Motion for Judgment on the Pleadings in Miriam Weisbecker v. J.R. Siwicki Jr., 404 County Rd 39a, Inc., 404 County Road 39a Holdings Inc.| Trellis.Law

On August 17, 2023 a Exhibit,Appendix was filed involving a dispute between Miriam Weisbecker, and 404 County Rd 39A, Inc., 404 County Road 39A Holdings Inc., J.R. Siwicki Jr., for Commercial - Other (Use and Occupancy/Damages) in the District Court of New York County.

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NEW YORK STATE SUPREME COURT:
COUNTY OF NEW YORK

MIRIAM WEISBECKER, Inex No.: 158209/2023

Plaintiff,

v. VERIFIED ANSWER

J.R. SIWICKI, JR., 404 COUNTY RD 39A,
INC., and 404 COUNTY ROAD 39A
HOLDINGS INC.,

Defendants.

Defendants J.R. SIWICKI, JR., 404 COUNTY RD 39A, INC., and 404 COUNTY ROAD

39A HOLDINGS INC. (jointly, “Defendants”), by and through their undersigned counsel,

SUTTON SACHS MEYER PLLC, as and for their verified answer to the verified complaint of

plaintiff MIRIAM WEISBECKER (“Plaintiff”) dated August 9th, 2023 in the above-captioned

matter, hereby alleges the following:

GENERAL DENIALS

1. Defendants deny possessing knowledge or information sufficient to form a belief

as to the truth or falsity of the allegations under “paragraph (1)” of Plaintiff’s complaint.

2. Defendants deny each and every allegation contained in “paragraph two (2)”,

through “paragraph fifty (50)” of Plaintiff’s complaint, inclusive of the subsequent “wherefore”

“subparagraph one (i)” through “subparagraph six (vi)” thereof.

ALLEGATIONS COMMON TO ALL AFFIRMATIVE DEFENSES

A. The Parties.

3. Preliminarily, individual defendant J.R. SIWICKI, JR. is the sole shareholder of co-

defendants 404 COUNTY RD 39A, INC., and 404 COUNTY ROAD 39A HOLDINGS INC., and

as such, is in direct privity with each.

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4. Likewise, defendant J.R. SIWICKI, JR. is the sole shareholder of non-party

INDIANA JOE, INC., and as such, is in direct privity therewith.

5. Likewise, defendant J.R. SIWICKI, JR. is the husband to non-party MICHELLE

SIWICKI, and thus, is in direct privity with non-party MICHELLE SIWICKI.

B. The Underlying Matter.

6. This matter allegedly concerns Defendants’ alleged unpaid commercial rent under

an unwritten and undated purported lease agreement with Plaintiff for the purportedly demised

premises known as 551 Majors Path, Southampton, NY 11968 (“Premises”) – which Defendants

hereby expressly deny ever existed – in the purported amount of five thousand seven hundred USD

($5,700.00) per month from March of 2008 through July of 2014, which purportedly escalated to

the amount of five thousand seven hundred fifty USD ($5,750.00) per month from January 1st,

2014 indefinitely (“Lease”), as well as various property damage; a true copy of Plaintiff’s verified

complaint dated August 9th, 2023 has been annexed hereto as “Exhibit A”.

7. Again, a purported Lease for the demised Premises never existed.

8. Rather, the relationship between Plaintiff and Defendants arose under a certain and

promissory note dated September 18th, 2000 secured by a pledge agreement dated same – which

was non-sensically both notarized on April 30th, 2001 with a maturity date of March 18th, 2000 –

by and between defendant J.R. SIWICKI, JR. and non-party LUBOV T. KILIMOVA – a then-

girlfriend of defendant J.R. SIWICKI, JR.’s long-time friend, non-party GERARD REM – in the

amount of six hundred thousand USD ($600,000.00) with interest set at eleven percent (11%) per

annum (jointly, “Promissory Note”); a true copy of the Promissory Note has been annexed hereto

as “Exhibit B”.

9. Sometime thereafter, non-party GERARD REM ended his relationship with non-

party LUBOV T. KILIMOVA, and subsequently arranged for the Promissory Note to be transferred

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to his new girlfriend, plaintiff MIRIAM WEISBECKER.

10. Accordingly, by way of “Note Extension and Modification Agreement” dated May

14th, 2009 by and between plaintiff MIRIAM WEISBECKER and defendant J.R. SIWICKI, JR.

(“Note Extension”), the terms of the Promissory Note were modified to extend the Promissory

Note maturity date to July 1st, 2009, with only monthly interest payments due and owing to Plaintiff

until said maturity; a true copy of the Note Extension has been annexed hereto as “Exhibit C”.

11. Under the Promissory Note, monthly payments of eleven percent (11%) per annum

on six hundred thousand USD ($600,000.00) of principal would have yielded monthly payments

of five thousand five hundred USD ($5,500.00) from defendant J.R. SIWICKI, JR. to plaintiff

MIRIAM WEISBECKER.

12. As such, defendant J.R. SIWICKI, JR. made payments under the Promissory Note

in the amount of not less than nine hundred thirty-one thousand sixty-one & 20/100 USD

($931,061.20) (“Payments”); true copies of evidenced Payments under the Promissory Note have

been annexed hereto as “Exhibit D”.

13. On September 11th, 2009, Plaintiff commenced a matter in New York County

Supreme Court via summons and personally verified complaint captioned as Miriam Weisbecker

v. J.R. Siwicki, Jr., et al., bearing New York County Supreme Court Index No. 112957/2009

(“Underlying Matter”); a true copy of the Underlying Matter’s summons and personally verified

complaint has been annexed hereto as “Exhibit E”.

14. In the Underlying Matter, Defendants vehemently denied receipt of service of

process and sought vacatur based upon such ground as well as myriad other grounds, as

Defendants – residents of Suffolk County at the time – had no notice of the pendency of the

Underlying Matter before this Court. See N.Y. Cnty. Index No. Dkt. 112957/2009, passim.

15. Unbeknownst to defendant J.R. SIWICKI, JR., by virtue of Plaintiff’s deficient

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service of process in the Underlying Matter, this Court granted a default judgment in the

Underlying Matter against defendant J.R. SIWICKI, JR. by way of Order of this Court dated

November 16th, 2009 under MSQ No. 001 (“MSQ No. 001 Order”); a true copy of the MSQ No.

001 Order has been annexed hereto as “Exhibit F”.

16. Accordingly, nearly eleven (11) years later, on August 26th, 2020, Plaintiff entered

and docketed a judgement in the Underlying Matter against defendant J.R. SIWICKI, JR. in the

amount of not less than one million thirty-one thousand five hundred ninety & 69/100 USD

($1,031,590.69) to the judgment roll as of August 26th, 2020 (“Judgment”); a true copy of said

Judgment has been annexed hereto as “Exhibit G”.

17. Thereafter, defendant J.R. SIWICKI, JR. sought vacatur in the Underlying Matter

under MSQ No. 003, whereafter, on July 28th, 2022, a hearing thereunder was held before the Hon.

Shlomo Hagler; a true copy of the July 28th, 2022 Underlying Matter MSQ No. 003 hearing

transcript has been annexed hereto as “Exhibit H”.

18. At the July 28th, 2022 MSQ No. 003 hearing, Judge Hagler found that all “payments

from 2009, when the [Southampton] Premises was acquired by [Plaintiff], through 2021, all of the

payments of $5,700.00 of $5,750.00 are to be recognized as rent” and “they’re not attributable to

the loan”. See Ex. H, at pp. 143:21-25 – 144:1; see Ex. H, at p. 144:6-9 (“I’m making rulings that

[all Payments are] not attributable to the loan, yes. And obviously if [all Payments are] not, then

[all Payments are] attributable to the payment of the rental payments”).

19. Further, at the July 28th, 2022 MSQ No. 003 hearing, Plaintiff conceded that she

knowingly stood in stark violation of myriad Town Code of Southampton (“Town Code”)

ordinances by purportedly renting the Premises without a rental permit; namely, Town Code §§

270-3(a)-(d), and § 270-13(a). See Ex. H, at pp. 121:22-25 – 122:1-23 (“A: I hadn’t gotten a

permit… Q: So you were aware there was a rental permit requirement though? A: Yes”).

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20. Likewise, at the July 28th, 2022 MSQ No. 003 hearing, Plaintiff conceded that she

sold the Premises in January of 2021. See Ex. H, at p. 115:10-13.

21. Thereafter, Plaintiff and Defendants entered into a settlement agreement

whereunder Defendants would tender one million thirty-one thousand five hundred ninety &

69/100 USD ($1,031,590.69) to Plaintiff in exchange for a satisfaction of judgment.

22. In accordance with the terms of said settlement agreement, in August of 2022,

Defendants tendered the amount of one million thirty-one thousand five hundred ninety & 69/100

USD ($1,031,590.69) to Plaintiff, whereupon Plaintiff filed a Satisfaction of Judgment dated

September 23rd, 2022; a true copy of Plaintiff’s said Satisfaction of Judgment has been annexed

hereto as “Exhibit I”.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

23. This Court lacks jurisdiction over all Defendants by virtue of deficient service of

process upon Defendants, whereupon this Court must dismiss Plaintiff’s complaint.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

24. By virtue of the foregoing, Plaintiff lacks standing and legal capacity to maintain

this action, whereupon this Court must dismiss Plaintiff’s complaint.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

25. By virtue of the foregoing, Plaintiff failed to state causes of action upon which relief

can be granted, whereupon this Court must dismiss Plaintiff’s complaint.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

26. By virtue of the foregoing, Plaintiff’s complaint failed to plead with the requisite

specificity and particularity imposed and demanded by CPLR §§ 3015(a)-(c), and CPLR §§

3016(d) and (f), whereupon this Court must dismiss Plaintiff’s complaint.

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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

27. By virtue of the foregoing, Plaintiff’s complaint is barred by documentary evidence,

whereupon this Court must dismiss Plaintiff’s complaint.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

28. By virtue of the foregoing, Plaintiff’s complaint is time-barred as violative of

applicable statutes of limitation, whereupon this Court must dismiss Plaintiff’s complaint.

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE

29. By virtue of the foregoing, Plaintiff’s complaint is violative of the statute of frauds,

whereupon this Court must dismiss Plaintiff’s complaint.

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE

30. By virtue of the foregoing, Plaintiff’s complaint is barred by the doctrines of res

judicata, collateral estoppel, merger and bar, and further barred by a satisfaction of judgment

concerning the same transactions or occurrences, whereupon this Court must dismiss Plaintiff’s

complaint.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE

31. By virtue of the foregoing, Plaintiff’s complaint is barred by the doctrines of

payment, release, waiver, laches, promissory estoppel, accord and satisfaction, and/or barred by a

satisfaction of judgment, whereupon this Court must dismiss Plaintiff’s complaint.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE

32. By virtue of the foregoing, Plaintiff’s complaint is barred by the doctrines of

judicial estoppel, equitable estoppel, estoppel by deed, and estoppel in pais, whereupon this Court

must dismiss Plaintiff’s complaint.

AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE

33. By virtue of the foregoing, Plaintiff’s claims against Defendants are barred under

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the doctrine of illegality, as Plaintiff’s claims for rent at the Premises stand in stark violation of

Southampton Town Code §§ 270-3(a)-(d), and § 270-13(a) upon Plaintiff’s admitted failure to

secure a rental permit for all times the Premises was purportedly leased, whereupon this Court

must dismiss Plaintiff’s complaint.

AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE

34. By virtue of the foregoing, Plaintiff’s complaint is barred by the doctrines of

unclean hands, in pari delicto, estoppel, acquiescence, ratification, waiver, stale rent, and

Plaintiff’s own fraudulent conduct, whereupon this Court must dismiss Plaintiff’s complaint.

AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE

35. Plaintiff’s claim for legal fees is barred insofar as Plaintiff has failed to set forth

any statute or contractual agreement whereunder Defendants agreed to compensate Plaintiff for

any costs and attorneys’ fees, wherefore this Court must dismiss Plaintiff’s complaint.

AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE

36. Plaintiff’s claims for property damages and/or alterations are barred insofar as all

alleged damages are ordinary wear-and-tear for which a landlord is otherwise liable, and as

Plaintiff has nevertheless failed to establish an itemized list of costs expended in replacing each

individual alleged property damage, and as Plaintiff has conceded the Premises was nevertheless

sold in January of 2021, wherefore all such alleged damages were priced into the subject

transaction, wherefore this Court must dismiss Plaintiff’s complaint.

AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE

37. Plaintiff’s claim for a purportedly diminished Premises sale price is barred by both

Plaintiff’s own decision to sell the Premises in a listing condition solely in Plaintiff’s sole and

exclusive discretion and control, and is likewise barred by the act of god doctrine, as Plaintiff

apparently decided to sell the Premises in the midst of a once-in-a-century pandemic, whereupon

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Defendants are not liable for Plaintiff’s poor decision-making, wherefore this Court must dismiss

Plaintiff’s complaint.

AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE

38. By virtue of the foregoing, Plaintiff’s claims against Defendants are subject to a

setoff and/or an offset, wherefore all damages inflicted upon Defendants by Plaintiff far exceeds

the damages, if any, alleged by Plaintiff hereunder, wherefore this Court must dismiss Plaintiff’s

complaint.

AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE

39. Plaintiff’s claims are barred by Plaintiff’s own culpable conduct; accordingly,

without admitting any liability hereof, Defendants are entitled to indemnity, contribution, and an

equitable apportionment of liability, should this Court make a finding of liability against

Defendants.

AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE

40. Plaintiff’s complaint contains insufficient information to permit Defendants to raise

all appropriate defenses, wherefore Defendants hereby expressly reserve the right to amend and/or

supplement this responsive pleading with additional defenses.

AS AND FOR A NINTEENTH AFFIRMATIVE DEFENSE & FIRST COUNTERCLAIM
(Private Right of Action: Town Code §§ 270-3(a)-(d) & § 270-13(a))

41. Defendants hereby repeat, reiterate, re-allege, and incorporate by reference each

and every allegation contained in all preceding paragraphs and exhibits as if fully set forth herein.

42. By virtue of the foregoing, in stark contravention of Southampton Town Code §§

270-3(a)-(d), and § 270-13(a), at all relevant times herein, Plaintiff knowingly and intentionally:

(a) caused, permitted, and allowed the illegally demised Premises to be occupied, rented, leased,

subleased, or otherwise used as a rental property by Defendants without a valid rental permit; (b)

collected rent for the occupancy or use of the illegally demised Premises as a rental property from
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Defendants without a valid rental permit; and (c) exacted and collected monthly rent from all

Defendants at the illegally demised Premises without first securing a rental permit.

43. On or around December of 2020, the time that Defendants first learned of a rental

permit requirement at the illegally demised Premises, Defendants surrendered possession of the

illegally demised Premises.

44. By virtue of the foregoing, Defendants have been damaged and continue to sustain

damages in an amount exceeding the jurisdictional limits of all lower Courts of the State of New

York, whereupon this Court should dismiss Plaintiff’s complaint, and whereupon Defendants are

concomitantly entitled to a judgment disgorging all rental payments received by Plaintiff for

Defendants’ purported use and occupancy of the illegally demised Premises, as well as an award

of all statutory penalties, including costs, disbursements, and attorneys’ fees, together with pre-

judgment interest thereon in an amount to be determined at trial of the instant matter.

[intentionally omitted]

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PRAYER FOR RELIEF

WHEREFORE, Defendants respectfully request judgment against Plaintiff, dismissing

the instant pleading with prejudice, together with an award of all costs, disbursements, attorneys’

fees, and pre-judgment interest thereon at the highest rate permitted at law, and for such other and

further relief as this Court deems just and proper.

Dated: New York, New York
November 20th, 2023

Respectfully submitted,
SUTTON SACHS MEYER PLLC
Attorneys for Defendants

/s/ Zachary G. Meyer, Esq.
Zachary G. Meyer, Esq.
14 Penn Plaza, Suite 1315
New York, NY 10122
t. (212) 480-4357
e. Zachary@ssm.law

To: HELENE W. HARTIG, ESQ.
233 E. 86th St., Ste. 2A
New York, NY 10001
(212) 289-4000
Attorneys for Plaintiff

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“EXHIBIT A”

“EXHIBIT A”
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----_______________________________________------_______________Ç

MIRIAM WEISBECKER, SUMMONS
Plaintiff,

-against- Index No. /23

J.R. SlWICKI, JR., 404 COUNTY RD 39A, INC. and

404 COUNTY ROAD 39A HOLDINGS INC.

Defendant(s).

_____________------_____________________________________________Ç

To the Person(s) Named as Defendant(s) Above:

PLEASE TAKE NOTICE THAT YOU ARE HEREBY SUMMONED to answer the

complaint of the plaintiff(s) herein and to serve a copy of your answer on the plaintiff(s) at the

address indicated below within 20 days after the service of this Summons (not counting the day

of service itself), or within 30 days after service is complete if the Summons is not delivered

personally to you within the State of New York. YOU ARE HEREBY NOTIFIED THAT should

you fail to answer, a judgment will be entered against you by default for the relief demanded in

the complaint.

Dated: New York, New York

August 9, 2023

Helene W. Hartig, ˆsq

Attorney for Plaintiff

233 East 86th Street, Suite 2A

New York, NY 10001

212-289-4000

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SUPREMECOURTOFTHE STATEOFNEW YORK
COUNTY OF NEW YORK
________---__________________-____-_____-___________________----Ç

MIRIAM WEISBECKER, VERIFIED

Plaintiff, COMPLAINT

-against- Index No. /23

J.R. SIWICKI, JR., 404 COUNTY RD 39A INC.,
And 404 COUNTY ROAD 39A HOLDINGS INC.

Defendant(s).

_____________--______---__________________----------________-___Ç

Plaintiff, Miriam Wiesbecker, by her attorney Helene W. Hartig, Esq. as and for her

verified complaint, alleges as follows:

THE PARTIES

1. Plaintiff Miriam Weisbecker is an individual with an address of350 Central Park West

Apt 21, New York, NY 10025 ("Plaintiff")

2. Upon information and belief, Defendant J.R. Siwicki ("Defendant JR") is an individual

with a place of business at 404 County Rd 39A, Southampton, NY, 1 1968.

3. Upon information and belief, Defendant 404 County Road 39A, Inc., ("Defendant

Southampton") is a corporation with an address at 404 County Rd 39A, Southampton,

NY 11968.

4. Upon information and belief, Defendant is a Corporation formed by Defendant JR that is

affiliated with and/or the successor to 404 County Rd 39A Inc.

BACKGROUNDFACTS

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5. This is an action based upon an agreement ("the agreement") between Plaintiff and

Defendant JR and Defendant Southampton by which Plaintiff agreed to lease 551 Majors

Path, Southampton, NY, 11968 (the "subject premises") to Defendants.

6. Plaintiff was, at the relevant times, from the end of 2007 to 2021, the owner of the subject

premises, a private single-family house located in Southampton, New York.

7. That, Defendant JR was the broker of record for the purchase of the subject premises by

Plaintiff in 2007, and they had a professional and personal relationship with each other.

8. That, upon information and belief, Defendant JR received a commission of $30,250.00

for the sale of the subject premises to Plaintiff.

9. That, concurrent to the sale, Plaintiff and Defendant JR entered into an agreement

whereby Plaintiff agreed to rent the subject premises to Defendant Southampton.

10. Under the agreement, Defendant JR was entitled to use the subject premises to provide

housing for employees of his business located at 404 County Road 39A, Southampton,

NY in exchange for a monthly rental payment of $5,700.00.

1 l. That Plaintiff received the first rental payment in March 2008.

12. In January 2008, before moving employees in, Defendants JR and Southampton, upon

information and belief, made illegal alterations against town code (without informing

Plaintiff) to the house to convert it to dormitory style housing for its workers.

13. Upon information and belief, various employees of Defendant Southampton moved into

the subject premises in or about March 2008 and remained there until their vacatur

pursuant to a court order in December 2021.

14. That the agreed upon rent for the subject premises was $5,700.00 per month from 2008 to

July 2014.

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15. That Defendants made rent payments throughout 2008 and 2009.

16. That Defendants failed to make nine monthly payments in 2010, two monthly payments

in 2011, seven monthly payments in 2012, and ten monthly payments in 2013, totalling

$171,000.00.

17. That Defendants owe a total of $171,000.00 in rent arrears for the period of 2010 to 2014.

18. That, on or about January 1, 2014, Defendant JR and Plaintiff agreed to raise the monthly

rent to $5,750.00.

19. That Defendants failed to make two monthly payments in 2014, four monthly payments

in 2015, one monthly payment in 2016, one monthly payment in 2017, one monthly

payment in 2018 and two monthly payments in 2019, totalling $62,700.00.

20. That, Defendants owe $62,700.00 in rental arrears for the period of 2014 to 2019.

Defendants'
21. That after repeated failure to pay rent, Plaintiff brought eviction proceedings

against Defendants and obtained possession of the subject premises.

22. That, Defendants owe a combined total of $233,700.00 in rent arrears.

23. That no monies of the outstanding rent have ever been paid despite repeated

communications regarding the same and Defendant JR's acknowledgment that he knew

about his obligation to pay rent and allegedly did so in the past.

24. That, pursuant to the agreement, there is a continuing obligation to pay any outstanding

arrears.

Defendants'
25. That, prior to eviction from the premises, Defendants did not maintain the

subject premises and left it uninhabitable and in a state of disrepair.

26. The damage to the subject premises included but is not limited to the following:

a. the fence bordering the subject premises was severely damaged;

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b. the grass and garden of the subject premises was not maintained, as provided in

the agreement, causing the grass to grow over ten feet long;

c. there was excessive litter and debris, including cooking pans, scattered throughout

the backyard of the subject premises;

d. the kitchen sink was left with a missing handle and a leaky faucet;

e. the kitchen wall appeared to be "punched in";

f. the bathroom door on the first floor was split and damaged;

g. the sheetrock in the walls and ceiling were damaged;

h. the bathroom fixtures were damaged to the extent there was exposed wiring in the

bathroom;

i. the house was unsanitary throughout and rat infested;

j. the screen doors of the house were ripped out;

k. several gutters were hanging off of the roof;

l. there were holes carved into the ceiling.

27. That in light of the foregoing, Plaintiff is entitled to: the balance of the unpaid rent,

payment for the illegal alterations made to the subject premises by Defendants, and

payment for

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Document Filed Date

December 20, 2023

Case Filing Date

August 17, 2023

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Exhibit,Appendix: Miriam Weisbecker v. J.R. Siwicki Jr., 404 County Rd 39a, Inc., 404 County Road 39a Holdings Inc.

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