Preview
FILED: NEW YORK COUNTY CLERK 01/19/2022 05:05 PM INDEX NO. 161105/2021
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/19/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------: Index No.:
FIFTH PARTNERS LLC, 161105/2021
I
Plaintiff,
-against-
: REPLY TO AMENDED
PUNCH HOUSE FLATIRON LLC, JOSEPH W. FOLEY : ANSWER WITH
and NADA VASILIJEVIC, 1 COUNTERCLAIMS
I
I
Defendants.
________________________________________ J I
PLEASE TAKE NOTICE that Plaintiff FIFTH PARTNERS LLC (hereinafter known
as "Plaintiff' or "Landlord"), by its attorneys BORAH, GOLDSTEIN, ALTSCHULER,
NAHINS & GOIDEL, P.C., as and for its reply to the counterclaims in the Amended Answer
at NYSCEF Poe. No. 14 (the "Answer") of Defendants PUNCH HOUSE FLATIRON LLC,
JOSEPH W. FOLEY and NADA VASILIJEVIC (collectively, the "Defendants") hereby
alleges as follows:
1. Plaintiff denies all factual assertions in the "Preliminary Objections" and
refers the Court to the cited cases and to Defendants' evidentiary proofs.
2. Plaintiff denies the allegations in ,r 1 of the "Counterclaim" ~sserted in the
Answer.
3. Plaintiff denies the allegations in ,r 2 of the "Counterclaim" ~sserted in the
Answer.
4. Plaintiff denies the allegations in ,r 3 of the "Counterclaim" asserted in the
'
Answer.
5. Plaintiff denies knowledge or information sufficient to reply to the allegations
!
f'
contained in ,T 4 of the "Counterclaim" asserted in the Answer, except that laintiff denies
!
that it "made false promises."
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FILED: NEW YORK COUNTY CLERK 01/19/2022 05:05 PM INDEX NO. 161105/2021
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/19/2022
6. Plaintiff denies knowledge or information sufficient to reply to the allegations
contained in 1J 5 of the "Counterclaim" asserted in the Answer, except that Plaintiff denies
that it "was not willing to discuss" any alleged issues with Defendant.
7. Plaintiff denies knowledge or information sufficient to reply to the allegations
contained in 1J 6 of the "Counterclaim" asserted in the Answer, except that Plaintiff denies
any implication or inference that it was "negligent."
8. Plaintiff denies the allegations/assertions set forth in the "wherefore" clause
asserted in the Answer.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
9. None of Defendants' counterclaims have stated a cause of action for which
relief can be granted as against Plaintiff.
10. Defendants have not satisfied, and cannot satisfy, any of the requisite
elements needed to establish any of their counterclaims.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
11. Defendants' allegations are barred by documentary evidence.
12. That Defendants inspected the Premises and accepted them "as is"
expressly without any representations from Plaintiff as to the condition of the Premises.
13. The terms of the bargained for Lease should be enforced as written.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
14. Defendants' allegations against Plaintiff lack requisite factual specificity.
15. Defendants' assertions fail to set forth the necessary elements to establish
the Counterclaims nor are they pleaded with the specificity required under the CPLR.
2
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FILED: NEW YORK COUNTY CLERK 01/19/2022 05:05 PM INDEX NO. 161105/2021
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/19/2022
16. Defendants' claim of "fraud" and/or "fraudulent inducement" fail to meet
the heightened level of specificity required for such claims.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
17. Defendants' claims are barred by the Statute of Frauds Doctrine.
18. The parties' lease agreement also contains a no-oral modification clause.
19. Defendants' claims are all barred by contract.
WHEREFORE, Plaintiff seeks a judgment dismissing the Counterclaims set forth
in the Answer in their entirety and for such other and further relief as this Court deems
just and proper.
Dated: New York, New York
January 19, 2022
:;HINS &~ri:~ _-
BORAH, GOLDSTEIN, ALTSCHULER,
David RRosenbaum
Attorneys for Plaintiff
377 Broadway
New York, New York 10013
(212) 431-1300
3
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FILED: NEW YORK COUNTY CLERK 01/19/2022 05:05 PM INDEX NO. 161105/2021
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/19/2022
VERIFICATION
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
RYAN MEHRA, being duly sworn, deposes and says,
1. Thatthe deponent is a member of Fifth Partners LLC, the Plaintiff herein.
2. That deponent has read the foregoing Reply to Amended Answer and
Counterclaims and knows the contents thereof and that the same are true to deponent's
own knowledge, except as to those matters therein stated to be alleged upon information
and belief, and that as to those matters, deponent believes them to be true.
3. The source of deponent's information and belief are oral statements, books
and records maintained by Plaintiff, their agents and/or employees and such materials
contained in Plaintiff's files.
Sworn to before me this
lrday of January 2022
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FILED: NEW YORK COUNTY CLERK 01/19/2022 05:05 PM INDEX NO. 161105/2021
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/19/2022
ATTORNEY CERTIFICATION
DAVID B. ROSENBAUM, an attorney duly admitte~ to practice before the Courts
of the State of New York, hereby affirms the following to be true pursuant to CPLR § 2106,
and under the penalties of perjury:
I hereby certify that, to the best of my knowledge, information and belief, formed
after an inquiry reasonable under the circumstances, the presentation of this affirmation
and the contentions herein are not frivolous as defined in section 130-1.1 (c) of the Rules
of the Chief Administrator of the Courts.
Date: New York, New York
January 19, 2022
rcdJW~
David 8. Rosenbaum
5
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Preview
FILED: NEW YORK COUNTY CLERK 01/19/2022 05:05 PM INDEX NO. 161105/2021 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------: Index No.: FIFTH PARTNERS LLC, 161105/2021 I Plaintiff, -against- : REPLY TO AMENDED PUNCH HOUSE FLATIRON LLC, JOSEPH W. FOLEY : ANSWER WITH and NADA VASILIJEVIC, 1 COUNTERCLAIMS I I Defendants. ________________________________________ J I PLEASE TAKE NOTICE that Plaintiff FIFTH PARTNERS LLC (hereinafter known as "Plaintiff' or "Landlord"), by its attorneys BORAH, GOLDSTEIN, ALTSCHULER, NAHINS & GOIDEL, P.C., as and for its reply to the counterclaims in the Amended Answer at NYSCEF Poe. No. 14 (the "Answer") of Defendants PUNCH HOUSE FLATIRON LLC, JOSEPH W. FOLEY and NADA VASILIJEVIC (collectively, the "Defendants") hereby alleges as follows: 1. Plaintiff denies all factual assertions in the "Preliminary Objections" and refers the Court to the cited cases and to Defendants' evidentiary proofs. 2. Plaintiff denies the allegations in ,r 1 of the "Counterclaim" ~sserted in the Answer. 3. Plaintiff denies the allegations in ,r 2 of the "Counterclaim" ~sserted in the Answer. 4. Plaintiff denies the allegations in ,r 3 of the "Counterclaim" asserted in the ' Answer. 5. Plaintiff denies knowledge or information sufficient to reply to the allegations ! f' contained in ,T 4 of the "Counterclaim" asserted in the Answer, except that laintiff denies ! that it "made false promises." 1 of 5 FILED: NEW YORK COUNTY CLERK 01/19/2022 05:05 PM INDEX NO. 161105/2021 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/19/2022 6. Plaintiff denies knowledge or information sufficient to reply to the allegations contained in 1J 5 of the "Counterclaim" asserted in the Answer, except that Plaintiff denies that it "was not willing to discuss" any alleged issues with Defendant. 7. Plaintiff denies knowledge or information sufficient to reply to the allegations contained in 1J 6 of the "Counterclaim" asserted in the Answer, except that Plaintiff denies any implication or inference that it was "negligent." 8. Plaintiff denies the allegations/assertions set forth in the "wherefore" clause asserted in the Answer. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 9. None of Defendants' counterclaims have stated a cause of action for which relief can be granted as against Plaintiff. 10. Defendants have not satisfied, and cannot satisfy, any of the requisite elements needed to establish any of their counterclaims. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 11. Defendants' allegations are barred by documentary evidence. 12. That Defendants inspected the Premises and accepted them "as is" expressly without any representations from Plaintiff as to the condition of the Premises. 13. The terms of the bargained for Lease should be enforced as written. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 14. Defendants' allegations against Plaintiff lack requisite factual specificity. 15. Defendants' assertions fail to set forth the necessary elements to establish the Counterclaims nor are they pleaded with the specificity required under the CPLR. 2 2 of 5 FILED: NEW YORK COUNTY CLERK 01/19/2022 05:05 PM INDEX NO. 161105/2021 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/19/2022 16. Defendants' claim of "fraud" and/or "fraudulent inducement" fail to meet the heightened level of specificity required for such claims. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 17. Defendants' claims are barred by the Statute of Frauds Doctrine. 18. The parties' lease agreement also contains a no-oral modification clause. 19. Defendants' claims are all barred by contract. WHEREFORE, Plaintiff seeks a judgment dismissing the Counterclaims set forth in the Answer in their entirety and for such other and further relief as this Court deems just and proper. Dated: New York, New York January 19, 2022 :;HINS &~ri:~ _- BORAH, GOLDSTEIN, ALTSCHULER, David RRosenbaum Attorneys for Plaintiff 377 Broadway New York, New York 10013 (212) 431-1300 3 3 of 5 FILED: NEW YORK COUNTY CLERK 01/19/2022 05:05 PM INDEX NO. 161105/2021 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/19/2022 VERIFICATION STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) RYAN MEHRA, being duly sworn, deposes and says, 1. Thatthe deponent is a member of Fifth Partners LLC, the Plaintiff herein. 2. That deponent has read the foregoing Reply to Amended Answer and Counterclaims and knows the contents thereof and that the same are true to deponent's own knowledge, except as to those matters therein stated to be alleged upon information and belief, and that as to those matters, deponent believes them to be true. 3. The source of deponent's information and belief are oral statements, books and records maintained by Plaintiff, their agents and/or employees and such materials contained in Plaintiff's files. Sworn to before me this lrday of January 2022 4 4 of 5 FILED: NEW YORK COUNTY CLERK 01/19/2022 05:05 PM INDEX NO. 161105/2021 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 01/19/2022 ATTORNEY CERTIFICATION DAVID B. ROSENBAUM, an attorney duly admitte~ to practice before the Courts of the State of New York, hereby affirms the following to be true pursuant to CPLR § 2106, and under the penalties of perjury: I hereby certify that, to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this affirmation and the contentions herein are not frivolous as defined in section 130-1.1 (c) of the Rules of the Chief Administrator of the Courts. Date: New York, New York January 19, 2022 rcdJW~ David 8. Rosenbaum 5 5 of 5