Preview
FILED: NEW YORK COUNTY CLERK 08/03/2020 02:55 PM INDEX NO. 652308/2020
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/03/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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Index No.: 652308/2020
SECOND 820 OWNER LLC,
VERIFIED ANSWER
Plaintiff,
-against-
KAA IMPORTS, INC.,
Defendant.
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Defendant KAA IMPORTS, INC. (the "Answering Defendant"), by its attorneys THE
CHATRATH LAW FIRM, P.C., respectfully responds to the plaintiff's complaint, as follows:
ANSWERING THE NATURE OF ACTION SECTION
"1"
1. Denies the allegations contained in paragraph of the complaint.
ANSWERING THE PARTIES SECTION
2. Denies knowledge or information sufficient to form a belief as to the truth of the
"2"
allegations contained in paragraph of the complaint.
"3"
3. Admits the allegations contained in paragraph of the complaint.
ANSWERING THE FACTS RELEVANT TO ALL CLAIMS SECTION
4. Denies knowledge or information sufficient to form a belief as to the truth of the
"4"
allegations contained in paragraph of the complaint.
"5" "6"
5 5. Admits the allegations contained in paragraphs and of the complaint.
"7" "8"
6. Denies the allegations contained in paragraphs and of the complaint.
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ANSWERING THE FIRST CAUSE OF ACTION AGAINST DEFENDANT SECTION
"9"
7. In response to paragraph of the complaint, this answering defendant
"1" "8"
repeats, reiterates and re-alleges its response to paragraphs through of the complaint
with the same force and effect as if same were set forth in full at this point.
"10," "11," "12," "13" "14"
8. Denies the allegations contained in paragraphs and of
the complaint.
ANSWERING THE SECOND CAUSE OF ACTION AGAINST DEFENDANT SECTION
"15"
9. In response to paragraph of the complaint, this answering defendant
"1" "14"
repeats, reiterates and re-alleges its response to paragraphs through of the complaint
with the same force and effect as if same were set forth in full at this point.
"16," "17," "18" "19"
10. Denies the allegations contained in paragraphs and of the
complaint.
AS AND FOR A FIRST, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
11. The plaintiff's action is barred due to plaintiff's breach of its obligations.
AS AND FOR A SECOND, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
12. Any losses suffered by plaintiff were not caused, either directly or indirectly, by
the acts or omissions of the Answering Defendant.
AS AND FOR A THIRD, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
13. Plaintiff's claims are barred by the Doctrine of Unclean Hands.
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ASAND FOR AFOURTH,SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
14. Plaintiff has waived any claim (which, in any event, is denied) it may have had to
seek relief against the Answering Defendant.
AS AND FOR A FIFTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
15. Plaintiff's wrongful conduct bars recovery for any losses allegedly suffered.
AS AND FOR A SIXTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
16. Plaintiff's complaint fails to state a claim upon which relief may be granted or for
which the relief or recovery sought may be awarded.
ASAND FOR ASEVENTH,SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
17. Plaintiff's claims should be dismissed to the extent such claims are barred, in
whole or in part, by the applicable statute(s) of limitations.
AS AND FOR AN EIGHTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
18. The agreements, if any, relied upon by the Plaintiff were specifically breached by
the Plaintiff.
AS AND FOR A NINTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
19. The Plaintiff's action is barred by the doctrine of anticipatory repudiation.
AS AND FOR A TENTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
20. The Plaintiff's action is barred by the Statute of Frauds.
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ASAND FOR AN ELEVENTH,SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
21. Plaintiff's wrongful conduct bars recovery for any losses allegedly suffered.
AS AND FOR A TWELFTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
22. Any alleged failure by the Answering Defendant to perform obligations under the
agreements (which, in any event, is denied) is excused by Plaintiff's failure to perform its own
obligations to the Answering Defendant, which obligations were conditions precedent to the
performance by the Answering Defendant.
AS AND FOR A THIRTEENTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
23. The Plaintiff's claims are barred as a result of Plaintiff's breach of the covenant of
good faith and fair dealing.
ASAND FOR AFOURTEENTH,SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
24. Plaintiff's action is barred by the doctrine of accord and satisfaction.
AS AND FOR A FIFTEENTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
25. Plaintiff's action is barred by the doctrines of waiver, estoppel and/or
ratification.
AS AND FOR A SIXTEENTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
26. At all relevant times, Defendant acted in good faith and in a commercially
reasonable manner and did not engage in any culpable conduct.
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ASAND FOR ASEVENTEENTH,SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
27. The purpose of the Lease has been frustrated by the COVID-19 pandemic and
Executive Orders mandating the closures of Defendant's retail store and prohibiting
non-essential stores from being open and the CDC's recommendation of social distancing,
which is becoming the new normal.
28. Defendant is entitled to a judgment declaring that the lease that is the subject of
this litigation is terminated effective May 1, 2020 and of no force and effect pursuant to the
doctrine of frustration of purpose.
AS AND FOR AN EIGHTEENTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
29. Performance of the lease that is the subject of this action has been rendered
impossible by the COVID-19 pandemic and Executive Orders mandating the closures of
Defendant's retail store and prohibiting non-essential stores from being open and the CDC's
recommendation of social distancing, which is becoming the new normal.
30. Defendant is entitled to a judgment declaring that the lease that is the subject of
this litigation and all obligations thereunder are rescinded under the doctrine of impossibility of
performance.
AS AND FOR A NINTEENTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
31. The damages alleged by Plaintiff, all of which are denied by Defendant, were
caused by the intervening and superseding acts of parties not under the control of Defendant.
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AS AND FOR A TWENTIETH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
32. To the extent that Plaintiff has not suffered any injury as a direct or proximate
cause of Defendant's actions, Plaintiff may not recover any damages against Defendant.
AS AND FOR A TWENT-FIRST, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
33. The Plaintiff's claims are barred to the extent that Plaintiff failed to mitigate its
damages, if any.
AS AND FOR A TWENTY-SECOND, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
34. The Plaintiff's claims are barred, in whole or in part, to the extent that Plaintiff
recovers or has recovered any alleged damages sought against Defendant from sources other
than Defendant, including, but not limited to, any governmental assistance, any insurer, surety,
or bonding company.
AS AND FOR A TWENTY-THIRD, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
35. The Plaintiff's claims are barred, in whole or in part, as a result of a Force
Majeure event.
The answering Defendant reserves the right to plead additional affirmative defenses,
which may be ascertained during the course of discovery in this action or otherwise.
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NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/03/2020
WHEREFORE, this answering defendant demands judgmêñt dismissing the plaintiff's
complaint and each and every purported cause of action therein as frivGIcus, together with
attorneys'
costs, disbursements and fees incurred by the Answering Defendant.
DATED: Mineola, New York
July 31, 2020
Yours, etc.,
THE CHATRATH LAW FIRM, P.C.
Attorneys for the Defendant
KAA Imports, Inc.
By: Sandeep Chatrath
170 Old Country Road, Suite 316
Mineola, New York 11501
Telephone: (516) 812-9600
File No. L-2812
TO: RIVKIN RADLER LLP
Attorneys for the Plaintiff
Second 820 Owner LLC
20th
477 Madison Avenue, FlOOr
New York, New York 10022
Tel.: (212) 455-9555
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VERIFICATION
Sandeep Chatrath, an attorney duly admitted to practice before the Courts of the State
of New York, affirms the following to be true under the penalties of perjury:
I am a mêmbêr of THE CHATRATH LAW FIRM, P.C., attorneys of record for defêñdant
KAA IMPORTS, INC. I have read the annexed
ANSWER
and know the contents thereof, and the same are true to my knowledge, except those matters
herein which are stated to be alleged upon information and belief, and as to those matters I
believe them to be true. My belief, as to those matters therein not stated upon knowledge, is
based upon facts, records, and other pertinent information contained in my files.
The reason I make the foregoing affirmation instead of the defendant is because
defendant has their place of business outside of the county wherein your affirmant maintains
offices.
DATED: Mineola, New York
July 31, 2020
Sandeep Chatrath
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Preview
FILED: NEW YORK COUNTY CLERK 08/03/2020 02:55 PM INDEX NO. 652308/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/03/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------------------X Index No.: 652308/2020 SECOND 820 OWNER LLC, VERIFIED ANSWER Plaintiff, -against- KAA IMPORTS, INC., Defendant. -----------------------------------------------------------------------------------X Defendant KAA IMPORTS, INC. (the "Answering Defendant"), by its attorneys THE CHATRATH LAW FIRM, P.C., respectfully responds to the plaintiff's complaint, as follows: ANSWERING THE NATURE OF ACTION SECTION "1" 1. Denies the allegations contained in paragraph of the complaint. ANSWERING THE PARTIES SECTION 2. Denies knowledge or information sufficient to form a belief as to the truth of the "2" allegations contained in paragraph of the complaint. "3" 3. Admits the allegations contained in paragraph of the complaint. ANSWERING THE FACTS RELEVANT TO ALL CLAIMS SECTION 4. Denies knowledge or information sufficient to form a belief as to the truth of the "4" allegations contained in paragraph of the complaint. "5" "6" 5 5. Admits the allegations contained in paragraphs and of the complaint. "7" "8" 6. Denies the allegations contained in paragraphs and of the complaint. 1 1 of 8 FILED: NEW YORK COUNTY CLERK 08/03/2020 02:55 PM INDEX NO. 652308/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/03/2020 ANSWERING THE FIRST CAUSE OF ACTION AGAINST DEFENDANT SECTION "9" 7. In response to paragraph of the complaint, this answering defendant "1" "8" repeats, reiterates and re-alleges its response to paragraphs through of the complaint with the same force and effect as if same were set forth in full at this point. "10," "11," "12," "13" "14" 8. Denies the allegations contained in paragraphs and of the complaint. ANSWERING THE SECOND CAUSE OF ACTION AGAINST DEFENDANT SECTION "15" 9. In response to paragraph of the complaint, this answering defendant "1" "14" repeats, reiterates and re-alleges its response to paragraphs through of the complaint with the same force and effect as if same were set forth in full at this point. "16," "17," "18" "19" 10. Denies the allegations contained in paragraphs and of the complaint. AS AND FOR A FIRST, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 11. The plaintiff's action is barred due to plaintiff's breach of its obligations. AS AND FOR A SECOND, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 12. Any losses suffered by plaintiff were not caused, either directly or indirectly, by the acts or omissions of the Answering Defendant. AS AND FOR A THIRD, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 13. Plaintiff's claims are barred by the Doctrine of Unclean Hands. 2 2 of 8 FILED: NEW YORK COUNTY CLERK 08/03/2020 02:55 PM INDEX NO. 652308/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/03/2020 ASAND FOR AFOURTH,SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 14. Plaintiff has waived any claim (which, in any event, is denied) it may have had to seek relief against the Answering Defendant. AS AND FOR A FIFTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 15. Plaintiff's wrongful conduct bars recovery for any losses allegedly suffered. AS AND FOR A SIXTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 16. Plaintiff's complaint fails to state a claim upon which relief may be granted or for which the relief or recovery sought may be awarded. ASAND FOR ASEVENTH,SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 17. Plaintiff's claims should be dismissed to the extent such claims are barred, in whole or in part, by the applicable statute(s) of limitations. AS AND FOR AN EIGHTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 18. The agreements, if any, relied upon by the Plaintiff were specifically breached by the Plaintiff. AS AND FOR A NINTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 19. The Plaintiff's action is barred by the doctrine of anticipatory repudiation. AS AND FOR A TENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 20. The Plaintiff's action is barred by the Statute of Frauds. 3 3 of 8 FILED: NEW YORK COUNTY CLERK 08/03/2020 02:55 PM INDEX NO. 652308/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/03/2020 ASAND FOR AN ELEVENTH,SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 21. Plaintiff's wrongful conduct bars recovery for any losses allegedly suffered. AS AND FOR A TWELFTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 22. Any alleged failure by the Answering Defendant to perform obligations under the agreements (which, in any event, is denied) is excused by Plaintiff's failure to perform its own obligations to the Answering Defendant, which obligations were conditions precedent to the performance by the Answering Defendant. AS AND FOR A THIRTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 23. The Plaintiff's claims are barred as a result of Plaintiff's breach of the covenant of good faith and fair dealing. ASAND FOR AFOURTEENTH,SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 24. Plaintiff's action is barred by the doctrine of accord and satisfaction. AS AND FOR A FIFTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 25. Plaintiff's action is barred by the doctrines of waiver, estoppel and/or ratification. AS AND FOR A SIXTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 26. At all relevant times, Defendant acted in good faith and in a commercially reasonable manner and did not engage in any culpable conduct. 4 4 of 8 FILED: NEW YORK COUNTY CLERK 08/03/2020 02:55 PM INDEX NO. 652308/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/03/2020 ASAND FOR ASEVENTEENTH,SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 27. The purpose of the Lease has been frustrated by the COVID-19 pandemic and Executive Orders mandating the closures of Defendant's retail store and prohibiting non-essential stores from being open and the CDC's recommendation of social distancing, which is becoming the new normal. 28. Defendant is entitled to a judgment declaring that the lease that is the subject of this litigation is terminated effective May 1, 2020 and of no force and effect pursuant to the doctrine of frustration of purpose. AS AND FOR AN EIGHTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 29. Performance of the lease that is the subject of this action has been rendered impossible by the COVID-19 pandemic and Executive Orders mandating the closures of Defendant's retail store and prohibiting non-essential stores from being open and the CDC's recommendation of social distancing, which is becoming the new normal. 30. Defendant is entitled to a judgment declaring that the lease that is the subject of this litigation and all obligations thereunder are rescinded under the doctrine of impossibility of performance. AS AND FOR A NINTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 31. The damages alleged by Plaintiff, all of which are denied by Defendant, were caused by the intervening and superseding acts of parties not under the control of Defendant. 5 5 of 8 FILED: NEW YORK COUNTY CLERK 08/03/2020 02:55 PM INDEX NO. 652308/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/03/2020 AS AND FOR A TWENTIETH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 32. To the extent that Plaintiff has not suffered any injury as a direct or proximate cause of Defendant's actions, Plaintiff may not recover any damages against Defendant. AS AND FOR A TWENT-FIRST, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 33. The Plaintiff's claims are barred to the extent that Plaintiff failed to mitigate its damages, if any. AS AND FOR A TWENTY-SECOND, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 34. The Plaintiff's claims are barred, in whole or in part, to the extent that Plaintiff recovers or has recovered any alleged damages sought against Defendant from sources other than Defendant, including, but not limited to, any governmental assistance, any insurer, surety, or bonding company. AS AND FOR A TWENTY-THIRD, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 35. The Plaintiff's claims are barred, in whole or in part, as a result of a Force Majeure event. The answering Defendant reserves the right to plead additional affirmative defenses, which may be ascertained during the course of discovery in this action or otherwise. 6 6 of 8 FILED: NEW YORK COUNTY CLERK 08/03/2020 02:55 PM INDEX NO. 652308/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/03/2020 WHEREFORE, this answering defendant demands judgmêñt dismissing the plaintiff's complaint and each and every purported cause of action therein as frivGIcus, together with attorneys' costs, disbursements and fees incurred by the Answering Defendant. DATED: Mineola, New York July 31, 2020 Yours, etc., THE CHATRATH LAW FIRM, P.C. Attorneys for the Defendant KAA Imports, Inc. By: Sandeep Chatrath 170 Old Country Road, Suite 316 Mineola, New York 11501 Telephone: (516) 812-9600 File No. L-2812 TO: RIVKIN RADLER LLP Attorneys for the Plaintiff Second 820 Owner LLC 20th 477 Madison Avenue, FlOOr New York, New York 10022 Tel.: (212) 455-9555 7 of 8 FILED: NEW YORK COUNTY CLERK 08/03/2020 02:55 PM INDEX NO. 652308/2020 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 08/03/2020 VERIFICATION Sandeep Chatrath, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: I am a mêmbêr of THE CHATRATH LAW FIRM, P.C., attorneys of record for defêñdant KAA IMPORTS, INC. I have read the annexed ANSWER and know the contents thereof, and the same are true to my knowledge, except those matters herein which are stated to be alleged upon information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon facts, records, and other pertinent information contained in my files. The reason I make the foregoing affirmation instead of the defendant is because defendant has their place of business outside of the county wherein your affirmant maintains offices. DATED: Mineola, New York July 31, 2020 Sandeep Chatrath 8 8 of 8