Preview
FILED: NEW YORK COUNTY CLERK 08/11/2023
11/21/2022 05:22
07:37 PM INDEX NO. 150993/2022
NYSCEF DOC. NO. 267
97 RECEIVED NYSCEF: 08/11/2023
11/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------- x
ALI BABA HOTEL CORP. d/b/a AMSTERDAM :
:
COURT HOTEL and EAST SIDE INN, L.L.C.
: Index No. 150993/2022
d/b/a THE MARCEL AT GRAMERCY,
:
:
Plaintiffs, : VERIFIED REPLY TO
: DEFENDANT THALIA
- against – : HERRERA’S VERIFIED AMENDED
: ANSWER WITH AFFIRMATIVE
ALEXANDER PROSE, REHAN KAPADIA, : DEFENSES AND COUNTERCLAIM
BELLA MANDOKI, CARLOS CARRILLO, AND :
THALIA HERRERA :
:
:
:
Defendants.
-------------------------------------------------------------- x
Plaintiffs ALI BABA HOTEL CORP., d/b/a AMSTERDAM COURT HOTEL (the
“Amsterdam Hotel”) and EAST SIDE INN, d/b/a THE MARCEL AT GRAMERCY Hotel (the
“Marcel Hotel”) (collectively, “Plaintiffs”), by and through their attorneys, Kucker Marino
Winiarsky & Bittens, LLP, as and for their Reply to the Counterclaim contained in the November
2, 2022 filing denominated “Verified Amended Answer with Affirmative Defenses and
Counterclaims” (“Answer”) of Defendant THALIA HERRERA (“Herrera” or “Defendant”),
allege as follows:
94. Deny the allegations contained in paragraph 94 of the Answer and refer all
questions of law to the discretion of the court.
95. Deny the allegations contained in paragraph 95 of the Answer.
96. Lack sufficient knowledge to form a belief as to the truth of the allegations
contained in paragraph 96 of the Answer.
97. Admit the allegations contained in paragraph 97 of the Answer.
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98. Admit the allegations contained in paragraph 98 of the Answer.
99. Admit the allegations contained in paragraph 99 of the Answer.
100. Lack sufficient knowledge to form a belief as to the truth of the allegations
contained in paragraph 100 of the Answer and refer all questions of law to the discretion of the
court.
101. Deny the allegations contained in paragraph 101 of the Answer and refer all
questions of law to the discretion of the court.
102. Deny the allegations contained in paragraph 102 of the Answer and refer all
questions of law to the discretion of the court.
103. Deny the allegations contained in paragraph 103 of the Answer and refer all
questions of law to the discretion of the court.
104. Deny the allegations contained in paragraph 104 of the Answer.
105. Deny the allegations contained in paragraph 105 of the Answer.
106. Deny the allegations contained in paragraph 106 of the Answer.
AS AND FOR A FIRST COUNTERCLAIM
(Declaratory Judgment)
107. In response to the allegations contained in paragraph 107 of the Answer, Plaintiffs
repeat and reiterate all prior responses to the allegations contained in this Reply as if set forth fully
herein.
108. Deny the allegations contained in paragraph 108 of the Answer.
109. Deny the allegations contained in paragraph 109 of the Answer.
110. Deny the allegations contained in paragraph 110 of the Answer.
111. Deny the allegations contained in paragraph 111 of the Answer.
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112. Deny the allegations contained in paragraph 112 of the Answer and refer all
questions of law to the discretion of the court.
113. Lack sufficient knowledge to form a belief as to the truth of the allegations
contained in paragraph 113 of the Answer and refer all questions of law to the discretion of the
court.
114. Deny the allegations contained in paragraph 114 of the Answer.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
115. The Counterclaim fails to state facts sufficient to constitute a cause of action upon
which relief may be granted because, inter alia, Defendant fails to allege a permanent tenancy
pursuant to applicable law including, without limitation, RSC § 25260.6(j), RSC §§ 2524.3(a) &
(b), and/or Admin Code § 26052.1(a)(1).
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
116. The Counterclaim fails to state facts sufficient to constitute a cause of action upon
which relief may be granted because, inter alia,
A. Defendant’s occupancy at the Marcel Hotel is not protected by the Rent
Stabilization Law and related laws applicable to SRO restricted buildings; and
B. The Marcel Hotel is not subject to the Rent Stabilization Law and related
laws applicable to SRO restricted buildings.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
117. The Counterclaim is barred by the doctrines of waiver, estoppel, laches and/or
unclean hands of Defendant.
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
118. Defendant seeks to be unjustly enriched through the Counterclaim and, as such, the
Counterclaim should be dismissed.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
119. Defendant’s Counterclaim is barred, in whole or in part, by documentary evidence.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
120. Defendant’s Counterclaim in this action is frivolous within the meaning of 22
NYCRR § 130-1.1.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
121. The Counterclaim should be dismissed because it contains scandalous material and
are libelous and false allegations against Plaintiffs.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
122. The building in which the Marcel Hotel is located and the unit therein that
Defendant allegedly occupies are not subject to rent stabilization and therefore any claims or
defenses based upon such alleged rent stabilized status must fail as a matter of law.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
123. The subject premises is not subject to rent stabilization but even it was at any time
subject to rent stabilization, it was lawfully deregulated more than four (4) years prior to
Defendant’s Counterclaim.
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AS AND FOR A TENTH AFFIRMATIVE DEFENSE
124. Defendant’s Counterclaim is barred as a result of Defendant’s own misconduct.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
125. Plaintiffs reserve the right to rely on any and all other defenses available at law or
equity that might be identified through investigation, the process of discovery or otherwise.
All allegations in the Answer not specifically addressed herein are denied by Plaintiffs.
WHEREFORE, Plaintiffs demand judgment for the relief set forth in the Complaint, and
dismissing Defendant’s Counterclaim with prejudice, and for such other and further relief as the
Court deems just and proper.
Dated: New York, New York
November 3, 2022
KUCKER MARINO WINIARSKY
& BITTENS, L.L.P.
By: _______________________
Eric R. McAvey, Esq.
Nativ Winiarsky, Esq.
747 Third Avenue
New York, New York 10017
(212) 869-5030
emcavey@kuckermarino.com
Attorneys for Plaintiffs
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VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
SAUL BIENENFELD, being duly sworn, deposes and says:
I am an officer of Plaintiffs ALI BABA HOTEL CORP. d/b/a AMSTERDAM COURT
HOTEL and EAST SIDE INN, d/b/a THE MARCEL AT GRAMERCY. I have read the
foregoing Reply and know the contents thereof. The same is true to my own knowledge, except
as to the matters therein stated to be alleged on information and belief, and as to those matters, I
believe them to be true.
ALI BABA HOTEL CORP. d/b/a
AMSTERDAM COURT HOTEL and
EAST SIDE INN, d/b/a THE MARCEL
AT GRAMERCY
By: Saul Bienenfeld
Title: Officer
Sworn to before me this day
of November, 2022
Notary c
Linda K. Diaz
State of New York
Notary Public,
Reg. No. 01D16368867
Qualified in New York County
2025
Commission Expires December 26.
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Preview
FILED: NEW YORK COUNTY CLERK 08/11/2023 11/21/2022 05:22 07:37 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 267 97 RECEIVED NYSCEF: 08/11/2023 11/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------- x ALI BABA HOTEL CORP. d/b/a AMSTERDAM : : COURT HOTEL and EAST SIDE INN, L.L.C. : Index No. 150993/2022 d/b/a THE MARCEL AT GRAMERCY, : : Plaintiffs, : VERIFIED REPLY TO : DEFENDANT THALIA - against – : HERRERA’S VERIFIED AMENDED : ANSWER WITH AFFIRMATIVE ALEXANDER PROSE, REHAN KAPADIA, : DEFENSES AND COUNTERCLAIM BELLA MANDOKI, CARLOS CARRILLO, AND : THALIA HERRERA : : : : Defendants. -------------------------------------------------------------- x Plaintiffs ALI BABA HOTEL CORP., d/b/a AMSTERDAM COURT HOTEL (the “Amsterdam Hotel”) and EAST SIDE INN, d/b/a THE MARCEL AT GRAMERCY Hotel (the “Marcel Hotel”) (collectively, “Plaintiffs”), by and through their attorneys, Kucker Marino Winiarsky & Bittens, LLP, as and for their Reply to the Counterclaim contained in the November 2, 2022 filing denominated “Verified Amended Answer with Affirmative Defenses and Counterclaims” (“Answer”) of Defendant THALIA HERRERA (“Herrera” or “Defendant”), allege as follows: 94. Deny the allegations contained in paragraph 94 of the Answer and refer all questions of law to the discretion of the court. 95. Deny the allegations contained in paragraph 95 of the Answer. 96. Lack sufficient knowledge to form a belief as to the truth of the allegations contained in paragraph 96 of the Answer. 97. Admit the allegations contained in paragraph 97 of the Answer. 1 1 of 6 FILED: NEW YORK COUNTY CLERK 08/11/2023 11/21/2022 05:22 07:37 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 267 97 RECEIVED NYSCEF: 08/11/2023 11/21/2022 98. Admit the allegations contained in paragraph 98 of the Answer. 99. Admit the allegations contained in paragraph 99 of the Answer. 100. Lack sufficient knowledge to form a belief as to the truth of the allegations contained in paragraph 100 of the Answer and refer all questions of law to the discretion of the court. 101. Deny the allegations contained in paragraph 101 of the Answer and refer all questions of law to the discretion of the court. 102. Deny the allegations contained in paragraph 102 of the Answer and refer all questions of law to the discretion of the court. 103. Deny the allegations contained in paragraph 103 of the Answer and refer all questions of law to the discretion of the court. 104. Deny the allegations contained in paragraph 104 of the Answer. 105. Deny the allegations contained in paragraph 105 of the Answer. 106. Deny the allegations contained in paragraph 106 of the Answer. AS AND FOR A FIRST COUNTERCLAIM (Declaratory Judgment) 107. In response to the allegations contained in paragraph 107 of the Answer, Plaintiffs repeat and reiterate all prior responses to the allegations contained in this Reply as if set forth fully herein. 108. Deny the allegations contained in paragraph 108 of the Answer. 109. Deny the allegations contained in paragraph 109 of the Answer. 110. Deny the allegations contained in paragraph 110 of the Answer. 111. Deny the allegations contained in paragraph 111 of the Answer. [8582-0012/1400576/1] 2 2 of 6 FILED: NEW YORK COUNTY CLERK 08/11/2023 11/21/2022 05:22 07:37 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 267 97 RECEIVED NYSCEF: 08/11/2023 11/21/2022 112. Deny the allegations contained in paragraph 112 of the Answer and refer all questions of law to the discretion of the court. 113. Lack sufficient knowledge to form a belief as to the truth of the allegations contained in paragraph 113 of the Answer and refer all questions of law to the discretion of the court. 114. Deny the allegations contained in paragraph 114 of the Answer. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 115. The Counterclaim fails to state facts sufficient to constitute a cause of action upon which relief may be granted because, inter alia, Defendant fails to allege a permanent tenancy pursuant to applicable law including, without limitation, RSC § 25260.6(j), RSC §§ 2524.3(a) & (b), and/or Admin Code § 26052.1(a)(1). AS AND FOR A SECOND AFFIRMATIVE DEFENSE 116. The Counterclaim fails to state facts sufficient to constitute a cause of action upon which relief may be granted because, inter alia, A. Defendant’s occupancy at the Marcel Hotel is not protected by the Rent Stabilization Law and related laws applicable to SRO restricted buildings; and B. The Marcel Hotel is not subject to the Rent Stabilization Law and related laws applicable to SRO restricted buildings. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 117. The Counterclaim is barred by the doctrines of waiver, estoppel, laches and/or unclean hands of Defendant. [8582-0012/1400576/1] 3 3 of 6 FILED: NEW YORK COUNTY CLERK 08/11/2023 11/21/2022 05:22 07:37 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 267 97 RECEIVED NYSCEF: 08/11/2023 11/21/2022 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 118. Defendant seeks to be unjustly enriched through the Counterclaim and, as such, the Counterclaim should be dismissed. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 119. Defendant’s Counterclaim is barred, in whole or in part, by documentary evidence. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 120. Defendant’s Counterclaim in this action is frivolous within the meaning of 22 NYCRR § 130-1.1. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 121. The Counterclaim should be dismissed because it contains scandalous material and are libelous and false allegations against Plaintiffs. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 122. The building in which the Marcel Hotel is located and the unit therein that Defendant allegedly occupies are not subject to rent stabilization and therefore any claims or defenses based upon such alleged rent stabilized status must fail as a matter of law. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 123. The subject premises is not subject to rent stabilization but even it was at any time subject to rent stabilization, it was lawfully deregulated more than four (4) years prior to Defendant’s Counterclaim. [8582-0012/1400576/1] 4 4 of 6 FILED: NEW YORK COUNTY CLERK 08/11/2023 11/21/2022 05:22 07:37 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 267 97 RECEIVED NYSCEF: 08/11/2023 11/21/2022 AS AND FOR A TENTH AFFIRMATIVE DEFENSE 124. Defendant’s Counterclaim is barred as a result of Defendant’s own misconduct. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 125. Plaintiffs reserve the right to rely on any and all other defenses available at law or equity that might be identified through investigation, the process of discovery or otherwise. All allegations in the Answer not specifically addressed herein are denied by Plaintiffs. WHEREFORE, Plaintiffs demand judgment for the relief set forth in the Complaint, and dismissing Defendant’s Counterclaim with prejudice, and for such other and further relief as the Court deems just and proper. Dated: New York, New York November 3, 2022 KUCKER MARINO WINIARSKY & BITTENS, L.L.P. By: _______________________ Eric R. McAvey, Esq. Nativ Winiarsky, Esq. 747 Third Avenue New York, New York 10017 (212) 869-5030 emcavey@kuckermarino.com Attorneys for Plaintiffs [8582-0012/1400576/1] 5 5 of 6 FILED: NEW YORK COUNTY CLERK 08/11/2023 11/21/2022 05:22 07:37 PM INDEX NO. 150993/2022 NYSCEF DOC. NO. 267 97 RECEIVED NYSCEF: 08/11/2023 11/21/2022 VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) SAUL BIENENFELD, being duly sworn, deposes and says: I am an officer of Plaintiffs ALI BABA HOTEL CORP. d/b/a AMSTERDAM COURT HOTEL and EAST SIDE INN, d/b/a THE MARCEL AT GRAMERCY. I have read the foregoing Reply and know the contents thereof. The same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. ALI BABA HOTEL CORP. d/b/a AMSTERDAM COURT HOTEL and EAST SIDE INN, d/b/a THE MARCEL AT GRAMERCY By: Saul Bienenfeld Title: Officer Sworn to before me this day of November, 2022 Notary c Linda K. Diaz State of New York Notary Public, Reg. No. 01D16368867 Qualified in New York County 2025 Commission Expires December 26. 6 of 6