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FILED: SULLIVAN COUNTY CLERK 08/02/2017 INDEX NO. E2017-927
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/02/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SULLIVAN
- - - - - - - - - - - - - - - - - - - - - x
THE BANK OF NEW YORK MELLON, F/K/A THE Index No.: 927/2017
BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN
CHASE BANK, N.A. AS TRUSTEE FOR ASSET
BACKED FUNDING CORPORATION, ASSET-BACKED
CERTIFICATES, SERIES 2005-HE1,
Plaintiff(s),
PLAINTIFF'S VERIFIED
REPLY TO COUNTERCLAIMS
-against-
MONIQUE DEFOUR JONES, JUSERENE, LLC,
#1" #12,"
"JOHN DOE through "JOHN DOE the
last twelve names being fictitious and
unknown to plaintiff, the persons or
parties intended being the tenants,
occupants, persons or corporations, if
any, having or claiming an interest in or
lien upon the premises, described in the
complaint,
Defendant(s).
- - - - - - - - - - - - - - - - - - - - - x
Plaintiff, by its attorneys LEOPOLD & ASSOCIATES, PLLC, as
and for its Reply to defendants Monique Defour Jones and
Juserene, LLC ("Answering Defendants") Verified Answer and
Defendants'
counterclaims as same are contained in Answering
Answer dated July 5, 2017, and received on July 13, 2017
(hereinafter "Answer") alleges as follows:
Plaintiff denies the allegations set forth in the
affirmative defenses numbered 1-15.
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REPLY TO FIRST COUNTERCLAIM
Defendants'
As and for its reply to Answering First
purported "Counterclaim", as set forth in the section titled
"Counterclaims" plaintiff alleges:
of the Answer,
1. Plaintiff denies any and all allegations as contained
in the First Counterclaim.
REPLY TO SECOND COUNTERCLAIM
Defendants'
As and for its reply to Answering Second
purported "Counterclaim", as set forth in the section titled
"Counterclaims"
of the Answer, plaintiff alleges:
2. Plaintiff denies any and all allegations as contained
in the Second Counterclaim.
REPLY TO THIRD COUNTERCLAIM
Defendants'
As and for its reply to Answering Third
purported "Counterclaim", as set forth in the section titled
"Counterclaims"
of the Answer, plaintiff alleges:
3. Plaintiff denies any and all allegations as contained
in the Third Counterclaim.
REPLY TO FOURTH COUNTERCLAIM
Defendants'
As and for its reply to Answering Fourth
purported "Counterclaim", as set forth in the section titled
"Counterclaims"
of the Answer, plaintiff alleges:
4. Plaintiff denies any and all allegations as contained
in the Fourth Counterclaim.
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REPLY TO FIFTH COUNTERCLAIM
Defendants'
As and for its reply to Answering Fifth
purported "Counterclaim", as set forth in the section titled
"Counterclaims" plaintiff alleges:
of the Answer,
5. Plaintiff denies any and all allegations as contained
in the Fifth Counterclaim.
REPLY TO SIXTH COUNTERCLAIM
Defendants'
As and for its reply to Answering Sixth
purported "Counterclaim", as set forth in the section titled
"Counterclaims"
of the Answer, plaintiff alleges:
6. Plaintiff denies any and all allegations as contained
in the Sixth Counterclaim.
REPLY TO SEVENTH COUNTERCLAIM
As and for its reply to Answering Defendants Seventh
purported "Counterclaim", as set forth in the section titled
"Counterclaims"
of the Answer, plaintiff alleges:
7. Plaintiff denies any and all allegations as contained
in the Seventh Counterclaim.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
1. As and for its first affirmative defense, plaintiff
alleges that the Counterclaims fail to state causes of action
against it upon which relief can be granted. Accordingly, the
Counterclaims must be dismissed pursuant to CPLR 3211(a) (7).
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AS AND FOR A SECOND AFFIRMATIVE DEFENSE
2. As and for its second affirmative defense, plaintiff
alleges that the Counterclaims against it may not properly be
interposed in the within action. Accordingly, the Counterclaims
must be dismissed pursuant to CPLR 3211(a) (6).
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
3. As and for its third affirmative defense, plaintiff
alleges that answering defendant(s) are estopped from
interposing the Counterclaims against plaintiff. Accordingly,
the Counterclaims must be dismissed.
AS AND FOR A FOURTH AFFIRNATIVE DEFENSE
4. As and for its fourth affirmative defense, plaintiff
alleges that answering defendant has waived any rights to
interpose the Counterclaims against plaintiff. Accordingly, the
Counterclaims must be dismissed.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
5. As and for its fifth affirmative defense, plaintiff
alleges that answering defendant has waived all defenses against
plaintiff. Accordingly, the Counterclaims must be dismissed.
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
6. As and for its sixth affirmative defense, plaintiff
alleges that answering defendant's Counterclaims against
plaintiff are frivolous and without basis, contain misstatements
of law and fact, fail to disclose material facts and were
interposed solely to achieve an impermissible collateral result.
Accordingly, the Counterclaims must be dismissed.
7. As a result of the frivolous conduct of answering
defendant in maintaining her Counterclaims, plaintiff sustained
unnecessary legal expenses and seeks, pursuant to CPLR 8303(a)
and Part 130 of the Uniform Rules of Trial Courts, costs in the
form of reimbursement for actual expenses reasonably incurred
attorneys'
and reasonable fees and financial sanctions against
answering defendant(s) for the frivolous conduct alleged.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
8. As and for its seventh affirmative defense, plaintiff
alleges that it has a defense founded upon documentary evidence.
Accordingly, the Counterclaims must be dismissed pursuant to
CPLR 3211(a)(1).
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
9. As and for its eighth affirmative defense, plaintiff
alleges that answering defendant's claims are barred by the
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expiration of the statute of limitations and statute of repose.
Accordingly, the Counterclaims must be dismissed.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
10. As and for its ninth affirmative defense, plaintiff
alleges that in the event any damages were sustained by
answering defendant the same were the proximate result of
answering defendant's own culpable conduct. Accordingly, the
Counterclaims must be dismissed.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
11. As and for its tenth affirmative defense, plaintiff
alleges that answering defendant has failed to mitigate damages.
Therefore, the Counterclaims must be dismissed.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
12. As and for its eleventh affirmative defense, plaintiff
alleges that any alleged loss by answering defendant is solely
due to her own acts, failure to act and lack of due diligence
without cause or contribution thereto by plaintiff. Therefore,
the Counterclaims must be dismissed.
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AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
13. As and for its twelfth affirmative defense, plaintiff
alleges that the causes of action alleged in the Counterclaims
are barred by laches. Therefore, the Counterclaims must be
dismissed.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
14. As and for its thirteenth affirmative defense,
answering defendant failed to assert any factual basis for any
of the purported affirmative defenses set forth in the Answer.
WHEREFORE, plaintiff demands judgment (1) that this
Court dismiss Answering Defendant's Verified Answer and with
Affirmative Defenses and Counterclaims in their entirety; (2)
enter judgment against Answering Defendant and in favor of
plaintiff for the relief demanded in the complaint; and (3) all
with costs, expenses and disbursements, including, but not
attorneys'
limited to, fees incurred by plaintiff in this
action, and grant such other and further relief as this Court
may deem just, equitable and proper.
Dated: New York, New York
July 24, 2017
B y Banich, Esq.
& Associates, PLLC
Attorneys for Plaintiff
80 Business Park Drive, STE 110
Armonk, NY 10504
914-219-5787
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TO:
Ronald D. Weiss, P.C.
Attorneys for answering defendants Monique Defour Jones and
Juserene, LLC
734 Walt Whitman Road, Suite 203
Melville, NY 11747
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STATE OF NEW YORK
} ss:
COUNTY OF NEW YORK
The undersigned, an attorney admitted to practice in the Courts
of New York State shows: deponent is an associate of the law
firm of Leopold & Associates, PLLC, the attorneys of record for
the Plaintiff in the within action: deponent has read the
foregoing Reply to Counterclaims and knowns the contents
thereof: the same is true to deponent's own knowledge except as
to matters therein stated to be alleged on information and
belief, and that as to those matters deponent believe it to be
true. This verification is made by deponent and not client
because client does not reside in the same county win which
deponent maintains his office.
The grounds of deponent's belief as to all matters not stated
upon deponent's knowledge are as follows: books, records
conversations held in deponent's office.
The undersigned affirms that the foregoing statements are true,
under the penalties of perjury.
Dated: 2017 --.-
July 24,
New York, New York
Ryan Banich, Esq.
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Preview
FILED: SULLIVAN COUNTY CLERK 08/02/2017 INDEX NO. E2017-927 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/02/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SULLIVAN - - - - - - - - - - - - - - - - - - - - - x THE BANK OF NEW YORK MELLON, F/K/A THE Index No.: 927/2017 BANK OF NEW YORK AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR ASSET BACKED FUNDING CORPORATION, ASSET-BACKED CERTIFICATES, SERIES 2005-HE1, Plaintiff(s), PLAINTIFF'S VERIFIED REPLY TO COUNTERCLAIMS -against- MONIQUE DEFOUR JONES, JUSERENE, LLC, #1" #12," "JOHN DOE through "JOHN DOE the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendant(s). - - - - - - - - - - - - - - - - - - - - - x Plaintiff, by its attorneys LEOPOLD & ASSOCIATES, PLLC, as and for its Reply to defendants Monique Defour Jones and Juserene, LLC ("Answering Defendants") Verified Answer and Defendants' counterclaims as same are contained in Answering Answer dated July 5, 2017, and received on July 13, 2017 (hereinafter "Answer") alleges as follows: Plaintiff denies the allegations set forth in the affirmative defenses numbered 1-15. 1 of 9 FILED: SULLIVAN COUNTY CLERK 08/02/2017 INDEX NO. E2017-927 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/02/2021 REPLY TO FIRST COUNTERCLAIM Defendants' As and for its reply to Answering First purported "Counterclaim", as set forth in the section titled "Counterclaims" plaintiff alleges: of the Answer, 1. Plaintiff denies any and all allegations as contained in the First Counterclaim. REPLY TO SECOND COUNTERCLAIM Defendants' As and for its reply to Answering Second purported "Counterclaim", as set forth in the section titled "Counterclaims" of the Answer, plaintiff alleges: 2. Plaintiff denies any and all allegations as contained in the Second Counterclaim. REPLY TO THIRD COUNTERCLAIM Defendants' As and for its reply to Answering Third purported "Counterclaim", as set forth in the section titled "Counterclaims" of the Answer, plaintiff alleges: 3. Plaintiff denies any and all allegations as contained in the Third Counterclaim. REPLY TO FOURTH COUNTERCLAIM Defendants' As and for its reply to Answering Fourth purported "Counterclaim", as set forth in the section titled "Counterclaims" of the Answer, plaintiff alleges: 4. Plaintiff denies any and all allegations as contained in the Fourth Counterclaim. 2 of 9 FILED: SULLIVAN COUNTY CLERK 08/02/2017 INDEX NO. E2017-927 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/02/2021 REPLY TO FIFTH COUNTERCLAIM Defendants' As and for its reply to Answering Fifth purported "Counterclaim", as set forth in the section titled "Counterclaims" plaintiff alleges: of the Answer, 5. Plaintiff denies any and all allegations as contained in the Fifth Counterclaim. REPLY TO SIXTH COUNTERCLAIM Defendants' As and for its reply to Answering Sixth purported "Counterclaim", as set forth in the section titled "Counterclaims" of the Answer, plaintiff alleges: 6. Plaintiff denies any and all allegations as contained in the Sixth Counterclaim. REPLY TO SEVENTH COUNTERCLAIM As and for its reply to Answering Defendants Seventh purported "Counterclaim", as set forth in the section titled "Counterclaims" of the Answer, plaintiff alleges: 7. Plaintiff denies any and all allegations as contained in the Seventh Counterclaim. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 1. As and for its first affirmative defense, plaintiff alleges that the Counterclaims fail to state causes of action against it upon which relief can be granted. Accordingly, the Counterclaims must be dismissed pursuant to CPLR 3211(a) (7). 3 of 9 FILED: SULLIVAN COUNTY CLERK 08/02/2017 INDEX NO. E2017-927 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/02/2021 AS AND FOR A SECOND AFFIRMATIVE DEFENSE 2. As and for its second affirmative defense, plaintiff alleges that the Counterclaims against it may not properly be interposed in the within action. Accordingly, the Counterclaims must be dismissed pursuant to CPLR 3211(a) (6). AS AND FOR A THIRD AFFIRMATIVE DEFENSE 3. As and for its third affirmative defense, plaintiff alleges that answering defendant(s) are estopped from interposing the Counterclaims against plaintiff. Accordingly, the Counterclaims must be dismissed. AS AND FOR A FOURTH AFFIRNATIVE DEFENSE 4. As and for its fourth affirmative defense, plaintiff alleges that answering defendant has waived any rights to interpose the Counterclaims against plaintiff. Accordingly, the Counterclaims must be dismissed. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 5. As and for its fifth affirmative defense, plaintiff alleges that answering defendant has waived all defenses against plaintiff. Accordingly, the Counterclaims must be dismissed. 4 of 9 FILED: SULLIVAN COUNTY CLERK 08/02/2017 INDEX NO. E2017-927 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/02/2021 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 6. As and for its sixth affirmative defense, plaintiff alleges that answering defendant's Counterclaims against plaintiff are frivolous and without basis, contain misstatements of law and fact, fail to disclose material facts and were interposed solely to achieve an impermissible collateral result. Accordingly, the Counterclaims must be dismissed. 7. As a result of the frivolous conduct of answering defendant in maintaining her Counterclaims, plaintiff sustained unnecessary legal expenses and seeks, pursuant to CPLR 8303(a) and Part 130 of the Uniform Rules of Trial Courts, costs in the form of reimbursement for actual expenses reasonably incurred attorneys' and reasonable fees and financial sanctions against answering defendant(s) for the frivolous conduct alleged. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 8. As and for its seventh affirmative defense, plaintiff alleges that it has a defense founded upon documentary evidence. Accordingly, the Counterclaims must be dismissed pursuant to CPLR 3211(a)(1). AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 9. As and for its eighth affirmative defense, plaintiff alleges that answering defendant's claims are barred by the 5 of 9 FILED: SULLIVAN COUNTY CLERK 08/02/2017 INDEX NO. E2017-927 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/02/2021 expiration of the statute of limitations and statute of repose. Accordingly, the Counterclaims must be dismissed. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 10. As and for its ninth affirmative defense, plaintiff alleges that in the event any damages were sustained by answering defendant the same were the proximate result of answering defendant's own culpable conduct. Accordingly, the Counterclaims must be dismissed. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 11. As and for its tenth affirmative defense, plaintiff alleges that answering defendant has failed to mitigate damages. Therefore, the Counterclaims must be dismissed. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 12. As and for its eleventh affirmative defense, plaintiff alleges that any alleged loss by answering defendant is solely due to her own acts, failure to act and lack of due diligence without cause or contribution thereto by plaintiff. Therefore, the Counterclaims must be dismissed. 6 of 9 FILED: SULLIVAN COUNTY CLERK 08/02/2017 INDEX NO. E2017-927 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/02/2021 AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 13. As and for its twelfth affirmative defense, plaintiff alleges that the causes of action alleged in the Counterclaims are barred by laches. Therefore, the Counterclaims must be dismissed. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 14. As and for its thirteenth affirmative defense, answering defendant failed to assert any factual basis for any of the purported affirmative defenses set forth in the Answer. WHEREFORE, plaintiff demands judgment (1) that this Court dismiss Answering Defendant's Verified Answer and with Affirmative Defenses and Counterclaims in their entirety; (2) enter judgment against Answering Defendant and in favor of plaintiff for the relief demanded in the complaint; and (3) all with costs, expenses and disbursements, including, but not attorneys' limited to, fees incurred by plaintiff in this action, and grant such other and further relief as this Court may deem just, equitable and proper. Dated: New York, New York July 24, 2017 B y Banich, Esq. & Associates, PLLC Attorneys for Plaintiff 80 Business Park Drive, STE 110 Armonk, NY 10504 914-219-5787 7 of 9 FILED: SULLIVAN COUNTY CLERK 08/02/2017 INDEX NO. E2017-927 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/02/2021 TO: Ronald D. Weiss, P.C. Attorneys for answering defendants Monique Defour Jones and Juserene, LLC 734 Walt Whitman Road, Suite 203 Melville, NY 11747 8 of 9 FILED: SULLIVAN COUNTY CLERK 08/02/2017 INDEX NO. E2017-927 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 08/02/2021 STATE OF NEW YORK } ss: COUNTY OF NEW YORK The undersigned, an attorney admitted to practice in the Courts of New York State shows: deponent is an associate of the law firm of Leopold & Associates, PLLC, the attorneys of record for the Plaintiff in the within action: deponent has read the foregoing Reply to Counterclaims and knowns the contents thereof: the same is true to deponent's own knowledge except as to matters therein stated to be alleged on information and belief, and that as to those matters deponent believe it to be true. This verification is made by deponent and not client because client does not reside in the same county win which deponent maintains his office. The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as follows: books, records conversations held in deponent's office. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. Dated: 2017 --.- July 24, New York, New York Ryan Banich, Esq. 9 of 9