On February 08, 2023 a
Answer
was filed
involving a dispute between
Velocity Capital Group Llc,
and
Cabinets And More Llc,
Clayton Ferreira Rodrigues,
Zothex Flooring Inc,
for Commercial - Contract
in the District Court of Ontario County.
Preview
FILED: ONTARIO COUNTY CLERK 02/28/2023 03:44 PM INDEX NO. 135394-2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/28/2023
Ontario County Clerk Recording Page
Return To Pamela Keefe, Acting County Clerk
MIKHAIL USHER Ontario County Clerk
20 Ontario Street
Canandaigua, New York 14424
(585) 396-4200
Document Type: ANSWER Receipt Number: 662199
Plaintiff Defendant
VELOCITY CAPITAL GROUP LLC ZOTHEX FLOORING INC
Fees
Control #: 202302280400
Total Fees Paid: $0.00
Index #: 135394-2023
State of New York
County of Ontario
EFiling through NYSCEF with a total page count of
7.
Acting Ontario County Clerk
This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York
PK
Do Not Detach
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FILED: ONTARIO COUNTY CLERK 02/28/2023 03:44 PM
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONTARIO
________________________________________________X Index No.: 135394-2023
VELOCITY CAPITAL GROUP,
Plaintiff,
vs. VERIFIED ANSWER
WITH AFFIRMATIVE
DEFENSES
ZOTHEX FLOORING INC, CABINETS & MORE, LLC
and CLAYTON FERREIRA RODRIGUES,
Defendants.
________________________________________________X
Defendants Z O T H E X F L O O R I N G I N C , C A B I N E T S & M O R E , L L C a n d C L A Y T O N
F E R R E I R A R O D R I G U E S , 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 admit the allegations contained in Paragraph 3 of the complaint.
Answering "Venue"
4. Defendants neither admit nor deny the allegations contained in Paragraph 4 of the
Complaint as it requires a conclusion of law to answer.
Answering "The Facts"
5. Defendants deny the allegations contained in Paragraph 5 of the complaint.
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.
9. Defendants deny the allegations contained in Paragraph 9 of the complaint.
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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 “For a First Cause of Action-
Breach of Contract”
14. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 14 of the complaint.
15. Defendants deny the allegations contained in Paragraph 15 of the complaint.
16. Defendants deny the allegations contained in Paragraph 16 of the complaint.
17. Defendants deny the allegations contained in Paragraph 17 of the complaint.
18. Defendants deny the allegations contained in Paragraph 18 of the complaint.
19. Defendants deny the allegations contained in Paragraph 19 of the complaint.
Answering “Second Cause of Action–
Personal Guarantee”
20. Defendants deny sufficient knowledge to either admit or deny the allegations contained in
Paragraph 20 of the complaint.
21. Defendants deny the allegations contained in Paragraph 2 1 of the complaint.
22. Defendants deny the allegations contained in Paragraph 22 of the complaint.
23. Defendants deny the allegations contained in Paragraph 23 of the complaint.
AFFIRMATIVE DEFENSES
AND AS FOR A FIRST AFFIRMATIVE DEFENSE
24. Ambiguity, Plaintiff did not clearly state the amount and issues in this case, which makes it
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difficult to respond. As Plaintiff has failed to state a claim pursuant to CPLR 321l(a)(7)
Defendants herein reserve the right to supplement this answer as may be required by the
circumstances.
AND AS FOR A SECOND AFFIRMATIVE DEFENSE
25. Mistake. The subject amount in the complaint was paid previously.
AND AS FOR A THIRD AFFIRMATIVE DEFENSE
26. Plaintiff being granted the relief requested would result in Unjust Enrichment on the part
of the Plaintiff.
AND AS FOR A FOURTH AFFIRMATIVE DEFENSE
27. Plaintiff violated the duty of good faith and fair dealing.
AND AS FOR A FIFTH AFFIRMATIVE DEFENSE
28. Plaintiff is suing for the wrong amount.
AND AS FOR A SIXTH AFFIRMATIVE DEFENSE
29. Plaintiff's filing of this matter against Defendants violates the doctrine of laches.
AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE
30. Plaintiff failed to mitigate damages.
AND AS FOR AN EIGHTH AFFIRMATIVE DEFENSE
31. 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
32. Plaintiff lacks standing.
AND AS FOR A TENTH AFFIRMATIVE DEFENSE
33. Excessive fees charged by Plaintiff which are impermissibly punitive.
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AND AS FOR AN ELEVENTH AFFIRMATIVE DEFENSE
34. The contract is unconscionable.
AND AS FOR A TWELTH AFFIRMATIVE DEFENSE
35. The Plaintiff Fraudulently Induced the Defendants into executing the agreement.
AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE
36. Plaintiff s filing of this matter against Defendants violates the doctrine of inpari delecto.
AND AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE
37. 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
38. Plaintiff failed to comply with its obligations under the agreement.
AND AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE
39. 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
40. Lack of Personal Jurisdiction. Plaintiff lacks personal jurisdiction pursuant to
GENERAL OBLIGATIONS LAW 5- 1402.
AND AS FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
41. The agreement which is the subject matter of this litigation represents a contract of adhesion.
AND AS FOR A NINTEENTH AFFIRMATIVE DEFENSE
42. Plaintiff fails to state a claim upon which relief can be granted.
AND AS FOR A TWENTIETH AFFIRMATIVE DEFENSE
43. Plaintiff induced Defendant into entering into an unlawful usurious loan and not an asset
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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.
Dated: Brooklyn, New York Respectfully submitted,
February 16, 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: Isaac H. Greenfield, Esq.
Law Offices of Isaac H. Greenfield, PLLC
Attorney for Plaintiff
2 Executive Blvd., Ste. 305
Suffern, NY 10901
Phone: (718) 564-6268
Fax: (516) 387-1117
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NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/28/2023
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Document Filed Date
February 28, 2023
Case Filing Date
February 08, 2023
Category
Commercial - Contract
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Preview
FILED: ONTARIO COUNTY CLERK 02/28/2023 03:44 PM INDEX NO. 135394-2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/28/2023 Ontario County Clerk Recording Page Return To Pamela Keefe, Acting County Clerk MIKHAIL USHER Ontario County Clerk 20 Ontario Street Canandaigua, New York 14424 (585) 396-4200 Document Type: ANSWER Receipt Number: 662199 Plaintiff Defendant VELOCITY CAPITAL GROUP LLC ZOTHEX FLOORING INC Fees Control #: 202302280400 Total Fees Paid: $0.00 Index #: 135394-2023 State of New York County of Ontario EFiling through NYSCEF with a total page count of 7. Acting Ontario County Clerk This sheet constitutes the Clerk’s endorsement required by section 319 of the Real Property Law of the State of New York PK Do Not Detach 1 of 7 202302280400 IndexNO. INDEX # : 135394-2023 135394-2023 FILED: ONTARIO COUNTY CLERK 02/28/2023 03:44 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONTARIO ________________________________________________X Index No.: 135394-2023 VELOCITY CAPITAL GROUP, Plaintiff, vs. VERIFIED ANSWER WITH AFFIRMATIVE DEFENSES ZOTHEX FLOORING INC, CABINETS & MORE, LLC and CLAYTON FERREIRA RODRIGUES, Defendants. ________________________________________________X Defendants Z O T H E X F L O O R I N G I N C , C A B I N E T S & M O R E , L L C a n d C L A Y T O N F E R R E I R A R O D R I G U E S , 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 admit the allegations contained in Paragraph 3 of the complaint. Answering "Venue" 4. Defendants neither admit nor deny the allegations contained in Paragraph 4 of the Complaint as it requires a conclusion of law to answer. Answering "The Facts" 5. Defendants deny the allegations contained in Paragraph 5 of the complaint. 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. 9. Defendants deny the allegations contained in Paragraph 9 of the complaint. 2 of 7 202302280400 IndexNO. INDEX #: 135394-2023 135394-2023 FILED: ONTARIO COUNTY CLERK 02/28/2023 03:44 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/28/2023 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 “For a First Cause of Action- Breach of Contract” 14. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 14 of the complaint. 15. Defendants deny the allegations contained in Paragraph 15 of the complaint. 16. Defendants deny the allegations contained in Paragraph 16 of the complaint. 17. Defendants deny the allegations contained in Paragraph 17 of the complaint. 18. Defendants deny the allegations contained in Paragraph 18 of the complaint. 19. Defendants deny the allegations contained in Paragraph 19 of the complaint. Answering “Second Cause of Action– Personal Guarantee” 20. Defendants deny sufficient knowledge to either admit or deny the allegations contained in Paragraph 20 of the complaint. 21. Defendants deny the allegations contained in Paragraph 2 1 of the complaint. 22. Defendants deny the allegations contained in Paragraph 22 of the complaint. 23. Defendants deny the allegations contained in Paragraph 23 of the complaint. AFFIRMATIVE DEFENSES AND AS FOR A FIRST AFFIRMATIVE DEFENSE 24. Ambiguity, Plaintiff did not clearly state the amount and issues in this case, which makes it 3 of 7 202302280400 IndexNO. INDEX #: 135394-2023 135394-2023 FILED: ONTARIO COUNTY CLERK 02/28/2023 03:44 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/28/2023 difficult to respond. As Plaintiff has failed to state a claim pursuant to CPLR 321l(a)(7) Defendants herein reserve the right to supplement this answer as may be required by the circumstances. AND AS FOR A SECOND AFFIRMATIVE DEFENSE 25. Mistake. The subject amount in the complaint was paid previously. AND AS FOR A THIRD AFFIRMATIVE DEFENSE 26. Plaintiff being granted the relief requested would result in Unjust Enrichment on the part of the Plaintiff. AND AS FOR A FOURTH AFFIRMATIVE DEFENSE 27. Plaintiff violated the duty of good faith and fair dealing. AND AS FOR A FIFTH AFFIRMATIVE DEFENSE 28. Plaintiff is suing for the wrong amount. AND AS FOR A SIXTH AFFIRMATIVE DEFENSE 29. Plaintiff's filing of this matter against Defendants violates the doctrine of laches. AND AS FOR A SEVENTH AFFIRMATIVE DEFENSE 30. Plaintiff failed to mitigate damages. AND AS FOR AN EIGHTH AFFIRMATIVE DEFENSE 31. 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 32. Plaintiff lacks standing. AND AS FOR A TENTH AFFIRMATIVE DEFENSE 33. Excessive fees charged by Plaintiff which are impermissibly punitive. 4 of 7 202302280400 IndexNO. INDEX #: 135394-2023 135394-2023 FILED: ONTARIO COUNTY CLERK 02/28/2023 03:44 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/28/2023 AND AS FOR AN ELEVENTH AFFIRMATIVE DEFENSE 34. The contract is unconscionable. AND AS FOR A TWELTH AFFIRMATIVE DEFENSE 35. The Plaintiff Fraudulently Induced the Defendants into executing the agreement. AND AS FOR A THIRTEENTH AFFIRMATIVE DEFENSE 36. Plaintiff s filing of this matter against Defendants violates the doctrine of inpari delecto. AND AS FOR A FOURTEENTH AFFIRMATIVE DEFENSE 37. 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 38. Plaintiff failed to comply with its obligations under the agreement. AND AS FOR A SIXTEENTH AFFIRMATIVE DEFENSE 39. 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 40. Lack of Personal Jurisdiction. Plaintiff lacks personal jurisdiction pursuant to GENERAL OBLIGATIONS LAW 5- 1402. AND AS FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 41. The agreement which is the subject matter of this litigation represents a contract of adhesion. AND AS FOR A NINTEENTH AFFIRMATIVE DEFENSE 42. Plaintiff fails to state a claim upon which relief can be granted. AND AS FOR A TWENTIETH AFFIRMATIVE DEFENSE 43. Plaintiff induced Defendant into entering into an unlawful usurious loan and not an asset 5 of 7 202302280400 IndexNO. INDEX #: 135394-2023 135394-2023 FILED: ONTARIO COUNTY CLERK 02/28/2023 03:44 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/28/2023 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. Dated: Brooklyn, New York Respectfully submitted, February 16, 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: Isaac H. Greenfield, Esq. Law Offices of Isaac H. Greenfield, PLLC Attorney for Plaintiff 2 Executive Blvd., Ste. 305 Suffern, NY 10901 Phone: (718) 564-6268 Fax: (516) 387-1117 6 of 7 202302280400 IndexNO. INDEX #: 135394-2023 135394-2023 FILED: ONTARIO COUNTY CLERK 02/28/2023 03:44 PM NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 02/28/2023 7 of 7