On May 17, 2023 a
Answer
was filed
involving a dispute between
Capytal.Com,
and
Annette Mumphrey,
Mumphrey Transport,
Mumphrey Transportation Llc D B A Mumphrey Transportation,
for Other Matters - Contract - Other
in the District Court of Kings County.
Preview
FILED: KINGS COUNTY CLERK 07/07/2023 04:14 PM INDEX NO. 514606/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
________________________________________________X Index No.:514606/2023
CAPYTAL.COM
Plaintiff,
vs. ANSWER
WITH AFFIRMATIVE
MUMPHREY TRANSPORTATION LLC D/B/A
MUMPHREY TRANSPORTATION, MUMPHREY
TRANSPORT and ANNETTE MUMPHREY,
Defendants.
________________________________________________X
Defendants MUMPHREY TRANSPORTATION LLC D/B/A MUMPHREY
TRANSPORTATION, MUMPHREY TRANSPORT and ANNETTE MUMPHREY,, by and
through their attorneys, USHER LAW GROUP, P.C., for its answer to the complaint herein,
states upon information and belief as follows:
Answering “The Parties”
1. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 1 of the complaint.
2. Defendants admit the allegations contained in Paragraph 2 of the complaint.
3. Defendants deny the allegations contained in Paragraph 3 of the complaint.
Answering “Jurisdiction and Venue”
4. Defendants deny the allegations contained in Paragraph 4 of the complaint.
5. Defendants deny the allegations contained in Paragraph 5 of the complaint.
Answering “Facts Relevant to All Claims for Relief”
6. Defendants deny the allegations contained in Paragraph 6 of the complaint.
7. Defendants deny the allegations contained in Paragraph 7 of the complaint.
8. Defendants deny the allegations contained in Paragraph 8 of the complaint.
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FILED: KINGS COUNTY CLERK 07/07/2023 04:14 PM INDEX NO. 514606/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023
9. Defendants deny the allegations contained in Paragraph 9 of the complaint.
10. Defendants deny the allegations contained in Paragraph 10 of the complaint.
11. Defendants deny the allegations contained in Paragraph 11 of the complaint.
12. Defendants deny the allegations contained in Paragraph 12 of the complaint.
13. Defendants deny the allegations contained in Paragraph 13 of the complaint.
Answering “As And For A First Cause Of Action – Breach of Contract”
14. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 16 of the complaint.
15. Defendants deny the allegations contained in Paragraph 17 of the complaint.
16. Defendants deny the allegations contained in Paragraph 18 of the complaint.
17. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 19 of the complaint because the question is ambiguous and vague.
18. Defendants deny the allegations contained in Paragraph 20 of the complaint.
19. Defendants deny the allegations contained in Paragraph 21 of the complaint.
Answering “As And For A Second Cause Of Action – Breach of Personal Guarantee by the
Guarantor”
20. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 22 of the complaint.
21. Defendants deny the allegations contained in Paragraph 23 of the complaint.
22. Defendants deny the allegations contained in Paragraph 24 of the complaint.
Answering “As And For A Third Cause Of Action – In the Alternative, Unjust Enrichment
Against All Defendants”
23. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 25 of the complaint.
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FILED: KINGS COUNTY CLERK 07/07/2023 04:14 PM INDEX NO. 514606/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023
24. Defendants deny the allegations contained in Paragraph 26 of the complaint.
25. Defendants deny the allegations contained in Paragraph 27 of the complaint.
26. Defendants deny the allegations contained in Paragraph 28 of the complaint.
27. Defendants deny the allegations contained in Paragraph 29 of the complaint.
28. Defendants deny the allegations contained in Paragraph 30 of the complaint.
29. Defendants deny the allegations contained in Paragraph 31 of the complaint.
Answering “As And For A Fourth Cause Of Action – Specific Performance”
30. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 32 of the complaint.
31. Defendants deny the allegations contained in Paragraph 33 of the complaint.
32. Defendants deny the allegations contained in Paragraph 34 of the complaint.
Answering “As And For A Fifth Cause Of Action – Fees, Costs, and Expenses”
33. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 35 of the complaint.
34. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 36 of the complaint.
35. Defendants deny the allegations contained in Paragraph 37 of the complaint.
36. Defendants deny the allegations contained in Paragraph 38 of the complaint.
AFFIRMATIVE DEFENSES
AND AS FOR A FIRST AFFIRMATIVE DEFENSE
37. Ambiguity, Plaintiff did not clearly state the amount and issues in this case, which makes
it difficult to respond. As Plaintiff has failed to state a claim pursuant to CPLR 3211(a)(7)
Defendants herein reserve the right to supplement this answer as may be required by the
circumstances.
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FILED: KINGS COUNTY CLERK 07/07/2023 04:14 PM INDEX NO. 514606/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023
AND AS FOR A SECOND AFFIRMATIVE DEFENSE
38. Mistake. The subject amount in the complaint was paid previously.
AND AS FOR A THIRD AFFIRMATIVE DEFENSE
39. Plaintiff being granted the relief requested would result in Unjust Enrichment on the part
of the Plaintiff.
AND AS FOR A FOURTH AFFIRMATIVE DEFENSE
40. Plaintiff violated the duty of good faith and fair dealing.
AND AS FOR A FIFTH AFFIRMATIVE DEFENSE
41. Plaintiff is suing for the wrong amount.
AND AS FOR A SIXTH AFFIRMATIVE DEFENSE
42. Plaintiff's filing of this matter against Defendants violates the doctrine of laches.
AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE
43. Plaintiff failed to mitigate damages.
AND AS FOR A EIGHTH AFFIRMATIVE DEFENSE
44. Plaintiff failed timely and properly to exhaust all necessary administrative, statutory,
and/or jurisdictional prerequisites to commence this action.
AND AS FOR A NINTH AFFIRMATIVE DEFENSE
45. Plaintiff lacks standing.
AND AS FOR A TENTH AFFIRMATIVE DEFENSE
46. Excessive fees charged by Plaintiff which are impermissibly punitive.
AND AS FOR A ELEVENTH AFFIRMATIVE DEFENSE
47. The contract is unconscionable.
AND AS FOR A TWELTH AFFIRMATIVE DEFENSE
48. The Plaintiff Fraudulently Induced the Defendants into executing the agreement.
AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023
49. Plaintiff's filing of this matter against Defendants violates the doctrine of in pari delecto.
AND AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE
50. There is a lack of damages in this matter, or that the damages are inconsequential and de
minimis.
AND AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE
51. Plaintiff failed to comply with its obligations under the agreement.
AND AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE
52. The agreement which is the subject matter of this litigation is invalid because it lacks a
legal purpose.
AND AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
53. Plaintiff lacks personal jurisdiction pursuant to GENERAL OBLIGATIONS LAW 5-
1402.
AND AS FOR A EIGHTEENTH AFFIRMATIVE DEFENSE
54. The agreement which is the subject matter of this litigation represents a contract of
adhesion.
AND AS FOR A NINTEENTH AFFIRMATIVE DEFENSE
55. Plaintiff fails to state a claim upon which relief can be granted.
AND AS FOR A TWENTIETH AFFIRMATIVE DEFENSE
56. Plaintiff induced Defendant into entering into an unlawful usurious loan and not an asset
purchase agreement.
WHEREFORE, the Defendants herein respectfully requests: (i) Judgment in favor of
the Defendants; (ii) Disbursements and attorney’s fees incurred by Defendant in this proceeding,
and for any further relief this Honorable Court deems just, proper and equitable.
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FILED: KINGS COUNTY CLERK 07/07/2023 04:14 PM INDEX NO. 514606/2023
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023
Dated: Brooklyn, New York Respectfully submitted,
June 20, 2023
__/s/ Mikhail Usher______
Mikhail Usher, Esq
USHER LAW GROUP, P.C.
Attorneys for Defendants
1022 Avenue P, 2nd Fl.
Brooklyn, New York 11223
Tel.: (718) 484-7510
Fax: (718) 865-8566
To: Yeshaya Gorkin, Esq.
P.O. Box 605
New York, NY 10038
Tel: (212) 913-0217
Attorneys for Plaintiff
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Document Filed Date
July 07, 2023
Case Filing Date
May 17, 2023
Category
Other Matters - Contract - Other
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FILED: KINGS COUNTY CLERK 07/07/2023 04:14 PM INDEX NO. 514606/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ________________________________________________X Index No.:514606/2023 CAPYTAL.COM Plaintiff, vs. ANSWER WITH AFFIRMATIVE MUMPHREY TRANSPORTATION LLC D/B/A MUMPHREY TRANSPORTATION, MUMPHREY TRANSPORT and ANNETTE MUMPHREY, Defendants. ________________________________________________X Defendants MUMPHREY TRANSPORTATION LLC D/B/A MUMPHREY TRANSPORTATION, MUMPHREY TRANSPORT and ANNETTE MUMPHREY,, by and through their attorneys, USHER LAW GROUP, P.C., for its answer to the complaint herein, states upon information and belief as follows: Answering “The Parties” 1. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 1 of the complaint. 2. Defendants admit the allegations contained in Paragraph 2 of the complaint. 3. Defendants deny the allegations contained in Paragraph 3 of the complaint. Answering “Jurisdiction and Venue” 4. Defendants deny the allegations contained in Paragraph 4 of the complaint. 5. Defendants deny the allegations contained in Paragraph 5 of the complaint. Answering “Facts Relevant to All Claims for Relief” 6. Defendants deny the allegations contained in Paragraph 6 of the complaint. 7. Defendants deny the allegations contained in Paragraph 7 of the complaint. 8. Defendants deny the allegations contained in Paragraph 8 of the complaint. 1 of 6 FILED: KINGS COUNTY CLERK 07/07/2023 04:14 PM INDEX NO. 514606/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023 9. Defendants deny the allegations contained in Paragraph 9 of the complaint. 10. Defendants deny the allegations contained in Paragraph 10 of the complaint. 11. Defendants deny the allegations contained in Paragraph 11 of the complaint. 12. Defendants deny the allegations contained in Paragraph 12 of the complaint. 13. Defendants deny the allegations contained in Paragraph 13 of the complaint. Answering “As And For A First Cause Of Action – Breach of Contract” 14. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 16 of the complaint. 15. Defendants deny the allegations contained in Paragraph 17 of the complaint. 16. Defendants deny the allegations contained in Paragraph 18 of the complaint. 17. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 19 of the complaint because the question is ambiguous and vague. 18. Defendants deny the allegations contained in Paragraph 20 of the complaint. 19. Defendants deny the allegations contained in Paragraph 21 of the complaint. Answering “As And For A Second Cause Of Action – Breach of Personal Guarantee by the Guarantor” 20. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 22 of the complaint. 21. Defendants deny the allegations contained in Paragraph 23 of the complaint. 22. Defendants deny the allegations contained in Paragraph 24 of the complaint. Answering “As And For A Third Cause Of Action – In the Alternative, Unjust Enrichment Against All Defendants” 23. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 25 of the complaint. 2 of 6 FILED: KINGS COUNTY CLERK 07/07/2023 04:14 PM INDEX NO. 514606/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023 24. Defendants deny the allegations contained in Paragraph 26 of the complaint. 25. Defendants deny the allegations contained in Paragraph 27 of the complaint. 26. Defendants deny the allegations contained in Paragraph 28 of the complaint. 27. Defendants deny the allegations contained in Paragraph 29 of the complaint. 28. Defendants deny the allegations contained in Paragraph 30 of the complaint. 29. Defendants deny the allegations contained in Paragraph 31 of the complaint. Answering “As And For A Fourth Cause Of Action – Specific Performance” 30. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 32 of the complaint. 31. Defendants deny the allegations contained in Paragraph 33 of the complaint. 32. Defendants deny the allegations contained in Paragraph 34 of the complaint. Answering “As And For A Fifth Cause Of Action – Fees, Costs, and Expenses” 33. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 35 of the complaint. 34. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 36 of the complaint. 35. Defendants deny the allegations contained in Paragraph 37 of the complaint. 36. Defendants deny the allegations contained in Paragraph 38 of the complaint. AFFIRMATIVE DEFENSES AND AS FOR A FIRST AFFIRMATIVE DEFENSE 37. Ambiguity, Plaintiff did not clearly state the amount and issues in this case, which makes it difficult to respond. As Plaintiff has failed to state a claim pursuant to CPLR 3211(a)(7) Defendants herein reserve the right to supplement this answer as may be required by the circumstances. 3 of 6 FILED: KINGS COUNTY CLERK 07/07/2023 04:14 PM INDEX NO. 514606/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023 AND AS FOR A SECOND AFFIRMATIVE DEFENSE 38. Mistake. The subject amount in the complaint was paid previously. AND AS FOR A THIRD AFFIRMATIVE DEFENSE 39. Plaintiff being granted the relief requested would result in Unjust Enrichment on the part of the Plaintiff. AND AS FOR A FOURTH AFFIRMATIVE DEFENSE 40. Plaintiff violated the duty of good faith and fair dealing. AND AS FOR A FIFTH AFFIRMATIVE DEFENSE 41. Plaintiff is suing for the wrong amount. AND AS FOR A SIXTH AFFIRMATIVE DEFENSE 42. Plaintiff's filing of this matter against Defendants violates the doctrine of laches. AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE 43. Plaintiff failed to mitigate damages. AND AS FOR A EIGHTH AFFIRMATIVE DEFENSE 44. Plaintiff failed timely and properly to exhaust all necessary administrative, statutory, and/or jurisdictional prerequisites to commence this action. AND AS FOR A NINTH AFFIRMATIVE DEFENSE 45. Plaintiff lacks standing. AND AS FOR A TENTH AFFIRMATIVE DEFENSE 46. Excessive fees charged by Plaintiff which are impermissibly punitive. AND AS FOR A ELEVENTH AFFIRMATIVE DEFENSE 47. The contract is unconscionable. AND AS FOR A TWELTH AFFIRMATIVE DEFENSE 48. The Plaintiff Fraudulently Induced the Defendants into executing the agreement. AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE 4 of 6 FILED: KINGS COUNTY CLERK 07/07/2023 04:14 PM INDEX NO. 514606/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023 49. Plaintiff's filing of this matter against Defendants violates the doctrine of in pari delecto. AND AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE 50. There is a lack of damages in this matter, or that the damages are inconsequential and de minimis. AND AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE 51. Plaintiff failed to comply with its obligations under the agreement. AND AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE 52. The agreement which is the subject matter of this litigation is invalid because it lacks a legal purpose. AND AS FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 53. Plaintiff lacks personal jurisdiction pursuant to GENERAL OBLIGATIONS LAW 5- 1402. AND AS FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 54. The agreement which is the subject matter of this litigation represents a contract of adhesion. AND AS FOR A NINTEENTH AFFIRMATIVE DEFENSE 55. Plaintiff fails to state a claim upon which relief can be granted. AND AS FOR A TWENTIETH AFFIRMATIVE DEFENSE 56. Plaintiff induced Defendant into entering into an unlawful usurious loan and not an asset purchase agreement. WHEREFORE, the Defendants herein respectfully requests: (i) Judgment in favor of the Defendants; (ii) Disbursements and attorney’s fees incurred by Defendant in this proceeding, and for any further relief this Honorable Court deems just, proper and equitable. 5 of 6 FILED: KINGS COUNTY CLERK 07/07/2023 04:14 PM INDEX NO. 514606/2023 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 07/07/2023 Dated: Brooklyn, New York Respectfully submitted, June 20, 2023 __/s/ Mikhail Usher______ Mikhail Usher, Esq USHER LAW GROUP, P.C. Attorneys for Defendants 1022 Avenue P, 2nd Fl. Brooklyn, New York 11223 Tel.: (718) 484-7510 Fax: (718) 865-8566 To: Yeshaya Gorkin, Esq. P.O. Box 605 New York, NY 10038 Tel: (212) 913-0217 Attorneys for Plaintiff 6 of 6