Preview
FILED: KINGS COUNTY CLERK 03/02/2020 01:19 PM INDEX NO. 528003/2019
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 03/02/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------- X INDEX NO. 528003/2019
U.S. BANK NATIONAL ASSOCIATION,
VERIFIED REPLY
Plaintiff, TO COUNTERCLAIM
vs.
ANDY G. MCALPIN A/K/A ANDY MCALPIN; NEW
YORK CITY ENVIRONMENTAL CONTROL BOARD;
NEW YORK CITY PARKING VIOLATIONS BUREAU;
NEW YORK CITY TRANSIT ADJUDICATION BUREAU;
BNEI AVROM; HANUK INC.
#1" #12"
"John Doe through "John Doe the last twelve names
being fictitious and unknown to plaintiff, the persons or
parties intended being the tenants, occupants, persons, or
corporations, if any, having or claiming interest in or lien
upon the premises described in the complaint,
Defendants.
____..------------------------------------------------- X
The Plaintiff, by its attorneys, RAS Boriskin, LLC, replies to the Counter-Claims
interposed by the defendant, ("Defendant") as follows:
ANSWER TO FIRST COUNTER-CLAIM
1. No response to Defendant's responses to the allegatiõns in the Complaint and
affirmative defenses are required. Notwithstanding, to the extent the Court determines that a
response to Defendant's responses to the allegations in the Complaint and affirmative defenses is
required, Plaintiff denies knowledge or information sufficient to form a belief as to the truth to
the allegations contained in paragraph 56 of Defendant's counterclaims.
2. Denies each and every allegation contained in the paragraphs 57 and 58 of the
Counterclaim dated February 11, 2020.
1111111111111111111111|11111111111111111111111
111111I|ll11111111111111111111111111111111111111Ill
1111111111111111111111111111111Ill
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FILED: KINGS COUNTY CLERK 03/02/2020 01:19 PM INDEX NO. 528003/2019
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 03/02/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----- ------------------------------------------X INDEX NO. 528003/2019
U.S. BANK NATIONAL ASSOCIATION,
VERIFIED REPLY
Plaintiff, TO COUNTERCLAIM
vs.
ANDY G. MCALPIN A/K/A ANDY MCALPIN; NEW
YORK CITY ENVIRONMENTAL CONTROL BOARD;
NEW YORK CITY PARKING VIOLATIONS BUREAU;
NEW YORK CITY TRANSIT ADJUDICATION BUREAU;
BNEI AVROM; HANUK INC.
#1" #12"
"John Doe through "John Doe the last twelve names
being fictitious and unknown to plaintiff, the persons or
parties intended being the tenants, occupants, persons, or
corporations, if any, having or claiming interest in or lien
upon the premises described in the complaint,
Defendants.
_________________________ ____.._________________________..-------X
The Plaintiff, by its attorneys, RAS Boriskin, LLC, replies to the Counter-Claims
interposed by the defendant, ("Defendant") as follows:
ANSWER TO FIRST COUNTER-CLAIM
1. No response to Defendant's responses to the allegatiòns in the Complaint and
affirmative defenses are required. Notwithstanding, to the extent the Court determines that a
response to Defendant's responses to the allegations in the Complaint and affirmative defenses is
required, Plaintiff denies knowledge or information sufficient to form a belief as to the truth to
the allegations contained in paragraph 56 of Defendant's counterclaims.
2. Denies each and every allegation contained in the paragraphs 57 and 58 of the
Counterclaim dated February 11, 2020.
11111111IIIl1111111111111111111111111111IIIlll
1111111111111111111111111111111111111111111111111111
U11111ll111111111111111I|l111111l
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ANSWER TO SECOND COUNTER-CLAIM
3. Repeats and reiterates each and every denial contained in the paragraph 1 of this
Reply as if set forth fully herein.
4. No response to Defendant's responses to the allegations in the Complaint and
affirmative defenses are required. Notwithstanding, to the extent the Court determines that a
response to Defendant's responses to the allegations in the Complaint and affirmative defenses is
required, Plaintiff denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in paragraph 59 of Defendant's counterclaims
5. Denies each and every allegation contained in the paragraphs 60 and 610f the
Counterclaim dated February 11, 2020.
ANSWER TO THIRD COUNTER-CLAIM
6. Repeats and reiterates each and every denial contained in the paragraph 1, 2 and 3
of this Reply as if set forth fully herein.
7. No response to Defendant's responses to the allegations in the Complaint and
affirmative defenses are required. Notwithstanding, to the extent the Court determines that a
respoñse to Defendant's responses to the allegations in the Complaint and affirmative defenses is
required, Plaintiff denies knowledge or information sufficient to form a belief as to the truth to
the allegations contained in paragraph 62 of Defendant's counterclaims
8. Denies each and every allegation contained in the paragraphs 63, 64, 65, 66 of
the Counterclaim dated February 11, 2020.
9. Plaintiff denies the allegations in the WHEREFORE clause and its subparts.
AS AND FOR A FIRST COMPLETE AFFIRMATIVE DEFENSE
10. That any contract between Defendant and Plaintiff was breached by the
Defendant.
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AS AND FOR A SECOND COMPLETE AFFIRMATIVE DEFENSE
11. That the Counterclaim(s) herein fail to state a cause of action against the Plaintiff.
AS AND FOR A THIRD COMPLETE AFFIRMATIVE DEFENSE
12. That one or more defenses are founded upon documentary evidence.
AS AND FOR A FOURTH COMPLETE AFFIRMATIVE DEFENSE
13. That the Counterclaims are wholly without merit and their initiation is deemed
frivolous conduct by this answering Plaintiff.
AS AND FOR A FIFTH COMPLETE AFFIRMATIVE DEFENSE
14. Plaintiff is a good faith encumbrancer for value without knowledge of any
purported fraud, and is entitled to the protections of RPL §266.
AS AND FOR A SIXTH COMPLETE AFFIRMATIVE DEFENSE
15. Plaintiff is a good faith purchaser of the note and mortgage and was unaware of
the defendant's defenses and claims. As such, Plaintiff is a holder in due course of the note and
mortgage.
AS AND FOR AN SEVENTH COMPLETE AFFIRMATIVE DEFENSE
16. That the Plaintiff did not owe the Defendant any of the duties alleged in the
Counterclaims.
AS AND FOR An EIGHTH COMPLETE AFFIRMATIVE DEFENSE
17. The Defendant has failed to properly state a claim for punitive damages.
AS AND FOR AN NINTH COMPLETE AFFIRMATIVE DEFENSE
18. That the Defendant's Counterclaims are barred by the Statutes of Frauds.
AS AND FOR A TENTH COMPLETE AFFIRMATIVE DEFENSE
19. That the applicable Statutes of Limitations pertaining to the counterclaims have
expired. Therefore, the Counterclaims are barred as a matter of law as to the Plaintiff.
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AS AND FOR A ELEVENTH COMPLETE AFFIRMATIVE DEFENSE
20. That the Defendant lacks standing to assert the Counterclaims.
AS AND FOR A TWELFTH COMPLETE AFFIRMATIVE DEFENSE
21. That Defendants Counterclaims are barred by the equitable doctrine of unclean
hands.
AS AD FOR A THIRTEENTH COMPLETE_AFFIRMATIVE DEFENSE
22. That Defendants Counterclaims are barred by the equitable doctrine of laches.
WHEREFORE, itis respectfully requested that the Defendant's Counter-Claims be
dismissed in its entirety.
Dated: March 2, 2020
Deirdre Tobi ,sq.
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STATE OF NEW YORK
} ss:
COUNTY OF NASSAU
The undersigned, an attorney admitted to practice in the Court of New York State shows:
deponent is an associate of the law firm of RAS Boriskin, LLC, the attorneys for record for the
Plaintiff in the within action: deponent has read the foregoing Reply to Counter-Claim and
knows the contents thereof: the same is true to deponent's own knowledge except as to the
matters therein stated to be alleged on information and belief, and that as to those matters
deponent believes itto be true. This verification is made by deponent and not client because
client does not reside in the same county in which deponent maintains his office.
The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as
follows: books, records, conversations held in deponent's office.
The Undersigned affirms that the foregoing statements are true, under the penalties of perjury.
Dated: March 2, 2020
Deirdre ob n, Esq.
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NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 03/02/2020
Index # 528003/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------X INDEX NO. 528003/2019
U.S. BANK NATIONAL ASSOCIATION,
Plaintiff,
vs.
ANDY G. MCALPIN A/K/A ANDY MCALPIN; NEW
YORK CITY ENVIRONMENTAL CONTROL BOARD;
NEW YORK CITY PARKINGVIOLATIONS BUREAU;
NEW YORK CITY TRANSIT ADJUDICATION BUREAU;
BNEI AVROM; HANUK INC.
#1" #12"
"John Doe through "John Doe the last twelve names
being fictitious and unknown to plaintiff, the persons or
parties intended being the tenants, occupants, persons, or
corporations, if any, having or claiming interest in or lien
upon the premises described in the complaint,
Defendants.
--- ---------------- ------------------------------------X
VERIFIED REPLY TOCOUNTER-CLAIM
RAS Boriskin, LLC
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310,
Westbury, NY 11590
516-280-7675
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Preview
FILED: KINGS COUNTY CLERK 03/02/2020 01:19 PM INDEX NO. 528003/2019 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 03/02/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------- X INDEX NO. 528003/2019 U.S. BANK NATIONAL ASSOCIATION, VERIFIED REPLY Plaintiff, TO COUNTERCLAIM vs. ANDY G. MCALPIN A/K/A ANDY MCALPIN; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; BNEI AVROM; HANUK INC. #1" #12" "John Doe through "John Doe the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons, or corporations, if any, having or claiming interest in or lien upon the premises described in the complaint, Defendants. ____..------------------------------------------------- X The Plaintiff, by its attorneys, RAS Boriskin, LLC, replies to the Counter-Claims interposed by the defendant, ("Defendant") as follows: ANSWER TO FIRST COUNTER-CLAIM 1. No response to Defendant's responses to the allegatiõns in the Complaint and affirmative defenses are required. Notwithstanding, to the extent the Court determines that a response to Defendant's responses to the allegations in the Complaint and affirmative defenses is required, Plaintiff denies knowledge or information sufficient to form a belief as to the truth to the allegations contained in paragraph 56 of Defendant's counterclaims. 2. Denies each and every allegation contained in the paragraphs 57 and 58 of the Counterclaim dated February 11, 2020. 1111111111111111111111|11111111111111111111111 111111I|ll11111111111111111111111111111111111111Ill 1111111111111111111111111111111Ill 19-262354 -DeT 1 of 7 FILED: KINGS COUNTY CLERK 03/02/2020 01:19 PM INDEX NO. 528003/2019 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 03/02/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----- ------------------------------------------X INDEX NO. 528003/2019 U.S. BANK NATIONAL ASSOCIATION, VERIFIED REPLY Plaintiff, TO COUNTERCLAIM vs. ANDY G. MCALPIN A/K/A ANDY MCALPIN; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; BNEI AVROM; HANUK INC. #1" #12" "John Doe through "John Doe the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons, or corporations, if any, having or claiming interest in or lien upon the premises described in the complaint, Defendants. _________________________ ____.._________________________..-------X The Plaintiff, by its attorneys, RAS Boriskin, LLC, replies to the Counter-Claims interposed by the defendant, ("Defendant") as follows: ANSWER TO FIRST COUNTER-CLAIM 1. No response to Defendant's responses to the allegatiòns in the Complaint and affirmative defenses are required. Notwithstanding, to the extent the Court determines that a response to Defendant's responses to the allegations in the Complaint and affirmative defenses is required, Plaintiff denies knowledge or information sufficient to form a belief as to the truth to the allegations contained in paragraph 56 of Defendant's counterclaims. 2. Denies each and every allegation contained in the paragraphs 57 and 58 of the Counterclaim dated February 11, 2020. 11111111IIIl1111111111111111111111111111IIIlll 1111111111111111111111111111111111111111111111111111 U11111ll111111111111111I|l111111l 19-262354 - DeT 2 of 7 FILED: KINGS COUNTY CLERK 03/02/2020 01:19 PM INDEX NO. 528003/2019 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 03/02/2020 ANSWER TO SECOND COUNTER-CLAIM 3. Repeats and reiterates each and every denial contained in the paragraph 1 of this Reply as if set forth fully herein. 4. No response to Defendant's responses to the allegations in the Complaint and affirmative defenses are required. Notwithstanding, to the extent the Court determines that a response to Defendant's responses to the allegations in the Complaint and affirmative defenses is required, Plaintiff denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 59 of Defendant's counterclaims 5. Denies each and every allegation contained in the paragraphs 60 and 610f the Counterclaim dated February 11, 2020. ANSWER TO THIRD COUNTER-CLAIM 6. Repeats and reiterates each and every denial contained in the paragraph 1, 2 and 3 of this Reply as if set forth fully herein. 7. No response to Defendant's responses to the allegations in the Complaint and affirmative defenses are required. Notwithstanding, to the extent the Court determines that a respoñse to Defendant's responses to the allegations in the Complaint and affirmative defenses is required, Plaintiff denies knowledge or information sufficient to form a belief as to the truth to the allegations contained in paragraph 62 of Defendant's counterclaims 8. Denies each and every allegation contained in the paragraphs 63, 64, 65, 66 of the Counterclaim dated February 11, 2020. 9. Plaintiff denies the allegations in the WHEREFORE clause and its subparts. AS AND FOR A FIRST COMPLETE AFFIRMATIVE DEFENSE 10. That any contract between Defendant and Plaintiff was breached by the Defendant. 19-262354 - DeT 3 of 7 FILED: KINGS COUNTY CLERK 03/02/2020 01:19 PM INDEX NO. 528003/2019 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 03/02/2020 AS AND FOR A SECOND COMPLETE AFFIRMATIVE DEFENSE 11. That the Counterclaim(s) herein fail to state a cause of action against the Plaintiff. AS AND FOR A THIRD COMPLETE AFFIRMATIVE DEFENSE 12. That one or more defenses are founded upon documentary evidence. AS AND FOR A FOURTH COMPLETE AFFIRMATIVE DEFENSE 13. That the Counterclaims are wholly without merit and their initiation is deemed frivolous conduct by this answering Plaintiff. AS AND FOR A FIFTH COMPLETE AFFIRMATIVE DEFENSE 14. Plaintiff is a good faith encumbrancer for value without knowledge of any purported fraud, and is entitled to the protections of RPL §266. AS AND FOR A SIXTH COMPLETE AFFIRMATIVE DEFENSE 15. Plaintiff is a good faith purchaser of the note and mortgage and was unaware of the defendant's defenses and claims. As such, Plaintiff is a holder in due course of the note and mortgage. AS AND FOR AN SEVENTH COMPLETE AFFIRMATIVE DEFENSE 16. That the Plaintiff did not owe the Defendant any of the duties alleged in the Counterclaims. AS AND FOR An EIGHTH COMPLETE AFFIRMATIVE DEFENSE 17. The Defendant has failed to properly state a claim for punitive damages. AS AND FOR AN NINTH COMPLETE AFFIRMATIVE DEFENSE 18. That the Defendant's Counterclaims are barred by the Statutes of Frauds. AS AND FOR A TENTH COMPLETE AFFIRMATIVE DEFENSE 19. That the applicable Statutes of Limitations pertaining to the counterclaims have expired. Therefore, the Counterclaims are barred as a matter of law as to the Plaintiff. 19-262354 - DeT 4 of 7 FILED: KINGS COUNTY CLERK 03/02/2020 01:19 PM INDEX NO. 528003/2019 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 03/02/2020 AS AND FOR A ELEVENTH COMPLETE AFFIRMATIVE DEFENSE 20. That the Defendant lacks standing to assert the Counterclaims. AS AND FOR A TWELFTH COMPLETE AFFIRMATIVE DEFENSE 21. That Defendants Counterclaims are barred by the equitable doctrine of unclean hands. AS AD FOR A THIRTEENTH COMPLETE_AFFIRMATIVE DEFENSE 22. That Defendants Counterclaims are barred by the equitable doctrine of laches. WHEREFORE, itis respectfully requested that the Defendant's Counter-Claims be dismissed in its entirety. Dated: March 2, 2020 Deirdre Tobi ,sq. 19-262354 - DeT 5 of 7 FILED: KINGS COUNTY CLERK 03/02/2020 01:19 PM INDEX NO. 528003/2019 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 03/02/2020 STATE OF NEW YORK } ss: COUNTY OF NASSAU The undersigned, an attorney admitted to practice in the Court of New York State shows: deponent is an associate of the law firm of RAS Boriskin, LLC, the attorneys for record for the Plaintiff in the within action: deponent has read the foregoing Reply to Counter-Claim and knows the contents thereof: the same is true to deponent's own knowledge except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes itto be true. This verification is made by deponent and not client because client does not reside in the same county in which deponent maintains his office. The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as follows: books, records, conversations held in deponent's office. The Undersigned affirms that the foregoing statements are true, under the penalties of perjury. Dated: March 2, 2020 Deirdre ob n, Esq. 19-262354 - DeT 6 of 7 FILED: KINGS COUNTY CLERK 03/02/2020 01:19 PM INDEX NO. 528003/2019 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 03/02/2020 Index # 528003/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------X INDEX NO. 528003/2019 U.S. BANK NATIONAL ASSOCIATION, Plaintiff, vs. ANDY G. MCALPIN A/K/A ANDY MCALPIN; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKINGVIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; BNEI AVROM; HANUK INC. #1" #12" "John Doe through "John Doe the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons, or corporations, if any, having or claiming interest in or lien upon the premises described in the complaint, Defendants. --- ---------------- ------------------------------------X VERIFIED REPLY TOCOUNTER-CLAIM RAS Boriskin, LLC Attorneys for Plaintiff 900 Merchants Concourse, Suite 310, Westbury, NY 11590 516-280-7675 19-262354 - DeT 7 of 7