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FILED: ERIE COUNTY CLERK 08/27/2020 05:29 PM INDEX NO. 809503/2020
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/27/2020
EXHIBIT "E"
FILED:
FILED: MONROE COUNTY
ERIE COUNTY CLERK
CLERK 12/30/2019
08/27/2020 05:55
05:29 PMPM INDEX NO.
INDEX NO. 809503/2020
E2019009185
NYSCEF DOC.
NYSCEF DOC. NO.
NO. 12
8 RECEIVED NYSCEF:
RECEIVED NYSCEF: 08/27/2020
12/30/2019
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.
Receipt # 2308007
Book Page CIVIL
Return To: No. Pages: 8
FRANK ANTHONY DIBLASI
Instrument: ANSWER
Control #: 201912301268
Index #: E2019009185
Date: 12/30/2019
Perry Plaza Erie, Pa., Limited Partnership Time: 5:56:43 PM
Super Price Chopper, Inc.
Kaid, and Mushtaq M.
Total Fees Paid: $0.00
Employee:
State of New York
MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.
ADAM J BELLO
MONROE COUNTY CLERK
II IIII IIIIIIIII II
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STATE
STATE OF NEW YORK
OF NEW YORK
SUPREME
SUPREME COURT:
COURT: COUNTY
COUNTY MONROE
OF MONROE
OF
PERRY PLAZA
PERRY PLAZA ERIE,
ERIE, PA.,
PA., LIMITED
LIMITED PARTNERSHIP
PARTNERSHIP
Plaintiff
Plaintiff
VERIFIED
VERIFIED ANSWER
ANSWER
vs.
vs.
Index
Index No. E2019009185
No. E2019009185
SUPER
SUPER PRICE
PRICE CHOPPER,
CHOPPER, INC.
INC.
MUSHTAQ
MUSHTAQ M. KAID
M. KAID
Defendants
Defendants
___
Defendants,
Defendants, Super
Super Price
Price Chopper,
Chopper, Inc.,
Inc., and
and Mushtaq
Mushtaq M.
M. Kaid,
Kaid, by
by their
their attorney,
attorney,
Frank
Frank A. DiBlasi,
A. DiBlasi, Esq.,
Esq., as and for
as and for their
their verified
verified Answer
Answer herein
herein allege:
allege:
1.
1. Admit
Admit the
the allegations
allegations contained
contained in Paragraphs
in Paragraphs numbered
numbered 1,2,3,4,5,6
1,2,3,4,5,6 and
and 7
7 the
the
verified
verified complaint.
complaint.
2.
2. Deny
Deny the
the allegations
allegations contained
contained in
in Paragraphs
Paragraphs numbered
numbered 13
13 of
of the
the verified
verified
complaint.
complaint.
1.
1.
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3.
3. With
With respect
respect to
to the
the allegations
allegations contained
contained in
in Paragraphs
Paragraphs numbered
numbered 88 and
and 9
9
inclusive,
inclusive, of
of the
the verified
verified Complaint,
Complaint, the
the defendants
defendants neither
neither admit
admit nor
nor
deny
deny each
each of
of the
the allegations
allegations contained
contained in
in Paragraphs
Paragraphs numbered
numbered 88 and
and 9
9
inclusive,
inclusive, as
as such
such allegations
allegations are
are legal
legal conclusions
conclusions for
for which
which no
no response(s)
response(s)
are
are required.
required.
4.
4. With respect
With respect to
to the
the allegations
allegations contained
contained in
in Paragraph
Paragraph numbered
numbered 10
10 of
of the
the
verified
verified complaint,
complaint, which
which paragraph repeats
paragraph repeats and
and re-alleges
re-alleges the
the allegations
allegations contained
contained
in
in paragraphs
paragraphs numbered
numbered 1-9,
1-9, inclusive,
inclusive, of
of the
the verified
verified complaint,
complaint, defendants
defendants
repeat
repeat and
and re-allege
re-allege each
each and
and every
every one
one of
of its
its respective
respective responses
responses to
to the
the said
said
allegations
allegations of
of the
the verified
verified complaint
complaint as if
as if fully
fully set
set forth
forth herein.
herein.
5.
5. With
With respect
respect to
to the
the allegations
allegations contained
contained in
in Paragraphs
Paragraphs numbered
numbered 11,12
11,12
14 of
and 14
and the verified
of the verified Complaint,
Complaint, defendants
defendants neither
neither admit
admit nor
nor deny
deny the
the
allegations,
allegations, as such allegations
as such allegations are
are legal
legal conclusions
conclusions for
for which
which no response
no response is
is
required.
required.
2.
2.
3 of 8
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6.
6. With
With respect
respect to
to the
the allegations
allegations contained
contained in
in Paragraph
Paragraph numbered
numbered 15
15 of the
of the
verified
verified complaint,
complaint, which
which paragraph
paragraph repeats
repeats and re-alleges the
and re-alleges the allegations
allegations contained
contained
in
in paragraphs
paragraphs numbered
numbered lthrough
1through 14,
14, inclusive,
inclusive, of
of the
the verified
verified complaint,
complaint,
defendants
defendants repeat
repeat and
and re-allege
re-allege each
each and
and every
every one
one of their respective
of their respective responses
responses to
to
the
the said
said allegations
allegations of
of the
the verified
verified complaint
complaint as
as if fully set
if fully set forth
forth herein.
herein.
7. With
7. With respect
respect to
to allegations
allegations contained
contained in
in Paragraphs
Paragraphs numbered
numbered 16
16 and
and 17
17 of
of the
the
verified
verified complaint,
complaint, defendant
defendant neither
neither admits
admits nor
nor denies
denies the
the allegations
allegations set
set forth
forth in
in those
those
numbered
numbered paragraphs,
paragraphs, as
as such
such allegations
allegations are
are legal
legal conclusions
conclusions for
for which
which no
no response
response
is
is required.
required. .
8.
8. Defendants
Defendants deny
deny each
each and
and every
every other
other allegation(s)
allegation(s) contained
contained in plaintiff's
in plaintiff's
verified
verified Complaint
Complaint not heretofore
not heretofore specifically
specifically admitted,
admitted, denied
denied or
or otherwise
otherwise
controverted.
controverted.
AND FOR
AS AND
AS FOR A
A FIRST
FIRST AFFIRMATIVE
AFFIRMATIVE DEFENSE
DEFENSE
9.
9. Plaintiff's
Plaintiff's complaint
complaint should
should be
be dismissed
dismissed for
for the
the reason
reason that
that it
it fails
fails to
to state
state
cause(s)
cause(s) of action
of action for
for which
which the
the requested
requested relief
relief may properly
may properly be granted
be granted as
as against
against the
the
defendants,
defendants, as there is
as there prior action
is a prior action filed (Index
filed (Index No.
No. 2018010569)
2018010569) for
for the same relief.
the same relief.
3.
3.
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AS
AS AND FOR A
AND FOR A SECOND
SECOND AFFIRMATIVE
AFFIRMATIVE DEFENSE
DEFENSE
10.
10. This
This Court
Court lacks jurisdiction over
lacks jurisdiction over each
each of
of the
the defendants
defendants in
in this
this action.
action.
AS AND FOR
AS AND A THIRD
FOR A THIRD AFFIRMATIVE
AFFIRMATIVE DEFENSE
DEFENSE
11.
11. Plaintiffs
Plaintiff's actions
actions are
are barred
barred by
by the
the Doctrine
Doctrine of
of Unclean
Unclean Hands
Hands
AS AND FOR
AS AND A FOURTH
FOR A FOURTH AFFIRMATIVE
AFFIRMATIVE DEFENSE
DEFENSE
12.
12. Plaintiff's
Plaintiff's actions
actions are
are barred
barred by
by the
the Doctrine
Doctrine of Unclean
of Unclean Hands.
Hands.
AS AND FOR
AS AND FOR A
A FIFTH
FIFTH AFFIRMATIVE DEFENSE
AFFIRMATIVE DEFENSE
13.
13. Upon
Upon information
information and
and belief,
belief, to
to the
the extent
extent that
that the
the plaintiff
plaintiff does
does prove
prove that
that he
he
has
has sustained
sustained damages
damages or
or continues
continues to
to sustain
sustain damages,
damages, the
the plaintiff's
plaintiff's complaint
complaint
should
should be
be dismissed
dismissed for
for the
the reason
reason that the
that plaintiff has
the plaintiff failed to
has failed to take
take proper
proper action
action
to
to mitigate
mitigate damages
damages it
it sustained.
sustained.
4.
4.
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WHEREFORE,
WHEREFORE, the
the answering
answering defendants
defendants demand
demand judgment as
judgment as follows:
follows:
a.
a. Dismissal
Dismissal of
of the
the verified
verified Complaint
Complaint in
in its
its entirety;
entirety;
b.
b. A money
A money judgment in
judgment in favor
favor of
of the
the defendants
defendants and
and against
against the
the plaintiff
plaintiff
for
for damages
damages in
in such
such amount
amount as
as will
will be
be proved
proved at
at the
the trial
trial of
of this
this action;
action;
c.
c. Reasonable
Reasonable attorney's
attorney's fees,
fees, together
together with
with costs
costs and disbursements;
and disbursements; and
and
d.
d. Such
Such other
other and
and further
further relief
relief as
as to the Court
to the Court seems
seems just and
just and proper.
proper.
DATED:
DATED: December
December 30th,
30th, 2019
2019
Amherst,
Amherst, New
New York
York
Frank
Fr nk A. Di Blasi,
A. Di lasi, Esq.
Esq.
Attorney
Attorney for
for the
the Defendants
Defendants
4721
4721 Main
Main Street
Street
Amherst,
Amherst, New
New York
York 14226
14226
(716)
(716) 839-0354
839-0354
TO: Dale
TO: Dale A.
A. Worrall,
Worrall, Esq.
Esq.
Harris
Harris Beach
Beach PLLC
PLLC
Attorneys
Attorneys for the Plaintiff
for the Plaintiff
99
99 Garnsey
Garnsey Road
Road
Pittsford,
Pittsford, New
New York
York 14534
14534
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Preview
FILED: ERIE COUNTY CLERK 08/27/2020 05:29 PM INDEX NO. 809503/2020 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/27/2020 EXHIBIT "E" FILED: FILED: MONROE COUNTY ERIE COUNTY CLERK CLERK 12/30/2019 08/27/2020 05:55 05:29 PMPM INDEX NO. INDEX NO. 809503/2020 E2019009185 NYSCEF DOC. NYSCEF DOC. NO. NO. 12 8 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/27/2020 12/30/2019 MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT. Receipt # 2308007 Book Page CIVIL Return To: No. Pages: 8 FRANK ANTHONY DIBLASI Instrument: ANSWER Control #: 201912301268 Index #: E2019009185 Date: 12/30/2019 Perry Plaza Erie, Pa., Limited Partnership Time: 5:56:43 PM Super Price Chopper, Inc. Kaid, and Mushtaq M. Total Fees Paid: $0.00 Employee: State of New York MONROE COUNTY CLERK’S OFFICE WARNING – THIS SHEET CONSTITUTES THE CLERKS ENDORSEMENT, REQUIRED BY SECTION 317-a(5) & SECTION 319 OF THE REAL PROPERTY LAW OF THE STATE OF NEW YORK. DO NOT DETACH OR REMOVE. ADAM J BELLO MONROE COUNTY CLERK II IIII IIIIIIIII II 1 of 8 FILED: ERIE MONROE COUNTY CLERK 12/30/2019 05:55 PMPM Index#:E2019009155 : E2019009135 FILED: COUNTY 201912301268 1201912301268 CLERK 08/27/2020 05:29 INDEX Index INDEX NO. # NO. E2019009185 809503/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 12 8 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/27/2020 12/30/2019 STATE STATE OF NEW YORK OF NEW YORK SUPREME SUPREME COURT: COURT: COUNTY COUNTY MONROE OF MONROE OF PERRY PLAZA PERRY PLAZA ERIE, ERIE, PA., PA., LIMITED LIMITED PARTNERSHIP PARTNERSHIP Plaintiff Plaintiff VERIFIED VERIFIED ANSWER ANSWER vs. vs. Index Index No. E2019009185 No. E2019009185 SUPER SUPER PRICE PRICE CHOPPER, CHOPPER, INC. INC. MUSHTAQ MUSHTAQ M. KAID M. KAID Defendants Defendants ___ Defendants, Defendants, Super Super Price Price Chopper, Chopper, Inc., Inc., and and Mushtaq Mushtaq M. M. Kaid, Kaid, by by their their attorney, attorney, Frank Frank A. DiBlasi, A. DiBlasi, Esq., Esq., as and for as and for their their verified verified Answer Answer herein herein allege: allege: 1. 1. Admit Admit the the allegations allegations contained contained in Paragraphs in Paragraphs numbered numbered 1,2,3,4,5,6 1,2,3,4,5,6 and and 7 7 the the verified verified complaint. complaint. 2. 2. Deny Deny the the allegations allegations contained contained in in Paragraphs Paragraphs numbered numbered 13 13 of of the the verified verified complaint. complaint. 1. 1. 2 of 8 FILED: ERIE MONROE COUNTY CLERK 12/30/2019 05:55 PMPM Index #: E201500ai85 #:E2019009185 FILED: COUNTY 201912301268 1201912301268 CLERK 08/27/2020 05:29 INDEX Index INDEX NO. NO. E2019009185 809503/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 12 8 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/27/2020 12/30/2019 3. 3. With With respect respect to to the the allegations allegations contained contained in in Paragraphs Paragraphs numbered numbered 88 and and 9 9 inclusive, inclusive, of of the the verified verified Complaint, Complaint, the the defendants defendants neither neither admit admit nor nor deny deny each each of of the the allegations allegations contained contained in in Paragraphs Paragraphs numbered numbered 88 and and 9 9 inclusive, inclusive, as as such such allegations allegations are are legal legal conclusions conclusions for for which which no no response(s) response(s) are are required. required. 4. 4. With respect With respect to to the the allegations allegations contained contained in in Paragraph Paragraph numbered numbered 10 10 of of the the verified verified complaint, complaint, which which paragraph repeats paragraph repeats and and re-alleges re-alleges the the allegations allegations contained contained in in paragraphs paragraphs numbered numbered 1-9, 1-9, inclusive, inclusive, of of the the verified verified complaint, complaint, defendants defendants repeat repeat and and re-allege re-allege each each and and every every one one of of its its respective respective responses responses to to the the said said allegations allegations of of the the verified verified complaint complaint as if as if fully fully set set forth forth herein. herein. 5. 5. With With respect respect to to the the allegations allegations contained contained in in Paragraphs Paragraphs numbered numbered 11,12 11,12 14 of and 14 and the verified of the verified Complaint, Complaint, defendants defendants neither neither admit admit nor nor deny deny the the allegations, allegations, as such allegations as such allegations are are legal legal conclusions conclusions for for which which no response no response is is required. required. 2. 2. 3 of 8 FILED: ERIE MONROE COUNTY CLERK 12/30/2019 05:55 PMPM index#:E2019009185 E2019009185 201912301268 FILED: COUNTY 1201912301268 CLERK 08/27/2020 05:29 INDEX Index INDEX NO. #: NO. E2019009185 809503/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 12 8 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/27/2020 12/30/2019 6. 6. With With respect respect to to the the allegations allegations contained contained in in Paragraph Paragraph numbered numbered 15 15 of the of the verified verified complaint, complaint, which which paragraph paragraph repeats repeats and re-alleges the and re-alleges the allegations allegations contained contained in in paragraphs paragraphs numbered numbered lthrough 1through 14, 14, inclusive, inclusive, of of the the verified verified complaint, complaint, defendants defendants repeat repeat and and re-allege re-allege each each and and every every one one of their respective of their respective responses responses to to the the said said allegations allegations of of the the verified verified complaint complaint as as if fully set if fully set forth forth herein. herein. 7. With 7. With respect respect to to allegations allegations contained contained in in Paragraphs Paragraphs numbered numbered 16 16 and and 17 17 of of the the verified verified complaint, complaint, defendant defendant neither neither admits admits nor nor denies denies the the allegations allegations set set forth forth in in those those numbered numbered paragraphs, paragraphs, as as such such allegations allegations are are legal legal conclusions conclusions for for which which no no response response is is required. required. . 8. 8. Defendants Defendants deny deny each each and and every every other other allegation(s) allegation(s) contained contained in plaintiff's in plaintiff's verified verified Complaint Complaint not heretofore not heretofore specifically specifically admitted, admitted, denied denied or or otherwise otherwise controverted. controverted. AND FOR AS AND AS FOR A A FIRST FIRST AFFIRMATIVE AFFIRMATIVE DEFENSE DEFENSE 9. 9. Plaintiff's Plaintiff's complaint complaint should should be be dismissed dismissed for for the the reason reason that that it it fails fails to to state state cause(s) cause(s) of action of action for for which which the the requested requested relief relief may properly may properly be granted be granted as as against against the the defendants, defendants, as there is as there prior action is a prior action filed (Index filed (Index No. No. 2018010569) 2018010569) for for the same relief. the same relief. 3. 3. 4 of 8 FILED: MONROE COUNTY CLERK 12/30/2019 05:55 PMPM Index#:E2019009185 E2019009185 201912301268 ERIE FILED: 201912301268 COUNTY CLERK 08/27/2020 05:29 INDEX Index INDEX NO. #: NO. E2019009185 809503/2020 NYSCEF DOC. NYSCEF DOC. NO. NO. 12 8 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/27/2020 12/30/2019 AS AS AND FOR A AND FOR A SECOND SECOND AFFIRMATIVE AFFIRMATIVE DEFENSE DEFENSE 10. 10. This This Court Court lacks jurisdiction over lacks jurisdiction over each each of of the the defendants defendants in in this this action. action. AS AND FOR AS AND A THIRD FOR A THIRD AFFIRMATIVE AFFIRMATIVE DEFENSE DEFENSE 11. 11. Plaintiffs Plaintiff's actions actions are are barred barred by by the the Doctrine Doctrine of of Unclean Unclean Hands Hands AS AND FOR AS AND A FOURTH FOR A FOURTH AFFIRMATIVE AFFIRMATIVE DEFENSE DEFENSE 12. 12. Plaintiff's Plaintiff's actions actions are are barred barred by by the the Doctrine Doctrine of Unclean of Unclean Hands. Hands. AS AND FOR AS AND FOR A A FIFTH FIFTH AFFIRMATIVE DEFENSE AFFIRMATIVE DEFENSE 13. 13. Upon Upon information information and and belief, belief, to to the the extent extent that that the the plaintiff plaintiff does does prove prove that that he he has has sustained sustained damages damages or or continues continues to to sustain sustain damages, damages, the the plaintiff's plaintiff's complaint complaint should should be be dismissed dismissed for for the the reason reason that the that plaintiff has the plaintiff failed to has failed to take take proper proper action action to to mitigate mitigate damages damages it it sustained. sustained. 4. 4. 5 of 8 FILED: ERIE MONROE COUNTY CLERK 12/30/2019 05:55 PMPM Index E2015üü51 Index #: #: o t2U1UUUUliSO FILED: COUNTY 201912301268 1201912301268 CLERK 08/27/2020 05:29 INDEX INDEX NO. 809503/2020 NO. E2019009185 NYSCEF DOC. NYSCEF DOC. NO. NO. 12 8 RECEIVED NYSCEF: RECEIVED NYSCEF: 08/27/2020 12/30/2019 WHEREFORE, WHEREFORE, the the answering answering defendants defendants demand demand judgment as judgment as follows: follows: a. a. Dismissal Dismissal of of the the verified verified Complaint Complaint in in its its entirety; entirety; b. b. A money A money judgment in judgment in favor favor of of the the defendants defendants and and against against the the plaintiff plaintiff for for damages damages in in such such amount amount as as will will be be proved proved at at the the trial trial of of this this action; action; c. c. Reasonable Reasonable attorney's attorney's fees, fees, together together with with costs costs and disbursements; and disbursements; and and d. d. Such Such other other and and further further relief relief as as to the Court to the Court seems seems just and just and proper. proper. DATED: DATED: December December 30th, 30th, 2019 2019 Amherst, Amherst, New New York York Frank Fr nk A. Di Blasi, A. Di lasi, Esq. Esq. Attorney Attorney for for the the Defendants Defendants 4721 4721 Main Main Street Street Amherst, Amherst, New New York York 14226 14226 (716) (716) 839-0354 839-0354 TO: Dale TO: Dale A. A. Worrall, Worrall, Esq. Esq. Harris Harris Beach Beach PLLC PLLC Attorneys Attorneys for the Plaintiff for the Plaintiff 99 99 Garnsey Garnsey Road Road Pittsford, Pittsford, New New York York 14534 14534 6 of 8 FILED: MONROE COUNTY CLERK 12/30/2019 05:55 PMPM Index #: