Preview
INDEX NO. 151330/2014
FILED: NEW YORK COUNTY CLERK 04/02/2014)
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/02/2014
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
- against -
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., Verified Complaint (“Complaint”) as follows:
NATURE OF THE ACTION
1 Defendants admit the allegations set forth in paragraph 1 of the 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 Complaint.
3. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 3 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
4. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 4 of the 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 Complaint.
6 Defendants deny the allegations set forth in paragraph 6 of the Complaint.
Defendants deny the allegations set forth in paragraph 7 of the Complaint.
Defendants deny the allegations set forth in paragraph 8 of the Complaint.
9. Defendants deny the allegations set forth in paragraph 9 of the Complaint.
10. Defendants deny the allegations set forth in paragraph 10 of the Complaint.
11. Defendants deny the allegations set forth in paragraph 11 of the Complaint.
12. Defendants deny the allegations set forth in paragraph 12 of the Complaint.
13. Defendants deny the allegations set forth in paragraph 13 of the Complaint.
14. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 14 of the Complaint.
15. 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 15 of
the Complaint.
16. Defendants deny the allegations set forth in paragraph 16 of the Complaint.
JURISDICTION AND VENUE
17. Defendants admit the allegations set forth in paragraph 17 of the Complaint.
18. Defendants admit the allegations set forth in paragraph 18 of the Complaint.
FACTUAL BACKGROUND
A The Lease
19. Defendants admit the allegations set forth in paragraph 19 of the Complaint.
20. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 20 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
21. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 21 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
22. Defendants admit the allegations set forth in paragraph 22 of the Complaint.
23. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 23 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
24. Defendants admit the allegations set forth in paragraph 24 of the Complaint.
25. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 25 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
26. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 26 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
27. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 27 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
28. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 28 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
29. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 29 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
30. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 30 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
31. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 31 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
32. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 32 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
33. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 33 of the 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
34. Defendants deny the allegations set forth in paragraph 34 of the Complaint
35. Defendants deny the allegations set forth in paragraph 35 of the Complaint
36. Defendants deny the allegations set forth in paragraph 36 of the Complaint
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 Complaint.
38. Defendants deny the allegations set forth in paragraph 38 of the Complaint
39. Defendants deny the allegations set forth in paragraph 39 of the Complaint
40. Defendants deny the allegations set forth in paragraph 40 of the Complaint
41. Defendants deny knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 41 of the 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 Complaint.
43. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 43 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
44, Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 44 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
45. Defendants deny the allegations set forth in paragraph 45 of the Complaint
Cc. Landlord Serves Tenants with an Insufficient and Defective Notice of Offer
46. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 46 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
47. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 47 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
48. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 48 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
49. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 49 of the 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.
50. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 50 of the 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.
51. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 51 of the 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
52. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 52 of the 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.
53. Defendants deny the allegations set forth in paragraph 53 of the Complaint
54. Defendant 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 Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
55. Defendant 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 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.
56. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 56 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
57. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 57 of the 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.
58. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 58 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
59. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 59 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
60. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 60 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 61 of the 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.
62. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 62 of the 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.
63. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 63 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
64. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 64 of the 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.
65. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 65 of the 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.
66. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 66 of the 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.
67. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 67 of the 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.
68. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 68 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 69 of the 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.
70. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 70 of the 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.
71. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 71 of the 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.
E. Landlord Has Not Allowed Tenants to use the
Basement or Pantry Area as Specified in the Leas
72. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 72 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
73. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 73 of the 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.
74. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 74 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 75 of the 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)
76. Defendants repeat and re-allege the admissions, denials and allegations previously
set forth as if fully set forth herein.
77. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 77 of the 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.
78. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 78 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 79 of the 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.
80. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 80 of the 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.
81. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 81 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 82 of the 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.
83. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 83 of the 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.
84. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 84 of the 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.
85. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 85 of the 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.
86. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 86 of the 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.
87. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 87 of the 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.
88. Defendants admit the allegations set forth in paragraph 88 of the Complaint.
89. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 89 of the 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 the allegations set forth in paragraph 90 of the Complaint.
91. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 91 of the 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 SECOND CAUSE OF ACTION
(Breach of Lease)
92. Defendants repeat and re-allege the admissions, denials and allegations previously
set forth as if fully set forth herein.
93. Defendants admit the allegations set forth in paragraph 93 of the Complaint.
94. Defendants deny the allegations set forth in paragraph 94 of the Complaint.
95. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 95 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
96. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 96 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 97 of the 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.
98. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 98 of the 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.
99. Defendant denies knowledge or information sufficient to form a belief as to the truth
or falsity of the allegations set forth in paragraph 99 of the Complaint, and respectfully refers to the
document itself for a full and complete statement of its terms.
100. Defendants deny the allegations set forth in paragraph 100 of the Complaint.
101. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 101 of the 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.
102. Defendant 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 Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
103. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 103 of the Complaint, and respectfully
refers to the document itself for a full and complete statement of its terms.
104. Defendants deny the allegations set forth in paragraph 104 of the Complaint
105. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 105 of the 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.
106. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 106 of the 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.
107. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 107 of the 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.
108. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 108 of the 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.
109. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 109 of the 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)
110. Defendants repeat and re-allege the admissions, denials and allegations
previously set forth as if fully set forth herein.
111. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 111 of the 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.
112. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 112 of the 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.
113. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 113 of the 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.
114. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 114 of the 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.
115. Defendant denies knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations set forth in paragraph 115 of the 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 AFFIRMATIVE DEFENSE
116. The Complaint fails to state a viable cause of action.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
118. Plaintiff's demand for a declaratory judgment is not justiciable because it is
premature and unripe, and such a judgment will not have a direct and immediate effect upon the
rights of the parties.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
119. Plaintiff is not entitled to the declaration it demands.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
120. The matters alleged in the complaint are not justiciable as they are speculative and
unripe. There is no present case or controversy between the parties.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
121. The action is moot.
122. On March 5, 2014, Defendant 74" LLC withdrew the notices dated January 2, 2014,
January 22, 2014, and February 4, 2014, upon which the Complaint is based.
123. Accordingly, the third cause of action is moot in its entirety, and the first and second
causes of action are moot to the extent they are premised on the withdrawn notices.
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: March 26, 2014
Yonkers, New York
SMITH, BU AQOBS, LLP
By:
J ifer L. Stewart
Attorneys + Defendants
733 Yonker$ Ave., Suite 200
Yonkers, ew York 10704
(914) 476-0600
VERIFICATION
STATE OF NEW YORK }
SS:
COUNTY OF WESTCHESTER
}
BEN HELLER, being duly sworn,
deposes and says:
Tam the individual personally nam
ed as a Defendant in the above-
captioned action.
T have personal knowledge of the
matters stated herein.
Tam also the managing member of 74!"
LLC, which is also named as a Def
endant in
the above-captioned action. As such, I have personal knowledge
of the matters
stated herein. Additionally, I have knowledge
based on Corporate records of 74'"
LLC.
3 Thave read the foregoing VERIFI
ED ANSWER and know the contents thereof.
4 The contents of the VERIFIED
ANSWER are true to my own knowledge, exce
pt as
to those matters stated to be alleged
upon information and belief, and
as to those matters, I believe
them to be true.
x kellys
7
Ben Heller
Sworn to before me this
26" day of March, 2014
Jennifer L. Stewart
Notary Public Of The State Of New Yoric
lotary Public ‘Qualified in Kings County
02s T6236675
‘Gammission Expires March 7,20_! S.
Preview
INDEX NO. 151330/2014 FILED: NEW YORK COUNTY CLERK 04/02/2014) NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 04/02/2014 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 - against - 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., Verified Complaint (“Complaint”) as follows: NATURE OF THE ACTION 1 Defendants admit the allegations set forth in paragraph 1 of the 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 Complaint. 3. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 3 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 4. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 4 of the 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 Complaint. 6 Defendants deny the allegations set forth in paragraph 6 of the Complaint. Defendants deny the allegations set forth in paragraph 7 of the Complaint. Defendants deny the allegations set forth in paragraph 8 of the Complaint. 9. Defendants deny the allegations set forth in paragraph 9 of the Complaint. 10. Defendants deny the allegations set forth in paragraph 10 of the Complaint. 11. Defendants deny the allegations set forth in paragraph 11 of the Complaint. 12. Defendants deny the allegations set forth in paragraph 12 of the Complaint. 13. Defendants deny the allegations set forth in paragraph 13 of the Complaint. 14. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 14 of the Complaint. 15. 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 15 of the Complaint. 16. Defendants deny the allegations set forth in paragraph 16 of the Complaint. JURISDICTION AND VENUE 17. Defendants admit the allegations set forth in paragraph 17 of the Complaint. 18. Defendants admit the allegations set forth in paragraph 18 of the Complaint. FACTUAL BACKGROUND A The Lease 19. Defendants admit the allegations set forth in paragraph 19 of the Complaint. 20. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 20 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 21. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 21 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 22. Defendants admit the allegations set forth in paragraph 22 of the Complaint. 23. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 23 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 24. Defendants admit the allegations set forth in paragraph 24 of the Complaint. 25. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 25 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 26. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 26 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 27. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 27 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 28. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 28 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 29. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 29 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 30. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 30 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 31. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 31 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 32. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 32 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 33. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 33 of the 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 34. Defendants deny the allegations set forth in paragraph 34 of the Complaint 35. Defendants deny the allegations set forth in paragraph 35 of the Complaint 36. Defendants deny the allegations set forth in paragraph 36 of the Complaint 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 Complaint. 38. Defendants deny the allegations set forth in paragraph 38 of the Complaint 39. Defendants deny the allegations set forth in paragraph 39 of the Complaint 40. Defendants deny the allegations set forth in paragraph 40 of the Complaint 41. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 41 of the 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 Complaint. 43. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 43 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 44, Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 44 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 45. Defendants deny the allegations set forth in paragraph 45 of the Complaint Cc. Landlord Serves Tenants with an Insufficient and Defective Notice of Offer 46. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 46 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 47. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 47 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 48. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 48 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 49. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 49 of the 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. 50. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 50 of the 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. 51. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 51 of the 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 52. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 52 of the 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. 53. Defendants deny the allegations set forth in paragraph 53 of the Complaint 54. Defendant 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 Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 55. Defendant 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 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. 56. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 56 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 57. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 57 of the 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. 58. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 58 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 59. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 59 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 60. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 60 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 61 of the 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. 62. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 62 of the 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. 63. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 63 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 64. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 64 of the 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. 65. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 65 of the 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. 66. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 66 of the 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. 67. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 67 of the 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. 68. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 68 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 69 of the 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. 70. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 70 of the 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. 71. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 71 of the 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. E. Landlord Has Not Allowed Tenants to use the Basement or Pantry Area as Specified in the Leas 72. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 72 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 73. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 73 of the 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. 74. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 74 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 75 of the 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) 76. Defendants repeat and re-allege the admissions, denials and allegations previously set forth as if fully set forth herein. 77. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 77 of the 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. 78. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 78 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 79 of the 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. 80. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 80 of the 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. 81. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 81 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 82 of the 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. 83. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 83 of the 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. 84. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 84 of the 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. 85. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 85 of the 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. 86. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 86 of the 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. 87. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 87 of the 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. 88. Defendants admit the allegations set forth in paragraph 88 of the Complaint. 89. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 89 of the 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 the allegations set forth in paragraph 90 of the Complaint. 91. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 91 of the 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 SECOND CAUSE OF ACTION (Breach of Lease) 92. Defendants repeat and re-allege the admissions, denials and allegations previously set forth as if fully set forth herein. 93. Defendants admit the allegations set forth in paragraph 93 of the Complaint. 94. Defendants deny the allegations set forth in paragraph 94 of the Complaint. 95. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 95 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 96. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 96 of the 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. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 97 of the 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. 98. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 98 of the 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. 99. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 99 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 100. Defendants deny the allegations set forth in paragraph 100 of the Complaint. 101. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 101 of the 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. 102. Defendant 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 Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 103. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 103 of the Complaint, and respectfully refers to the document itself for a full and complete statement of its terms. 104. Defendants deny the allegations set forth in paragraph 104 of the Complaint 105. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 105 of the 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. 106. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 106 of the 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. 107. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 107 of the 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. 108. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 108 of the 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. 109. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 109 of the 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) 110. Defendants repeat and re-allege the admissions, denials and allegations previously set forth as if fully set forth herein. 111. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 111 of the 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. 112. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 112 of the 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. 113. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 113 of the 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. 114. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 114 of the 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. 115. Defendant denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph 115 of the 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 AFFIRMATIVE DEFENSE 116. The Complaint fails to state a viable cause of action. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 118. Plaintiff's demand for a declaratory judgment is not justiciable because it is premature and unripe, and such a judgment will not have a direct and immediate effect upon the rights of the parties. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 119. Plaintiff is not entitled to the declaration it demands. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 120. The matters alleged in the complaint are not justiciable as they are speculative and unripe. There is no present case or controversy between the parties. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 121. The action is moot. 122. On March 5, 2014, Defendant 74" LLC withdrew the notices dated January 2, 2014, January 22, 2014, and February 4, 2014, upon which the Complaint is based. 123. Accordingly, the third cause of action is moot in its entirety, and the first and second causes of action are moot to the extent they are premised on the withdrawn notices. 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: March 26, 2014 Yonkers, New York SMITH, BU AQOBS, LLP By: J ifer L. Stewart Attorneys + Defendants 733 Yonker$ Ave., Suite 200 Yonkers, ew York 10704 (914) 476-0600 VERIFICATION STATE OF NEW YORK } SS: COUNTY OF WESTCHESTER } BEN HELLER, being duly sworn, deposes and says: Tam the individual personally nam ed as a Defendant in the above- captioned action. T have personal knowledge of the matters stated herein. Tam also the managing member of 74!" LLC, which is also named as a Def endant in the above-captioned action. As such, I have personal knowledge of the matters stated herein. Additionally, I have knowledge based on Corporate records of 74'" LLC. 3 Thave read the foregoing VERIFI ED ANSWER and know the contents thereof. 4 The contents of the VERIFIED ANSWER are true to my own knowledge, exce pt as to those matters stated to be alleged upon information and belief, and as to those matters, I believe them to be true. x kellys 7 Ben Heller Sworn to before me this 26" day of March, 2014 Jennifer L. Stewart Notary Public Of The State Of New Yoric lotary Public ‘Qualified in Kings County 02s T6236675 ‘Gammission Expires March 7,20_! S.