Preview
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF ROCKLAND
KPL GREEN LLC,
Plaintiff;
vs. Index No.: 030709/2023
GREENPORT HUDSON ASSOCIATES LLC, VERIFIED ANSWER WITH
MORGENSTERN DeVOESICK, PLLC, as Escrow Agent, COUNTERCLAIM
and CRAZY BEER WORLD, INC.,
Defendants.
Defendant Greenport/Hudson Associates, LLC ("GHA") as and for its Verified Answer
with Counterclaim in response to the Verified Complaint ("Complaint") of Plaintiff KPL Green
LLC ("Plaintiff'), by and through GHA's attorneys, Woods Oviatt Gilman LLP, herein states as
follows:
1. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 1 of the Complaint.
2. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 2 of the Complaint.
3. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 3 of the Complaint.
4. The allegations in paragraph 4 of the Complaint state a legal conclusion to which
no response is required. To the extent that a response is required, GHA denies the allegations in
paragraph 4 of the Complaint.
5. The allegations in paragraph 5 of the Complaint state a legal conclusion to which
no response is required. To the extent that a response is required, GHA denies the allegations in
paragraph 5 of the Complaint.
{9398687: } 1
1 of 12
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
6. Denies the allegations in paragraph 6 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof.
7. Admits the allegations in paragraph 7 of the Complaint.
8. Admits only so much of the allegations in paragraph 8 of the Complaint as allege
that GHA entered into a Lease Agreement with Defendant Crazy Beer World, Inc. ("CBW"), a
copy of which is annexed to the Complaint as Exhibit B thereto, and denies the remaining
allegations in paragraph 8 of the Complaint as they seek to characterize the document referred to
therein and respectfully refers the Court to the document itself for the meaning and import thereof.
9. Denies the allegations in paragraph 9 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof.
10. Denies the allegations in paragraph 10 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof.
11 Denies the allegations in paragraph 11 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof.
12. The allegations in paragraph 12 of the Complaint state a legal conclusion to which
no response is required. To the extent that a response is required, GHA denies the allegations in
paragraph 12 of the Complaint.
{9398687: } 2
2 of 12
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
13. Denies the allegations in paragraph 13 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof
14. Denies the allegations in paragraph 14 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof
15. Denies the allegations in paragraph 15 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof
16. Admits the allegations in paragraph 16 of the Complaint.
17. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 17 of the Complaint.
18. Denies the allegations in paragraph 18 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof
19. States that the allegations in paragraph 19 state a legal conclusion to which no
response is required. To the extent a response is required, GHA denies the allegations in paragraph
19 of Complaint.
20. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 20. GHA further denies the allegations in paragraph 20 to the extent that they seek to
characterize the terms of the document referred to therein and respectfully refers the Court to the
document itself for the meaning and import thereof
{9398687: } 3
3 of 12
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
21. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 21 of the Complaint.
22. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 22 of the Complaint.
23. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 23 of the Complaint.
24. Denies the allegations in paragraph 24 of the complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof.
25. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 25 of the Complaint.
26. Denies the allegations in paragraph 26 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof. GHA affirmatively avers that the Exhibit F email did
not constitute an effective cancelation of the Beer Lease.
27. Denies the allegations in paragraph 27 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof. GHA affirmatively avers that Plaintiff could not accept
Beer World's termination of the Lease Agreement as, upon information and belief, Beer World
had not terminated the Beer Lease as of January 24, 2023.
28. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 28 of the Complaint.
{9398687: } 4
4 of 12
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
29. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 29 of the Complaint.
30. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 30 of the Complaint.
31. Denies the allegations in paragraph 31 of the Complaint.
32. The allegations in paragraph 32 of the Complaint state a legal conclusion to which
no response is required. To the extent that a response is required, GHA denies the allegations in
paragraph 32 of the Complaint.
33. Denies the allegations in paragraph 33 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof.
34. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 34 of the Complaint.
35. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 35 of the Complaint.
36. Denies the allegations in paragraph 36 of the Complaint.
37. Denies the allegations in paragraph 37 of the Complaint.
38. Denies the allegations in paragraph 38 of the Complaint.
39. Denies the allegations in paragraph 39 of the Complaint.
40. Denies the allegations in paragraph 40 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof.
{9398687: } 5
5 of 12
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
41. Denies the allegations in paragraph 41 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof.
42. The allegations in paragraph 42 of the Complaint state a legal conclusion to which
no response is required. To the extent a response is required, GHA denies the allegations in
paragraph 42 of the Complaint.
43. Denies knowledge or information sufficient to form a belief as to paragraph 43 of
the Complaint.
44. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 44 of the Complaint.
45. The allegations in paragraph 45 of the Complaint state a legal conclusion to which
no response is required. To the extent a response is required, GHA denies the allegations in
paragraph 45 of the Complaint.
46. Denies the allegations in paragraph 46 of the Complaint.
47. Denies the allegations in paragraph 47 of the Complaint.
48. Denies the allegations in paragraph 48 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof.
49. Denies the allegations in paragraph 49 of the Complaint as they seek to characterize
the terms of the document referred to therein and respectfully refers the Court to the document
itself for the meaning and import thereof
50. Denies knowledge or information sufficient to form a belief as to the allegations in
paragraph 50 of the Complaint.
{9398687: } 6
6 of 12
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
51. The allegations in paragraph 51 of the Complaint state a legal conclusion to which
no response is required. To the extent a response is required, GHA denies the allegations in
paragraph 51 of the Complaint.
52. Denies the allegations in paragraph 52 of the Complaint.
53. Denies and every allegation in the Complaint not expressly admitted, denied or
otherwise controverted heretofore.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
54. The Complaint, in whole or in part, fails to state a claim upon which relief is
Granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
55. Plaintiff's claims are barred, in whole or in part, by the equitable doctrines of
unclean hands, waiver, estoppel and/or laches.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
56. Plaintiff's claims are barred, in whole or in part, by Plaintiff's failure to mitigate its
damages, if any.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
57. Plaintiffs claims are barred, in whole or in part, by the doctrines of accord and
satisfaction.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
58. Plaintiff's claims are barred, in whole or in part, by reasons of its failure to perform
all obligations incumbent upon it to perform under the operative Contract for the Purchase and
Sale of Real Property.
{9398687: } 7
7 of 12
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
59. Plaintiffs claims are barred, in whole or in part, by the express terms of the
operative Contract for the Purchase and Sale of Real Property, including, without limitation,
Contract Sections 14 and 12.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
60. Plaintiff's claims are barred, in whole or in part, because Plaintiffs damages, if
any, were caused by its own inequitable and culpable conduct.
RESERVATION OF ADDITIONAL AFFIRMATIVE DEFENSES
61. GHA reserves the right to make additional arguments and assert additional
affirmative defense as may become apparent or available as this litigation progresses.
COUNTERCLAIM
62. On or about June 7, 2022, Maraki Realty Corp. ("Maraki"), as Purchaser, and GHA
as Seller, entered into a certain Contract for the Purchase and Sale of Real Property ("Contract")
concerning the sale of real property and improvement commonly known as Greenport Hudson
Plaza located in Columbia County at 300 Fairview Avenue, Hudson, New York as more fully
described in the Contract. A copy of the Contract is annexed to the Verified Complaint as Exhibit
A thereto.
63. The Contract was thereafter amended by Addenda to Contract on three different
occasions. Copies of the three Addenda to Contract are annexed hereto as Exhibit A.
64. Pursuant to the initial Addendum to Contract, Maraki was replaced as Purchaser
such that the Purchaser would take title to the Property under the entity name "KPL Green LLC."
{9398687: } 8
8 of 12
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
65. Pursuant to Contract Section 2, the purchase price of five million nine hundred
thousand dollars ("$5,900,000") ("Purchase Price") was payable by Plaintiff in cash or certified
funds at Closing. Contract Section 2 further provided:
At Closing, $578,910.00 of the Purchase Price shall be escrowed
(the "Escrow Fund") with Seller's attorneys as Escrow Agent
pending Seller's execution of the proposed lease ("Beer Lease")
with Crazy Beer World, Inc. d/b/a Beer Universe.
66. Contract Section 12 states, in pertinent part: "All representations, warranties and
agreements made by either party shall not survive Closing and Transfer of Title."
67. Contract Section 14 further provides, in pertinent part:
If Seller breaches any of its covenants obligations of Seller
contained in this Contract.. . Purchaser shall be entitled to:
A. Close the transaction contemplated by this Contract, thereby
waiving such breach, default or failure; or
B. Sue seller for performance if this Contract; or
C. Terminate this Contract with the Deposit being returned to
Purchaser. Contract at pg. 7 at §14 (emphasis added).
68. On or about November 8, 2022, the purchase and sale transaction contemplated by
the Contract was closed and title to the Property was accepted by Plaintiff In connection with that
closing, Plaintiff and GHA signed and exchanged a Real Estate Closing Statement ("Closing
Statement"), a copy of which is annexed hereto as Exhibit B.
69. While the Exhibit C Closing Statement provided for a $74,865.38 credit to Plaintiff
for the "Beer Lease," it made no provision for the creation or funding of a $578.910.00 Escrow
Fund in connection with the Beer Lease or otherwise.
70. Upon information and belief, neither Plaintiff nor its attorneys delivered
$578,910.00 of the Contract Purchase Price to GHA's attorneys, Defendant Morgenstern
DeVoesick, PLC ("MDP"), or otherwise made arrangements for the creation of funding of the
Escrow Fund with MDP.
{9398687: } 9
9 of 12
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
71. To the contrary, Plaintiff, by way of its attorneys, caused the Purchase Price (as
defined in the Contract) and proceeds of sale to be disbursed as reflected in the Closing Statement.
72. The "Closing" contemplated by the Contract took place on or about November 8,
2022 and title for the Property was transferred to Plaintiff without Plaintiff ever having funded,
created or arranged for the Escrow Fund.
73. Upon further information and belief, the $578,910.00 Escrow Fund was not created
at Closing, but Plaintiff accepted title to the Property and caused the sale proceeds to be
disbursements in accordance with the Closing Statement.
74. Contract Section 21 provides, in pertinent part:
The parties agree that in the event that any disputes in the event that
any dispute arises in any waiver relating to or arising out of this
Agreement, the prevailing party in any Court proceeding will be
entitled to recover an award of its costs of said action including,
but not limited to, reasonable attorney's fees. Exhibit B at pg. 9,
§21 (emphasis in original).
75. At the Closing of the purchase and sale transaction contemplated by the Contract,
Plaintiff accepted a $74,865.38 credit for the "Beer Lease" in lieu of the Escrow Fund.
76. Furthermore, Plaintiff closed the transaction and accepted title to the Property at
Closing without the Escrow Fund having been created or funded, thereby terminating any
obligation to create or otherwise fund the Escrow Fund.
77. Plaintiff knowingly closed the transaction and accepted title to the Property at
Closing without the creation of the Escrow Fund, thereby terminating any obligation GHA may
have had with regard to the Escrow Fund pursuant to the express terms of Contract Section 12.
78. Plaintiff knowingly closed the transaction on or about November 8, 2022, without
the creation of an Escrow Fund, thereby waiving any alleged breach, default or failure by GHA, if
any, with regard to the Escrow Fund pursuant to the express terms of Contract Section 14.
{9398687: } 10
10 of 12
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
79. Upon information and belief, CBW has never terminated the Beer Lease.
80. By reason of Plaintiffs commencement of this action, GHA has been forced to
retain legal counsel and incur significant expense in connection with this litigation in an amount
to be determined.
81. By reason of the foregoing and otherwise, GHA is entitled to judgment against
Plaintiff in an amount to be determined by the trier of fact, but in no case less than its costs,
disbursements and reasonable attorney's fees incurred in connection with this action.
WHEREFORE, Defendant GHA respectfully requests judgment against Plaintiff KPL
Green LLC, dismissing the Verified Complaint in its entirety, awarding GHA its costs,
disbursements and reasonable attorneys' fees incurred in connection with this litigation together
with interest and awarding such other and further relief as the Court deems just and proper.
Dated: November 20, 2023
WOODS OV TT GILMAN LLP
By:
F. Michael Ostrander, Esq.
Attorneys for Defendant Greenport/ Hudson
Associates, LLC
1900 Bausch and Lomb Place
Rochester, New York 14604
585-987-2800
fostranderAwoodsoviatt.com
{9398687: } 11
11 of 12
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023
CORPORATE VERIFICATION
STATE OF NEW YORK)
COUNTY OF MONROE) ss:
SUSAN GORDON, being duly sworn, deposes and says that the Deponent is a member-
manager of Defendant Greenport/Hudson Associates LLC; Deponent has read the within Verified
Answer and Counterclaim and knows the contents thereof; that the same are true to Deponent's
knowledge, except as to matters therein stated to be alleged upon information and belief, and as to
those matters, Deponent believes them to be true.
Susan, Gordon, ember Manager
Sworn to before me this
of November, 2023.
Not Public
CHAUNCEY D. WILSON
Notary Public, State of New York
Monroe County Reg. #01WI6
Commission Expires 04/19
(9398687: } 12
12 of 12
Preview
FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF ROCKLAND KPL GREEN LLC, Plaintiff; vs. Index No.: 030709/2023 GREENPORT HUDSON ASSOCIATES LLC, VERIFIED ANSWER WITH MORGENSTERN DeVOESICK, PLLC, as Escrow Agent, COUNTERCLAIM and CRAZY BEER WORLD, INC., Defendants. Defendant Greenport/Hudson Associates, LLC ("GHA") as and for its Verified Answer with Counterclaim in response to the Verified Complaint ("Complaint") of Plaintiff KPL Green LLC ("Plaintiff'), by and through GHA's attorneys, Woods Oviatt Gilman LLP, herein states as follows: 1. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 1 of the Complaint. 2. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 2 of the Complaint. 3. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 3 of the Complaint. 4. The allegations in paragraph 4 of the Complaint state a legal conclusion to which no response is required. To the extent that a response is required, GHA denies the allegations in paragraph 4 of the Complaint. 5. The allegations in paragraph 5 of the Complaint state a legal conclusion to which no response is required. To the extent that a response is required, GHA denies the allegations in paragraph 5 of the Complaint. {9398687: } 1 1 of 12 FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 6. Denies the allegations in paragraph 6 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. 7. Admits the allegations in paragraph 7 of the Complaint. 8. Admits only so much of the allegations in paragraph 8 of the Complaint as allege that GHA entered into a Lease Agreement with Defendant Crazy Beer World, Inc. ("CBW"), a copy of which is annexed to the Complaint as Exhibit B thereto, and denies the remaining allegations in paragraph 8 of the Complaint as they seek to characterize the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. 9. Denies the allegations in paragraph 9 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. 10. Denies the allegations in paragraph 10 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. 11 Denies the allegations in paragraph 11 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. 12. The allegations in paragraph 12 of the Complaint state a legal conclusion to which no response is required. To the extent that a response is required, GHA denies the allegations in paragraph 12 of the Complaint. {9398687: } 2 2 of 12 FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 13. Denies the allegations in paragraph 13 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof 14. Denies the allegations in paragraph 14 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof 15. Denies the allegations in paragraph 15 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof 16. Admits the allegations in paragraph 16 of the Complaint. 17. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 17 of the Complaint. 18. Denies the allegations in paragraph 18 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof 19. States that the allegations in paragraph 19 state a legal conclusion to which no response is required. To the extent a response is required, GHA denies the allegations in paragraph 19 of Complaint. 20. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 20. GHA further denies the allegations in paragraph 20 to the extent that they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof {9398687: } 3 3 of 12 FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 21. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 21 of the Complaint. 22. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 22 of the Complaint. 23. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 23 of the Complaint. 24. Denies the allegations in paragraph 24 of the complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. 25. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 25 of the Complaint. 26. Denies the allegations in paragraph 26 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. GHA affirmatively avers that the Exhibit F email did not constitute an effective cancelation of the Beer Lease. 27. Denies the allegations in paragraph 27 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. GHA affirmatively avers that Plaintiff could not accept Beer World's termination of the Lease Agreement as, upon information and belief, Beer World had not terminated the Beer Lease as of January 24, 2023. 28. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 28 of the Complaint. {9398687: } 4 4 of 12 FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 29. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 29 of the Complaint. 30. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 30 of the Complaint. 31. Denies the allegations in paragraph 31 of the Complaint. 32. The allegations in paragraph 32 of the Complaint state a legal conclusion to which no response is required. To the extent that a response is required, GHA denies the allegations in paragraph 32 of the Complaint. 33. Denies the allegations in paragraph 33 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. 34. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 34 of the Complaint. 35. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 35 of the Complaint. 36. Denies the allegations in paragraph 36 of the Complaint. 37. Denies the allegations in paragraph 37 of the Complaint. 38. Denies the allegations in paragraph 38 of the Complaint. 39. Denies the allegations in paragraph 39 of the Complaint. 40. Denies the allegations in paragraph 40 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. {9398687: } 5 5 of 12 FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 41. Denies the allegations in paragraph 41 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. 42. The allegations in paragraph 42 of the Complaint state a legal conclusion to which no response is required. To the extent a response is required, GHA denies the allegations in paragraph 42 of the Complaint. 43. Denies knowledge or information sufficient to form a belief as to paragraph 43 of the Complaint. 44. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 44 of the Complaint. 45. The allegations in paragraph 45 of the Complaint state a legal conclusion to which no response is required. To the extent a response is required, GHA denies the allegations in paragraph 45 of the Complaint. 46. Denies the allegations in paragraph 46 of the Complaint. 47. Denies the allegations in paragraph 47 of the Complaint. 48. Denies the allegations in paragraph 48 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof. 49. Denies the allegations in paragraph 49 of the Complaint as they seek to characterize the terms of the document referred to therein and respectfully refers the Court to the document itself for the meaning and import thereof 50. Denies knowledge or information sufficient to form a belief as to the allegations in paragraph 50 of the Complaint. {9398687: } 6 6 of 12 FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 51. The allegations in paragraph 51 of the Complaint state a legal conclusion to which no response is required. To the extent a response is required, GHA denies the allegations in paragraph 51 of the Complaint. 52. Denies the allegations in paragraph 52 of the Complaint. 53. Denies and every allegation in the Complaint not expressly admitted, denied or otherwise controverted heretofore. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 54. The Complaint, in whole or in part, fails to state a claim upon which relief is Granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 55. Plaintiff's claims are barred, in whole or in part, by the equitable doctrines of unclean hands, waiver, estoppel and/or laches. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 56. Plaintiff's claims are barred, in whole or in part, by Plaintiff's failure to mitigate its damages, if any. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 57. Plaintiffs claims are barred, in whole or in part, by the doctrines of accord and satisfaction. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 58. Plaintiff's claims are barred, in whole or in part, by reasons of its failure to perform all obligations incumbent upon it to perform under the operative Contract for the Purchase and Sale of Real Property. {9398687: } 7 7 of 12 FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 59. Plaintiffs claims are barred, in whole or in part, by the express terms of the operative Contract for the Purchase and Sale of Real Property, including, without limitation, Contract Sections 14 and 12. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 60. Plaintiff's claims are barred, in whole or in part, because Plaintiffs damages, if any, were caused by its own inequitable and culpable conduct. RESERVATION OF ADDITIONAL AFFIRMATIVE DEFENSES 61. GHA reserves the right to make additional arguments and assert additional affirmative defense as may become apparent or available as this litigation progresses. COUNTERCLAIM 62. On or about June 7, 2022, Maraki Realty Corp. ("Maraki"), as Purchaser, and GHA as Seller, entered into a certain Contract for the Purchase and Sale of Real Property ("Contract") concerning the sale of real property and improvement commonly known as Greenport Hudson Plaza located in Columbia County at 300 Fairview Avenue, Hudson, New York as more fully described in the Contract. A copy of the Contract is annexed to the Verified Complaint as Exhibit A thereto. 63. The Contract was thereafter amended by Addenda to Contract on three different occasions. Copies of the three Addenda to Contract are annexed hereto as Exhibit A. 64. Pursuant to the initial Addendum to Contract, Maraki was replaced as Purchaser such that the Purchaser would take title to the Property under the entity name "KPL Green LLC." {9398687: } 8 8 of 12 FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 65. Pursuant to Contract Section 2, the purchase price of five million nine hundred thousand dollars ("$5,900,000") ("Purchase Price") was payable by Plaintiff in cash or certified funds at Closing. Contract Section 2 further provided: At Closing, $578,910.00 of the Purchase Price shall be escrowed (the "Escrow Fund") with Seller's attorneys as Escrow Agent pending Seller's execution of the proposed lease ("Beer Lease") with Crazy Beer World, Inc. d/b/a Beer Universe. 66. Contract Section 12 states, in pertinent part: "All representations, warranties and agreements made by either party shall not survive Closing and Transfer of Title." 67. Contract Section 14 further provides, in pertinent part: If Seller breaches any of its covenants obligations of Seller contained in this Contract.. . Purchaser shall be entitled to: A. Close the transaction contemplated by this Contract, thereby waiving such breach, default or failure; or B. Sue seller for performance if this Contract; or C. Terminate this Contract with the Deposit being returned to Purchaser. Contract at pg. 7 at §14 (emphasis added). 68. On or about November 8, 2022, the purchase and sale transaction contemplated by the Contract was closed and title to the Property was accepted by Plaintiff In connection with that closing, Plaintiff and GHA signed and exchanged a Real Estate Closing Statement ("Closing Statement"), a copy of which is annexed hereto as Exhibit B. 69. While the Exhibit C Closing Statement provided for a $74,865.38 credit to Plaintiff for the "Beer Lease," it made no provision for the creation or funding of a $578.910.00 Escrow Fund in connection with the Beer Lease or otherwise. 70. Upon information and belief, neither Plaintiff nor its attorneys delivered $578,910.00 of the Contract Purchase Price to GHA's attorneys, Defendant Morgenstern DeVoesick, PLC ("MDP"), or otherwise made arrangements for the creation of funding of the Escrow Fund with MDP. {9398687: } 9 9 of 12 FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 71. To the contrary, Plaintiff, by way of its attorneys, caused the Purchase Price (as defined in the Contract) and proceeds of sale to be disbursed as reflected in the Closing Statement. 72. The "Closing" contemplated by the Contract took place on or about November 8, 2022 and title for the Property was transferred to Plaintiff without Plaintiff ever having funded, created or arranged for the Escrow Fund. 73. Upon further information and belief, the $578,910.00 Escrow Fund was not created at Closing, but Plaintiff accepted title to the Property and caused the sale proceeds to be disbursements in accordance with the Closing Statement. 74. Contract Section 21 provides, in pertinent part: The parties agree that in the event that any disputes in the event that any dispute arises in any waiver relating to or arising out of this Agreement, the prevailing party in any Court proceeding will be entitled to recover an award of its costs of said action including, but not limited to, reasonable attorney's fees. Exhibit B at pg. 9, §21 (emphasis in original). 75. At the Closing of the purchase and sale transaction contemplated by the Contract, Plaintiff accepted a $74,865.38 credit for the "Beer Lease" in lieu of the Escrow Fund. 76. Furthermore, Plaintiff closed the transaction and accepted title to the Property at Closing without the Escrow Fund having been created or funded, thereby terminating any obligation to create or otherwise fund the Escrow Fund. 77. Plaintiff knowingly closed the transaction and accepted title to the Property at Closing without the creation of the Escrow Fund, thereby terminating any obligation GHA may have had with regard to the Escrow Fund pursuant to the express terms of Contract Section 12. 78. Plaintiff knowingly closed the transaction on or about November 8, 2022, without the creation of an Escrow Fund, thereby waiving any alleged breach, default or failure by GHA, if any, with regard to the Escrow Fund pursuant to the express terms of Contract Section 14. {9398687: } 10 10 of 12 FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 79. Upon information and belief, CBW has never terminated the Beer Lease. 80. By reason of Plaintiffs commencement of this action, GHA has been forced to retain legal counsel and incur significant expense in connection with this litigation in an amount to be determined. 81. By reason of the foregoing and otherwise, GHA is entitled to judgment against Plaintiff in an amount to be determined by the trier of fact, but in no case less than its costs, disbursements and reasonable attorney's fees incurred in connection with this action. WHEREFORE, Defendant GHA respectfully requests judgment against Plaintiff KPL Green LLC, dismissing the Verified Complaint in its entirety, awarding GHA its costs, disbursements and reasonable attorneys' fees incurred in connection with this litigation together with interest and awarding such other and further relief as the Court deems just and proper. Dated: November 20, 2023 WOODS OV TT GILMAN LLP By: F. Michael Ostrander, Esq. Attorneys for Defendant Greenport/ Hudson Associates, LLC 1900 Bausch and Lomb Place Rochester, New York 14604 585-987-2800 fostranderAwoodsoviatt.com {9398687: } 11 11 of 12 FILED: ROCKLAND COUNTY CLERK 11/20/2023 06:09 PM INDEX NO. 030709/2023 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 11/20/2023 CORPORATE VERIFICATION STATE OF NEW YORK) COUNTY OF MONROE) ss: SUSAN GORDON, being duly sworn, deposes and says that the Deponent is a member- manager of Defendant Greenport/Hudson Associates LLC; Deponent has read the within Verified Answer and Counterclaim and knows the contents thereof; that the same are true to Deponent's knowledge, except as to matters therein stated to be alleged upon information and belief, and as to those matters, Deponent believes them to be true. Susan, Gordon, ember Manager Sworn to before me this of November, 2023. Not Public CHAUNCEY D. WILSON Notary Public, State of New York Monroe County Reg. #01WI6 Commission Expires 04/19 (9398687: } 12 12 of 12