the Plaintiff's exclusive remedy is through the Workers
Compensation Law.
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AS AND FOR A FIRST COUNTERCLAIM AGAINST PLAINTIFF
34. In the course of his performance of duties on behalf of Avex, Plaintiff had access to
confidential and proprietary information concerning the clients/patients of Defendants.
35. Under applicable law, Plaintiff was under a duty to keep such information
confidential and not to make use of such confidential information for his own financial benefit.
36. In breach of his legal duties, Plaintiff, aided and abetted by non-party Kateryna Rud,
made use of such confidential and proprietary information for the purpose of soliciting such
clients/patients for his own business practice, resulting in injury to Defendants.
37. As a result, Defendants are entitled to recover damages in an amount to be determined
at trial.
AS AND FOR A SECOND COUNTERCLAIM AGAINST PLAINTIFF
38. Under his agreement with Avex, Plaintiff was obligated to work at the office of
Defendants five days per week.
39. In material breach and violation of his obligations under his agreement, Plaintiff only
worked at the office of Defendants four days per week, although receiving compensation for a five-
day week.
40. As a result, Defendants have been damaged, and Plaintiff has been unjustly enriched,
in the approximate amount of $30,000.
WHEREFORE, Defendants demand judgment dismissing the Complaint; an award of
Defendants'
damages on two Counterclaim; and for such other and further relief as to the Court may
seem just and proper.
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Dated: New York, New York
October 19, 2022
HELLER, HOROWITZ & FEIT, P.C.
Stuart A. Blander
Attorneysfor Cefendants
260 Madison Avenue, 17 Floor
New York, New York 10016
(212) 685-7600
(917) 282-4163
sablander@hhandf.com
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VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF KINGS )
LEV PAUKMAN. being duly sworn, deposes and says:
I am one of the defendants in this Action. I have read the annexed Answer to the
Complaint and know the contents thereof and the same is true to my knowledge, information and
belief.
LEV PAUKMAN
Subscribed and sworn to before me
thi day of October, 2022.
EUCARYSS MARTINEZ
'
Notary Public - State of New York
NO. 01MA6348755
Qualffled in Bronx County
My Commission Expires Oct 3, 2024
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Preview
FILED: KINGS COUNTY CLERK 10/20/2022 05:33 PM INDEX NO. 516855/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/20/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS _ _ _ _ _ - - - - - - ______________ _ _ _ _ _ _ _ _ _ _ _ _ Ç MMMD WLAN, INDEX NO.: 516855/2022 Plaintiff, VERIFIED ANSWER AND COUNTERCLAIMS -against- JOSEPH PAUKMAN, LEV PAUKMAN, AVE X PRIMARY MEDICAL CARE, AVEX TESTING CORP, AVEX MEDICAL TESTING CORP, AVEX MEDICAL TESTING, PC, and AVEX MEDICAL MANAGEMENT, PC, Defendants. _ _ _ _ - - - - - - _ ______________ _ _ _ - _ _ - _ _ _ _ _ x Defendants, by their attorneys, Heller, Horowitz & Feit, P.C., as and for their Verified Answer to the Plaintiff's Verified Complaint, state as follows: 1. Deny the allegations in paragraphs 1 and 2 of the Complaint. 2. Admit the allegations in paragraphs 3 and 4 of the Complaint. 3. Deny the allegations in paragraph 5 of the Complaint, except admit that Joseph Paukman was a 1099 independent contractor Avex who worked off-site. 4. Deny the allegations in paragraph 6 of the Complaint, except admit that Lev Paukman exercises control over the subject entities. 5. Deny the allegations in paragraph 7 of the Complaint, except admit that Lev Paukman had ultimate supervisory control over Plaintiff. 6. Deny the allegations in paragraphs 8 and 9 of the Complaint, except admit that the Defendants are subject to the personal jurisdiction of this Court and that venue is proper in this Court. 1 1 of 7 FILED: KINGS COUNTY CLERK 10/20/2022 05:33 PM INDEX NO. 516855/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/20/2022 7. Deny the allegations in paragraph 9 of the Complaint, except admit that Plaintiff began to perform certain functions for the benefit of Defendants in or about November 2020. 8. Admit the allegations in paragraph 11 of the Complaint. 9. Deny the allegations in paragraph 12 of the Complaint, except admit that there were parties' no written contracts or written restrictive covenants governing the relationship, but that such relationship was governed by a number of implied in law and implied in fact obligations on the part of Plaintiff, including a duty of loyalty and a duty not to exploit confidential and proprietary business or patient information belonging to Defendants that was acquired in the course of Plaintiff's performance of work for Defendants. 10. Deny the allegations in paragraph 13 of the Complaint. 11. Admit the allegations in paragraph 14 of the Complaint. 12. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 15 of the Complaint. 13. Deny the allegations in paragraphs 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 34, 35, 36 and 37 of the Complaint. 14. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 32, 33 and 38 of the Complaint. 15. In response to paragraph 39 of the Complaint, refer to the charging documents and the Order of Protection and the conviction documents, and state that Joseph Paukman pled guilty to such charge of disorderly conduct. 16. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 40 of the Complaint. 2 2 of 7 FILED: KINGS COUNTY CLERK 10/20/2022 05:33 PM INDEX NO. 516855/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/20/2022 17. Deny the allegations in paragraph 41 of the Complaint, except admit that in or about December 2021, Plaintiff's business relationship with Defendants was voluntarily terminated by Plaintiff. 18. Deny the allegations in paragraphs 42, 43 and 44 of the Complaint, except admit that Joseph Paukman commenced litigation against Plaintiff after the Order of Protection was issued, and refers to the pleadings. 19. Deny the allegations in paragraphs 46, 47 and 48 of the Complaint. 20. Deny the allegations in paragraph 49 of the Complaint, except admit that Plaintiff has filed an action in Richmond County. 21. Deny the allegations in paragraphs 51, 52, 54, 55, 56, 57, 58, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 72 and 73 of the Complaint. 22. Admit the allegations in paragraph 75 of the Complaint. 23. Deny the allegations in paragraph 76 of the Complaint, except admit that Avex accepted Plaintiff's performance of a service, and state further that Plaintiff breached his duty of loyalty to Avex by using confidential patient information acquired while performing a service for Axex for the purpose of soliciting such patients for his own economic benefit. 24. Deny the allegations in paragraphs 77, 78, 80, 81, 83 and 84 of the Complaint. 25. Admit the allegations in paragraph 86 of the Complaint. 26. Deny the allegations in paragraphs 87, 88, 89, 90, 91, 92, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103 and 104 of the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 27. Any recovery against any Defendants other than Joseph Paukman is barred or limited by CPLR 1601. 3 3 of 7 FILED: KINGS COUNTY CLERK 10/20/2022 05:33 PM INDEX NO. 516855/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/20/2022 AS AND FOR A SECOND AFFIRMATIVE DEFENSE 28. Joseph Paukman did not commit any of the acts alleged in the Complaint, or make any of the statements alleged in the Complaint, within the scope of the performance of any employment or other business relationship which he had with any of the other Defendants. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 29. Plaintiff was an independent contractor of only Avex, and had no relationship of any kind with, and was not owed a duty by, any of the other Defendants. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 30. Lev Paukman conducted all of his business affairs through the Defendant entities and accordingly has no personal liability for any of the acts alleged in the Complaint. Nor does Lev Paukman individually owe a duty of any kind to the Plaintiff. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 31. Joseph Paukman was not an independent contractor or employee of any of the "hired" "retained" Defendants besides Avex, and was not or by any of the other Defendants. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 32. Plaintiff is barred from any recovery by virtue of his wrongful and unlawful conduct in obtaining confidential business information while performing services for Avex concerning patients, which information was thereafter wrongfully exploited by Plaintiff for his own economic benefit. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 33. The claims are barred because the Plaintiff's exclusive remedy is through the Workers Compensation Law. 4 4 of 7 FILED: KINGS COUNTY CLERK 10/20/2022 05:33 PM INDEX NO. 516855/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/20/2022 AS AND FOR A FIRST COUNTERCLAIM AGAINST PLAINTIFF 34. In the course of his performance of duties on behalf of Avex, Plaintiff had access to confidential and proprietary information concerning the clients/patients of Defendants. 35. Under applicable law, Plaintiff was under a duty to keep such information confidential and not to make use of such confidential information for his own financial benefit. 36. In breach of his legal duties, Plaintiff, aided and abetted by non-party Kateryna Rud, made use of such confidential and proprietary information for the purpose of soliciting such clients/patients for his own business practice, resulting in injury to Defendants. 37. As a result, Defendants are entitled to recover damages in an amount to be determined at trial. AS AND FOR A SECOND COUNTERCLAIM AGAINST PLAINTIFF 38. Under his agreement with Avex, Plaintiff was obligated to work at the office of Defendants five days per week. 39. In material breach and violation of his obligations under his agreement, Plaintiff only worked at the office of Defendants four days per week, although receiving compensation for a five- day week. 40. As a result, Defendants have been damaged, and Plaintiff has been unjustly enriched, in the approximate amount of $30,000. WHEREFORE, Defendants demand judgment dismissing the Complaint; an award of Defendants' damages on two Counterclaim; and for such other and further relief as to the Court may seem just and proper. 5 5 of 7 FILED: KINGS COUNTY CLERK 10/20/2022 05:33 PM INDEX NO. 516855/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/20/2022 Dated: New York, New York October 19, 2022 HELLER, HOROWITZ & FEIT, P.C. Stuart A. Blander Attorneysfor Cefendants 260 Madison Avenue, 17 Floor New York, New York 10016 (212) 685-7600 (917) 282-4163 sablander@hhandf.com 6 6 of 7 FILED: KINGS COUNTY CLERK 10/20/2022 05:33 PM INDEX NO. 516855/2022 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/20/2022 VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF KINGS ) LEV PAUKMAN. being duly sworn, deposes and says: I am one of the defendants in this Action. I have read the annexed Answer to the Complaint and know the contents thereof and the same is true to my knowledge, information and belief. LEV PAUKMAN Subscribed and sworn to before me thi day of October, 2022. EUCARYSS MARTINEZ ' Notary Public - State of New York NO. 01MA6348755 Qualffled in Bronx County My Commission Expires Oct 3, 2024 7 of 7