Motion for Writ in Jeffrey Steven Tabak v. Jeffrey David Miller| Trellis.Law

On June 10, 2020 a Answer was filed involving a dispute between Jeffrey Steven Tabak, and Jeffrey David Miller, for Commercial - Contract in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 12/18/2020 04:33 PM INDEX NO. 652396/2020
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 12/18/2020

SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY

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Jeffrey Steven Tabak, Index No. 652396/2020

Plaintiff,

against- DEFENDANT’S ANSWER AND
AFFIRMATIVE DEFENSES,
AND NOTICE OF INTENT
Jeffrey David Miller TO APPOINT RECEIVER

Defendant.
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Defendant, Jeffrey David Miller (“Miller”), by his attorneys, Barr Law Group, P.C., hereby

answers Plaintiff, Jeffrey Steven Tabak (“Tabak”), and asserts affirmative defenses and a notice

of intent to seek receivership pursuant to CPLR §5228 as follows:

ANSWER

1. Defendant lacks knowledge or information sufficient to form a belief as to the

allegations in paragraph 1 of the Complaint and therefore denies same.

2. Denied. Miller resides at 255 North Hill Road, Stowe, Vt 05672

3. Defendant denies the allegations of paragraph 3 of the Complaint.

4. Defendant admits the allegations of paragraph 4 of the Complaint.

5. Defendant admits the allegations of paragraph 5 of the Complaint.

6. Defendant denies the allegations of paragraph 6 of the Complaint.

7. Defendant admits the allegations of paragraph 7 of the Complaint.

8. Admitted that Coppedge file the “FINRA Statement of Claim,” admit that the

FINRA Statement of Claim speaks for itself, and denied to the extent that the allegations in

paragraph 8 contradict and/or are unsupported by the FINRA Statement of Claim.

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9. Defendant denies the allegations in paragraph 9 of the Complaint.

10. Admitted that the FINRA Arbitration Award (attached as exhibit 1 to the

Complaint) is an accurate copy of the arbitration award, and denied to the extent that the allegations

in paragraph 10 contradict and/or are unsupported by the FINRA Arbitration Award.

11. Defendant admits the allegations of paragraph 11 of the Complaint.

12. Defendant admits the allegations of paragraph 12 of the Complaint.

13. Defendant admits that FINRA indefinitely suspended Miller, and otherwise denies

the allegations in paragraph 13.

14. Denied.

15. Defendant lacks knowledge or information sufficient to form a belief as to the

allegations in paragraph 15 of the Complaint and therefore denies same.

16. Defendant lacks knowledge or information sufficient to form a belief as to the

allegations in paragraph 16 of the Complaint and therefore denies same.

17. Defendant lacks knowledge or information sufficient to form a belief as to the

allegations in paragraph 17 of the Complaint and therefore denies same.

18. Admitted that the letter attached as Exhibit 2 is a true and correct copy of the

November 29, 2018 letter from Tabak to Miller, and deny the classifications in paragraph 18 of

the Complaint.

19. Admitted that the letter attached as Exhibit 3 is a true and correct copy of the

December 17, 2018 letter from Tabak to Miller, and deny the classifications in paragraph 18 of the

Complaint.

20. Admitted that Tabak sent Miller various demand letters between January 14, 2019

and May 22, 2020, and otherwise deny the classifications in paragraph 20 of the Complaint.

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21. Defendant denies that Miller should pay anything to Tabak, and otherwise

Defendant lacks knowledge or information sufficient to form a belief as to the remaining

allegations in paragraph 21 of the Complaint and therefore denies same.

22. Defendant denies the classifications and averments in paragraph 22 of the

Complaint.

23. Defendant repeats the respective responses to paragraphs 1-22 as if fully recited

and set forth herein.

24. Admitted that the FINRA Arbitration Award (attached as exhibit 1 to the

Complaint) is an accurate copy of the arbitration award, and Defendant denies the classifications

in paragraph 24 to the extent that they are inconsistent with such award.

25. Defendant lacks knowledge or information sufficient to form a belief as to the

allegations in paragraph 25 of the Complaint and therefore denies same.

26. Defendant lacks knowledge or information sufficient to form a belief as to the

allegations in paragraph 26 of the Complaint and therefore denies same.

27. Denied.

28. Denied that Plaintiff is entitled to the relief set forth in paragraph 28 of the

Complaint.

29. Defendant repeats the respective responses to paragraphs 1-28 as if fully recited

and set forth herein.

30. Denied.

31. Denied.

AFFIRMATIVE DEFENSES

FIRST DEFENSE

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With respect to each and every Count of Plaintiffs’ Complaint, Plaintiffs fail to state a

claim upon which relief may be granted.

SECOND DEFENSE

Plaintiffs’ claims are barred by the doctrines of unclean hands, laches and estoppel.

THIRD DEFENSE

Plaintiff’s claim is barred because plaintiffs have willfully and intentionally breached their

own obligations to Miller.

FOURTH DEFENSE

Plaintiff, by his own actions has waived any and all of the rights claimed in the Complaint.

FIFTH DEFENSE

Defendant’s conduct was and, at all times has been, justified.

SIXTH DEFENSE

Any damages and/or breach of which Plaintiff now complains was caused solely and

completely by Plaintiff’s own actions.

SEVENTH DEFENSE

Plaintiff’s breaches of duties owed to Defendant justify all of Defendant’s actions and/or
omissions.
TENTH DEFENSE
Plaintiffs lack standing.

ELEVENTH DEFENSE
At all relevant times, Defendant has reasonably and in good faith with an objectively

reasonable belief that its acts were lawful as to all acts and omissions asserted by Plaintiffs.

TWELFTH DEFENSE AND NOTICE OF MOTION PURSUANT TO NEW YORK
CIVIL PRACTICE LAW AND RULES, RULE §5228

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A. On July 27, 2018, this Honorable Court entered Judgment against Defendant Tabak, in
favor of Jeffrey Miller, in the amount of $186,889.57 (with interests accruing at the
Judgment"
rate of 9%) (a true and correct copy of the "Miller is attached hereto as
exhibit A).

B. Tabak has not paid or otherwise satisfied any amount of the Miller Judgment.
C. Upon infoññation and belief, Tabak does not possess assets sufficient to satisfy the
Miller Judgment.
D. Notice is hereby given of Miller's intention to seek appointment of a receiver "to

administer, collect, improve, lease, repair or sell any real or personal property in which
the judgment debtor has an interest or to do any other acts designed to satisfy the
judgment,"
including but not limited to dismissing Tabak's Corñplaint as it represents
a waste of resources which should, in primary interest, be directed to satisfy the

outstanding Miller Judgment as directed by this Court.

Defendant reserves the right to assert additional affirmative defenses as further facts are

revealed in discovery.

WHEREFORE, Defendant demands judgment against Plaintiff dismissing the Complaint in

itsentirety, and asks this Court to take such actions as are necessary to ensure satisfaction of the

Miller Judgment, including appointment of a receiver pursuant to CPLR §5228.

DATED: December 18, 2020

BARR LAW OUP .C.

By:

R ell D. Barr, E .
handler W. Matson, Esq.
125 Mountain Road

Stowe, VT 05672

(802) 253-6272
Russ@barrlaw.com

Chandler@barr1aw.com
Counsel for Jeffrey David Miller

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Answer: Jeffrey Steven Tabak v. Jeffrey David Miller

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