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FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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GARY NESTLER,
Plaintiff, VERFtET
- against - - -^3
COMPLAINT WITH
SEA SALT HOLDING, LLC and DAVID COUNTERCLAIM AND
ZELOUF, THIRD PARTY COMPLA^T
Defendants.
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SEA SALT HOLDING, LLC and DAVID
ZELOUF
Index No.:
Third-Party Plaintiffs,
Third-Party Action
- against -
ANNA WINDERBAUM,
Third Party-Defendant.
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Sea Salt Holding, LLC (“Sea Salt”) and David Zelouf (collectively,
“Defendants”), by and through their attorneys, Meyer, Suozzi, English & Klein,
P.C., as and for their Answer with Counterclaims (“Answer”) to the Verified
Complaint, dated May 11, 2021 (the “Complaint”), of Plaintiff Gary Nestier
(“Plaintiff”), hereby allege as follows:
1. Defendants lack knowledge or information sufficient to form a belief
as to the truth of the allegations contained in Paragraph 1 of the Complaint.
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2. Defendants admit the allegations contained in Paragraph 2 of the
Complaint.
3. Defendants deny the truth of the allegations contained in Paragraph
3 of the Complaint, except admit that Sea Salt is a limited liability company existing
pursuant to New York state law.
4. Defendants admit the allegations contained in Paragraph 4 of the
Complaint.
5. Defendants deny the allegations contained in Paragraph 5 of the
Complaint, except admit that Defendant Zelouf is a member.
6. Defendants admit the allegations contained in Paragraph 6 of the
Complaint.
7. Defendants deny the truth of the allegations contained in Paragraph
7 of the Complaint, except admits that it owns property located in Suffolk County ,
including the premises located at 4 Fedak Lane, East Quogue, New York (the
“Premises”) and rents the Premises for residential use.
8. Defendants admit the allegations contained in Paragraph 8 of the
Complaint.
9. Defendants admit the allegations contained in Paragraph 9 of the
Complaint, and refer the Court to the lease for the true meaning and content
thereof.
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10. Defendants admit the allegations contained in Paragraph 10 of the
Complaint, and refer the Court to the lease for the true meaning and content
thereof.
11. Defendants deny the truth of the allegations contained in Paragraph
11 of the Complaint, and refer the Court to the lease for the true meaning and
content thereof.
12. Defendants deny the truth of the allegations contained in Paragraph
12 of the Complaint, except admit that the rental amount and lease term differed
in each agreement.
13. In response to paragraph 13 of the Complaint, Defendants repeat all
of the foregoing responses to the allegations of the prior paragraphs of the
Complaint as though fully set forth herein.
14. Defendants deny the truth of the allegations contained in Paragraph
14 of the Complaint, except admit that Plaintiff was to pay a rental rate, security
deposit and advance utility payment deposit.
15. Defendants admit the truth of the allegations contained in Paragraph
15 of the Complaint.
16. Defendants deny the truth of the allegations contained in Paragraph
16 of the Complaint, except admit that Plaintiff was to pay an advance utility
payment, and refer the Court to the lease for the true meaning and content thereof.
17. Defendants deny the truth of the allegations contained in Paragraph
17 of the Complaint, except admit that the security deposit and advance utility
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payment deposit were carried over to the second lease, and refer the Court to the
two agreements for the true meaning and content thereof.
18. Defendants deny the truth of the allegations contained in Paragraph
18 of the Complaint, except admit that the Plaintiff delivered payment of an
additional advance utility payment deposit to Sea Sait.
19. Defendants deny the truth of the allegations contained in Paragraph
19 of the Complaint, except admit that Plaintiff paid a security deposit and advance
utility payment deposit to Sea Sait, and refer the Court to the agreements for the
true meaning and content thereof.
20. Defendants deny the truth of the allegations contained in Paragraph
20 of the Complaint, except admit that paragraph 23 of the respective lease
agreements provides for return of the security deposit, and refer the Court to the
true meaning and content thereof and the laws of New York State applicable to
security deposits for the rental of real property.
21. Defendants deny the truth of the allegations contained in Paragraph
21 of the Complaint, except admit that the Plaintiff physically left the leased
premises on or about September 29, 2020 and that Sea Salt has not refunded any
portion of the security deposit to Plaintiff.
22. Defendants lack knowledge or information sufficient to form a belief
as to the truth of the allegations contained in Paragraph 22 of the Complaint.
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23. Defendants deny the truth of the allegations contained in Paragraph
23 of the Complaint, except admit that Plaintiff sent a text to Zelouf on November
10, 2020, and refer the Court to the text for the true meaning and content thereof.
24. Defendants deny the truth of the allegations contained in Paragraph
24 of the Complaint, except admit that Plaintiff sent a text to Zelouf on November
12, 2020, and refer the Court to the text for the true meaning and content thereof.
25. Defendants deny the truth of the allegations contained in Paragraph
25 of the Complaint, except admit that Plaintiff sent a text to Zelouf on November
12, 2020, and refer the Court to the text for the true meaning and content thereof.
26. Defendants deny the truth of the allegations contained in Paragraph
26 of the Complaint, except admit that Zelouf sent a text to Plaintiff on November
17, 2020, and refer the Court to the text for the true meaning and content thereof.
27. Defendants deny the truth of the allegations contained in Paragraph
27 of the Complaint, except admit that Plaintiff sent a text to Zelouf on November
21,2020, and refer the Court to the text for the true meaning and content thereof.
28. Defendants deny the truth of the allegations contained in Paragraph
28 of the Complaint, except admit that Plaintiff sent a text to Zelouf on November
21,2020, and refer the Court to the text for the true meaning and content thereof.
29. Defendants deny the truth of the allegations contained in Paragraph
29 of the Complaint, except admit that Defendants have received and sent
electronic mail from and to Plaintiff, and refer the Court to those emails for the true
meaning and content thereof.
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30. Defendants deny the truth of the allegations contained in Paragraph
30 of the Complaint, except admit that a letter dated December 8, 2020 was sent
to Sea Salt from Holm & O’Hara, and refer the Court to the letter for the true
meaning and content thereof.
31. Defendants deny the truth of the allegations contained in Paragraph
31 of the Complaint, except admit that a letter dated December 21,2020 was sent
to Sea Salt from Holm & O’Hara, and refer the Court to the letter for the true
meaning and content thereof.
32. Defendants deny the truth of the allegations contained in Paragraph
32 of the Complaint, and refer the Court to the referenced law for the true meaning,
content and interpretation thereof.
33. Defendants deny the truth of the allegations contained in Paragraph
33 of the Complaint, except admit that a statement of charges was provided to
34. Defendants deny the truth of the allegations contained in Paragraph
34 of the Complaint. Deny knowledge or information sufficient to form a belief as
to the truth of the allegations set forth in paragraph 4 of the Complaint and refer
the Court to the referenced document for its true meaning and legal effect.
35. Defendants admit the truth of the allegations contained in Paragraph
35 of the Complaint, and refer the Court to the agreement provisions for the true
meaning and content thereof.
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36. Defendants deny the truth of the allegations contained in Paragraph
36 of the Complaint.
37. Defendants deny the truth of the allegations contained in Paragraph
37 of the Complaint; except admit that Sea Salt has made no payment to Plaintiff
on account of the security deposit and Zeiouf has no obligation under the
agreements, and refers the Court to the agreements for the true meaning and
content thereof.
DEFENSES AND AFFIRMATIVE DEFENSES
38. By setting forth the Defenses and Affirmative Defenses below,
Defendants do not concede that they should bear the burden of proof or
persuasion on any of these defenses.
AS AND FOR A FIRST SEPARATE AFFIRMATIVE DEFENSE
39. The Plaintiff’s Complaint fails to state a claim upon which relief may
be granted.
AS AND FOR A SECOND SEPARATE AFFIRMATIVE DEFENSE
40. Plaintiff lacks standing.
AS AND FOR A THIRD SEPARATE AFFIRMATIVE DEFENSE
41. Defendant Zeiouf is not a proper party defendant.
42. Defendant Zeiouf was not a party to the lease and the premises are
not owned by Defendant Zeiouf.
43. Defendant Zeiouf has no obligations pursuant to the security deposit
or utility payment, and owes no monies to Plaintiff.
44. The leases are between Defendant Sea Salt and Plaintiff.
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45. Documentary evidence demonstrates that Defendant Zelouf is not,
and cannot, be iiabte to Plaintiff as alleged in the Complaint.
AS Am FOR A FOURTH SEPARATE AFFIRMATIVE DEFENSE
46. The foregoing paragraphs of these Defenses and Affirmative
Defenses are incorporated herein as if fully set forth at length.
47. Plaintiffs claims are barred as he has materially breached and failed
to perform his obligations under the Lease. As such, it is not entitled to assert his
purported claim, and the purported damages he seeks.
AS AND FORA FIF n SEPARATE Art AMATIVE DEFENSE
48. The foregoing paragraphs of these Defenses and Affirmative
Defenses are incorporated herein as if fully set forth at length.
49. The pre-payments made to Defendant Sea Sait consisted of a security
deposit and an advanced utility payment deposit.
50. The utility payment deposit was an advance for utility payments due
to be paid by Plaintiff to Sea Salt, in accordance with the lease agreements.
51. The utility payments made by Plaintiff are not subject to the General
Obligations Law provisions contained in the Housing Stability and Tenant
Protection Act of 2019, including General Obligations Law §§7-105 and 7-108 with
respect to security for the full performance by a tenant of the terms of a lease.
52. Plaintiff made $7,275 in utility payments, no portion of which is subject
to the deposit return provisions of General Obligations Law §§7-105 and 7-108.
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53. Plaintiff’s claims regarding the utility payments fail to state a claim
upon which relief may be granted.
AS Ah'P FOR A SIXTP
54. The foregoing paragraphs of these Defenses and Affirmative
Defenses are incorporated herein as if fully set forth at length.
55. Plaintiffs claims are barred by the doctrines of unclean hands, in pari
delicto and unjust enrichment.
AS AND FOR A SEVENTH SEPARATE AFFIRMATIVE DEFENSE
56. The foregoing paragraphs of these Defenses and Affirmative
Defenses are incorporated herein as if fully set forth at length.
57. The Plaintiff’s claims are barred by the doctrine of waiver.
AS AND FOR A EIGHTH SEPARATE AFFIRMATIVE DEFENSE
58. The foregoing paragraphs of these Defenses and Affirmative
Defenses are incorporated herein as if fully set forth at length.
59. The Plaintiff’s claims are barred by the doctrine of estoppel.
AS AND FOR AN NINTH SEPARATE AFFIRMATIVE DEFENSE
60. The foregoing paragraphs of these Defenses and Affirmative
Defenses are incorporated herein as if fully set forth at length.
61. Plaintiff caused damages to the premises, which damages are the
direct and proximate result of the acts or omissions of Plaintiff and/or other
occupants permitted by Plaintiff to be on the premises during the lease term.
62. Defendants have no responsibility for such damage, and Plaintiff is
liable to Defendants for such damages.
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AS AND FOR A TENTH SEPARATE AFFIRMATIVE DEFENSE
63. Plaintiff has failed to take appropriate and/or necessary action to
mitigate damages.
AS AND FGF T B E O H SEPARATE AFFIRMATIVE DEFENSE
64. If plaintiff has been damaged as alleged in the complaint herein, and such
damage was not sustained solely as a result of plaintiff’s own negligence, carelessness,
culpable conduct, or want of care, such damage was brought about by the negligence,
carelessness, culpable conduct, want of care, and intentional acts of third parties over
whom the defendants had no control and for whose negligence, carelessness, want of
care, the defendants are not responsible.
AS AND FOR A TWELFTH SEPARATE AFFIRMATIVE DEFENSE
65. Defendants did not willfully violate any provision of the General
Obligations Law.
AS AND FOR A THiRTEENTH SEPARATE AFFIRMATIVE DEFENSE
66. The losses, damages and occurrences alleged in the Complaint were the
result of an independent and intervening cause or causes, including the COVID-19
pandemic and quarantine requirements, over which the Defendants had no control or
right to control.
AS AND FOR A FOURTEENTH SEPARATE AFFIRMATIVE DEFENSE
67. Upon information and belief, Plaintiff intentionally or recklessly exposed
Defendant Sea Salt employees to COVID-19 for Plaintiff’s own self benefit.
68. Upon information and belief, Plaintiff intentionally or recklessly ignored,
disregarded and demanded a breach of mandatory lockdown measures and protocols.
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69. Upon information and belief, Defendant Sea Cliff employees contracted
COVID-19 because of Plaintiff’s actions.
AS AND FOR A FIRST COUNTERCLAIM
70. The utility payment made by Plaintiff to Defendant Sea Salt was an
advance payment for utility expenses at the Premises.
71. The utility payment made by Plaintiff to Defendant Sea Salt is not a
security deposit subject to return and itemization provisions contained in General
Obligations Law §§7-105 and 7-108.
72. By reason of the foregoing, Defendants are entitled to declaratory
relief declaring that the utility payments made by Plaintiff to Defendant Sea Salt
are not subject to the provisions contained in General Obligations Law §§7-105
and 7-108 to the extent that Sea Salt is not required to provide (a) an itemized
statement or (b) return any portion of the utility payment within fourteen (14) days
after the Plaintiff vacated the premises.
73. By reason of the foregoing, Defendants are entitled to declaratory
relief declaring that the utility payments not be forfeit and may utilize such
payments on account of utility costs incurred as a result of Plaintiff’s use and
occupancy of the Premises.
AS AND FOR A SECOND COUNTERCLAIM
74. The foregoing paragraphs of the Defenses and Affirmative Defenses
are incorporated herein as if fully set forth at length.
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75. Defendant Sea Salt duly performed its obligations and conditions
required to be performed under the lease agreements.
76. Plaintiff and/or Plaintiff’s guests or invitees caused damages to the
Premises.
77. The aforesaid damages were a direct and proximate cause of
Plaintiff’s use and occupancy of the Premises.
78. As a consequence of the aforesaid damages, Plaintiff breached the
leases with Defendant Sea Salt.
79. Plaintiff left the Premises in a condition that required additional
cleaning of the Premises, in violation of the lease agreements.
80. As a consequence of Plaintiff’s vacating the Premises in a condition
in violation of the lease agreements, Plaintiff breached the leases with Defendant
Sea Salt.
81. As a result of Plaintiff’s breaches of the lease agreements and
damages caused by Plaintiff, Defendant Sea Salt has been required to expend
sums of money to remedy and repair the Premises.
82. Accordingly, Plaintiff is liable to Defendants in a sum of not less than
$5,790.
83. The foregoing paragraphs of the Defenses and Affirmative Defenses
are incorporated herein as if fully set forth at length.
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84. At the outset and during the term of the 'ease, Plaintiff requested Sea
Salt to provide certain additions and improvements to the Premises.
85. As agreed by Plaintiff and Defendant Sea Salt, Defendant Sea Salt
provided those improvements to the Premises for Plaintiff’s use during the term of
the lease at the expense of Plaintiff.
86. The improvements cost not less than $1,900.
87. Accordingly, Plaintiff is liable to Defendants in a sum of not less than
$1,900.
AS AND FOR A FOURTH COUNTERCLAIM
88. The foregoing paragraphs of the Defenses and Affirmative Defenses
are incorporated herein as if fully set forth at length .
89. Whereas paragraph 30 of the lease agreements provides that in any
action between Defendant Sea Sait and Plaintiff arising out of the lease
agreements, the prevailing party shall be entitled to their reasonable attorney fees,
costs and expenses from the non-prevailing party.
90. As such, Defendant Sea Salt is entitled to reimbursement from
Plaintiff for its reasonable attorneys’ fees, costs and expenses in connection with
this action.
AS AND FOR A FIFTH COUNTERCLAIM
91. The foregoing paragraphs of the Defenses and Affirmative Defenses
are incorporated herein as if fully set forth at length.
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92. In accordance with the Eease terms, Plaintiff provided Defendant Sea
Salt with $7,275 on account of utility costs.
93. The lease terms provide that Plaintiff is to pay to Defendant Sea Salt
on account of utility costs.
94. As a direct result of the Plaintiff’s use of the Premises, the utility costs
were not less than $7,746.36.
95. Accordingly, pursuant to the lease agreements, Plaintiff is liable to
Defendant Sea Sait for utility payments in an amount not to exceed $7,746.36.
96. Plaintiff has paid to Defendant Sea Sait the sum of $7,275 on account
of utility costs.
97. Plaintiff is liable to pay the full amount of the utility costs to Defendant
Sea Salt.
98. Accordingly, Plaintiff is liable to pay Defendants the total sum of
$7,746.36 on account of utility payments, of which $7,275 has been paid, leaving
a remaining sum due from Plaintiff to Defendant Sea Sait of not less than $471.36.
AS AND FOR A SIXTH COUNTERCLAIM
99. The foregoing paragraphs of the Defenses and Affirmative Defenses
are incorporated herein as if fully set forth at length.
100. Plaintiff, for his own benefit, directed Defendant Sea Salt to come to
the Premises and to deliver personal items to the Premises.
101. Upon information and belief, by doing so, Plaintiff intentionally or
recklessly exposed Defendant Sea Salt employees to COVID-19.
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102. Upon information and belief, in doing so, Plaintiff intentionally or
recklessly ignored, disregarded and demanded a breach of mandatory lockdown
measures and protocols.
103. After performing work requested by Plaintiff, Defendant Sea Salt
empAvees co-trsc:ec COV’D-/:9.
104. Upon information and belief, Plaintiffs actions caused Defendant Sea
Salt employees to contract COVID-19.
105. Defendant Sea Salt was damaged due to staffing limitations resulting from
its employees contracting COVID-19.
106. Plaintiff is liable to Defendant Sea Salt for such damages.
AS AND FOR A FIRST CAUSE OF ACTION AGAINST THIRD-PARTY
DEFENDANT ANNA WINDERBAUM
107. The foregoing paragraphs of the Defenses and Affirmative Defenses
are incorporated herein as if fully set forth at length.
108. Third-Party Defendant Anna Winderbaum (“Winderbaum”) resided at
the Premises throughout part or all of Plaintiff’s lease term.
109. Upon information and belief, Third-Party Defendant Winderbaum
caused and/or is responsible for some or all of the damages caused to the
Premises during the lease term.
110. Upon information and belief, Third-Party Defendant Winderbaum
caused and/or is responsible for some of the conditions of the Premises upon the
vacatur of the Premises at the end of the lease term.
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111. Accordingly, Third-Party Winderbaum is Hable to Defendants in the
sum of not less than $5,790.
WHEREFORE, Defendants demand judgment, as follows:
(a) On Defendants’ First Counterclaim, declaratory relief declaring
that (I) the utility payment made by Plaintiff to Defendant Sea Salt is not subject to
the provisions contained in General Obligations Law §§7-105 and 7-108 to the
extent that Sea Salt is not required to provide (a) an itemized statement or (b)
return any portion of the utility payment within fourteen (14) days after the Plaintiff
vacated the premises, and (ii) the utility payments made to Defendant Sea Sait not
be forfeit and Sea Sait may utilize such payments on account of utility costs
incurred as a result of Plaintiffs use and occupancy of the Premises;
(b) On Defendants’ Second Counterclaim, against Plaintiff in an
amount not less than $5,790;
(c) On Defendants’ Third Counterclaim, against Plaintiff in an
amount not less than $1,900;
(d) On Defendants’ Fourth Counterclaim, awarding Defendants
their reasonable attorneys’ fees, costs and expenses in connection with this action;
(e) On Defendants’ Fifth Counterclaim, against Plaintiff in an
amount not less than $7,746.36;
(f) On Defendants’ Sixth Counterclaim, against Plaintiff for
compensatory damages in an amount to be determined by the Court;
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(g) On Defendants’ First Cause of Action against the Third-Party
Defendant, in an amount not less than $5,790;
(h) dismissing the Plaintiff’s Complaint and ail claims asserted
against Defendants in their entirety and with prejudice;
(i) awarding Defendants statutory costs and disbursements; and
(j) awarding Defendants such other and further relief that the Court
deems just, proper and equitable.
Dated: Garden City, New York
August 17, 2021
MEYER, SUOZZI, ENGLISH & KLEIN, P.C.
By: /s/ Brian S. Stolar
Brian S. Stolar
Attorneys for Defendants
990 Stewart Avenue, Suite 300
P.O. Box 9194
Garden City, New York 11530-9194
(516) 741-6565
TO: LAW OFFICES OF HARVEY A. ARNOFF
Attorneys for Plaintiff
206 Roanoke Avenue
Riverhead, New York 11901
(631)727-3904
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VERIFICATION
STATE OF NEW YORK )
ss.:
COUNTY OF)
DAVID ZELOUF, being duly sworn, deposes and says:
1. lam one of the Defendants in this action.
2. I have read the foregoing Verified Answer to Plaintiff's Complaint with
CounterclaimandThird Party Complaintand know the contents thereof. I am acquainted
with the facts, and the same is true to my personal knowledge, except to matters therein
stated to be alleged upon information and belief, and as to those matters I believe them
to be true.
3. This verification is made by me as a Defendant.
Sworn to before me this
18th day of August 2021
Notary Public
ALEJANDRO ROJAS
NOTARY PUBLIC, STATE OF NEW YORK
NO.01RO4360799
QUALIFIED IN SUFFOLK COUNTY
MY COMMISSION EXPIRES JUNE 26,2025
4563824
IS
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NO. 12 RECEIVED NYSCEF: 08/18/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------------------------------------------------------------X index No. 611170/2021 GARY NESTLER, Plaintiff, VERFtET - against - - -^3 COMPLAINT WITH SEA SALT HOLDING, LLC and DAVID COUNTERCLAIM AND ZELOUF, THIRD PARTY COMPLA^T Defendants. ----------------------------------------------------------------X SEA SALT HOLDING, LLC and DAVID ZELOUF Index No.: Third-Party Plaintiffs, Third-Party Action - against - ANNA WINDERBAUM, Third Party-Defendant. ----------------------------------------------------------------X Sea Salt Holding, LLC (“Sea Salt”) and David Zelouf (collectively, “Defendants”), by and through their attorneys, Meyer, Suozzi, English & Klein, P.C., as and for their Answer with Counterclaims (“Answer”) to the Verified Complaint, dated May 11, 2021 (the “Complaint”), of Plaintiff Gary Nestier (“Plaintiff”), hereby allege as follows: 1. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 1 of the Complaint. 1 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 2. Defendants admit the allegations contained in Paragraph 2 of the Complaint. 3. Defendants deny the truth of the allegations contained in Paragraph 3 of the Complaint, except admit that Sea Salt is a limited liability company existing pursuant to New York state law. 4. Defendants admit the allegations contained in Paragraph 4 of the Complaint. 5. Defendants deny the allegations contained in Paragraph 5 of the Complaint, except admit that Defendant Zelouf is a member. 6. Defendants admit the allegations contained in Paragraph 6 of the Complaint. 7. Defendants deny the truth of the allegations contained in Paragraph 7 of the Complaint, except admits that it owns property located in Suffolk County , including the premises located at 4 Fedak Lane, East Quogue, New York (the “Premises”) and rents the Premises for residential use. 8. Defendants admit the allegations contained in Paragraph 8 of the Complaint. 9. Defendants admit the allegations contained in Paragraph 9 of the Complaint, and refer the Court to the lease for the true meaning and content thereof. 2 2 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 10. Defendants admit the allegations contained in Paragraph 10 of the Complaint, and refer the Court to the lease for the true meaning and content thereof. 11. Defendants deny the truth of the allegations contained in Paragraph 11 of the Complaint, and refer the Court to the lease for the true meaning and content thereof. 12. Defendants deny the truth of the allegations contained in Paragraph 12 of the Complaint, except admit that the rental amount and lease term differed in each agreement. 13. In response to paragraph 13 of the Complaint, Defendants repeat all of the foregoing responses to the allegations of the prior paragraphs of the Complaint as though fully set forth herein. 14. Defendants deny the truth of the allegations contained in Paragraph 14 of the Complaint, except admit that Plaintiff was to pay a rental rate, security deposit and advance utility payment deposit. 15. Defendants admit the truth of the allegations contained in Paragraph 15 of the Complaint. 16. Defendants deny the truth of the allegations contained in Paragraph 16 of the Complaint, except admit that Plaintiff was to pay an advance utility payment, and refer the Court to the lease for the true meaning and content thereof. 17. Defendants deny the truth of the allegations contained in Paragraph 17 of the Complaint, except admit that the security deposit and advance utility 3 3 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 payment deposit were carried over to the second lease, and refer the Court to the two agreements for the true meaning and content thereof. 18. Defendants deny the truth of the allegations contained in Paragraph 18 of the Complaint, except admit that the Plaintiff delivered payment of an additional advance utility payment deposit to Sea Sait. 19. Defendants deny the truth of the allegations contained in Paragraph 19 of the Complaint, except admit that Plaintiff paid a security deposit and advance utility payment deposit to Sea Sait, and refer the Court to the agreements for the true meaning and content thereof. 20. Defendants deny the truth of the allegations contained in Paragraph 20 of the Complaint, except admit that paragraph 23 of the respective lease agreements provides for return of the security deposit, and refer the Court to the true meaning and content thereof and the laws of New York State applicable to security deposits for the rental of real property. 21. Defendants deny the truth of the allegations contained in Paragraph 21 of the Complaint, except admit that the Plaintiff physically left the leased premises on or about September 29, 2020 and that Sea Salt has not refunded any portion of the security deposit to Plaintiff. 22. Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 22 of the Complaint. 4 4 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 23. Defendants deny the truth of the allegations contained in Paragraph 23 of the Complaint, except admit that Plaintiff sent a text to Zelouf on November 10, 2020, and refer the Court to the text for the true meaning and content thereof. 24. Defendants deny the truth of the allegations contained in Paragraph 24 of the Complaint, except admit that Plaintiff sent a text to Zelouf on November 12, 2020, and refer the Court to the text for the true meaning and content thereof. 25. Defendants deny the truth of the allegations contained in Paragraph 25 of the Complaint, except admit that Plaintiff sent a text to Zelouf on November 12, 2020, and refer the Court to the text for the true meaning and content thereof. 26. Defendants deny the truth of the allegations contained in Paragraph 26 of the Complaint, except admit that Zelouf sent a text to Plaintiff on November 17, 2020, and refer the Court to the text for the true meaning and content thereof. 27. Defendants deny the truth of the allegations contained in Paragraph 27 of the Complaint, except admit that Plaintiff sent a text to Zelouf on November 21,2020, and refer the Court to the text for the true meaning and content thereof. 28. Defendants deny the truth of the allegations contained in Paragraph 28 of the Complaint, except admit that Plaintiff sent a text to Zelouf on November 21,2020, and refer the Court to the text for the true meaning and content thereof. 29. Defendants deny the truth of the allegations contained in Paragraph 29 of the Complaint, except admit that Defendants have received and sent electronic mail from and to Plaintiff, and refer the Court to those emails for the true meaning and content thereof. 5 5 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 30. Defendants deny the truth of the allegations contained in Paragraph 30 of the Complaint, except admit that a letter dated December 8, 2020 was sent to Sea Salt from Holm & O’Hara, and refer the Court to the letter for the true meaning and content thereof. 31. Defendants deny the truth of the allegations contained in Paragraph 31 of the Complaint, except admit that a letter dated December 21,2020 was sent to Sea Salt from Holm & O’Hara, and refer the Court to the letter for the true meaning and content thereof. 32. Defendants deny the truth of the allegations contained in Paragraph 32 of the Complaint, and refer the Court to the referenced law for the true meaning, content and interpretation thereof. 33. Defendants deny the truth of the allegations contained in Paragraph 33 of the Complaint, except admit that a statement of charges was provided to 34. Defendants deny the truth of the allegations contained in Paragraph 34 of the Complaint. Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 4 of the Complaint and refer the Court to the referenced document for its true meaning and legal effect. 35. Defendants admit the truth of the allegations contained in Paragraph 35 of the Complaint, and refer the Court to the agreement provisions for the true meaning and content thereof. 6 6 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 36. Defendants deny the truth of the allegations contained in Paragraph 36 of the Complaint. 37. Defendants deny the truth of the allegations contained in Paragraph 37 of the Complaint; except admit that Sea Salt has made no payment to Plaintiff on account of the security deposit and Zeiouf has no obligation under the agreements, and refers the Court to the agreements for the true meaning and content thereof. DEFENSES AND AFFIRMATIVE DEFENSES 38. By setting forth the Defenses and Affirmative Defenses below, Defendants do not concede that they should bear the burden of proof or persuasion on any of these defenses. AS AND FOR A FIRST SEPARATE AFFIRMATIVE DEFENSE 39. The Plaintiff’s Complaint fails to state a claim upon which relief may be granted. AS AND FOR A SECOND SEPARATE AFFIRMATIVE DEFENSE 40. Plaintiff lacks standing. AS AND FOR A THIRD SEPARATE AFFIRMATIVE DEFENSE 41. Defendant Zeiouf is not a proper party defendant. 42. Defendant Zeiouf was not a party to the lease and the premises are not owned by Defendant Zeiouf. 43. Defendant Zeiouf has no obligations pursuant to the security deposit or utility payment, and owes no monies to Plaintiff. 44. The leases are between Defendant Sea Salt and Plaintiff. 7 7 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 45. Documentary evidence demonstrates that Defendant Zelouf is not, and cannot, be iiabte to Plaintiff as alleged in the Complaint. AS Am FOR A FOURTH SEPARATE AFFIRMATIVE DEFENSE 46. The foregoing paragraphs of these Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length. 47. Plaintiffs claims are barred as he has materially breached and failed to perform his obligations under the Lease. As such, it is not entitled to assert his purported claim, and the purported damages he seeks. AS AND FORA FIF n SEPARATE Art AMATIVE DEFENSE 48. The foregoing paragraphs of these Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length. 49. The pre-payments made to Defendant Sea Sait consisted of a security deposit and an advanced utility payment deposit. 50. The utility payment deposit was an advance for utility payments due to be paid by Plaintiff to Sea Salt, in accordance with the lease agreements. 51. The utility payments made by Plaintiff are not subject to the General Obligations Law provisions contained in the Housing Stability and Tenant Protection Act of 2019, including General Obligations Law §§7-105 and 7-108 with respect to security for the full performance by a tenant of the terms of a lease. 52. Plaintiff made $7,275 in utility payments, no portion of which is subject to the deposit return provisions of General Obligations Law §§7-105 and 7-108. 8 8 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 53. Plaintiff’s claims regarding the utility payments fail to state a claim upon which relief may be granted. AS Ah'P FOR A SIXTP 54. The foregoing paragraphs of these Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length. 55. Plaintiffs claims are barred by the doctrines of unclean hands, in pari delicto and unjust enrichment. AS AND FOR A SEVENTH SEPARATE AFFIRMATIVE DEFENSE 56. The foregoing paragraphs of these Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length. 57. The Plaintiff’s claims are barred by the doctrine of waiver. AS AND FOR A EIGHTH SEPARATE AFFIRMATIVE DEFENSE 58. The foregoing paragraphs of these Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length. 59. The Plaintiff’s claims are barred by the doctrine of estoppel. AS AND FOR AN NINTH SEPARATE AFFIRMATIVE DEFENSE 60. The foregoing paragraphs of these Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length. 61. Plaintiff caused damages to the premises, which damages are the direct and proximate result of the acts or omissions of Plaintiff and/or other occupants permitted by Plaintiff to be on the premises during the lease term. 62. Defendants have no responsibility for such damage, and Plaintiff is liable to Defendants for such damages. 9 9 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 AS AND FOR A TENTH SEPARATE AFFIRMATIVE DEFENSE 63. Plaintiff has failed to take appropriate and/or necessary action to mitigate damages. AS AND FGF T B E O H SEPARATE AFFIRMATIVE DEFENSE 64. If plaintiff has been damaged as alleged in the complaint herein, and such damage was not sustained solely as a result of plaintiff’s own negligence, carelessness, culpable conduct, or want of care, such damage was brought about by the negligence, carelessness, culpable conduct, want of care, and intentional acts of third parties over whom the defendants had no control and for whose negligence, carelessness, want of care, the defendants are not responsible. AS AND FOR A TWELFTH SEPARATE AFFIRMATIVE DEFENSE 65. Defendants did not willfully violate any provision of the General Obligations Law. AS AND FOR A THiRTEENTH SEPARATE AFFIRMATIVE DEFENSE 66. The losses, damages and occurrences alleged in the Complaint were the result of an independent and intervening cause or causes, including the COVID-19 pandemic and quarantine requirements, over which the Defendants had no control or right to control. AS AND FOR A FOURTEENTH SEPARATE AFFIRMATIVE DEFENSE 67. Upon information and belief, Plaintiff intentionally or recklessly exposed Defendant Sea Salt employees to COVID-19 for Plaintiff’s own self benefit. 68. Upon information and belief, Plaintiff intentionally or recklessly ignored, disregarded and demanded a breach of mandatory lockdown measures and protocols. 10 10 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 69. Upon information and belief, Defendant Sea Cliff employees contracted COVID-19 because of Plaintiff’s actions. AS AND FOR A FIRST COUNTERCLAIM 70. The utility payment made by Plaintiff to Defendant Sea Salt was an advance payment for utility expenses at the Premises. 71. The utility payment made by Plaintiff to Defendant Sea Salt is not a security deposit subject to return and itemization provisions contained in General Obligations Law §§7-105 and 7-108. 72. By reason of the foregoing, Defendants are entitled to declaratory relief declaring that the utility payments made by Plaintiff to Defendant Sea Salt are not subject to the provisions contained in General Obligations Law §§7-105 and 7-108 to the extent that Sea Salt is not required to provide (a) an itemized statement or (b) return any portion of the utility payment within fourteen (14) days after the Plaintiff vacated the premises. 73. By reason of the foregoing, Defendants are entitled to declaratory relief declaring that the utility payments not be forfeit and may utilize such payments on account of utility costs incurred as a result of Plaintiff’s use and occupancy of the Premises. AS AND FOR A SECOND COUNTERCLAIM 74. The foregoing paragraphs of the Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length. 11 11 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 75. Defendant Sea Salt duly performed its obligations and conditions required to be performed under the lease agreements. 76. Plaintiff and/or Plaintiff’s guests or invitees caused damages to the Premises. 77. The aforesaid damages were a direct and proximate cause of Plaintiff’s use and occupancy of the Premises. 78. As a consequence of the aforesaid damages, Plaintiff breached the leases with Defendant Sea Salt. 79. Plaintiff left the Premises in a condition that required additional cleaning of the Premises, in violation of the lease agreements. 80. As a consequence of Plaintiff’s vacating the Premises in a condition in violation of the lease agreements, Plaintiff breached the leases with Defendant Sea Salt. 81. As a result of Plaintiff’s breaches of the lease agreements and damages caused by Plaintiff, Defendant Sea Salt has been required to expend sums of money to remedy and repair the Premises. 82. Accordingly, Plaintiff is liable to Defendants in a sum of not less than $5,790. 83. The foregoing paragraphs of the Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length. 12 12 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 84. At the outset and during the term of the 'ease, Plaintiff requested Sea Salt to provide certain additions and improvements to the Premises. 85. As agreed by Plaintiff and Defendant Sea Salt, Defendant Sea Salt provided those improvements to the Premises for Plaintiff’s use during the term of the lease at the expense of Plaintiff. 86. The improvements cost not less than $1,900. 87. Accordingly, Plaintiff is liable to Defendants in a sum of not less than $1,900. AS AND FOR A FOURTH COUNTERCLAIM 88. The foregoing paragraphs of the Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length . 89. Whereas paragraph 30 of the lease agreements provides that in any action between Defendant Sea Sait and Plaintiff arising out of the lease agreements, the prevailing party shall be entitled to their reasonable attorney fees, costs and expenses from the non-prevailing party. 90. As such, Defendant Sea Salt is entitled to reimbursement from Plaintiff for its reasonable attorneys’ fees, costs and expenses in connection with this action. AS AND FOR A FIFTH COUNTERCLAIM 91. The foregoing paragraphs of the Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length. 13 13 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 92. In accordance with the Eease terms, Plaintiff provided Defendant Sea Salt with $7,275 on account of utility costs. 93. The lease terms provide that Plaintiff is to pay to Defendant Sea Salt on account of utility costs. 94. As a direct result of the Plaintiff’s use of the Premises, the utility costs were not less than $7,746.36. 95. Accordingly, pursuant to the lease agreements, Plaintiff is liable to Defendant Sea Sait for utility payments in an amount not to exceed $7,746.36. 96. Plaintiff has paid to Defendant Sea Sait the sum of $7,275 on account of utility costs. 97. Plaintiff is liable to pay the full amount of the utility costs to Defendant Sea Salt. 98. Accordingly, Plaintiff is liable to pay Defendants the total sum of $7,746.36 on account of utility payments, of which $7,275 has been paid, leaving a remaining sum due from Plaintiff to Defendant Sea Sait of not less than $471.36. AS AND FOR A SIXTH COUNTERCLAIM 99. The foregoing paragraphs of the Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length. 100. Plaintiff, for his own benefit, directed Defendant Sea Salt to come to the Premises and to deliver personal items to the Premises. 101. Upon information and belief, by doing so, Plaintiff intentionally or recklessly exposed Defendant Sea Salt employees to COVID-19. 14 14 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 102. Upon information and belief, in doing so, Plaintiff intentionally or recklessly ignored, disregarded and demanded a breach of mandatory lockdown measures and protocols. 103. After performing work requested by Plaintiff, Defendant Sea Salt empAvees co-trsc:ec COV’D-/:9. 104. Upon information and belief, Plaintiffs actions caused Defendant Sea Salt employees to contract COVID-19. 105. Defendant Sea Salt was damaged due to staffing limitations resulting from its employees contracting COVID-19. 106. Plaintiff is liable to Defendant Sea Salt for such damages. AS AND FOR A FIRST CAUSE OF ACTION AGAINST THIRD-PARTY DEFENDANT ANNA WINDERBAUM 107. The foregoing paragraphs of the Defenses and Affirmative Defenses are incorporated herein as if fully set forth at length. 108. Third-Party Defendant Anna Winderbaum (“Winderbaum”) resided at the Premises throughout part or all of Plaintiff’s lease term. 109. Upon information and belief, Third-Party Defendant Winderbaum caused and/or is responsible for some or all of the damages caused to the Premises during the lease term. 110. Upon information and belief, Third-Party Defendant Winderbaum caused and/or is responsible for some of the conditions of the Premises upon the vacatur of the Premises at the end of the lease term. 15 15 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 111. Accordingly, Third-Party Winderbaum is Hable to Defendants in the sum of not less than $5,790. WHEREFORE, Defendants demand judgment, as follows: (a) On Defendants’ First Counterclaim, declaratory relief declaring that (I) the utility payment made by Plaintiff to Defendant Sea Salt is not subject to the provisions contained in General Obligations Law §§7-105 and 7-108 to the extent that Sea Salt is not required to provide (a) an itemized statement or (b) return any portion of the utility payment within fourteen (14) days after the Plaintiff vacated the premises, and (ii) the utility payments made to Defendant Sea Sait not be forfeit and Sea Sait may utilize such payments on account of utility costs incurred as a result of Plaintiffs use and occupancy of the Premises; (b) On Defendants’ Second Counterclaim, against Plaintiff in an amount not less than $5,790; (c) On Defendants’ Third Counterclaim, against Plaintiff in an amount not less than $1,900; (d) On Defendants’ Fourth Counterclaim, awarding Defendants their reasonable attorneys’ fees, costs and expenses in connection with this action; (e) On Defendants’ Fifth Counterclaim, against Plaintiff in an amount not less than $7,746.36; (f) On Defendants’ Sixth Counterclaim, against Plaintiff for compensatory damages in an amount to be determined by the Court; 16 16 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 (g) On Defendants’ First Cause of Action against the Third-Party Defendant, in an amount not less than $5,790; (h) dismissing the Plaintiff’s Complaint and ail claims asserted against Defendants in their entirety and with prejudice; (i) awarding Defendants statutory costs and disbursements; and (j) awarding Defendants such other and further relief that the Court deems just, proper and equitable. Dated: Garden City, New York August 17, 2021 MEYER, SUOZZI, ENGLISH & KLEIN, P.C. By: /s/ Brian S. Stolar Brian S. Stolar Attorneys for Defendants 990 Stewart Avenue, Suite 300 P.O. Box 9194 Garden City, New York 11530-9194 (516) 741-6565 TO: LAW OFFICES OF HARVEY A. ARNOFF Attorneys for Plaintiff 206 Roanoke Avenue Riverhead, New York 11901 (631)727-3904 17 17 of 18 FILED: SUFFOLK COUNTY CLERK 08/18/2021 04:26 PM INDEX NO. 611170/2021 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/18/2021 VERIFICATION STATE OF NEW YORK ) ss.: COUNTY OF) DAVID ZELOUF, being duly sworn, deposes and says: 1. lam one of the Defendants in this action. 2. I have read the foregoing Verified Answer to Plaintiff's Complaint with CounterclaimandThird Party Complaintand know the contents thereof. I am acquainted with the facts, and the same is true to my personal knowledge, except to matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true. 3. This verification is made by me as a Defendant. Sworn to before me this 18th day of August 2021 Notary Public ALEJANDRO ROJAS NOTARY PUBLIC, STATE OF NEW YORK NO.01RO4360799 QUALIFIED IN SUFFOLK COUNTY MY COMMISSION EXPIRES JUNE 26,2025 4563824 IS 18 of 18