Preview
FILED: KINGS COUNTY CLERK 03/04/2020 03:13 PM INDEX NO. 526769/2019
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/04/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------ ---------------------------------------X
YOCHEVED SEGAL,
Index No: 526769/2019
Plaintiff,
-against- VERIFIED ANSWER
WITH
COUNTERCLAIMS
QUENTIN MANOR LLC,
Defendant.
__ ________-_ _--_------ ------------------------X
Defendant QUENTIN MANOR LLC, by and through their attorney, Shiryak, Bowman,
Anderson, Gill & Kadochnikov, LLP, as and for their Verified Answer as follows:
1. Denies each and every allegation contained in paragraphs of the Complaint
designated "2", "5", "9", "10", "11", "12", "14", "15", "16", "17", "18", "19", "21", "23", "24",
"Wherefore"
"26", and "27. Defendant denies the allegations contained in the clauses of the
"Wherefore"
Complaint, and deny that Plaintiff is entitled to any of the relief requested in the
clause of the Complaint.
"20"
2. Admits the allegations in paragraphs of the Complaint to the extent that the
Bankruptcy Court confirmed the absence of the automatic stay.
3. Denies knowledge or information sufficient to form a belief as to each and every
"13"
allegation referred to in paragraphs "1", "6", "7", "8", "12", and "21".
4. Paragraphs "3", "4", "22", and "25", contain legal conclusions to which no
response is required. To the extent a response is required Defendant denies each and every
allegation contained in those paragraphs.
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE
5. Plaintiff's complaint fails to state a case of action against the Defendants.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
6. The Statute of limitations has expired on any conceivable cause of action.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
7. The complaint is barred by the doctrine of estoppels.
AS AND FOR A FOURTH AF_FIRMATIVE DEFENSE
8. The complaint is barred by the doctrine of unclean hands.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
9. The complaint is barred by the statute of frauds.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
10. The complaint is barred by the doctrine of latches.
AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE
11. The complaint is barred by the terms of the contract.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
12. Plaintiff is barred by the doctrine of accord and satisfaction.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
13. Plaintiff lacked privity of contract with Defendants.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
14. The damages alleged in the complaint if occurred were caused in whole or in part
by the actions of the Plaintiff solely.
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AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
15. The deúñages alleged in the complaint were caused in whole or in part by sole by
the actions of a third party or entity not within the Defendant's control.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
16. Plaintiffs have failed to mitigate damages.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
17. Plaintiff has failed to join a necessary party.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
18. Plaintiff failed to serve the Defendant and as such, personal jurisdiction has not
been obtained.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
19. The action is barred by the doctrines of waiver, modification and/or estoppel.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
20. Fair consideration was provided for the transfer.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
21. Plaintiff fails to plead fraud with particularity as required by CPLR 3016.
AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE
22. The transactions were made in good faith.
AS AND FOR A NINETEE_NTH AFFIRMATIVE DEFENSE
23. Kings County is an improper venue for this action.
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AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
24. The Complaint is barred by the doctrine of waiver.
I
AS AND FOR A TWENTY FIRST AFFIRMATIVE DEFENSE
25. The Complaint is barred by the doctrine of ratification.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
26. No mortgage or loan of any fashion was ever extended by Defendant to Plaintiff.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
27. Defendant validly and in good faith purchased the Premises from Plaintiff. The
deed was a full transfer of title to the Premises and was in no way intended as merely a security
for a mortgage as no mortgage or loan of any fashion was ever extended to Plaintiff.
RESERVATION OF RIGHTS
28. Defendant reserves the right to amend its Affirmative Defenses and to assert any
additional pleadings and/or defenses based upon the discovery of additional facts through
continuing and ongoing investigation and discovery.
COUNTERCLAIMS
29. Defendant repeat, reiterate and reallege each and every allegation in the above
Paragraphs. Upon information and belief, the Defendants allege the following:
AS AND FOR A FIRST COUNTERCLAIM
30. Defendants reassert and reallege all previous paragraphs as though fully set forth
herein. Plaintiff breached the terms of the April 26, 2018, Agreement by failing to timely vacate
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the Premises. As such, Plaintiff is indebted to Defendant in the amount of $714.92 plus interest
calculated per from April -
day 26, 2018 March 4, 2020 for a total amount of $484,715.76, plus
interest and attorney fees.
AS AND FOR A SECOND COUNTERCLAIM
31. Defendant reasserts and realleges all previous paragraphs as though fully set forth
herein.
32. Plaintiff's failure to timely vacate caused Defendant to lose multiple prospective
purchasers of the Premises. Such breach caused Defendant damages in an amount to be
determined at trial but in no circumstances less than $1,000,000.
AS AND FOR A THIRD COUNTERCLAIM_
33. Defendant reasserts and realleges all previous paragraphs as though fully set forth
herein.
34. Plaintiff's continuous frivolous court filings have forced Defendant to pay
exorbitant sums in attorney fees to defend these meritless and frivolous allegations. Such actions
have damaged Defendant in an amount to be determined at trial but in no instance less than
$1,000,000.
WHEREFORE, the Defendants demand Judgment against the Plaintiff as follows:
a) That the Court dismisses Plaintiff's complaint with prejudice;
b) That Defendant be awarded damages equal to an amount of principal and interest
paid by the Defendant and attorney's fees incurred to defend this frivolous proceeding in an
amount to be established by the court;
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c) Judgment on Defendant's first counterclaim in the amount of $484,715.76, plus
interest and attorney fees.
d) Judgment on Defendant's second counterclaim in the amount to be determined by
the Court but in situation less than $1,000,000;
e) Judgment on Defendant's second counterclaim in the amount to be determined by
the Court but in situation less than $1,000,000;
f) Interest, costs, disbursements and attorney fees as permitted by law.
g) Compensatory damages in an amount to be determined by the Court.
h) Punitive damages in an amount to be determined by the Court.
i) That the Defendant be granted such other and further relief as the Court deems
proper, together with the costs and disbursements of this action.
DATED: Kew Gardens, New York
March 4, 2020
Your etc.,
ShiryWk, B½an, Ånderson, Gill & Kadochnikov LLP
By: Btzalel Hirschhorn, Esq.
80-02 Kew Gardens Road, Suite 600
Kew Gardens, NY 11415
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ATTORNEY CERTIFICATION
I, Btzalel Hirschhorn, Esq., hereby certify, under penalty of perjury, and as an officer of
the Court, that to the best of my knowledge, information and belief, formed after an inquiry
reasonably under the circumstances, the presentation of the papers or the contentions herein are
not frivolous as defined in 22 NYCRR Section 130-1.1(c).
Dated: March 4, 2020
Kew Gardens, New York
Btzalel Hirschhorn, Esq.
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NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/04/2020
A T T O R N E Y
V E R I F I C A T I O N
STATE OF NEW YORK )
) ss.:
COUNTY OF QUEENS
I, the undersigned, an attorney admitted to practice in the Courts of New York State, state
that:
I, Btzalel Hirschhorn, Esq., am an associate with law firm Shiryak Bowman Anderson
Gill & Kadochnikov, LLP., the attorney of record for the Defendants Quentin Manor, LLC,
in the within action; I have read the foregoing Verified Answer and know the contents thereof;
the same is true to my own knowledge, except as to the matters therein alleged to be on
information and belief, and as to those matter I believe it to be true.
The reason this verification is made by me and not the Defeñdants is that the Defendants
are not present in the county or state my office is located in.
The grounds of my belief as to all matters not stated upon my own knowledge are as
follows:
Upon information and belief, a review of the attorney's file and conversations with the
Defendants.
I affirm that the foregoing statements are true, under the penalties of perjury.
Dated: March 4, 2020
Kew Gardens, New York
.-
Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP
Btzalel Hirschhorn Esq.
8002 Kew Gardens, Rd., Ste. 600
Kew Gardens, New York, 11415
(718) 263-6800
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Preview
FILED: KINGS COUNTY CLERK 03/04/2020 03:13 PM INDEX NO. 526769/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/04/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------ ---------------------------------------X YOCHEVED SEGAL, Index No: 526769/2019 Plaintiff, -against- VERIFIED ANSWER WITH COUNTERCLAIMS QUENTIN MANOR LLC, Defendant. __ ________-_ _--_------ ------------------------X Defendant QUENTIN MANOR LLC, by and through their attorney, Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP, as and for their Verified Answer as follows: 1. Denies each and every allegation contained in paragraphs of the Complaint designated "2", "5", "9", "10", "11", "12", "14", "15", "16", "17", "18", "19", "21", "23", "24", "Wherefore" "26", and "27. Defendant denies the allegations contained in the clauses of the "Wherefore" Complaint, and deny that Plaintiff is entitled to any of the relief requested in the clause of the Complaint. "20" 2. Admits the allegations in paragraphs of the Complaint to the extent that the Bankruptcy Court confirmed the absence of the automatic stay. 3. Denies knowledge or information sufficient to form a belief as to each and every "13" allegation referred to in paragraphs "1", "6", "7", "8", "12", and "21". 4. Paragraphs "3", "4", "22", and "25", contain legal conclusions to which no response is required. To the extent a response is required Defendant denies each and every allegation contained in those paragraphs. -1- 1 of 8 FILED: KINGS COUNTY CLERK 03/04/2020 03:13 PM INDEX NO. 526769/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/04/2020 AS AND FOR A FIRST AFFIRMATIVE DEFENSE 5. Plaintiff's complaint fails to state a case of action against the Defendants. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 6. The Statute of limitations has expired on any conceivable cause of action. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 7. The complaint is barred by the doctrine of estoppels. AS AND FOR A FOURTH AF_FIRMATIVE DEFENSE 8. The complaint is barred by the doctrine of unclean hands. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 9. The complaint is barred by the statute of frauds. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 10. The complaint is barred by the doctrine of latches. AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE 11. The complaint is barred by the terms of the contract. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 12. Plaintiff is barred by the doctrine of accord and satisfaction. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 13. Plaintiff lacked privity of contract with Defendants. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 14. The damages alleged in the complaint if occurred were caused in whole or in part by the actions of the Plaintiff solely. -2 - 2 of 8 FILED: KINGS COUNTY CLERK 03/04/2020 03:13 PM INDEX NO. 526769/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/04/2020 AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 15. The deúñages alleged in the complaint were caused in whole or in part by sole by the actions of a third party or entity not within the Defendant's control. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 16. Plaintiffs have failed to mitigate damages. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 17. Plaintiff has failed to join a necessary party. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 18. Plaintiff failed to serve the Defendant and as such, personal jurisdiction has not been obtained. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 19. The action is barred by the doctrines of waiver, modification and/or estoppel. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 20. Fair consideration was provided for the transfer. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 21. Plaintiff fails to plead fraud with particularity as required by CPLR 3016. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 22. The transactions were made in good faith. AS AND FOR A NINETEE_NTH AFFIRMATIVE DEFENSE 23. Kings County is an improper venue for this action. -3- 3 of 8 FILED: KINGS COUNTY CLERK 03/04/2020 03:13 PM INDEX NO. 526769/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/04/2020 AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 24. The Complaint is barred by the doctrine of waiver. I AS AND FOR A TWENTY FIRST AFFIRMATIVE DEFENSE 25. The Complaint is barred by the doctrine of ratification. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 26. No mortgage or loan of any fashion was ever extended by Defendant to Plaintiff. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 27. Defendant validly and in good faith purchased the Premises from Plaintiff. The deed was a full transfer of title to the Premises and was in no way intended as merely a security for a mortgage as no mortgage or loan of any fashion was ever extended to Plaintiff. RESERVATION OF RIGHTS 28. Defendant reserves the right to amend its Affirmative Defenses and to assert any additional pleadings and/or defenses based upon the discovery of additional facts through continuing and ongoing investigation and discovery. COUNTERCLAIMS 29. Defendant repeat, reiterate and reallege each and every allegation in the above Paragraphs. Upon information and belief, the Defendants allege the following: AS AND FOR A FIRST COUNTERCLAIM 30. Defendants reassert and reallege all previous paragraphs as though fully set forth herein. Plaintiff breached the terms of the April 26, 2018, Agreement by failing to timely vacate - 4 - 4 of 8 FILED: KINGS COUNTY CLERK 03/04/2020 03:13 PM INDEX NO. 526769/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/04/2020 the Premises. As such, Plaintiff is indebted to Defendant in the amount of $714.92 plus interest calculated per from April - day 26, 2018 March 4, 2020 for a total amount of $484,715.76, plus interest and attorney fees. AS AND FOR A SECOND COUNTERCLAIM 31. Defendant reasserts and realleges all previous paragraphs as though fully set forth herein. 32. Plaintiff's failure to timely vacate caused Defendant to lose multiple prospective purchasers of the Premises. Such breach caused Defendant damages in an amount to be determined at trial but in no circumstances less than $1,000,000. AS AND FOR A THIRD COUNTERCLAIM_ 33. Defendant reasserts and realleges all previous paragraphs as though fully set forth herein. 34. Plaintiff's continuous frivolous court filings have forced Defendant to pay exorbitant sums in attorney fees to defend these meritless and frivolous allegations. Such actions have damaged Defendant in an amount to be determined at trial but in no instance less than $1,000,000. WHEREFORE, the Defendants demand Judgment against the Plaintiff as follows: a) That the Court dismisses Plaintiff's complaint with prejudice; b) That Defendant be awarded damages equal to an amount of principal and interest paid by the Defendant and attorney's fees incurred to defend this frivolous proceeding in an amount to be established by the court; -5- 5 of 8 FILED: KINGS COUNTY CLERK 03/04/2020 03:13 PM INDEX NO. 526769/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/04/2020 c) Judgment on Defendant's first counterclaim in the amount of $484,715.76, plus interest and attorney fees. d) Judgment on Defendant's second counterclaim in the amount to be determined by the Court but in situation less than $1,000,000; e) Judgment on Defendant's second counterclaim in the amount to be determined by the Court but in situation less than $1,000,000; f) Interest, costs, disbursements and attorney fees as permitted by law. g) Compensatory damages in an amount to be determined by the Court. h) Punitive damages in an amount to be determined by the Court. i) That the Defendant be granted such other and further relief as the Court deems proper, together with the costs and disbursements of this action. DATED: Kew Gardens, New York March 4, 2020 Your etc., ShiryWk, B½an, Ånderson, Gill & Kadochnikov LLP By: Btzalel Hirschhorn, Esq. 80-02 Kew Gardens Road, Suite 600 Kew Gardens, NY 11415 6 of 8 FILED: KINGS COUNTY CLERK 03/04/2020 03:13 PM INDEX NO. 526769/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/04/2020 ATTORNEY CERTIFICATION I, Btzalel Hirschhorn, Esq., hereby certify, under penalty of perjury, and as an officer of the Court, that to the best of my knowledge, information and belief, formed after an inquiry reasonably under the circumstances, the presentation of the papers or the contentions herein are not frivolous as defined in 22 NYCRR Section 130-1.1(c). Dated: March 4, 2020 Kew Gardens, New York Btzalel Hirschhorn, Esq. -7 - 7 of 8 FILED: KINGS COUNTY CLERK 03/04/2020 03:13 PM INDEX NO. 526769/2019 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 03/04/2020 A T T O R N E Y V E R I F I C A T I O N STATE OF NEW YORK ) ) ss.: COUNTY OF QUEENS I, the undersigned, an attorney admitted to practice in the Courts of New York State, state that: I, Btzalel Hirschhorn, Esq., am an associate with law firm Shiryak Bowman Anderson Gill & Kadochnikov, LLP., the attorney of record for the Defendants Quentin Manor, LLC, in the within action; I have read the foregoing Verified Answer and know the contents thereof; the same is true to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matter I believe it to be true. The reason this verification is made by me and not the Defeñdants is that the Defendants are not present in the county or state my office is located in. The grounds of my belief as to all matters not stated upon my own knowledge are as follows: Upon information and belief, a review of the attorney's file and conversations with the Defendants. I affirm that the foregoing statements are true, under the penalties of perjury. Dated: March 4, 2020 Kew Gardens, New York .- Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP Btzalel Hirschhorn Esq. 8002 Kew Gardens, Rd., Ste. 600 Kew Gardens, New York, 11415 (718) 263-6800 - 8 - 8 of 8