On January 26, 2017 a
Answer
was filed
involving a dispute between
Flat Rate Movers, Ltd.,
and
Abid Ali,
Adam Berger,
Ariel Bornstein,
Balquees Ali,
Bryan Sanicela,
Dan Aizer,
Danial Harris,
Diane Melendez,
Edward Bayas,
Ivan Knezevic,
Jelena Nedic,
Jewell Stanley,
Jodi Berger,
John Does,
Justin Elyachar,
Keren Aizer Shemel,
Marcos Aviles,
Maria Alt,
Mukul Puri,
Neil Appollon,
Nihal Dogu,
Saadia Bangash,
Saadi Agha,
Santo Competiello,
Sarah Ali,
Sarah Ismail,
Shirley Aizer Bornstein,
Steve Holzer,
Viola Melpignano,
Xavier Brown,
for Commercial - Other (Breach of Fiduciary Duty)
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 04/03/2017 04:05 PM INDEX NO. 650450/2017
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 04/03/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION
FLAT RATE MOVERS, LTD.,
Plaintiff, Index No. 650450/2017
AMENDED
-against- VERIFIED ANSWER
ARIEL BORNSTEIN, SHIRLEY AIZER BORNSTEIN,
D A N A I ZE R , K E R E N A I ZE R S H E M E L, S A A D I A G H A ,
X A V IE R B R O W N , A B I D A L I , B A L Q U E E S A L I ,
S A R A H I S M A I L , N IH A L D O G U , S A A D I A B A N G A S H ,
A N I A L H A R R I S , B R Y A N S A N IC E L A ,JELENA NEDIC,
N E I L A P P O L LO N , DIANE MELENDEZ, SARAH ALI,
JEWELL STANLEY, EDWARD BAYAS, MARCOS
A V I LE S , J U S T I N E LY A C H A R , S T E V E H O LZ E R , J O D I
BERGER, ADAM BERGER, MARIA ALT, IVAN KNEZEVIC,
S A N T O C O M P E T IE L L O , V I O L A M E L P I G N A N O , ,
Defendants.
Defendants A R IE L BO R N S T E IN , KEREN AIZER
S H E M E L, D A N A I ZE R and SHIRLEY AIZER BORNSTEIN, by and through their
attorney Michael N. David, for their AMENDED Verified Answer to the
Verified Complaint filed by Plaintiff Flat Rate Movers, Ltd. (“ Fl a t R a t e ” ) o n
January 26, 2017 (the “Complaint”), state as follows:
NATURE OF TH E ACTION
1. Deny the allegations in Paragraph 1 except admits that defendant Ariel
Bornstein was once an employee of plaintiff.
2. Deny knowledge or information sufficient to form a belief as to
the t ru t h
of the allegations in Paragraph 2.
3. Deny the allegation in Paragraph 3.
4. Deny the allegation in Paragraph 4.
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5. Deny the allegation in Paragraph 5.
TH E PARTIES
6. Deny knowledge or information sufficient to form a belief as to
the t ru t h
of the allegations in Paragraph 6.
7. Deny the allegations in Paragraph 7 except admits that defendant Ariel
Bornstein was once an employee of plaintiff.
8. Deny the allegations in Paragraph 8 except admits that defendant
Shir;ey Aizer Bornstein is the wife of defendant Ariel Bornstein.
9. Deny the allegations in Paragraph 9 except admits that defendant
Dan Aizer is the father in law of defendant Ariel Bornstein
10. Deny the allegations in Paragraph 10 except admits that defendant
Keren Aizer Shemel is the sister in law of defendant Ariel Bornstein.
11. Deny knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 11 and denies the participation of the answering
d ef an d an t s
i n an y t y p e o f s ch e m e.
12. Deny knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 12 and denies the participation of the answering
d ef an d an t s
i n an y t y p e o f s ch e m e.
13. Deny knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 13 other than those defendants may be relatives
o r fri e n d s a n d d e n i e s t h e p a rt i c i p a t i o n o f t h e a n s w e ri n g d e f a n d a n t s
i n an y t y p e o f
s ch em e.
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14. Deny knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 14 and denies the participation of the answering
d ef an d an t s
i n an y t y p e o f s ch e m e.
FACTUAL ALLEGATIONS
I.
15. Deny the allegations in P a r a g r a p h 15 .
16. Deny the allegations in P a r a g r a p h 16 .
II.
17. Admits the allegations in P a r a g r a p h 17 .
18. Admits the allegations in P a r a g r a p h 18 .
19. Deny knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 19 and denies the participation of the answering
d ef an d an t
i n an y t y p e o f s ch e m e .
20. Deny the allegations in P a r a g r a p h 20 .
21. Deny the allegations in P a r a g r a p h 21 .
22. Deny knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 22.
23. Deny the allegations in P a r a g r a p h 23.
24. Deny knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 24.
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25. Deny the allegations in P a r a g r a p h 25.
26. Deny the allegations in P a r a g r a p h 26.
27. Deny the allegations in P a r a g r a p h 27.
28. Deny the allegations in P a r a g r a p h 28.
FIRST CAUSE OF ACTION
29. The Defendants repeat each and every answer contained in the
paragraphs above as if fully set forth herein.
30. Deny the allegations in P a r a g r a p h 30.
31. Deny the allegations in P a r a g r a p h 31.
SECOND CAUSE OF ACTION
32. The Defendants repeat each and every answer contained in the
paragraphs above as if fully set forth herein.
33. Deny the allegations in P a r a g r a p h 33.
34. Deny the allegations in P a r a g r a p h 34.
35. Deny the allegations in P a r a g r a p h 35.
36. Deny the allegations in P a r a g r a p h 36.
37. Deny the allegations in P a r a g r a p h 37.
38. Deny the allegations in P a r a g r a p h 38.
39. Deny the allegations in P a r a g r a p h 39.
THIRD CAUSE OF ACTION
40. The Defendant repeas each and every answer contained in the
paragraphs above as if fully set forth herein.
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41. Deny knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 41.
42. Deny knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 42.
43. Deny knowledge or information sufficient to form a belief as to the
truth of the allegations in Paragraph 43.
44. Deny the allegations in P a r a g r a p h 44,
45. Deny the allegations in P a r a g r a p h 45.
FOURTH CAUSE OF ACTION
46. The Defendants repeat each and every answer contained in the
paragraphs above as if fully set forth herein.
47. Deny the allegations in P a r a g r a p h 47.
48. Deny the allegations in P a r a g r a p h 48.
49. Deny the allegations in P a r a g r a p h 49.
PUNITIVE DAMAGES
50. Deny the allegations in P a r a g r a p h 50
AFFIRMATIVE DEFENSES
As separate and distinct defenses to Plaintiff’s allegations, the
Defendants, without conceding that they be a rthe burden of proof as to any of the
following defenses, and without in any way admitting or conceding the
foregoing allegations, state the following defenses:
FIRST AFFIRMATIVE DEFENSE
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The Complaint fails to state a claim upon which relief can be granted.
SE CO ND AFFIRMATIVE DEFENSE
T he Complaint fails to state a claim to the extent it fails to ti e allegations
to particular defendants referenced in the Complaint.
THIRD AFFIRMATIVE DEFENSE
T he Complaint fails to state a claim to the extent it fails to sufficiently
s et fo rt hany particular and legally protected customer relationships, confidential
information, or trade secrets that have allegedly been misappropriated.
FOURTH AFFIRMATIVE DEFENSE
The Court lacks personal jurisdiction over the Defendants.
FIFTH AFFIRMATIVE DEFENSE
The Complaint fails to name a necessary alleged joint tortfeasor.
SIXTH AFFIRMATIVE DEFENSE
The Complaint is barred by the doctrines of waiver, estoppel, laches, and
unclean hands.
SEVENTH AFFIRMATIVE DEFENSE
The Complaint is barred by plaintiff’s bad faith, fraud, misrepresentations and
Wrongful conduct.
EIGHTH AFFIRMATIVE DEFENSE
The Complaint is barred by plaintiff’s lack of legally cognizable damages.
NINT H AFFIRMATIVE DEFENSE
The Complaint is barred by the statute of limitations.
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NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 04/03/2017
Dated: New York, New York
April 3, 2017
Yours etc.,
MICHAEL N. DAVID
Attorney for
Defendants
ARIEL BORNSTEIN
S H IR L E Y A I Z E R B O R N S T E IN ,
D A N A I ZE R a n d K E R E N A I ZE R
SHE ME L
44 Wall Street,12th Floor
Ne w Y or k, NY 10005
(212) 363-1997
To: TRAVIS LAW PLLC
Christopher R. Travis, Esq.
One Pennsylvania Plaza, Suite 2430
New York, New York 10119
(212) 248-2120
ctravis@ctravislaw.com
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Preview
FILED: NEW YORK COUNTY CLERK 04/03/2017 04:05 PM INDEX NO. 650450/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 04/03/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION FLAT RATE MOVERS, LTD., Plaintiff, Index No. 650450/2017 AMENDED -against- VERIFIED ANSWER ARIEL BORNSTEIN, SHIRLEY AIZER BORNSTEIN, D A N A I ZE R , K E R E N A I ZE R S H E M E L, S A A D I A G H A , X A V IE R B R O W N , A B I D A L I , B A L Q U E E S A L I , S A R A H I S M A I L , N IH A L D O G U , S A A D I A B A N G A S H , A N I A L H A R R I S , B R Y A N S A N IC E L A ,JELENA NEDIC, N E I L A P P O L LO N , DIANE MELENDEZ, SARAH ALI, JEWELL STANLEY, EDWARD BAYAS, MARCOS A V I LE S , J U S T I N E LY A C H A R , S T E V E H O LZ E R , J O D I BERGER, ADAM BERGER, MARIA ALT, IVAN KNEZEVIC, S A N T O C O M P E T IE L L O , V I O L A M E L P I G N A N O , , Defendants. Defendants A R IE L BO R N S T E IN , KEREN AIZER S H E M E L, D A N A I ZE R and SHIRLEY AIZER BORNSTEIN, by and through their attorney Michael N. David, for their AMENDED Verified Answer to the Verified Complaint filed by Plaintiff Flat Rate Movers, Ltd. (“ Fl a t R a t e ” ) o n January 26, 2017 (the “Complaint”), state as follows: NATURE OF TH E ACTION 1. Deny the allegations in Paragraph 1 except admits that defendant Ariel Bornstein was once an employee of plaintiff. 2. Deny knowledge or information sufficient to form a belief as to the t ru t h of the allegations in Paragraph 2. 3. Deny the allegation in Paragraph 3. 4. Deny the allegation in Paragraph 4. 1 of 7 FILED: NEW YORK COUNTY CLERK 04/03/2017 04:05 PM INDEX NO. 650450/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 04/03/2017 5. Deny the allegation in Paragraph 5. TH E PARTIES 6. Deny knowledge or information sufficient to form a belief as to the t ru t h of the allegations in Paragraph 6. 7. Deny the allegations in Paragraph 7 except admits that defendant Ariel Bornstein was once an employee of plaintiff. 8. Deny the allegations in Paragraph 8 except admits that defendant Shir;ey Aizer Bornstein is the wife of defendant Ariel Bornstein. 9. Deny the allegations in Paragraph 9 except admits that defendant Dan Aizer is the father in law of defendant Ariel Bornstein 10. Deny the allegations in Paragraph 10 except admits that defendant Keren Aizer Shemel is the sister in law of defendant Ariel Bornstein. 11. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 11 and denies the participation of the answering d ef an d an t s i n an y t y p e o f s ch e m e. 12. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 12 and denies the participation of the answering d ef an d an t s i n an y t y p e o f s ch e m e. 13. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 13 other than those defendants may be relatives o r fri e n d s a n d d e n i e s t h e p a rt i c i p a t i o n o f t h e a n s w e ri n g d e f a n d a n t s i n an y t y p e o f s ch em e. 2 of 7 FILED: NEW YORK COUNTY CLERK 04/03/2017 04:05 PM INDEX NO. 650450/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 04/03/2017 14. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 14 and denies the participation of the answering d ef an d an t s i n an y t y p e o f s ch e m e. FACTUAL ALLEGATIONS I. 15. Deny the allegations in P a r a g r a p h 15 . 16. Deny the allegations in P a r a g r a p h 16 . II. 17. Admits the allegations in P a r a g r a p h 17 . 18. Admits the allegations in P a r a g r a p h 18 . 19. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 19 and denies the participation of the answering d ef an d an t i n an y t y p e o f s ch e m e . 20. Deny the allegations in P a r a g r a p h 20 . 21. Deny the allegations in P a r a g r a p h 21 . 22. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 22. 23. Deny the allegations in P a r a g r a p h 23. 24. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 24. 3 of 7 FILED: NEW YORK COUNTY CLERK 04/03/2017 04:05 PM INDEX NO. 650450/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 04/03/2017 25. Deny the allegations in P a r a g r a p h 25. 26. Deny the allegations in P a r a g r a p h 26. 27. Deny the allegations in P a r a g r a p h 27. 28. Deny the allegations in P a r a g r a p h 28. FIRST CAUSE OF ACTION 29. The Defendants repeat each and every answer contained in the paragraphs above as if fully set forth herein. 30. Deny the allegations in P a r a g r a p h 30. 31. Deny the allegations in P a r a g r a p h 31. SECOND CAUSE OF ACTION 32. The Defendants repeat each and every answer contained in the paragraphs above as if fully set forth herein. 33. Deny the allegations in P a r a g r a p h 33. 34. Deny the allegations in P a r a g r a p h 34. 35. Deny the allegations in P a r a g r a p h 35. 36. Deny the allegations in P a r a g r a p h 36. 37. Deny the allegations in P a r a g r a p h 37. 38. Deny the allegations in P a r a g r a p h 38. 39. Deny the allegations in P a r a g r a p h 39. THIRD CAUSE OF ACTION 40. The Defendant repeas each and every answer contained in the paragraphs above as if fully set forth herein. 4 of 7 FILED: NEW YORK COUNTY CLERK 04/03/2017 04:05 PM INDEX NO. 650450/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 04/03/2017 41. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 41. 42. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 42. 43. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 43. 44. Deny the allegations in P a r a g r a p h 44, 45. Deny the allegations in P a r a g r a p h 45. FOURTH CAUSE OF ACTION 46. The Defendants repeat each and every answer contained in the paragraphs above as if fully set forth herein. 47. Deny the allegations in P a r a g r a p h 47. 48. Deny the allegations in P a r a g r a p h 48. 49. Deny the allegations in P a r a g r a p h 49. PUNITIVE DAMAGES 50. Deny the allegations in P a r a g r a p h 50 AFFIRMATIVE DEFENSES As separate and distinct defenses to Plaintiff’s allegations, the Defendants, without conceding that they be a rthe burden of proof as to any of the following defenses, and without in any way admitting or conceding the foregoing allegations, state the following defenses: FIRST AFFIRMATIVE DEFENSE 5 of 7 FILED: NEW YORK COUNTY CLERK 04/03/2017 04:05 PM INDEX NO. 650450/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 04/03/2017 The Complaint fails to state a claim upon which relief can be granted. SE CO ND AFFIRMATIVE DEFENSE T he Complaint fails to state a claim to the extent it fails to ti e allegations to particular defendants referenced in the Complaint. THIRD AFFIRMATIVE DEFENSE T he Complaint fails to state a claim to the extent it fails to sufficiently s et fo rt hany particular and legally protected customer relationships, confidential information, or trade secrets that have allegedly been misappropriated. FOURTH AFFIRMATIVE DEFENSE The Court lacks personal jurisdiction over the Defendants. FIFTH AFFIRMATIVE DEFENSE The Complaint fails to name a necessary alleged joint tortfeasor. SIXTH AFFIRMATIVE DEFENSE The Complaint is barred by the doctrines of waiver, estoppel, laches, and unclean hands. SEVENTH AFFIRMATIVE DEFENSE The Complaint is barred by plaintiff’s bad faith, fraud, misrepresentations and Wrongful conduct. EIGHTH AFFIRMATIVE DEFENSE The Complaint is barred by plaintiff’s lack of legally cognizable damages. NINT H AFFIRMATIVE DEFENSE The Complaint is barred by the statute of limitations. 6 of 7 FILED: NEW YORK COUNTY CLERK 04/03/2017 04:05 PM INDEX NO. 650450/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 04/03/2017 Dated: New York, New York April 3, 2017 Yours etc., MICHAEL N. DAVID Attorney for Defendants ARIEL BORNSTEIN S H IR L E Y A I Z E R B O R N S T E IN , D A N A I ZE R a n d K E R E N A I ZE R SHE ME L 44 Wall Street,12th Floor Ne w Y or k, NY 10005 (212) 363-1997 To: TRAVIS LAW PLLC Christopher R. Travis, Esq. One Pennsylvania Plaza, Suite 2430 New York, New York 10119 (212) 248-2120 ctravis@ctravislaw.com 7 of 7