Preview
FILED: ERIE COUNTY CLERK 04/30/2018 02:25 PM INDEX NO. 803356/2018
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/30/2018
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
...
ROBERT E. PUMA,
Plaintiff,
ANSWER WITH
AFFIRMATIVE
v. DEFENSES AND
COUNTERCLAIM
WILLIAM C. GROSSMAN LAW, PLLC,
GROSSMAN & KARASZEWSKI, PLLC,
WILLIAM C. GROSSMAN, ESQ., Index No.: 803356/2018
SQUARETWO FINANCIAL SERVICES
CORPORATION, and CACH, LLC,
Defendant.
Defendants, WILLIAM C. GROSSMAN LAW, PLLC, GROSSMAN &
KARASZEWSKI, PLLC, WILLIAM C. GROSSMAN, ESQ., and without waiving any
jurisdictional defense, CACH, LLC, by their attorney, Scott J. Whitbeck, Esq. of Grossman &
Karaszewski, PLLC, as and for their Answer to the Complaint of Plaintiff, ROBERT E. PUMA,
allege as follows:
"1," "2," "3," "4"
1. Paragraphs and of Plaintiff's complaint are legal
conclusions and to the extent that they require any response, they are DENIED.
"5," "6," "7,"
2. ADMIT so much of the allegations of paragraph as allege
that WILLIAM C. GROSSMAN LAW, PLLC and GROSSMAN & KARASZEWSKI, PLLC,
respectively, have transacted and do transact business in Erie County, New York, and DENY
knowledge and information sufficient to form a belief as to the truth or falsity the remaining
"5," "6," "7,"
allegations of paragraphs of Plaintiff s complaint.
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"8,"
3. ADMIT so much of the allegations of paragraph as allege that
WILLIAM C. GROSSMAN, ESQ., maintains a law office in Erie County, as a member of a
"8"
PLLC, and DENY the remaining allegations of paragraph of Plaintiff's complaint.
"9" "10"
4. ADMIT so much of the allegations of paragraphs and as allege
that WILLIAM C. GROSSMAN LAW, PLLC and GROSSMAN & KARASZEWSKI, PLLC are
registered with the NY Secretary of State and transact business in NY, and DENY the remaining
"9" "10"
allegations of paragraphs and of Plaintiff's complaint.
5. DENY knowledge and information sufficient to form a belief as to the
"11"
truth or falsity of allegations of paragraph of Plaintiff's complaint.
6. DENY knowledge and information sufficient to form a belief as to the
"12"
truth or falsity the allegations of paragraph of Plaintiff's complaint.
"13," "14," "15," "16"
7. Paragraphs and of Plaintiff's complaint are legal
conclusions and to the extent that they require any response, they are DENIED.
8. DENY knowledge and information sufficient to form a belief as to the
"17"
truth or falsity the allegations of paragraph of Plaintiff's complaint.
"18," "19," "20"
9. ADMIT the allegations of paragraphs and of Plaintiff's
complaint.
"21"
10. ADMIT so much of the allegations of paragraph as alleges that
Defendant CACH, LLC is engaged in collection of debts, and DENY the remaining allegations
"21"
of paragraph of Plaintiff's complaint.
11. DENY knowledge and information sufficient to form a belief as to the
"22"
truth or falsity the allegations of paragraphs of Plaintiff's complaint.
"23"
12. DENY the allegations of paragraph of Plaintiff's complaint.
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"24"
13. ADMIT the allegations of paragraph of Plaintiff's complaint.
"25"
14. ADMIT so much of the allegations of paragraph as alleges the
answering Defendants, WILLIAM C. GROSSMAN LAW, PLLC, GROSSMAN &
KARASZEWSKI, PLLC, WILLIAM C. GROSSMAN, ESQ., and CACH, LLC are engaged in
collection of debts, and DENY knowledge and information sufficient to form a belief as to the
"25"
truth or falsity of the remaining allegations of paragraph of Plaintiff's complaint.
"26," "27," "28"
15. ADMIT the so much of the allegations of paragraphs and
of Plaintiff's complaint as allege that WILLIAM C. GROSSMAN LAW, PLLC, GROSSMAN
& KARASZEWSKI, PLLC, and WILLIAM C. GROSSMAN, ESQ. collect consumer debts, and
"26," "27," "28"
DENY the remaining allegations of paragraphs and of Plaintiff's complaint, as
the cited statute speaks for itsself.
16. DENY knowledge and information sufficient to form a belief as to the
"29," "30," "31," "32"
truth or falsity of the allegations of paragraphs and of Plaintiff's
complaint.
"33" "34"
17. ADMIT so much of the allegations of paragraphs and as allege
that Plaintiff incurred a consumer debt obligation, and DENY the remaining allegations of
"33" "34,"
paragraphs and as the cited statute speaks for its self.
"35"
18. ADMIT so much of the allegations of paragraph as alleges that
WILLIAM C. GROSSMAN LAW, PLLC brought suit on behalf of CACH, LLC in Tonawanda
"35"
City Court in 2016, and DENY the remaining allegations of paragraph of Plaintiff's
complaint.
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"36"
19. ADMIT so much of the allegations of paragraph as alleges that
WILLIAM C. GROSSMAN LAW, PLLC represented CACH, LLC in the lower-court matter,
"36"
and DENY the remaining allegations of paragraph of Plaintiff's complaint.
20. ADMIT that Defendant, CACH, LLC obtained a lawful default judgment
"37"
against Plaintiff, and DENY the remaining allegations of paragraph of Plaintiff s complaint.
21. DENY knowledge and information sufficient to form a belief as to the
"38" "39"
truth or falsity the allegations of paragraphs and of Plaintiff's complaint.
"40"
22. ADMIT the allegations of paragraph of Plaintiff's complaint.
"41"
23. ADMIT so much of the allegations of paragraph as alleges that
WILLIAM C. GROSSMAN LAW, PLLC served a response on Plaintiff's Counsel, DENY the
"41"
remaining allegations of paragraph of Plaintiff's complaint.
"42"
24. ADMIT the allegations of paragraph of Plaintiff s complaint.
"43"
25. ADMIT so much of the allegations of paragraph as alleges that
WILLIAM C. GROSSMAN LAW, PLLC exchanged emails with Plaintiff's Counsel, and
"43"
DENY the remaining allegations of paragraph of Plaintiff's complaint.
"44"
26. ADMIT so much of the allegations of paragraph as alleges that
WILLIAM C. GROSSMAN LAW, PLLC was aware that Plaintiff was represented by counsel,
"44"
and, DENY the remaining allegations of paragraph of Plaintiff's complaint.
"45"
27. DENY the allegations of paragraph of Plaintiff's complaint.
"46"
28. ADMIT so much of the allegations of paragraph as alleges that
WILLIAM C. GROSSMAN LAW, PLLC sent a letter to Plaintiff, and DENY the remaining
"46"
allegations of paragraph of Plaintiff's complaint.
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29. DENY knowledge and information sufficient to form a belief as to the
"47" "48"
truth or falsity the allegations of paragraphs and of Plaintiff's complaint.
"49"
30. DENY the allegations of paragraph of Plaintiff's complaint.
31. DENY knowledge and information sufficient to form a belief as to the
"50," "51," "52," "53," "54"
truth or falsity the allegations of paragraphs and of Plaintiff's
complaint.
"55," "56," "57," "58"
32. DENY the allegations of paragraphs and of
Plaintiff's complaint.
33. DENY knowledge and information sufficient to form a belief as to the
"59"
truth or falsity of the allegations of paragraph of Plaintiff's complaint.
"60," "61," "62," "63"
34. DENY the allegations of paragraphs and of
Plaintiff's complaint.
"64," "65," "66," "67," "68," "69"
35. Paragraphs and of Plaintiff's complaint
are legal conclusions, and to the extent that they require any response, they are DENIED.
"70," "71," "72," "73," "74," "75,"
36. DENIES the allegations of paragraphs
"76," "77," "78," "79," "80," "81," "82," "83," "84," "85," "86," "87," "88," "89," "90," "91,"
cc76 cc77 4478 cc79 cc80 cc81 cc82 c483 cc84 cc85 'Jcc86 cc87 c488 ) cc89 7 c490 cc91
"92," "93," "94," "95"
and of Plaintiff's complaint.
37. DENIES all other allegations of Plaintiff's Complaint that are not
hereinbefore specifically admitted, denied, or otherwise controverted.
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FIRST AFFIRMATIVE DEFENSE
38. Plaintiff's failed to establish jurisdiction over Defendant CACH, LLC, for
failure of service.
SECOND AFFIRMATIVE DEFENSE
39. Plaintiff has not raised a valid basis for piercing the corporate veil, as
against WILLIAM C. GROSSMAN, ESQ., individually.
THIRD AFFIRMATIVE DEFENSE
40. Defendant WILLIAM C. GROSSMAN, ESQ., at all times herein
mentioned was acting in his capacity as an employee and/or member of WILLIAM C.
GROSSMAN LAW, PLLC, and is entitled to the limited liability protections of New York law,
and is not personally liable for any alleged acts or omissions of any of the corporate Defendants
herein.
FOURTH AFFIRMATIVE DEFENSE
41. Plaintiff suffered no damages from the alleged violations of the Fair Debt
Collection Practices Act by the answering Defendants, which alleged violations the Defendants
deny; and therefore, Plaintiff is not entitled to any award of damages.
FIFTH AFFIRMATIVE DEFENSE
42. All of the actions of the answering Defendants have been in accordance
with the Fair Debt Collection Practices Act.
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SIXTH AFFIRMATIVE DEFENSE
43. Any alleged violation of the Fair Debt Collection Practices Act by the
answering Defendants, which the Defendants deny; was not intentional and resulted from a bona
fide error, notwithstanding the maintenance of a business system reasonably adapted and
designed to avoid any such error.
SEVENTH AFFIRMATIVE DEFENSE
44. Any violation of law, or damages suffered by Plaintiff, which the
answering Defendants deny; was due to the affirmative acts and/or omissions of the Plaintiff, and
does not give rise to any liability against the answering Defendants.
EIGHTH AFFIRMATIVE DEFENSE
45. Plaintiff lacks standing to bring the instant action.
NINTH AFFIRMATIVE DEFENSE
46. Any technical violation of the Fair Debt Collection Practices Act by the
answering Defendants, which the Defendants deny; was not material and thus is not actionable.
TENTH AFFIRMATIVE DEFENSE
47. Plaintiff's action must fail due to the doctrines of res judicata and
estoppel.
ELEVENTH AFFIRMATIVE DEFENSE
48. The claims asserted are not ripe for adjudication, as the underlying action
in the lower court, Tonawanda City Court, is still pending and/or on appeal.
TWELFTH AFFIRMATIVE DEFENSE
49. Plaintiff's claim fails to plead as required under CPLR 3016.
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THIRTEENTH AFFIRMATIVE DEFENSE
50. Any liability as against the answering Defendants was caused in whole or
in part by law the failure of Plaintiff's Counsel to follow procedural rules for settling and serving
Orders and/or Judgments of the lower-court.
FOURTEENTH AFFIRMATIVE DEFENSE
51. The answering Defendants reserve the right to rely on any affirmative
defenses that may be shown to be available to one and other.
FIFTEENTH AFFIRMATIVE DEFENSE
52. The answering Defendants reserve the right to assert any affirmative
defenses that may be revealed to be applicable throughout the course of discovery.
SIXTEENTH AFFIRMATIVE DEFENSE
53. Plaintiff failed to mitigate his damages, if any.
SEVENTEENTH AFFIRMATIVE DEFENSE
54. Plaintiff's Complaint fails to state one or more claims upon which relief
can be granted.
COUNTERCLAIM
"1" "54"
55. The answering Defendants reassert and re-allege paragraphs the
above as if more fully set forth herein.
56. The answering Defendants seek reasonable attorney's fees and cost,
pursuant to the 15 USC § 1696k (a)(3), and applicable case law arising therefrom.
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NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/30/2018
WHEREFORE, the answering Defendants respectfully demand judgment as follows:
a) Dismissal of Plaintiff's Complaint in its entirety, with prejudice; and,
b) Award the answering Defendants reasonable attomey's fees and costs; and
c) For such other and further relief as the Court may deem just and equitable.
DATED: East Amherst, New York
April 30
-30 -", , 2018
By:
GROSSMAN & KARASZEWSKI, PLLC
Scott J. Whitbeck, Esq.
Attorneys for Defendants
5965 Transit Rd, Suite 500
East Amherst, New York 14051
(888) 201-6643
TO: Jason A Shear, Esq.
Attomey for Plaintiff
561 Ridge Road
Lackawanna, New York 14218
(716) 566-8988
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Preview
FILED: ERIE COUNTY CLERK 04/30/2018 02:25 PM INDEX NO. 803356/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/30/2018 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE ... ROBERT E. PUMA, Plaintiff, ANSWER WITH AFFIRMATIVE v. DEFENSES AND COUNTERCLAIM WILLIAM C. GROSSMAN LAW, PLLC, GROSSMAN & KARASZEWSKI, PLLC, WILLIAM C. GROSSMAN, ESQ., Index No.: 803356/2018 SQUARETWO FINANCIAL SERVICES CORPORATION, and CACH, LLC, Defendant. Defendants, WILLIAM C. GROSSMAN LAW, PLLC, GROSSMAN & KARASZEWSKI, PLLC, WILLIAM C. GROSSMAN, ESQ., and without waiving any jurisdictional defense, CACH, LLC, by their attorney, Scott J. Whitbeck, Esq. of Grossman & Karaszewski, PLLC, as and for their Answer to the Complaint of Plaintiff, ROBERT E. PUMA, allege as follows: "1," "2," "3," "4" 1. Paragraphs and of Plaintiff's complaint are legal conclusions and to the extent that they require any response, they are DENIED. "5," "6," "7," 2. ADMIT so much of the allegations of paragraph as allege that WILLIAM C. GROSSMAN LAW, PLLC and GROSSMAN & KARASZEWSKI, PLLC, respectively, have transacted and do transact business in Erie County, New York, and DENY knowledge and information sufficient to form a belief as to the truth or falsity the remaining "5," "6," "7," allegations of paragraphs of Plaintiff s complaint. 1 of 9 FILED: ERIE COUNTY CLERK 04/30/2018 02:25 PM INDEX NO. 803356/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/30/2018 "8," 3. ADMIT so much of the allegations of paragraph as allege that WILLIAM C. GROSSMAN, ESQ., maintains a law office in Erie County, as a member of a "8" PLLC, and DENY the remaining allegations of paragraph of Plaintiff's complaint. "9" "10" 4. ADMIT so much of the allegations of paragraphs and as allege that WILLIAM C. GROSSMAN LAW, PLLC and GROSSMAN & KARASZEWSKI, PLLC are registered with the NY Secretary of State and transact business in NY, and DENY the remaining "9" "10" allegations of paragraphs and of Plaintiff's complaint. 5. DENY knowledge and information sufficient to form a belief as to the "11" truth or falsity of allegations of paragraph of Plaintiff's complaint. 6. DENY knowledge and information sufficient to form a belief as to the "12" truth or falsity the allegations of paragraph of Plaintiff's complaint. "13," "14," "15," "16" 7. Paragraphs and of Plaintiff's complaint are legal conclusions and to the extent that they require any response, they are DENIED. 8. DENY knowledge and information sufficient to form a belief as to the "17" truth or falsity the allegations of paragraph of Plaintiff's complaint. "18," "19," "20" 9. ADMIT the allegations of paragraphs and of Plaintiff's complaint. "21" 10. ADMIT so much of the allegations of paragraph as alleges that Defendant CACH, LLC is engaged in collection of debts, and DENY the remaining allegations "21" of paragraph of Plaintiff's complaint. 11. DENY knowledge and information sufficient to form a belief as to the "22" truth or falsity the allegations of paragraphs of Plaintiff's complaint. "23" 12. DENY the allegations of paragraph of Plaintiff's complaint. -2- 2 of 9 FILED: ERIE COUNTY CLERK 04/30/2018 02:25 PM INDEX NO. 803356/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/30/2018 "24" 13. ADMIT the allegations of paragraph of Plaintiff's complaint. "25" 14. ADMIT so much of the allegations of paragraph as alleges the answering Defendants, WILLIAM C. GROSSMAN LAW, PLLC, GROSSMAN & KARASZEWSKI, PLLC, WILLIAM C. GROSSMAN, ESQ., and CACH, LLC are engaged in collection of debts, and DENY knowledge and information sufficient to form a belief as to the "25" truth or falsity of the remaining allegations of paragraph of Plaintiff's complaint. "26," "27," "28" 15. ADMIT the so much of the allegations of paragraphs and of Plaintiff's complaint as allege that WILLIAM C. GROSSMAN LAW, PLLC, GROSSMAN & KARASZEWSKI, PLLC, and WILLIAM C. GROSSMAN, ESQ. collect consumer debts, and "26," "27," "28" DENY the remaining allegations of paragraphs and of Plaintiff's complaint, as the cited statute speaks for itsself. 16. DENY knowledge and information sufficient to form a belief as to the "29," "30," "31," "32" truth or falsity of the allegations of paragraphs and of Plaintiff's complaint. "33" "34" 17. ADMIT so much of the allegations of paragraphs and as allege that Plaintiff incurred a consumer debt obligation, and DENY the remaining allegations of "33" "34," paragraphs and as the cited statute speaks for its self. "35" 18. ADMIT so much of the allegations of paragraph as alleges that WILLIAM C. GROSSMAN LAW, PLLC brought suit on behalf of CACH, LLC in Tonawanda "35" City Court in 2016, and DENY the remaining allegations of paragraph of Plaintiff's complaint. -3- 3 of 9 FILED: ERIE COUNTY CLERK 04/30/2018 02:25 PM INDEX NO. 803356/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/30/2018 "36" 19. ADMIT so much of the allegations of paragraph as alleges that WILLIAM C. GROSSMAN LAW, PLLC represented CACH, LLC in the lower-court matter, "36" and DENY the remaining allegations of paragraph of Plaintiff's complaint. 20. ADMIT that Defendant, CACH, LLC obtained a lawful default judgment "37" against Plaintiff, and DENY the remaining allegations of paragraph of Plaintiff s complaint. 21. DENY knowledge and information sufficient to form a belief as to the "38" "39" truth or falsity the allegations of paragraphs and of Plaintiff's complaint. "40" 22. ADMIT the allegations of paragraph of Plaintiff's complaint. "41" 23. ADMIT so much of the allegations of paragraph as alleges that WILLIAM C. GROSSMAN LAW, PLLC served a response on Plaintiff's Counsel, DENY the "41" remaining allegations of paragraph of Plaintiff's complaint. "42" 24. ADMIT the allegations of paragraph of Plaintiff s complaint. "43" 25. ADMIT so much of the allegations of paragraph as alleges that WILLIAM C. GROSSMAN LAW, PLLC exchanged emails with Plaintiff's Counsel, and "43" DENY the remaining allegations of paragraph of Plaintiff's complaint. "44" 26. ADMIT so much of the allegations of paragraph as alleges that WILLIAM C. GROSSMAN LAW, PLLC was aware that Plaintiff was represented by counsel, "44" and, DENY the remaining allegations of paragraph of Plaintiff's complaint. "45" 27. DENY the allegations of paragraph of Plaintiff's complaint. "46" 28. ADMIT so much of the allegations of paragraph as alleges that WILLIAM C. GROSSMAN LAW, PLLC sent a letter to Plaintiff, and DENY the remaining "46" allegations of paragraph of Plaintiff's complaint. -4- 4 of 9 FILED: ERIE COUNTY CLERK 04/30/2018 02:25 PM INDEX NO. 803356/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/30/2018 29. DENY knowledge and information sufficient to form a belief as to the "47" "48" truth or falsity the allegations of paragraphs and of Plaintiff's complaint. "49" 30. DENY the allegations of paragraph of Plaintiff's complaint. 31. DENY knowledge and information sufficient to form a belief as to the "50," "51," "52," "53," "54" truth or falsity the allegations of paragraphs and of Plaintiff's complaint. "55," "56," "57," "58" 32. DENY the allegations of paragraphs and of Plaintiff's complaint. 33. DENY knowledge and information sufficient to form a belief as to the "59" truth or falsity of the allegations of paragraph of Plaintiff's complaint. "60," "61," "62," "63" 34. DENY the allegations of paragraphs and of Plaintiff's complaint. "64," "65," "66," "67," "68," "69" 35. Paragraphs and of Plaintiff's complaint are legal conclusions, and to the extent that they require any response, they are DENIED. "70," "71," "72," "73," "74," "75," 36. DENIES the allegations of paragraphs "76," "77," "78," "79," "80," "81," "82," "83," "84," "85," "86," "87," "88," "89," "90," "91," cc76 cc77 4478 cc79 cc80 cc81 cc82 c483 cc84 cc85 'Jcc86 cc87 c488 ) cc89 7 c490 cc91 "92," "93," "94," "95" and of Plaintiff's complaint. 37. DENIES all other allegations of Plaintiff's Complaint that are not hereinbefore specifically admitted, denied, or otherwise controverted. -5- 5 of 9 FILED: ERIE COUNTY CLERK 04/30/2018 02:25 PM INDEX NO. 803356/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/30/2018 FIRST AFFIRMATIVE DEFENSE 38. Plaintiff's failed to establish jurisdiction over Defendant CACH, LLC, for failure of service. SECOND AFFIRMATIVE DEFENSE 39. Plaintiff has not raised a valid basis for piercing the corporate veil, as against WILLIAM C. GROSSMAN, ESQ., individually. THIRD AFFIRMATIVE DEFENSE 40. Defendant WILLIAM C. GROSSMAN, ESQ., at all times herein mentioned was acting in his capacity as an employee and/or member of WILLIAM C. GROSSMAN LAW, PLLC, and is entitled to the limited liability protections of New York law, and is not personally liable for any alleged acts or omissions of any of the corporate Defendants herein. FOURTH AFFIRMATIVE DEFENSE 41. Plaintiff suffered no damages from the alleged violations of the Fair Debt Collection Practices Act by the answering Defendants, which alleged violations the Defendants deny; and therefore, Plaintiff is not entitled to any award of damages. FIFTH AFFIRMATIVE DEFENSE 42. All of the actions of the answering Defendants have been in accordance with the Fair Debt Collection Practices Act. -6- 6 of 9 FILED: ERIE COUNTY CLERK 04/30/2018 02:25 PM INDEX NO. 803356/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/30/2018 SIXTH AFFIRMATIVE DEFENSE 43. Any alleged violation of the Fair Debt Collection Practices Act by the answering Defendants, which the Defendants deny; was not intentional and resulted from a bona fide error, notwithstanding the maintenance of a business system reasonably adapted and designed to avoid any such error. SEVENTH AFFIRMATIVE DEFENSE 44. Any violation of law, or damages suffered by Plaintiff, which the answering Defendants deny; was due to the affirmative acts and/or omissions of the Plaintiff, and does not give rise to any liability against the answering Defendants. EIGHTH AFFIRMATIVE DEFENSE 45. Plaintiff lacks standing to bring the instant action. NINTH AFFIRMATIVE DEFENSE 46. Any technical violation of the Fair Debt Collection Practices Act by the answering Defendants, which the Defendants deny; was not material and thus is not actionable. TENTH AFFIRMATIVE DEFENSE 47. Plaintiff's action must fail due to the doctrines of res judicata and estoppel. ELEVENTH AFFIRMATIVE DEFENSE 48. The claims asserted are not ripe for adjudication, as the underlying action in the lower court, Tonawanda City Court, is still pending and/or on appeal. TWELFTH AFFIRMATIVE DEFENSE 49. Plaintiff's claim fails to plead as required under CPLR 3016. -7- 7 of 9 FILED: ERIE COUNTY CLERK 04/30/2018 02:25 PM INDEX NO. 803356/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/30/2018 THIRTEENTH AFFIRMATIVE DEFENSE 50. Any liability as against the answering Defendants was caused in whole or in part by law the failure of Plaintiff's Counsel to follow procedural rules for settling and serving Orders and/or Judgments of the lower-court. FOURTEENTH AFFIRMATIVE DEFENSE 51. The answering Defendants reserve the right to rely on any affirmative defenses that may be shown to be available to one and other. FIFTEENTH AFFIRMATIVE DEFENSE 52. The answering Defendants reserve the right to assert any affirmative defenses that may be revealed to be applicable throughout the course of discovery. SIXTEENTH AFFIRMATIVE DEFENSE 53. Plaintiff failed to mitigate his damages, if any. SEVENTEENTH AFFIRMATIVE DEFENSE 54. Plaintiff's Complaint fails to state one or more claims upon which relief can be granted. COUNTERCLAIM "1" "54" 55. The answering Defendants reassert and re-allege paragraphs the above as if more fully set forth herein. 56. The answering Defendants seek reasonable attorney's fees and cost, pursuant to the 15 USC § 1696k (a)(3), and applicable case law arising therefrom. -8- 8 of 9 FILED: ERIE COUNTY CLERK 04/30/2018 02:25 PM INDEX NO. 803356/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 04/30/2018 WHEREFORE, the answering Defendants respectfully demand judgment as follows: a) Dismissal of Plaintiff's Complaint in its entirety, with prejudice; and, b) Award the answering Defendants reasonable attomey's fees and costs; and c) For such other and further relief as the Court may deem just and equitable. DATED: East Amherst, New York April 30 -30 -", , 2018 By: GROSSMAN & KARASZEWSKI, PLLC Scott J. Whitbeck, Esq. Attorneys for Defendants 5965 Transit Rd, Suite 500 East Amherst, New York 14051 (888) 201-6643 TO: Jason A Shear, Esq. Attomey for Plaintiff 561 Ridge Road Lackawanna, New York 14218 (716) 566-8988 -9- 9 of 9