Preview
(FILED: NEW YORK COUNTY CLERK 0671672014) INDEX NO. 151330/2014
NYSCEF DOC. NO. 22 RECEIVED NYSCEF 06/16/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DAVID L. ABRAMSON, M.D. and SCOT BRADLEY Index No. 151330/14
GLASBERG, M.D.,
Plaintiffs, VERIFIED ANSWER
TO FIRST AMENDED
- against - VERIFIED COMPLAINT
74™ LLC and BEN HELLER,
Defendants.
Defendants 74” LLC and Ben Heller hereby respond to plaintiffs David L. Abramson, M.D.
and Scot Bradley Glasberg, M.D., First Amended Verified Complaint (“Complaint”) as follows:
NATURE OF THE ACTION
1. Defendants admit the allegations set forth in paragraph 1 of the Amended Complaint.
2. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 2 of the Amended Complaint.
3. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 3 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
4. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 4 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
5 Defendants deny the allegations set forth in paragraph 5 of the Amended Complaint.
6 Defendants deny the allegations set forth in paragraph 6 of the Amended Complaint.
Defendants deny the allegations set forth in paragraph 7 of the Amended Complaint
Defendants deny the allegations set forth in paragraph 8 of the Amended Complaint.
9. Defendants deny the allegations that “[dJue to all of the foregoing, on or about
February 13, 2014 Tenants were forced to initiate this action against Landlord” but Defendants
admit the remainder of the allegations set forth in paragraph 9 of the Amended Complaint.
10. Defendants deny the allegations set forth in paragraph 10 of the Amended
Complaint.
11. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 11 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
12. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 12 of the Amended Complaint.
13. Defendants admit so much of the allegations that the Landlord withdrew the Notice
but Defendants deny the remainder of the allegations set forth in paragraph 13 of the Amended
Complaint.
14. Defendants deny the allegations set forth in paragraph 14 of the Amended
Complaint.
15. Defendants deny the allegations set forth in paragraph 15 of the Amended
Complaint.
16. Defendants deny the allegations set forth in paragraph 16 of the Amended
Complaint.
17. Defendants deny the allegations set forth in paragraph 17 of the Amended
Complaint.
18. Defendants deny the allegations set forth in paragraph 18 of the Amended
Complaint.
THE PARTIES
19. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 19 of the Amended Complaint.
20. Defendants admit that the allegations that Ben Heller is a natural person residing at
42 East 74" Street, New York, New York are true but deny knowledge or information sufficient to
form a belief as to the truth or falsity of the remainder of the allegations set forth in paragraph 20 of
the Amended Complaint.
21. Defendants deny the allegations set forth in paragraph 21 of the Amended
Complaint.
JURISDICTION AND VENUE
22. Defendants admit the allegations set forth in paragraph 22 of the Amended
Complaint.
23. Defendants admit the allegations set forth in paragraph 23 of the Amended
Complaint.
FACTUAL BACKGROUND
A The Lease
24. Defendants admit the allegations set forth in paragraph 24 of the Amended
Complaint.
25. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 25 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
26. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 26 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
27. Defendants admit the allegations set forth in paragraph 27 of the Amended
Complaint.
28. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 28 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
29. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 29 of the Amended Complaint, respectfully refers
to the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
30. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 30 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
31. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 31 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
32. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 32 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
33. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 33 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
34. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 34 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
35. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 35 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
36. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 36 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
37. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 37 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
38. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 38 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
B. The Parties’ Conduct and Landlord’s Failure to Repair the
Heating/Venitilating System of the Premises
39. Defendants deny the allegations set forth in paragraph 39 of the Amended Complaint.
40. Defendants deny the allegations set forth in paragraph 40 of the Amended Complaint
41. Defendants deny the allegations set forth in paragraph 41 of the Amended Complaint.
42. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 42 of the Amended Complaint.
43. Defendants deny the allegations set forth in paragraph 43 of the Amended Complaint.
44. Defendants deny the allegations set forth in paragraph 44 of the Amended Complaint.
45. Defendants deny the allegations set forth in paragraph 45 of the Amended Complaint.
46. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 46 of the Amended Complaint.
47. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 47 of the Amended Complaint.
48. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 48 of the Amended Complaint.
49. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 49 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
50. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 50 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
51. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 51 of the Amended Complaint, and respectfully refer
to the document itself for a full and complete statement of its terms, and refer all conclusions of law
and fact to the Court.
52. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 52 of the Amended Complaint, and respectfully refer
to.the document itself for a full and complete statement of its terms, and refer all conclusions of law
and fact to the Court.
53. Defendants deny the allegations set forth in paragraph 53 of the Amended Complaint.
Cc Landlord Serves Tenants with an Insufficient and Defective Notice of Offer
54. Defendants denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 54 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
55. Defendants denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 55 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
56. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 56 of the Amended Complaint, and respectfully
refer to the document itself for a full and complete statement of its terms.
57. Defendants admit so much of the allegations that the Landlord subsequently clarified
and addressed those apparent defects but Defendants deny the remainder of the allegations set forth
in paragraph 57 of the Amended Complaint and respectfully refer all conclusions of law and fact to
the Court.
58. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 58 of the Amended Complaint.
59. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 59 of the Amended Complaint, respectfully refers to
the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
60. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 60 of the Amended Complaint, respectfully refers to
the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
61. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 61 of the Amended Complaint.
62. Defendants admit so much of the allegations that almost a month later, Landlord served
Tenants with a “Withdrawal of Notice of Termination of Lease” dated March 26, 2014 but
Defendants deny the remainder of the allegations in paragraph 62 of the Amended Complaint.
63. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 63 of the Amended Complaint, respectfully refers to
the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
D. Landlord Serves Tenants with a Defective Notice to Cure
64. Defendants deny the allegations set forth in paragraph 64 of the Amended Complaint.
65. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 65 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
66. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 66 of the Amended Complaint, respectfully refers
to the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination terms.
67. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 67 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
68. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 68 of the Amended Complaint, respectfully refers
to the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
69. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 69 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
70. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 70 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
71. Defendants admit the allegations set forth in paragraph 71 of the Amended Complaint.
72. Defendants deny the allegations set forth in paragraph 72 of the Amended Complaint.
E Landlord Has Not Allowed Tenants to use the Basement or Pantry Area
as Specified in the Leas
73. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 73 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
74. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 74 of the Amended Complaint, respectfully refers
to the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
75. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 75 of the Amended Complaint, respectfully refers
to the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
76. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 76 of the Amended Complaint, respectfully refers
to the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
AS AND FOR A FIRST CAUSE OF ACTION
(Declaratory Judgment)
77. Defendants repeat and re-allege the admissions, denials and allegations previously
set forth as if fully set forth herein.
78. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 78 of the Amended Complaint, respectfully refers to
the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
79. Defendants deny the allegations set forth in paragraph 79 of the Amended Complaint.
80. Defendants admit the allegations set forth in paragraph 80 of the Amended Complaint.
81. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 81 of the Amended Complaint, respectfully refers
to the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
82. Defendants deny the allegations set forth in paragraph 82 of the Amended Complaint.
83. Defendants deny the allegations set forth in paragraph 83 of the Amended Complaint.
AS AND FOR A SECOND CAUSE OF ACTION
(Breach of Lease)
84. Defendants repeat and re-allege the admissions, denials and allegations previously
set forth as if fully set forth herein.
85. Defendants admit the allegations set forth in paragraph 85 of the Amended Complaint.
86. Defendants deny the allegations set forth in paragraph 86 of the Amended Complaint.
87. Defendants deny the allegations set forth in paragraph 87 of the Amended Complaint.
88. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 88 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
89. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 89 of the Amended Complaint, respectfully refers
to the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
90. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 90 of the Amended Complaint, respectfully refers
to the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
91. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 91 of the Amended Complaint, respectfully refers
to the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
92. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 92 of the Amended Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
93. Defendants deny the allegations set forth in paragraph 93 of the Amended Complaint.
94. Defendants deny knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 94 of the Amended Complaint,
respectfully refers to the document itself for a full and complete statement of its terms and
respectfully refers all conclusions of law, fact and interpretation relating to said document to this
Court for its determination.
95. Defendants deny the allegations set forth in paragraph 95 of the Amended Complaint.
96. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 96 of the Amended Complaint, respectfully refers to
the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
97. Defendants deny knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 97 of the Amended Complaint, respectfully refers to
the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
AS AND FOR A THIRD CAUSE OF ACTION
(Breach of Covenant of Good Faith and Fair Dealing)
98. Defendants repeat and re-allege the admissions, denials and allegations previously
set forth as if fully set forth herein.
99. Defendants deny knowledge or information sufficient to form a belief as to the
truth or falsity of the allegations set forth in paragraph 99 of the Amended Complaint, respectfully
refers to the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
100.Defendants deny knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 100 of the Amended Complaint,
respectfully refers to the document itself for a full and complete statement of its terms, and
respectfully refers all conclusions of law, fact and interpretation relating to said document to this
Court for its determination.
101.Defendants deny the allegations set forth in paragraph 101 of the Amended Complaint.
102.Defendants denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 102 of the Amended Complaint,
respectfully refers to the document itself for a full and complete statement of its terms, and
respectfully refers all conclusions of law, fact and interpretation relating to said document to this
Court for its determination.
AS AND FOR A FOURTH CAUSE OF ACTION
(Attorneys’ Fees, Costs and Expenses)
103.Defendants repeat and re-allege the admissions, denials and allegations previously
set forth as if fully set forth herein
104. Defendants denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 104 of the Amended Complaint, respectfully refers to
the document itself for a full and complete statement of its terms, and respectfully refers all
conclusions of law, fact and interpretation relating to said document to this Court for its
determination.
105.Defendants deny the allegations set forth in paragraph 105 of the Amended Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
106. Plaintiffs fail to state a claim upon which relief may be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
107. That the culpable conduct of the plaintiffs will bar or reduce any recovery in the
proportion that the plaintiffs’ culpable conduct bears to the total recovery had herein.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
108.That the culpable conduct of third parties will bar or reduce any recovery in the
proportion that the third party’s culpable conduct bears to the total recovery had herein.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
109. The claims are barred by the doctrine of equitable estoppel and/or laches.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
110.Plaintiffs have failed to maintain the portions of the premises and equipment for which
they are responsible.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
111. Plaintiffs’ claims are barred by the doctrine of unclean hands.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
112.Plaintiffs have failed to mitigate their damages.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
113.Plaintiffs are in breach of the lease they seek to enforce.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
1 4. Defendants are entitled to an offset against any damages that may be awarded to
Plaintiffs.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
115.Plaintiffs have failed to demonstrate entitlement to a declaration of rights.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
116.In the alternative, in the event the Court finds that Plaintiffs have demonstrated
entitlement to a declaration, Defendants are entitled to a declaration that their withdrawal of the
March 5, 2014 Termination Notice was effective.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
117.Plaintiffs should be estopped from arguing that they are entitled to any payment by
virtue of the sale of the property that Plaintiffs obstructed and prevented. Here, Defendants had an
acceptable offer to purchase the property and gave notice to Plaintiffs of their intention to sell in
compliance with the Lease. Plaintiffs then, by commencement of this action and other acts,
deliberately obstructed and prevented the sale of the property. As a direct result of Plaintiffs’
conduct, the sale fell through, Defendants withdrew the previously served Notice of Termination,
and Defendants have abandoned their plan to sell the property.
118.Moreover, Plaintiffs have contended that notices Defendants served relating to the sale
of the property were defective. Accordingly, they may not now claim the contrary.
119.Based on the foregoing conduct, Plaintiffs should be estopped from any argument that
they are entitled to any payment as a result of the Termination Notice or the potential sale of the
property that they prevented.
AS AND FOR A FIRST COUNTERCLAIM AGAINST PLAINTIFFS
(Declaration)
120.Defendants repeat and reallege the admissions and denials previously set forth herein.
121. Paragraph 61(B) and (C) of the Lease provides, in pertinent part:
In the event that at any time during the Term the named Owner
shall desire to sell the building, provided Tenant is not then in
default hereunder beyond any applicable notice and cure period,
Owner shall give Tenant the first opportunity to acquire the
building in accordance with the terms of this Section 61(B). Prior
to offering be building for sale to any third party, Owner shall
deliver written notice to Tenant of its proposed sale of the building,
which notice shall include the price and other material terms and
conditions on which Owner wishes to sell the building (“the “Offer
Notice”). Tenant may elect, by sending written notice to Owner
not later than thirty (30) days after receipt of the Offer Notice, to
purchase the building upon the same terms and conditions as are
contained in the Offer Notice.
(C) In the event that at any time during the term, Owner shall
propose to sell the building to a third party, (subject to Tenant’s
right to purchase the building from the named Owner as provided
in the preceding Paragraph), Owner shall have the right to
terminate this Lease effective as of the date that occurs six (6)
months following written notice to Tenant (the Termination
Date). If owner elects to terminate this Lease as aforesaid, Owner
shall pay Tenant a termination payment equal to nine (9) times the
monthly Base Rate payable during the Lease Year in which the
Termination Date shall occur. Such termination payment shall be
payable by bank check or certified check on the date the Term
shall expire in the manner and with the same force and effect as if
it were the date set for the expiration of this Lease, and without
limiting the generality of the foregoing, if Tenant shall fail to
timely vacate the Premises on the Termination Date and otherwise
comply with its obligations with respect to the surrender of the
Premises, Owner shall retain all of its legal and equitable remedies
with respect to Tenant’s failure to perform its obligations
hereunder, including, without limitation, those set forth in Article
50 hereof.
122.In November 2013, Defendants served Plaintiffs with the Offer Notice described in
Lease Section 61(B). Plaintiffs rejected such Notice, claiming it was ineffective.
123. On March 5, 2014, Landlord served Plaintiffs with a Notice of Termination.
124.On March 26, 2014, Landlord withdrew the Notice of Termination.
125. The Lease does not prohibit or limit the withdrawal of a Notice of Termination.
126.Between March 5, 2014 and March 26, 2014, Plaintiffs took no action and incurred no
expense that would vitiate the Notice of Termination.
127.By reason of the foregoing, Defendants are entitled to a declaration that the withdrawal
of the Notice of Termination was effective and the Lease remains in effect.
AS AND FOR A SECOND COUNTERCLAIM AGAINST PLAINTIFFS
(Breach of Covenant of Good Faith and Fair Dealing)
128. Defendants repeat and reallege the admissions and denials previously set forth herein.
129.As parties to the Lease, Plaintiffs owe Defendants an implied duty of good faith and fair
dealing.
130.Upon information and belief, the instant action is an attempt by Plaintiffs to capitalize
upon an innocent error in preparing certain real estate tax and water bills by mischaracterizing it as
a breach of the Lease, despite Defendants’ withdrawal of said notices.
131. Further, having objected and obstructed Defendants’ efforts to sell the property,
Plaintiffs now claim entitlement to a payment that would be due to them only upon a successful sale
of the property, contrary to the provisions of the Lease.
132.Accordingly, Plaintiffs are liable to Defendants for all damages resulting from their
breach of the covenant of good faith and fair dealing in an amount to be determined at trial, but in
no event less than $100,000 plus interest.
AS AND FOR A THIRD COUNTERCLAIM AGAINST PLAINTIFFS
(Attorneys’ Fees, Costs and Expenses)
133.Defendants repeat and reallege the admissions and denials previously set forth herein.
134. Pursuant to Article 44 of the Lease, Plaintiffs agreed to indemnify and hold harmless
Defendants from all claims, suits, demands, damages, judgments, costs, interest and expenses
including but not limited to reasonable attorneys’ fees, court costs, and disbursements, arising from
any act of Plaintiffs.
135.Accordingly, Plaintiffs are liable to Defendants for payment of the reasonable attorneys’
fees, costs and expenses incurred by Defendant in defending this action, in an amount to be
determined at trial but in no event less than $50,000, plus interest.
WHEREFORE, Defendants respectfully request that this court enter judgment dismissing
Plaintiff's foreclosure action and granting such other and further relief as may be just and equitable
under the circumstances.
Dated: June 16, 2014
Yonkers, New York
SMITH, BUSS & JACOBS, LLP
By:
Je iter L. Stewart
Attorneys.forDefendants
733 Yonkers Ave., Suite 200
Yonkers, New York 10704
(914) 476-0600
VERIFICATION
Thomas W. Smith, Esq., hereby affirms under penalty of perjury pursuant to CPLR 2106
that:
1 I am an attorney in good standing with the New York State Bar, and counsel to
Defendants in this action
2. Thave read the foregoing VERIFIED ANSWER TO FIRST AMENDED
COMPLAINT and know the contents thereof.
3 The contents of the VERIFIED ANSWER TO FIRST AMENDED COMPLAINT
are true to my own knowledge, except as to those matters stated to be alleged upon information and
belief, and as to those matters, I believe them to be true.
4. The basis for my knowledge, information and belief is information and documents
supplied to me by our client.
5 Tam making this verification because our client is not located in the county in which
Ihave my office.
(i
CPhomas W, Smith
Dated: June 16, 2014
Yonkers, New York
Preview
(FILED: NEW YORK COUNTY CLERK 0671672014) INDEX NO. 151330/2014 NYSCEF DOC. NO. 22 RECEIVED NYSCEF 06/16/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DAVID L. ABRAMSON, M.D. and SCOT BRADLEY Index No. 151330/14 GLASBERG, M.D., Plaintiffs, VERIFIED ANSWER TO FIRST AMENDED - against - VERIFIED COMPLAINT 74™ LLC and BEN HELLER, Defendants. Defendants 74” LLC and Ben Heller hereby respond to plaintiffs David L. Abramson, M.D. and Scot Bradley Glasberg, M.D., First Amended Verified Complaint (“Complaint”) as follows: NATURE OF THE ACTION 1. Defendants admit the allegations set forth in paragraph 1 of the Amended Complaint. 2. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 2 of the Amended Complaint. 3. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 3 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 4. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 4 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 5 Defendants deny the allegations set forth in paragraph 5 of the Amended Complaint. 6 Defendants deny the allegations set forth in paragraph 6 of the Amended Complaint. Defendants deny the allegations set forth in paragraph 7 of the Amended Complaint Defendants deny the allegations set forth in paragraph 8 of the Amended Complaint. 9. Defendants deny the allegations that “[dJue to all of the foregoing, on or about February 13, 2014 Tenants were forced to initiate this action against Landlord” but Defendants admit the remainder of the allegations set forth in paragraph 9 of the Amended Complaint. 10. Defendants deny the allegations set forth in paragraph 10 of the Amended Complaint. 11. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 11 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 12. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 12 of the Amended Complaint. 13. Defendants admit so much of the allegations that the Landlord withdrew the Notice but Defendants deny the remainder of the allegations set forth in paragraph 13 of the Amended Complaint. 14. Defendants deny the allegations set forth in paragraph 14 of the Amended Complaint. 15. Defendants deny the allegations set forth in paragraph 15 of the Amended Complaint. 16. Defendants deny the allegations set forth in paragraph 16 of the Amended Complaint. 17. Defendants deny the allegations set forth in paragraph 17 of the Amended Complaint. 18. Defendants deny the allegations set forth in paragraph 18 of the Amended Complaint. THE PARTIES 19. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 19 of the Amended Complaint. 20. Defendants admit that the allegations that Ben Heller is a natural person residing at 42 East 74" Street, New York, New York are true but deny knowledge or information sufficient to form a belief as to the truth or falsity of the remainder of the allegations set forth in paragraph 20 of the Amended Complaint. 21. Defendants deny the allegations set forth in paragraph 21 of the Amended Complaint. JURISDICTION AND VENUE 22. Defendants admit the allegations set forth in paragraph 22 of the Amended Complaint. 23. Defendants admit the allegations set forth in paragraph 23 of the Amended Complaint. FACTUAL BACKGROUND A The Lease 24. Defendants admit the allegations set forth in paragraph 24 of the Amended Complaint. 25. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 25 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 26. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 26 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 27. Defendants admit the allegations set forth in paragraph 27 of the Amended Complaint. 28. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 28 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 29. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 29 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 30. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 30 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 31. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 31 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 32. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 32 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 33. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 33 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 34. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 34 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 35. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 35 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 36. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 36 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 37. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 37 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 38. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 38 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. B. The Parties’ Conduct and Landlord’s Failure to Repair the Heating/Venitilating System of the Premises 39. Defendants deny the allegations set forth in paragraph 39 of the Amended Complaint. 40. Defendants deny the allegations set forth in paragraph 40 of the Amended Complaint 41. Defendants deny the allegations set forth in paragraph 41 of the Amended Complaint. 42. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 42 of the Amended Complaint. 43. Defendants deny the allegations set forth in paragraph 43 of the Amended Complaint. 44. Defendants deny the allegations set forth in paragraph 44 of the Amended Complaint. 45. Defendants deny the allegations set forth in paragraph 45 of the Amended Complaint. 46. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 46 of the Amended Complaint. 47. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 47 of the Amended Complaint. 48. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 48 of the Amended Complaint. 49. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 49 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 50. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 50 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 51. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 51 of the Amended Complaint, and respectfully refer to the document itself for a full and complete statement of its terms, and refer all conclusions of law and fact to the Court. 52. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 52 of the Amended Complaint, and respectfully refer to.the document itself for a full and complete statement of its terms, and refer all conclusions of law and fact to the Court. 53. Defendants deny the allegations set forth in paragraph 53 of the Amended Complaint. Cc Landlord Serves Tenants with an Insufficient and Defective Notice of Offer 54. Defendants denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 54 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 55. Defendants denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 55 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 56. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 56 of the Amended Complaint, and respectfully refer to the document itself for a full and complete statement of its terms. 57. Defendants admit so much of the allegations that the Landlord subsequently clarified and addressed those apparent defects but Defendants deny the remainder of the allegations set forth in paragraph 57 of the Amended Complaint and respectfully refer all conclusions of law and fact to the Court. 58. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 58 of the Amended Complaint. 59. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 59 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 60. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 60 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 61. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 61 of the Amended Complaint. 62. Defendants admit so much of the allegations that almost a month later, Landlord served Tenants with a “Withdrawal of Notice of Termination of Lease” dated March 26, 2014 but Defendants deny the remainder of the allegations in paragraph 62 of the Amended Complaint. 63. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 63 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. D. Landlord Serves Tenants with a Defective Notice to Cure 64. Defendants deny the allegations set forth in paragraph 64 of the Amended Complaint. 65. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 65 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 66. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 66 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination terms. 67. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 67 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 68. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 68 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 69. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 69 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 70. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 70 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 71. Defendants admit the allegations set forth in paragraph 71 of the Amended Complaint. 72. Defendants deny the allegations set forth in paragraph 72 of the Amended Complaint. E Landlord Has Not Allowed Tenants to use the Basement or Pantry Area as Specified in the Leas 73. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 73 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 74. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 74 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 75. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 75 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 76. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 76 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. AS AND FOR A FIRST CAUSE OF ACTION (Declaratory Judgment) 77. Defendants repeat and re-allege the admissions, denials and allegations previously set forth as if fully set forth herein. 78. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 78 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 79. Defendants deny the allegations set forth in paragraph 79 of the Amended Complaint. 80. Defendants admit the allegations set forth in paragraph 80 of the Amended Complaint. 81. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 81 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 82. Defendants deny the allegations set forth in paragraph 82 of the Amended Complaint. 83. Defendants deny the allegations set forth in paragraph 83 of the Amended Complaint. AS AND FOR A SECOND CAUSE OF ACTION (Breach of Lease) 84. Defendants repeat and re-allege the admissions, denials and allegations previously set forth as if fully set forth herein. 85. Defendants admit the allegations set forth in paragraph 85 of the Amended Complaint. 86. Defendants deny the allegations set forth in paragraph 86 of the Amended Complaint. 87. Defendants deny the allegations set forth in paragraph 87 of the Amended Complaint. 88. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 88 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 89. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 89 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 90. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 90 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 91. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 91 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 92. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 92 of the Amended Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 93. Defendants deny the allegations set forth in paragraph 93 of the Amended Complaint. 94. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 94 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 95. Defendants deny the allegations set forth in paragraph 95 of the Amended Complaint. 96. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 96 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 97. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 97 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. AS AND FOR A THIRD CAUSE OF ACTION (Breach of Covenant of Good Faith and Fair Dealing) 98. Defendants repeat and re-allege the admissions, denials and allegations previously set forth as if fully set forth herein. 99. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 99 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 100.Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 100 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 101.Defendants deny the allegations set forth in paragraph 101 of the Amended Complaint. 102.Defendants denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 102 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. AS AND FOR A FOURTH CAUSE OF ACTION (Attorneys’ Fees, Costs and Expenses) 103.Defendants repeat and re-allege the admissions, denials and allegations previously set forth as if fully set forth herein 104. Defendants denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 104 of the Amended Complaint, respectfully refers to the document itself for a full and complete statement of its terms, and respectfully refers all conclusions of law, fact and interpretation relating to said document to this Court for its determination. 105.Defendants deny the allegations set forth in paragraph 105 of the Amended Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 106. Plaintiffs fail to state a claim upon which relief may be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 107. That the culpable conduct of the plaintiffs will bar or reduce any recovery in the proportion that the plaintiffs’ culpable conduct bears to the total recovery had herein. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 108.That the culpable conduct of third parties will bar or reduce any recovery in the proportion that the third party’s culpable conduct bears to the total recovery had herein. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 109. The claims are barred by the doctrine of equitable estoppel and/or laches. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 110.Plaintiffs have failed to maintain the portions of the premises and equipment for which they are responsible. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 111. Plaintiffs’ claims are barred by the doctrine of unclean hands. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 112.Plaintiffs have failed to mitigate their damages. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 113.Plaintiffs are in breach of the lease they seek to enforce. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 1 4. Defendants are entitled to an offset against any damages that may be awarded to Plaintiffs. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 115.Plaintiffs have failed to demonstrate entitlement to a declaration of rights. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 116.In the alternative, in the event the Court finds that Plaintiffs have demonstrated entitlement to a declaration, Defendants are entitled to a declaration that their withdrawal of the March 5, 2014 Termination Notice was effective. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 117.Plaintiffs should be estopped from arguing that they are entitled to any payment by virtue of the sale of the property that Plaintiffs obstructed and prevented. Here, Defendants had an acceptable offer to purchase the property and gave notice to Plaintiffs of their intention to sell in compliance with the Lease. Plaintiffs then, by commencement of this action and other acts, deliberately obstructed and prevented the sale of the property. As a direct result of Plaintiffs’ conduct, the sale fell through, Defendants withdrew the previously served Notice of Termination, and Defendants have abandoned their plan to sell the property. 118.Moreover, Plaintiffs have contended that notices Defendants served relating to the sale of the property were defective. Accordingly, they may not now claim the contrary. 119.Based on the foregoing conduct, Plaintiffs should be estopped from any argument that they are entitled to any payment as a result of the Termination Notice or the potential sale of the property that they prevented. AS AND FOR A FIRST COUNTERCLAIM AGAINST PLAINTIFFS (Declaration) 120.Defendants repeat and reallege the admissions and denials previously set forth herein. 121. Paragraph 61(B) and (C) of the Lease provides, in pertinent part: In the event that at any time during the Term the named Owner shall desire to sell the building, provided Tenant is not then in default hereunder beyond any applicable notice and cure period, Owner shall give Tenant the first opportunity to acquire the building in accordance with the terms of this Section 61(B). Prior to offering be building for sale to any third party, Owner shall deliver written notice to Tenant of its proposed sale of the building, which notice shall include the price and other material terms and conditions on which Owner wishes to sell the building (“the “Offer Notice”). Tenant may elect, by sending written notice to Owner not later than thirty (30) days after receipt of the Offer Notice, to purchase the building upon the same terms and conditions as are contained in the Offer Notice. (C) In the event that at any time during the term, Owner shall propose to sell the building to a third party, (subject to Tenant’s right to purchase the building from the named Owner as provided in the preceding Paragraph), Owner shall have the right to terminate this Lease effective as of the date that occurs six (6) months following written notice to Tenant (the Termination Date). If owner elects to terminate this Lease as aforesaid, Owner shall pay Tenant a termination payment equal to nine (9) times the monthly Base Rate payable during the Lease Year in which the Termination Date shall occur. Such termination payment shall be payable by bank check or certified check on the date the Term shall expire in the manner and with the same force and effect as if it were the date set for the expiration of this Lease, and without limiting the generality of the foregoing, if Tenant shall fail to timely vacate the Premises on the Termination Date and otherwise comply with its obligations with respect to the surrender of the Premises, Owner shall retain all of its legal and equitable remedies with respect to Tenant’s failure to perform its obligations hereunder, including, without limitation, those set forth in Article 50 hereof. 122.In November 2013, Defendants served Plaintiffs with the Offer Notice described in Lease Section 61(B). Plaintiffs rejected such Notice, claiming it was ineffective. 123. On March 5, 2014, Landlord served Plaintiffs with a Notice of Termination. 124.On March 26, 2014, Landlord withdrew the Notice of Termination. 125. The Lease does not prohibit or limit the withdrawal of a Notice of Termination. 126.Between March 5, 2014 and March 26, 2014, Plaintiffs took no action and incurred no expense that would vitiate the Notice of Termination. 127.By reason of the foregoing, Defendants are entitled to a declaration that the withdrawal of the Notice of Termination was effective and the Lease remains in effect. AS AND FOR A SECOND COUNTERCLAIM AGAINST PLAINTIFFS (Breach of Covenant of Good Faith and Fair Dealing) 128. Defendants repeat and reallege the admissions and denials previously set forth herein. 129.As parties to the Lease, Plaintiffs owe Defendants an implied duty of good faith and fair dealing. 130.Upon information and belief, the instant action is an attempt by Plaintiffs to capitalize upon an innocent error in preparing certain real estate tax and water bills by mischaracterizing it as a breach of the Lease, despite Defendants’ withdrawal of said notices. 131. Further, having objected and obstructed Defendants’ efforts to sell the property, Plaintiffs now claim entitlement to a payment that would be due to them only upon a successful sale of the property, contrary to the provisions of the Lease. 132.Accordingly, Plaintiffs are liable to Defendants for all damages resulting from their breach of the covenant of good faith and fair dealing in an amount to be determined at trial, but in no event less than $100,000 plus interest. AS AND FOR A THIRD COUNTERCLAIM AGAINST PLAINTIFFS (Attorneys’ Fees, Costs and Expenses) 133.Defendants repeat and reallege the admissions and denials previously set forth herein. 134. Pursuant to Article 44 of the Lease, Plaintiffs agreed to indemnify and hold harmless Defendants from all claims, suits, demands, damages, judgments, costs, interest and expenses including but not limited to reasonable attorneys’ fees, court costs, and disbursements, arising from any act of Plaintiffs. 135.Accordingly, Plaintiffs are liable to Defendants for payment of the reasonable attorneys’ fees, costs and expenses incurred by Defendant in defending this action, in an amount to be determined at trial but in no event less than $50,000, plus interest. WHEREFORE, Defendants respectfully request that this court enter judgment dismissing Plaintiff's foreclosure action and granting such other and further relief as may be just and equitable under the circumstances. Dated: June 16, 2014 Yonkers, New York SMITH, BUSS & JACOBS, LLP By: Je iter L. Stewart Attorneys.forDefendants 733 Yonkers Ave., Suite 200 Yonkers, New York 10704 (914) 476-0600 VERIFICATION Thomas W. Smith, Esq., hereby affirms under penalty of perjury pursuant to CPLR 2106 that: 1 I am an attorney in good standing with the New York State Bar, and counsel to Defendants in this action 2. Thave read the foregoing VERIFIED ANSWER TO FIRST AMENDED COMPLAINT and know the contents thereof. 3 The contents of the VERIFIED ANSWER TO FIRST AMENDED COMPLAINT are true to my own knowledge, except as to those matters stated to be alleged upon information and belief, and as to those matters, I believe them to be true. 4. The basis for my knowledge, information and belief is information and documents supplied to me by our client. 5 Tam making this verification because our client is not located in the county in which Ihave my office. (i CPhomas W, Smith Dated: June 16, 2014 Yonkers, New York