On January 06, 2023 a
Exhibit,Appendix
was filed
involving a dispute between
Pearl Delta Funding, Llc,
and
Juan Ruiz Jr,
Peak Title Agency Co.
A K A Peak Title Co,
Tobby Jablonski,
for Commercial - Contract
in the District Court of Nassau County.
Preview
01/26/2023 10:38
FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023
5
NYSCEF DOC. NO. 72 01/26/2023
RECEIVED NYSCEF: 07/19/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-----------------------------------------------------------------------X
PEARL DELTA FUNDING, LLC Index No.: 600378/2023
PLAINTIFF, VERIFIED ANSWER
WITH AFFIRMATIVE
DEFENSES
-against-
PEAK TITLE AGENCY CO ET AL
DEFENDANTS
-----------------------------------------------------------------------X
Defendants, PEAK TITLE AGENCY CO ET AL by and through their attorneys, DOMINICK
DALE, ESQ for its answer to the complaint herein, states upon information and belief as follows:
The Parties
1. Defendants deny having sufficient knowledge to either admit or deny the allegations contained
in Paragraph 1 of the complaint.
2. Defendants admit the allegations contained in Paragraph 2-4 of the complaint.
3. Defendants deny the allegations contained in Paragraph 5-16 of the complaint, specifically
Defendants assert that the “agreement” referred to is a de facto unlawful usurious loan and not
an asset purchase agreement.
Answering “As And For A First Cause Of Action—Breach Of Contract”
4. Defendants deny the allegations contained in Paragraph 17-20 of the complaint, specifically
Defendants assert that the “agreement” referred to is a de facto unlawful usurious loan and not
an asset purchase agreement.
1 of 8
01/26/2023 10:38
FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023
5
NYSCEF DOC. NO. 72 01/26/2023
RECEIVED NYSCEF: 07/19/2023
Answering “As And For A Second Cause Of Action—Personal Guarantee”
5. Defendants deny the allegations contained in Paragraph 21-24 of the complaint, specifically
Defendants assert that the “agreement” referred to is a de facto unlawful usurious loan and not
an asset purchase agreement.
AFFIRMATIVE DEFENSES
AND AS FOR A FIRST AFFIRMATIVE DEFENSE
6. Excessive fees charged by Plaintiff including, but not limited to various liquidated damages
clauses in the contract are attempted to be charged as penalties which are contrary to law.
AND AS FOR A SECOND AFFIRMATIVE DEFENSE
7. The contract is unconscionable.
AND AS FOR A THIRD AFFIRMATIVE DEFENSE
8. Plaintiff being granted the relief requested would result in Unjust Enrichment on the part
of the Plaintiff.
AND AS FOR A FOURTH AFFIRMATIVE DEFENSE
9. Plaintiff violated the duty of good faith and fair dealing.
AND AS FOR A FIFTH AFFIRMATIVE DEFENSE
10. Plaintiff is suing for the wrong amount.
AND AS FOR A SIXTH AFFIRMATIVE DEFENSE
11. Plaintiff's filing of this matter against Defendants violates the doctrine of laches.
AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE
12. The Plaintiff Fraudulently Induced the Defendants into executing the agreement.
2 of 8
01/26/2023 10:38
FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023
5
NYSCEF DOC. NO. 72 01/26/2023
RECEIVED NYSCEF: 07/19/2023
AND AS FOR A EIGHTH AFFIRMATIVE DEFENSE
13. Plaintiff's filing of this matter against Defendants violates the doctrine of in pari Delicto.
AND AS FOR A NINTH AFFIRMATIVE DEFENSE
14. Plaintiff failed to mitigate damages.
AND AS FOR A TENTH AFFIRMATIVE DEFENSE
15. There is a lack of damages in this matter, or that the damages are inconsequential and de
minimis.
AND AS FOR A ELEVENTH AFFIRMATIVE DEFENSE
16. Plaintiff failed timely and properly to exhaust all necessary administrative, statutory, and/or
jurisdictional prerequisites to commence this action.
AND AS FOR A TWELFTH AFFIRMATIVE DEFENSE
17. Plaintiff failed to comply with its obligations under the agreement.
AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE
18. Plaintiff induced Defendant into entering into an unlawful usurious loan and not an asset
purchase agreement.
AND AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE
19. The agreement which is the subject matter of this litigation is invalid because it lacks a legal
purpose.
AND AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE
20. The agreement constitutes a contract of adhesion
AND AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE
21. Plaintiff fails to state a claim upon which relief can be granted.
3 of 8
01/26/2023 10:38
FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023
5
NYSCEF DOC. NO. 72 01/26/2023
RECEIVED NYSCEF: 07/19/2023
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
22. Defendant was not served or was improperly served with the Summons and Complaint.
23. As such, personal jurisdiction is lacking. Defendant was not served either personally or
otherwise served.
AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE
24. Defendant has paid, in whole or in part, the amounts claimed by the plaintiff.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
25. The complaint fails to state a cause of action upon which relief may be granted. The plaintiff
failed in its Summons and Complaint to adequately plead the nature of the alleged cause of
action.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
26. The circumstances surrounding it, it is so unfair that they “shock the conscience.”
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
27. Plaintiff has not established subject jurisdiction over the defendant. The court lacks
jurisdiction over the defendant. Subject matter jurisdiction is lacking. Complaint to be
dismissed based upon subject matter jurisdiction.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
28. The complaint should be dismissed based upon lack of standing.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
29. Based upon plaintiff’s bad faith, the Complaint should be dismissed.
4 of 8
01/26/2023 10:38
FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023
5
NYSCEF DOC. NO. 72 01/26/2023
RECEIVED NYSCEF: 07/19/2023
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
30. Based upon the forgoing, the plaintiff’s claims are barred by the doctrine of unclean
hands.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
31. Based upon foregoing, the plaintiff’s claims are barred by the doctrine of estoppel.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
32. Plaintiff’s action should fail because of lack and failure of consideration. Plaintiff has not
and cannot show that it provided consideration to the defendant.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
33. Plaintiff’s claim are barred by Statute of Frauds.
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
34. Plaintiff engaged in deceptive acts and practices unlawful.
AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
35. The claims asserted in the Complaint are not set forth with sufficient particularity to enable
Defendant to determine all of his defenses to these claims. Defendant therefore reserves the
right to assert any additional defenses that may be applicable and to withdraw any defenses
that are inapplicable once the precise nature of the claims are ascertained through discovery
and investigation.
5 of 8
01/26/2023 10:38
FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023
5
NYSCEF DOC. NO. 72 01/26/2023
RECEIVED NYSCEF: 07/19/2023
WHEREFORE, the Defendants herein respectfully requests: (i) Judgment Dismissing Plaintiff’s
complaint in its entirety; (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
Dated: JANUARY 26, 2023
Queens New York
Respectfully submitted,
DOMINICK Dale, Esq
_________________________
Dominick Dale, Esq.
Law Office of Dominick Dale, Esq.
Attorneys for Defendant
70-02 Nansen Street
Forest Hills New York 11375
(917) 816-8327
To:
THEODORE COHEN, ESQ. 410 JERICHO TPKE., STE. 220 JERICHO, NEW YORK 11753
6 of 8
01/26/2023 10:38
FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023
5
NYSCEF DOC. NO. 72 01/26/2023
RECEIVED NYSCEF: 07/19/2023
VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF QUEENS )
DOMINICK DALE, an attorney duly licensed to practice law before the Courts of this State hereby
affirm the following to be true under the penalties of perjury.
I am the attorney of record for the DEFENDANTS. I have read the annexed ANSWER, know the
contents thereof and the same are true to my knowledge, except those matters therein which are
stated to be alleged on information and belief and as to those matters I believe them to be true.
DOMINICK DALE, ESQ
____________________________
Dominick R. Dale
7 of 8
01/26/2023 10:38
FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023
5
NYSCEF DOC. NO. 72 01/26/2023
RECEIVED NYSCEF: 07/19/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-----------------------------------------------------------------------X
PEARL DELTA FUNDING, LLC Index No.: 600378/2023
PLAINTIFF,
VERIFIED ANSWER
WITH AFFIRMATIVE
DEFENSES
-against-
PEAK TITLE AGENCY CO ET AL
DEFENDANTS
-----------------------------------------------------------------------X
______________________________________________________________________________
VERIFIED ANSWER AND AFFIRMATIVE DEFENSES
______________________________________________________________________________
LAW OFFICES OF DOMINICK DALE, ESQ.
70-02 Nansen Street
Forest Hills NY 11375
(917) 816-8327
Part 130-1.1-a Certification:
DOMINICK DALE, ESQ.
8 of 8
Document Filed Date
July 19, 2023
Case Filing Date
January 06, 2023
Category
Commercial - Contract
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
01/26/2023 10:38 FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023 5 NYSCEF DOC. NO. 72 01/26/2023 RECEIVED NYSCEF: 07/19/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -----------------------------------------------------------------------X PEARL DELTA FUNDING, LLC Index No.: 600378/2023 PLAINTIFF, VERIFIED ANSWER WITH AFFIRMATIVE DEFENSES -against- PEAK TITLE AGENCY CO ET AL DEFENDANTS -----------------------------------------------------------------------X Defendants, PEAK TITLE AGENCY CO ET AL by and through their attorneys, DOMINICK DALE, ESQ for its answer to the complaint herein, states upon information and belief as follows: The Parties 1. Defendants deny having sufficient knowledge to either admit or deny the allegations contained in Paragraph 1 of the complaint. 2. Defendants admit the allegations contained in Paragraph 2-4 of the complaint. 3. Defendants deny the allegations contained in Paragraph 5-16 of the complaint, specifically Defendants assert that the “agreement” referred to is a de facto unlawful usurious loan and not an asset purchase agreement. Answering “As And For A First Cause Of Action—Breach Of Contract” 4. Defendants deny the allegations contained in Paragraph 17-20 of the complaint, specifically Defendants assert that the “agreement” referred to is a de facto unlawful usurious loan and not an asset purchase agreement. 1 of 8 01/26/2023 10:38 FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023 5 NYSCEF DOC. NO. 72 01/26/2023 RECEIVED NYSCEF: 07/19/2023 Answering “As And For A Second Cause Of Action—Personal Guarantee” 5. Defendants deny the allegations contained in Paragraph 21-24 of the complaint, specifically Defendants assert that the “agreement” referred to is a de facto unlawful usurious loan and not an asset purchase agreement. AFFIRMATIVE DEFENSES AND AS FOR A FIRST AFFIRMATIVE DEFENSE 6. Excessive fees charged by Plaintiff including, but not limited to various liquidated damages clauses in the contract are attempted to be charged as penalties which are contrary to law. AND AS FOR A SECOND AFFIRMATIVE DEFENSE 7. The contract is unconscionable. AND AS FOR A THIRD AFFIRMATIVE DEFENSE 8. Plaintiff being granted the relief requested would result in Unjust Enrichment on the part of the Plaintiff. AND AS FOR A FOURTH AFFIRMATIVE DEFENSE 9. Plaintiff violated the duty of good faith and fair dealing. AND AS FOR A FIFTH AFFIRMATIVE DEFENSE 10. Plaintiff is suing for the wrong amount. AND AS FOR A SIXTH AFFIRMATIVE DEFENSE 11. Plaintiff's filing of this matter against Defendants violates the doctrine of laches. AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE 12. The Plaintiff Fraudulently Induced the Defendants into executing the agreement. 2 of 8 01/26/2023 10:38 FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023 5 NYSCEF DOC. NO. 72 01/26/2023 RECEIVED NYSCEF: 07/19/2023 AND AS FOR A EIGHTH AFFIRMATIVE DEFENSE 13. Plaintiff's filing of this matter against Defendants violates the doctrine of in pari Delicto. AND AS FOR A NINTH AFFIRMATIVE DEFENSE 14. Plaintiff failed to mitigate damages. AND AS FOR A TENTH AFFIRMATIVE DEFENSE 15. There is a lack of damages in this matter, or that the damages are inconsequential and de minimis. AND AS FOR A ELEVENTH AFFIRMATIVE DEFENSE 16. Plaintiff failed timely and properly to exhaust all necessary administrative, statutory, and/or jurisdictional prerequisites to commence this action. AND AS FOR A TWELFTH AFFIRMATIVE DEFENSE 17. Plaintiff failed to comply with its obligations under the agreement. AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE 18. Plaintiff induced Defendant into entering into an unlawful usurious loan and not an asset purchase agreement. AND AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE 19. The agreement which is the subject matter of this litigation is invalid because it lacks a legal purpose. AND AS FOR A FIFTEENTH AFFIRMATIVE DEFENSE 20. The agreement constitutes a contract of adhesion AND AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE 21. Plaintiff fails to state a claim upon which relief can be granted. 3 of 8 01/26/2023 10:38 FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023 5 NYSCEF DOC. NO. 72 01/26/2023 RECEIVED NYSCEF: 07/19/2023 AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 22. Defendant was not served or was improperly served with the Summons and Complaint. 23. As such, personal jurisdiction is lacking. Defendant was not served either personally or otherwise served. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 24. Defendant has paid, in whole or in part, the amounts claimed by the plaintiff. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 25. The complaint fails to state a cause of action upon which relief may be granted. The plaintiff failed in its Summons and Complaint to adequately plead the nature of the alleged cause of action. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 26. The circumstances surrounding it, it is so unfair that they “shock the conscience.” AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 27. Plaintiff has not established subject jurisdiction over the defendant. The court lacks jurisdiction over the defendant. Subject matter jurisdiction is lacking. Complaint to be dismissed based upon subject matter jurisdiction. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 28. The complaint should be dismissed based upon lack of standing. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 29. Based upon plaintiff’s bad faith, the Complaint should be dismissed. 4 of 8 01/26/2023 10:38 FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023 5 NYSCEF DOC. NO. 72 01/26/2023 RECEIVED NYSCEF: 07/19/2023 AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 30. Based upon the forgoing, the plaintiff’s claims are barred by the doctrine of unclean hands. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 31. Based upon foregoing, the plaintiff’s claims are barred by the doctrine of estoppel. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 32. Plaintiff’s action should fail because of lack and failure of consideration. Plaintiff has not and cannot show that it provided consideration to the defendant. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 33. Plaintiff’s claim are barred by Statute of Frauds. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 34. Plaintiff engaged in deceptive acts and practices unlawful. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE 35. The claims asserted in the Complaint are not set forth with sufficient particularity to enable Defendant to determine all of his defenses to these claims. Defendant therefore reserves the right to assert any additional defenses that may be applicable and to withdraw any defenses that are inapplicable once the precise nature of the claims are ascertained through discovery and investigation. 5 of 8 01/26/2023 10:38 FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023 5 NYSCEF DOC. NO. 72 01/26/2023 RECEIVED NYSCEF: 07/19/2023 WHEREFORE, the Defendants herein respectfully requests: (i) Judgment Dismissing Plaintiff’s complaint in its entirety; (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 Dated: JANUARY 26, 2023 Queens New York Respectfully submitted, DOMINICK Dale, Esq _________________________ Dominick Dale, Esq. Law Office of Dominick Dale, Esq. Attorneys for Defendant 70-02 Nansen Street Forest Hills New York 11375 (917) 816-8327 To: THEODORE COHEN, ESQ. 410 JERICHO TPKE., STE. 220 JERICHO, NEW YORK 11753 6 of 8 01/26/2023 10:38 FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023 5 NYSCEF DOC. NO. 72 01/26/2023 RECEIVED NYSCEF: 07/19/2023 VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF QUEENS ) DOMINICK DALE, an attorney duly licensed to practice law before the Courts of this State hereby affirm the following to be true under the penalties of perjury. I am the attorney of record for the DEFENDANTS. I have read the annexed ANSWER, know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief and as to those matters I believe them to be true. DOMINICK DALE, ESQ ____________________________ Dominick R. Dale 7 of 8 01/26/2023 10:38 FILED: NASSAU COUNTY CLERK 07/19/2023 11:51 PM INDEX NO. 600378/2023 5 NYSCEF DOC. NO. 72 01/26/2023 RECEIVED NYSCEF: 07/19/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -----------------------------------------------------------------------X PEARL DELTA FUNDING, LLC Index No.: 600378/2023 PLAINTIFF, VERIFIED ANSWER WITH AFFIRMATIVE DEFENSES -against- PEAK TITLE AGENCY CO ET AL DEFENDANTS -----------------------------------------------------------------------X ______________________________________________________________________________ VERIFIED ANSWER AND AFFIRMATIVE DEFENSES ______________________________________________________________________________ LAW OFFICES OF DOMINICK DALE, ESQ. 70-02 Nansen Street Forest Hills NY 11375 (917) 816-8327 Part 130-1.1-a Certification: DOMINICK DALE, ESQ. 8 of 8