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FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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WAX UP NY, INC. d/b/a UNI K WAX
INDEX NO. 651600/2020
Plaintiff,
v.
MOISES BRICENO, PRATIMA RANJET a/k/a ANSWER (BRICENO)
PRATIMA RANA and SANGEETA TULADHAR,
Defendants.
---------------------------------------------------------x
Defendant Moises Briceno, by and through his attorneys, The Ottinger Firm, P.C., by
way of answer to the Complaint of Wax Up NY, Inc. (“Wax Up NY” or the “Company”), states
and alleges as follows:
NATURE OF THE ACTION
1. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court.
THE PARTIES
2. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in Paragraph 2, and on that basis denies them.
3. Defendant denies the allegations in Paragraph 3.
4. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in Paragraph 4, and on that basis denies them.
5. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in Paragraph 5, and on that basis denies them.
6. Defendant admits the allegations of this paragraph.
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VENUE AND JURISDICTION
7. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court, except that
Defendant admits that he is a resident of the State of New York.
8. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court, except that
Defendant admits that he is a resident of the State of New York.
BACKGROUND OF FACTS
9. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 9, and on that basis denies them.
10. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 10, and on that basis denies them.
11. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 11, and on that basis denies them.
12. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 12, and on that basis denies them, except that Defendant
admits that he was and is no longer employed by Plaintiff.
ALLEGATIONS IN PARTICULAR TO BRICENO
13. Defendant admits the allegations of this paragraph.
14. Defendant denies that he entered any “Employee Confidentiality Noncompetition
Agreement” with Plaintiff.
15. Defendant denies Plaintiff’s allegation that he was under any obligations by virtue
of the document referenced. To the extent this paragraph references the text of the document in
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question, the text speaks for itself and no response is required. Further, the allegations in this
paragraph contain conclusions of law, to which no response is required. Defendant denies in the
form alleged and refers all questions of law to the court.
16. Defendant denies Plaintiff’s allegation that he was under any obligations by virtue
of the document referenced. To the extent this paragraph references the text of the document in
question, the text speaks for itself and no response is required. Further, the allegations in this
paragraph contain conclusions of law, to which no response is required. Defendant denies in the
form alleged and refers all questions of law to the court.
17. Defendant denies Plaintiff’s allegation that he was under any obligations by virtue
of the document referenced. To the extent this paragraph references the text of the document in
question, the text speaks for itself and no response is required. Further, the allegations in this
paragraph contain conclusions of law, to which no response is required. Defendant denies in the
form alleged and refers all questions of law to the court.
18. Defendant admits that on or about July 12, 2019, he informed Plaintiff that he
would be resigning effective July 26, 2019.
ALLEGATIONS PARTICULAR TO RANJET
19. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 19, and on that basis denies them.
20. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 20, and on that basis denies them.
21. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 21, and on that basis denies them.
22. Defendant lacks sufficient knowledge or information to form a belief as to the
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truth of the allegations in paragraph 22, and on that basis denies them.
23. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 23, and on that basis denies them.
24. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 24, and on that basis denies them.
25. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 25, and on that basis denies them.
26. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 26, and on that basis denies them.
ALLEGATIONS PARTICULAR TO TULADHAR
27. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 27, and on that basis denies them.
28. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 28, and on that basis denies them.
29. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 29, and on that basis denies them.
30. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 30, and on that basis denies them.
31. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 31, and on that basis denies them.
32. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 32, and on that basis denies them.
33. Defendant lacks sufficient knowledge or information to form a belief as to the
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truth of the allegations in paragraph 33, and on that basis denies them.
34. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 34, and on that basis denies them.
ALLEGATIONS AS TO ALL CLAIMS
35. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 35, and on that basis denies them.
36. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 36, and on that basis denies them. To the extent that a
response is required, Defendant denies that he was “thoroughly trained to comply with Plaintiff’s
rules, regulations and policies, as applicable.”
37. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 37, and on that basis denies them. To the extent that a
response is required, Defendant denies that he obtained any “Confidential Information” and/or
“specific know how” applicable to the Franchisor’s “franchise” and/or “the waxing industry in
general.”
38. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 38, and on that basis denies them. Defendant denies that he
“formed business relationships with Plaintiff’s customers who would frequent the Plaintiff’s
establishment.”
39. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court. Defendant
further lacks sufficient knowledge or information to form a belief as to the truth of the
allegations in paragraph 39, and on that basis denies them.
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40. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court, except
Defendant admits that he is the part-owner of an entity which operates a Uni K Wax
establishment.
41. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court, except
Defendant admits that he is the part-owner of an entity which operates a Uni K Wax
establishment.
42. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court, except
Defendant admits that he is part-owner of an entity which has a franchise agreement to operate a
Uni K Wax establishment.
43. Defendant denies the allegations of this paragraph
44. Defendant denies in the form alleged, except Defendant admits that he currently
works at a Uni K Wax establishment located at 375 Sixth Avenue, New York, NY.
45. Defendant denies the allegations of this paragraph.
46. Defendant denies the allegations of this paragraph.
47. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the Court. Defendant
further denies Plaintiff’s allegations that “NEWCO’s waxing salon directly competes with
Plaintiff.” Defendant lacks sufficient knowledge or information to form a belief as to the truth of
the remaining allegations in this paragraph, and on that basis denies them.
48. Defendant denies in the form alleged but admits that he is a part-owner of an
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entity which operates a Uni K Wax establishment and works therein.
49. Defendant denies in the form alleged but admits that Pratima Rana is a part-owner
of an entity which operates a Uni K Wax establishment and works therein.
50. Defendant denies in the form alleged but admits that Sangeeta Tuladhar is a part-
owner of an entity which operates a Uni K Wax establishment and works therein.
51. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court. Defendant
further denies that “Defendants were and continue to solicit Plaintiff’s customers” and/or
“encourage Plaintiff’s customers to utilize NEWCO’s services instead of Plaintiff’s services.”
Defendant lacks sufficient knowledge or information to form a belief as to the truth of the
allegations in paragraph 51 as it pertains to the other named Defendants, and on that basis denies
them.
52. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court. Defendant
further denies Plaintiff’s allegations that “Defendants encourage Plaintiff’s customers to solicit
other Plaintiff’s customers to utilize NEWCO’s services instead of Plaintiff’s services.”
Defendant lacks sufficient knowledge or information to form a belief as to the truth of the
allegations in paragraph 52 as it pertains to the other named Defendants, and on that basis denies
them.
53. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court. Defendant
further denies Plaintiff’s allegations that Defendant committed any “competition and solicitation
of Plaintiff’s customers.” Defendant lacks sufficient knowledge or information to form a belief
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as to the truth of the allegations in paragraph 53 as it pertains to the other named Defendants, and
on that basis denies them.
54. Defendant denies Plaintiff’s allegation that he was under any obligations by virtue
of the document referenced. To the extent this paragraph references the text of the document in
question, the text speaks for itself and no response is required. Further, the allegations in this
paragraph contain conclusions of law, to which no response is required. Defendant denies in the
form alleged and refers all questions of law to the court.
55. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 55 as it pertains to the other named Defendants, and on that
basis denies them.
56. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court. Defendant
further denies that he is “in violation of [his] respective agreement.” Defendant further denies
that he is “soliciting Plaintiff’s customers.” Defendant lacks sufficient knowledge or information
to form a belief as to the truth of the allegations in paragraph 56 as it pertains to the other named
Defendants, and on that basis denies them.
57. Defendant admits the allegations of this paragraph.
58. This paragraph contains conclusions of law, to which no response is required.
Defendant lacks sufficient knowledge or information to form a belief as to the truth of the
allegations in paragraph 58, and on that basis denies them. Defendant denies in the form alleged
and refers all questions of law to the court.
CAUSES OF ACTION
AS AND AS FOR PLAINTIFF’S FIRST CAUSE OF ACTION
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(Breach of Contract by BRICENO)
59. Defendant realleges and incorporates by reference all previous paragraphs.
60. To the extent that this paragraph pertains to Defendant’s own purported non-
compete agreement with Plaintiff, Defendant denies Plaintiff’s allegation that Plaintiff “has
complied with all conditions precedent of each non-complete [sic] agreement.” Defendant
further denies in the form alleged and refers all questions of law to the court. To the extent that
this paragraph applies to the non-compete agreements of the other named Defendants, Defendant
lacks sufficient knowledge or information to form a belief as to the truth of the allegations in
paragraph 60, and on that basis denies them.
61. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court.
62. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court.
63. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court.
64. This paragraph contains conclusions of law, to which no response is required.
Defendant denies in the form alleged and refers all questions of law to the court.
AS AND AS FOR PLAINTIFF’S SECOND CAUSE OF ACTION
(Breach of Contract by RANJET).
65. Defendant realleges and incorporates by reference all previous paragraphs.
66. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 66, and on that basis denies them.
67. Defendant lacks sufficient knowledge or information to form a belief as to the
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truth of the allegations in paragraph 67, and on that basis denies them.
68. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 68, and on that basis denies them.
69. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 69, and on that basis denies them.
AS AND AS FOR PLAINTIFF’S THIRD CAUSE OF ACTION
(Breach of Contract by TULADHAR)
70. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 70, and on that basis denies them.
71. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 71, and on that basis denies them.
72. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 72, and on that basis denies them.
73. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 73, and on that basis denies them.
74. Defendant lacks sufficient knowledge or information to form a belief as to the
truth of the allegations in paragraph 74, and on that basis denies them.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
The Complaint and each cause of action therein, fail to state claims upon which relief
may be granted.
SECOND AFFIRMATIVE DEFENSE
Any and all acts complained of, and all injuries allegedly resulting therefrom, were the
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result of the sole breach, negligence, and violation of the Plaintiff.
THIRD AFFIRMATIVE DEFENSE
Defendant did not violate any duty owing to the Plaintiff.
FOURTH AFFIRMATIVE DEFENSE
Plaintiff failed to mitigate any damages it might have sustained.
FIFTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the doctrine of equitable estoppel.
SIXTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the doctrine of waiver.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the doctrine of unclean hands.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the applicable statutes of limitations.
NINTH AFFIRMATIVE DEFENSE
Plaintiff has not sustained injury to the extent for which damages are sought.
TENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims should be dismissed because they are frivolous.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the equitable doctrine of laches.
TWELFTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred, in whole or in part, because, to the extent any violations are
established, they constitute de minimis violations.
THIRTEENTH AFFIRMATIVE DEFENSE
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Plaintiff has failed to adequately set forth a basis for entitlement to punitive and/or
exemplary damages.
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff consented to the conduct alleged in the Complaint.
FIFTEENTH AFFIRMATIVE DEFENSE
The alleged agreement lacks adequate consideration.
SIXTEENTH AFFIRMATIVE DEFENSE
The alleged agreement violates public policy and is unenforceable.
SEVENTEENTH AFFIRMATIVE DEFENSE
The alleged agreement should not be enforced because it was entered into through
unilateral and/or mutual mistake.
EIGHTEENTH AFFIRMATIVE DEFENSE
The alleged agreement should not be enforced because it was illegal under state and/or
common law.
NINETEENTH AFFIRMATIVE DEFENSE
Discovery in this matter is ongoing, and Defendant’s investigation into Plaintiff’s claims
is not yet complete. Defendant reserves the right to assert additional affirmative defenses upon
completion of discovery.
WHEREFORE Defendant demands judgment against the Plaintiff and requests that the
claims against Defendant be dismissed with prejudice and that Defendant be awarded attorneys’
fees, costs, disbursements incurred in having to defend against this action, and such other and
further relief as the Court deems just, proper or equitable.
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Dated: New York, New York Respectfully submitted,
August 31, 2020
By:
/s/ Robert Ottinger
Robert Ottinger
Ottinger Law Firm, P.C.
401 Park Ave S
New York, NY 10016
Tel: (347) 305-5294
Attorney for Defendant
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Preview
FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------x WAX UP NY, INC. d/b/a UNI K WAX INDEX NO. 651600/2020 Plaintiff, v. MOISES BRICENO, PRATIMA RANJET a/k/a ANSWER (BRICENO) PRATIMA RANA and SANGEETA TULADHAR, Defendants. ---------------------------------------------------------x Defendant Moises Briceno, by and through his attorneys, The Ottinger Firm, P.C., by way of answer to the Complaint of Wax Up NY, Inc. (“Wax Up NY” or the “Company”), states and alleges as follows: NATURE OF THE ACTION 1. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. THE PARTIES 2. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 2, and on that basis denies them. 3. Defendant denies the allegations in Paragraph 3. 4. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 4, and on that basis denies them. 5. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in Paragraph 5, and on that basis denies them. 6. Defendant admits the allegations of this paragraph. 1 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 VENUE AND JURISDICTION 7. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court, except that Defendant admits that he is a resident of the State of New York. 8. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court, except that Defendant admits that he is a resident of the State of New York. BACKGROUND OF FACTS 9. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 9, and on that basis denies them. 10. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 10, and on that basis denies them. 11. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 11, and on that basis denies them. 12. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 12, and on that basis denies them, except that Defendant admits that he was and is no longer employed by Plaintiff. ALLEGATIONS IN PARTICULAR TO BRICENO 13. Defendant admits the allegations of this paragraph. 14. Defendant denies that he entered any “Employee Confidentiality Noncompetition Agreement” with Plaintiff. 15. Defendant denies Plaintiff’s allegation that he was under any obligations by virtue of the document referenced. To the extent this paragraph references the text of the document in 2 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 question, the text speaks for itself and no response is required. Further, the allegations in this paragraph contain conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. 16. Defendant denies Plaintiff’s allegation that he was under any obligations by virtue of the document referenced. To the extent this paragraph references the text of the document in question, the text speaks for itself and no response is required. Further, the allegations in this paragraph contain conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. 17. Defendant denies Plaintiff’s allegation that he was under any obligations by virtue of the document referenced. To the extent this paragraph references the text of the document in question, the text speaks for itself and no response is required. Further, the allegations in this paragraph contain conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. 18. Defendant admits that on or about July 12, 2019, he informed Plaintiff that he would be resigning effective July 26, 2019. ALLEGATIONS PARTICULAR TO RANJET 19. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 19, and on that basis denies them. 20. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 20, and on that basis denies them. 21. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 21, and on that basis denies them. 22. Defendant lacks sufficient knowledge or information to form a belief as to the 3 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 truth of the allegations in paragraph 22, and on that basis denies them. 23. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 23, and on that basis denies them. 24. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 24, and on that basis denies them. 25. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 25, and on that basis denies them. 26. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 26, and on that basis denies them. ALLEGATIONS PARTICULAR TO TULADHAR 27. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 27, and on that basis denies them. 28. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 28, and on that basis denies them. 29. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 29, and on that basis denies them. 30. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 30, and on that basis denies them. 31. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 31, and on that basis denies them. 32. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 32, and on that basis denies them. 33. Defendant lacks sufficient knowledge or information to form a belief as to the 4 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 truth of the allegations in paragraph 33, and on that basis denies them. 34. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 34, and on that basis denies them. ALLEGATIONS AS TO ALL CLAIMS 35. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 35, and on that basis denies them. 36. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 36, and on that basis denies them. To the extent that a response is required, Defendant denies that he was “thoroughly trained to comply with Plaintiff’s rules, regulations and policies, as applicable.” 37. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 37, and on that basis denies them. To the extent that a response is required, Defendant denies that he obtained any “Confidential Information” and/or “specific know how” applicable to the Franchisor’s “franchise” and/or “the waxing industry in general.” 38. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 38, and on that basis denies them. Defendant denies that he “formed business relationships with Plaintiff’s customers who would frequent the Plaintiff’s establishment.” 39. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. Defendant further lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 39, and on that basis denies them. 5 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 40. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court, except Defendant admits that he is the part-owner of an entity which operates a Uni K Wax establishment. 41. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court, except Defendant admits that he is the part-owner of an entity which operates a Uni K Wax establishment. 42. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court, except Defendant admits that he is part-owner of an entity which has a franchise agreement to operate a Uni K Wax establishment. 43. Defendant denies the allegations of this paragraph 44. Defendant denies in the form alleged, except Defendant admits that he currently works at a Uni K Wax establishment located at 375 Sixth Avenue, New York, NY. 45. Defendant denies the allegations of this paragraph. 46. Defendant denies the allegations of this paragraph. 47. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the Court. Defendant further denies Plaintiff’s allegations that “NEWCO’s waxing salon directly competes with Plaintiff.” Defendant lacks sufficient knowledge or information to form a belief as to the truth of the remaining allegations in this paragraph, and on that basis denies them. 48. Defendant denies in the form alleged but admits that he is a part-owner of an 6 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 entity which operates a Uni K Wax establishment and works therein. 49. Defendant denies in the form alleged but admits that Pratima Rana is a part-owner of an entity which operates a Uni K Wax establishment and works therein. 50. Defendant denies in the form alleged but admits that Sangeeta Tuladhar is a part- owner of an entity which operates a Uni K Wax establishment and works therein. 51. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. Defendant further denies that “Defendants were and continue to solicit Plaintiff’s customers” and/or “encourage Plaintiff’s customers to utilize NEWCO’s services instead of Plaintiff’s services.” Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 51 as it pertains to the other named Defendants, and on that basis denies them. 52. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. Defendant further denies Plaintiff’s allegations that “Defendants encourage Plaintiff’s customers to solicit other Plaintiff’s customers to utilize NEWCO’s services instead of Plaintiff’s services.” Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 52 as it pertains to the other named Defendants, and on that basis denies them. 53. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. Defendant further denies Plaintiff’s allegations that Defendant committed any “competition and solicitation of Plaintiff’s customers.” Defendant lacks sufficient knowledge or information to form a belief 7 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 as to the truth of the allegations in paragraph 53 as it pertains to the other named Defendants, and on that basis denies them. 54. Defendant denies Plaintiff’s allegation that he was under any obligations by virtue of the document referenced. To the extent this paragraph references the text of the document in question, the text speaks for itself and no response is required. Further, the allegations in this paragraph contain conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. 55. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 55 as it pertains to the other named Defendants, and on that basis denies them. 56. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. Defendant further denies that he is “in violation of [his] respective agreement.” Defendant further denies that he is “soliciting Plaintiff’s customers.” Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 56 as it pertains to the other named Defendants, and on that basis denies them. 57. Defendant admits the allegations of this paragraph. 58. This paragraph contains conclusions of law, to which no response is required. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 58, and on that basis denies them. Defendant denies in the form alleged and refers all questions of law to the court. CAUSES OF ACTION AS AND AS FOR PLAINTIFF’S FIRST CAUSE OF ACTION 8 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 (Breach of Contract by BRICENO) 59. Defendant realleges and incorporates by reference all previous paragraphs. 60. To the extent that this paragraph pertains to Defendant’s own purported non- compete agreement with Plaintiff, Defendant denies Plaintiff’s allegation that Plaintiff “has complied with all conditions precedent of each non-complete [sic] agreement.” Defendant further denies in the form alleged and refers all questions of law to the court. To the extent that this paragraph applies to the non-compete agreements of the other named Defendants, Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 60, and on that basis denies them. 61. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. 62. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. 63. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. 64. This paragraph contains conclusions of law, to which no response is required. Defendant denies in the form alleged and refers all questions of law to the court. AS AND AS FOR PLAINTIFF’S SECOND CAUSE OF ACTION (Breach of Contract by RANJET). 65. Defendant realleges and incorporates by reference all previous paragraphs. 66. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 66, and on that basis denies them. 67. Defendant lacks sufficient knowledge or information to form a belief as to the 9 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 truth of the allegations in paragraph 67, and on that basis denies them. 68. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 68, and on that basis denies them. 69. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 69, and on that basis denies them. AS AND AS FOR PLAINTIFF’S THIRD CAUSE OF ACTION (Breach of Contract by TULADHAR) 70. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 70, and on that basis denies them. 71. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 71, and on that basis denies them. 72. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 72, and on that basis denies them. 73. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 73, and on that basis denies them. 74. Defendant lacks sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 74, and on that basis denies them. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE The Complaint and each cause of action therein, fail to state claims upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE Any and all acts complained of, and all injuries allegedly resulting therefrom, were the 10 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 result of the sole breach, negligence, and violation of the Plaintiff. THIRD AFFIRMATIVE DEFENSE Defendant did not violate any duty owing to the Plaintiff. FOURTH AFFIRMATIVE DEFENSE Plaintiff failed to mitigate any damages it might have sustained. FIFTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the doctrine of equitable estoppel. SIXTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the doctrine of waiver. SEVENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the doctrine of unclean hands. EIGHTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the applicable statutes of limitations. NINTH AFFIRMATIVE DEFENSE Plaintiff has not sustained injury to the extent for which damages are sought. TENTH AFFIRMATIVE DEFENSE Plaintiff’s claims should be dismissed because they are frivolous. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred by the equitable doctrine of laches. TWELFTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred, in whole or in part, because, to the extent any violations are established, they constitute de minimis violations. THIRTEENTH AFFIRMATIVE DEFENSE 11 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 Plaintiff has failed to adequately set forth a basis for entitlement to punitive and/or exemplary damages. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff consented to the conduct alleged in the Complaint. FIFTEENTH AFFIRMATIVE DEFENSE The alleged agreement lacks adequate consideration. SIXTEENTH AFFIRMATIVE DEFENSE The alleged agreement violates public policy and is unenforceable. SEVENTEENTH AFFIRMATIVE DEFENSE The alleged agreement should not be enforced because it was entered into through unilateral and/or mutual mistake. EIGHTEENTH AFFIRMATIVE DEFENSE The alleged agreement should not be enforced because it was illegal under state and/or common law. NINETEENTH AFFIRMATIVE DEFENSE Discovery in this matter is ongoing, and Defendant’s investigation into Plaintiff’s claims is not yet complete. Defendant reserves the right to assert additional affirmative defenses upon completion of discovery. WHEREFORE Defendant demands judgment against the Plaintiff and requests that the claims against Defendant be dismissed with prejudice and that Defendant be awarded attorneys’ fees, costs, disbursements incurred in having to defend against this action, and such other and further relief as the Court deems just, proper or equitable. 12 of 13 FILED: NEW YORK COUNTY CLERK 08/31/2020 06:39 PM INDEX NO. 651600/2020 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 08/31/2020 Dated: New York, New York Respectfully submitted, August 31, 2020 By: /s/ Robert Ottinger Robert Ottinger Ottinger Law Firm, P.C. 401 Park Ave S New York, NY 10016 Tel: (347) 305-5294 Attorney for Defendant 13 of 13