Preview
FILED: KINGS COUNTY CLERK 02/15/2021 10:31 AM INDEX NO. 525892/2020
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 02/15/2021
EXHIBIT D
01/12/2021 10:31
FILED: KINGS COUNTY CLERK 02/15/2021 10:20 AM INDEX NO. 525892/2020
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NYSCEF DOC. NO. 13 01/12/2021
RECEIVED NYSCEF: 02/15/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------------- Index No.: 525892/2020
Howard Smith,
Plaintiff, VERIFIED ANSWER WITH
COUNTERCLAIMS
-against-
Q&O Estates Corp.,
Defendant.
----------------------------------------------------------------------
Defendant G&O Estates Corp., (“Defendant”), by and through its attorneys, Petroff
Amshen LLP, answers the complaint as follows:
1. Defendant denies knowledge or information sufficient to form a belief with respect
to the allegations contained in the first paragraph.
2. Defendant admits the allegations contained in the second paragraph.
THE FACTS
3. Defendant denies knowledge or information sufficient to form a belief with respect
to the allegations contained in the third paragraph.
4. Defendant denies knowledge or information sufficient to form a belief with respect
to the allegations contained in the fourth paragraph.
5. Defendant denies knowledge or information sufficient to form a belief with respect
to the allegations contained in the fifth paragraph.
6. Defendant denies the allegations contained in the sixth paragraph.
7. Defendant denies the allegations contained in the seventh paragraph.
8. Defendant denies the allegations contained in the eighth paragraph.
9. Defendant denies knowledge or information sufficient to form a belief with respect
to the allegations contained in the ninth paragraph.
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10. Defendant denies the allegations contained in the tenth paragraph.
11. Defendant denies the allegations contained in the eleventh paragraph.
AS AND FOR A FIRST CAUSE OF ACTION
(DECLARATORY JUDGMENT/DEED FRAUD
12. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
13. Defendant denies the allegations contained in the thirteenth paragraph.
14. Defendant denies the allegations contained in the fourteenth paragraph.
15. Defendant denies knowledge or information sufficient to form a belief with respect
to the allegations contained in the fifteenth paragraph.
16. Defendant opposes all of Plaintiff’s demands for judgment in the wherefore clause.
FIRST AFFIRMATIVE DEFENSE:
FAILURE TO STATE A CAUSE OF ACTION
17. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
18. The Complaint, and each and every cause of action alleged therein, fails to state of
a cause of action upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE:
STATUTE OF LIMITATIONS
19. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
20. The alleged cause(s) of action stated on behalf of the Plaintiff in the Complaint in
the above entitled action is (are) barred by the Statute of Limitations.
THIRD AFFIRMATIVE DEFENSE:
RPAPL 1501
21. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
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22. Section 1501 of New York’s Real Actions and Proceedings Law states that a person
claiming an estate or interest in real property may maintain an action to compel the determination
of any adverse claims.
23. Since Plaintiff voluntarily relinquished his right to the property at issue, Plaintiff
cannot maintain an action under the instant article.
FOURTH AFFIRMATIVE DEFENSE:
UNJUST ENRICHMENT
24. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
25. Plaintiff is seeking to be unjustly enriched at the Defendant’s expense and it would
be against equity and good conscience to find in Plaintiff’s favor in the instant action.
FIFTH AFFIRMATIVE DEFENSE:
LACK OF DOCUMENTARY EVIDENCE
26. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
27. It is respectfully submitted that one or more of Plaintiff’s claims is barred based on
lack of documentary evidence.
SIXTH AFFIRMATIVE DEFENSE:
BONA FIDE PURCHASER FOR VALUE (RPL §291)
28. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
29. New York’s Real Property Law §291 states that a bona fide purchaser who
purchases real property in good faith, for valuable consideration, without actual or record notice
of another party’s adverse interests in the property, and is the first to record the deed or
conveyance, takes title free and clear of unrecorded adverse interests.
30. Defendant purchased the value from the Plaintiff for valuable consideration, was
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not notified of any prior contracts, and did not have knowledge of facts that would lead a
reasonably prudent purchaser to make an inquiry regarding any prior contract.
31. As Defendant respectively recorded a deed with the Office of the City Register,
Defendant is entitled to take good title to the Premises pursuant to RPL §291.
SEVENTH AFFIRMATIVE DEFENSE:
UNCLEAN HANDS
32. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
33. It is respectfully submitted that the doctrine of unclean hands bars Plaintiffs’ instant
action.
EIGHTH AFFIRMATIVE DEFENSE:
STATUTE OF FRAUDS
34. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
35. It is respectfully submitted that the instant action is barred by the statute of frauds.
NINTH AFFIRMATIVE DEFENSE:
WAIVER
36. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
37. It is respectfully submitted that this action is barred by the doctrine of waiver.
TENTH AFFIRMATIVE DEFENSE:
ESTOPPEL
38. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
39. It is respectfully submitted that this action is barred by the doctrine of estoppel.
ELEVENTH AFFIRMATIVE DEFENSE:
LACHES
40. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
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herein.
41. It is respectfully submitted that this action is barred by the doctrine of laches.
TWELFTH AFFIRMATIVE DEFENSE:
FAILURE TO JOIN A NECESSARY PARTY
42. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
43. Plaintiff has failed to join a necessary party and this Court should not proceed in
the absence of such party.
THIRTEENTH AFFIRMATIVE DEFENSE:
LACK OF PERSONAL JURISIDCTION
44. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
45. The alleged cause(s) of action stated on behalf of the Plaintiff in the Complaint in
the above entitled action is (are) barred because this Court lacks personal jurisdiction over the
Defendants.
FIRST COUNTERCLAIM:
FRIVOLOUS CONDUCT
46. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth
herein.
47. Title 22 of New York’s Codes, Rules and Regulations, § 130-1.1 states that a court,
in its discretion, may award to any party or attorney in any civil action or proceeding before the
court costs, disbursements and reasonable attorneys’ fees, resulting from frivolous conduct.
48. Plaintiff’s action is completely without merit in law, asserts material factual
statements that are false, and is solely undertaken to harass or maliciously injure the Defendants.
49. Therefore, Plaintiff is liable to the Defendant for costs, disbursements, and
reasonable attorneys’ fees.
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WHEREFORE, Defendant respectfully pray for judgment against Plaintiff as follows:
a) Judgment dismissing Plaintiff’s Complaint; and
b) Reasonable attorneys’ fees, costs, and expenses, pursuant to 22 NYCRR §130-
1.1(a); and
c) Such other further relief as the Court may deem just and proper.
Dated: Brooklyn, New York
January 11, 2021
__/s/Jill Schaefer________________________
PETROFF AMSHEN LLP
By: Jill Schaefer
Attorneys for Defendant
Q & O ESTATES CORP.
1795 Coney Island Avenue, 3rd Floor
Brooklyn, NY 11230
Tel: (718) 336-4200
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RECEIVED NYSCEF: 02/15/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------------------------------------------------------------------- Index No.: 525892/2020
Howard Smith,
Plaintiff, VERIFICATION
-against-
Q&O Estates Corp.,
Defendant.
------------------------------------------
STATE OF NEW YORK
COUNTY OF KINGS
David Cohan being duly sworn, deposes and says:
That I am a member of Q&O Estates Corp., the Defendant in this action.
I have read the foregoing Verified Answer and Counterclaims know the contents thereof
and the same is true to the best of my knowledge, except as to those matters herein stated to be
alleged upon infomrntion and belief and that as to those matters, I believe them to be true.
X r:Ju.,v,J Chwvo
DAVID COHAN
Sworn to before me this
_1_ day of::::;knw , 2021 _ ..
T
1£�
' v- c
OTARYPLIC
\ifav-·/ JAAKOV WINKLER
Notary Public, State of New Yori<
No. DlW16171362
Qualified in Kings County
Commission Expires July 23, 20.l_L-
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Preview
FILED: KINGS COUNTY CLERK 02/15/2021 10:31 AM INDEX NO. 525892/2020 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 02/15/2021 EXHIBIT D 01/12/2021 10:31 FILED: KINGS COUNTY CLERK 02/15/2021 10:20 AM INDEX NO. 525892/2020 4 NYSCEF DOC. NO. 13 01/12/2021 RECEIVED NYSCEF: 02/15/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------- Index No.: 525892/2020 Howard Smith, Plaintiff, VERIFIED ANSWER WITH COUNTERCLAIMS -against- Q&O Estates Corp., Defendant. ---------------------------------------------------------------------- Defendant G&O Estates Corp., (“Defendant”), by and through its attorneys, Petroff Amshen LLP, answers the complaint as follows: 1. Defendant denies knowledge or information sufficient to form a belief with respect to the allegations contained in the first paragraph. 2. Defendant admits the allegations contained in the second paragraph. THE FACTS 3. Defendant denies knowledge or information sufficient to form a belief with respect to the allegations contained in the third paragraph. 4. Defendant denies knowledge or information sufficient to form a belief with respect to the allegations contained in the fourth paragraph. 5. Defendant denies knowledge or information sufficient to form a belief with respect to the allegations contained in the fifth paragraph. 6. Defendant denies the allegations contained in the sixth paragraph. 7. Defendant denies the allegations contained in the seventh paragraph. 8. Defendant denies the allegations contained in the eighth paragraph. 9. Defendant denies knowledge or information sufficient to form a belief with respect to the allegations contained in the ninth paragraph. 1 of 7 01/12/2021 10:31 FILED: KINGS COUNTY CLERK 02/15/2021 10:20 AM INDEX NO. 525892/2020 4 NYSCEF DOC. NO. 13 01/12/2021 RECEIVED NYSCEF: 02/15/2021 10. Defendant denies the allegations contained in the tenth paragraph. 11. Defendant denies the allegations contained in the eleventh paragraph. AS AND FOR A FIRST CAUSE OF ACTION (DECLARATORY JUDGMENT/DEED FRAUD 12. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 13. Defendant denies the allegations contained in the thirteenth paragraph. 14. Defendant denies the allegations contained in the fourteenth paragraph. 15. Defendant denies knowledge or information sufficient to form a belief with respect to the allegations contained in the fifteenth paragraph. 16. Defendant opposes all of Plaintiff’s demands for judgment in the wherefore clause. FIRST AFFIRMATIVE DEFENSE: FAILURE TO STATE A CAUSE OF ACTION 17. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 18. The Complaint, and each and every cause of action alleged therein, fails to state of a cause of action upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE: STATUTE OF LIMITATIONS 19. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 20. The alleged cause(s) of action stated on behalf of the Plaintiff in the Complaint in the above entitled action is (are) barred by the Statute of Limitations. THIRD AFFIRMATIVE DEFENSE: RPAPL 1501 21. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 2 of 7 01/12/2021 10:31 FILED: KINGS COUNTY CLERK 02/15/2021 10:20 AM INDEX NO. 525892/2020 4 NYSCEF DOC. NO. 13 01/12/2021 RECEIVED NYSCEF: 02/15/2021 22. Section 1501 of New York’s Real Actions and Proceedings Law states that a person claiming an estate or interest in real property may maintain an action to compel the determination of any adverse claims. 23. Since Plaintiff voluntarily relinquished his right to the property at issue, Plaintiff cannot maintain an action under the instant article. FOURTH AFFIRMATIVE DEFENSE: UNJUST ENRICHMENT 24. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 25. Plaintiff is seeking to be unjustly enriched at the Defendant’s expense and it would be against equity and good conscience to find in Plaintiff’s favor in the instant action. FIFTH AFFIRMATIVE DEFENSE: LACK OF DOCUMENTARY EVIDENCE 26. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 27. It is respectfully submitted that one or more of Plaintiff’s claims is barred based on lack of documentary evidence. SIXTH AFFIRMATIVE DEFENSE: BONA FIDE PURCHASER FOR VALUE (RPL §291) 28. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 29. New York’s Real Property Law §291 states that a bona fide purchaser who purchases real property in good faith, for valuable consideration, without actual or record notice of another party’s adverse interests in the property, and is the first to record the deed or conveyance, takes title free and clear of unrecorded adverse interests. 30. Defendant purchased the value from the Plaintiff for valuable consideration, was 3 of 7 01/12/2021 10:31 FILED: KINGS COUNTY CLERK 02/15/2021 10:20 AM INDEX NO. 525892/2020 4 NYSCEF DOC. NO. 13 01/12/2021 RECEIVED NYSCEF: 02/15/2021 not notified of any prior contracts, and did not have knowledge of facts that would lead a reasonably prudent purchaser to make an inquiry regarding any prior contract. 31. As Defendant respectively recorded a deed with the Office of the City Register, Defendant is entitled to take good title to the Premises pursuant to RPL §291. SEVENTH AFFIRMATIVE DEFENSE: UNCLEAN HANDS 32. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 33. It is respectfully submitted that the doctrine of unclean hands bars Plaintiffs’ instant action. EIGHTH AFFIRMATIVE DEFENSE: STATUTE OF FRAUDS 34. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 35. It is respectfully submitted that the instant action is barred by the statute of frauds. NINTH AFFIRMATIVE DEFENSE: WAIVER 36. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 37. It is respectfully submitted that this action is barred by the doctrine of waiver. TENTH AFFIRMATIVE DEFENSE: ESTOPPEL 38. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 39. It is respectfully submitted that this action is barred by the doctrine of estoppel. ELEVENTH AFFIRMATIVE DEFENSE: LACHES 40. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth 4 of 7 01/12/2021 10:31 FILED: KINGS COUNTY CLERK 02/15/2021 10:20 AM INDEX NO. 525892/2020 4 NYSCEF DOC. NO. 13 01/12/2021 RECEIVED NYSCEF: 02/15/2021 herein. 41. It is respectfully submitted that this action is barred by the doctrine of laches. TWELFTH AFFIRMATIVE DEFENSE: FAILURE TO JOIN A NECESSARY PARTY 42. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 43. Plaintiff has failed to join a necessary party and this Court should not proceed in the absence of such party. THIRTEENTH AFFIRMATIVE DEFENSE: LACK OF PERSONAL JURISIDCTION 44. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 45. The alleged cause(s) of action stated on behalf of the Plaintiff in the Complaint in the above entitled action is (are) barred because this Court lacks personal jurisdiction over the Defendants. FIRST COUNTERCLAIM: FRIVOLOUS CONDUCT 46. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 47. Title 22 of New York’s Codes, Rules and Regulations, § 130-1.1 states that a court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court costs, disbursements and reasonable attorneys’ fees, resulting from frivolous conduct. 48. Plaintiff’s action is completely without merit in law, asserts material factual statements that are false, and is solely undertaken to harass or maliciously injure the Defendants. 49. Therefore, Plaintiff is liable to the Defendant for costs, disbursements, and reasonable attorneys’ fees. 5 of 7 01/12/2021 10:31 FILED: KINGS COUNTY CLERK 02/15/2021 10:20 AM INDEX NO. 525892/2020 4 NYSCEF DOC. NO. 13 01/12/2021 RECEIVED NYSCEF: 02/15/2021 WHEREFORE, Defendant respectfully pray for judgment against Plaintiff as follows: a) Judgment dismissing Plaintiff’s Complaint; and b) Reasonable attorneys’ fees, costs, and expenses, pursuant to 22 NYCRR §130- 1.1(a); and c) Such other further relief as the Court may deem just and proper. Dated: Brooklyn, New York January 11, 2021 __/s/Jill Schaefer________________________ PETROFF AMSHEN LLP By: Jill Schaefer Attorneys for Defendant Q & O ESTATES CORP. 1795 Coney Island Avenue, 3rd Floor Brooklyn, NY 11230 Tel: (718) 336-4200 6 of 7 01/12/2021 10:31 FILED: KINGS COUNTY CLERK 02/15/2021 10:20 AM INDEX NO. 525892/2020 4 NYSCEF DOC. NO. 13 01/12/2021 RECEIVED NYSCEF: 02/15/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------------- Index No.: 525892/2020 Howard Smith, Plaintiff, VERIFICATION -against- Q&O Estates Corp., Defendant. ------------------------------------------ STATE OF NEW YORK COUNTY OF KINGS David Cohan being duly sworn, deposes and says: That I am a member of Q&O Estates Corp., the Defendant in this action. I have read the foregoing Verified Answer and Counterclaims know the contents thereof and the same is true to the best of my knowledge, except as to those matters herein stated to be alleged upon infomrntion and belief and that as to those matters, I believe them to be true. X r:Ju.,v,J Chwvo DAVID COHAN Sworn to before me this _1_ day of::::;knw , 2021 _ .. T 1£� ' v- c OTARYPLIC \ifav-·/ JAAKOV WINKLER Notary Public, State of New Yori< No. DlW16171362 Qualified in Kings County Commission Expires July 23, 20.l_L- 7 of 7