Preview
INDEX NO. 160993/2014
FILED: NEW YORK COUNTY CLERK 05/26/2015 03:14 PM
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/26/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
xxxxxxxx xxxx and STAR JADA RIVERA, on
behalf of themselves and others similarly situated, Index No. 160993/2014
Plaintiffs, ANSWER TO FIRST
AMENDED COMPLAINT
-against-
HORNBLOWER NEW YORK, LLC; HORNBLOWER
YACHTS, INC.; HORNBLOWER CRUISES & EVENTS;
TERRY MACRAE, and other related entities,
Defendants.
x
Defendants Hornblower New York, LLC d/b/a Hornblower Cruises & Events
(hereinafter “Hornblower’”) and Terry MacRae, by their attorneys, Kane Kessler, P.C., answer
the First Amended Complaint as follows:!
PRELIMINARY STATEMENT
1 Deny the allegations of paragraph 1 of the Amended Complaint to the extent it
alleges that Defendants unlawfully retained gratuities and to the extent that it alleges
that Plaintiffs were employed by Defendants.
Deny the allegations of paragraph 2 of the Amended Complaint.
Deny the allegations of paragraph 3 of the Amended Complaint.
Deny the allegations of paragraph 4 of the Amended Complaint.
Deny the allegations of paragraph 5 of the Amended Complaint
Deny the allegations of paragraph 6 of the Amended Complaint.
Deny the allegations of paragraph 7 to the extent it alleges that Plaintiffs and other
similarly situated were deprived of compensation, including gratuities.
' Hornblower Yachts, Inc. has been dismissed from this case pursuant to the Order of Judge Edmead dated May 5,
2015.
THE PARTIES
8 Deny that Plaintiff xxxx was employed by Defendants in any capacity and deny
having knowledge or information sufficient to form a belief as to the remaining
allegations of paragraph 8 of the Amended Complaint.
Deny that Plaintiff Rivera was employed by Defendants in any capacity and deny
having knowledge or information sufficient to form a belief as to the remaining
allegations of paragraph 9 of the Amended Complaint.
10. Admit the allegations of paragraph 10 of the Amended Complaint.
ll Deny the allegations in paragraph 11 of the Amended Complaint that Hornblower
Yachts, LLC, named herein as Hornblower Yachts, Inc., is a domestic corporation
existing under the laws of the State of New York with a principal place of business at
353 West St., New York, N.Y. and affirmatively notes that Hornblower Yachts, Inc.
has been dismissed as a defendant in this matter.
12. Deny the allegations of paragraph 12 of the Amended Complaint and affirmatively
note that Hornblower Cruises & Events is a d/b/a for Defendant Hornblower New
York, LLC.
13 Deny the allegations of paragraph 13 of the Amended Complaint that the principal
place of business of Terry MacRae is 353 West Street, New York, N.Y., and admit
the remaining allegations of paragraph 13.
CLASS ALLEGATIONS
14 Deny the allegations of paragraph 14 of the Amended Complaint.
15 Paragraph 15 of the Amended Complaint contains no factual allegation requiring an
answer.
16 Deny the allegations of paragraph 16 of the Amended Complaint.
17. Deny the allegations of paragraph 17 of the Amended Complaint.
18 Deny the allegations of paragraph 18 of the Amended Complaint.
19 Deny the allegations of paragraph 19 of the Amended Complaint.
20. Deny having knowledge or information sufficient to form a belief as to the allegations
of paragraph 20 of the Amended Complaint.
21 Deny knowledge or information sufficient to form a belief as to the allegations in
paragraph 21 of the Amended Complaint regarding the financial resources of
Plaintiffs and/or putative class members.
22. Deny the allegations of paragraph 22 of the Amended Complaint.
FACTS
23 Deny the allegations of paragraph 23 of the Amended Complaint.
24 Deny the allegations of paragraph 24 of the Amended Complaint.
25 Admit the allegations of paragraph 25 that for many cruise events, Hornblower
utilized forms such as contracts, bills, invoices and/or menus.
26 Admit the allegations of paragraph 26 of the Amended Complaint.
27 Admit the allegations of paragraph 27 that for some cruises, Hornblower contracted
with customers to pay an individual price per person.
28 Admit the allegations of paragraph 28 of the Amended Complaint that for each cruise,
Hornblower employed service workers to perform food and service-related tasks.
29 Admit the allegations of paragraph 29 of the Amended Complaint.
30 Deny the allegations of paragraph 30 of the Amended Complaint, but admit that
Hornblower included an administrative fee of approximately 20% in some of its
cruise events.
31 Deny the allegations of paragraph 31 of the Amended Complaint.
32 Deny the allegations of paragraph 32 of the Amended Complaint.
33 Deny the allegations of paragraph 33 of the Amended Complaint.
34 Deny the allegations of paragraph 34 of the Amended Complaint.
35 Admit the allegations of paragraph 35 of the Amended Complaint.
36 Deny having knowledge or information sufficient to form a belief as to the allegations
that Plaintiffs xxxx and Rivera were compensated on an hourly basis.
37 Deny having knowledge or information as to the allegations of paragraph 37 of the
Amended Complaint.
38 Admit the allegations of paragraph 38 of the Amended Complaint.
39. Deny the allegations of paragraph 39 of the Amended Complaint.
40. Deny the allegations of paragraph 40 of the Amended Complaint.
41 Deny the allegations of paragraph 41 of the Amended Complaint that Defendant
MacRae had the authority to hire and fire Plaintiffs, supervise or control their work,
determine their rate of pay or maintain employment records for them since they were
not employees of Hornblower.
FIRST CAUSE OF ACTION AGAINST DEFENDANTS
UNLAWFUL WITHHOLDING OF GRATUITIES
42 Paragraph 42 of the Amended Complaint contains a recitation of the statute, which
speaks for itself and does not require an answer.
43 Paragraph 43 of the Amended Complaint contains a recitation of the regulation,
which speaks for itself and does not require an answer.
44 Paragraph 44 of the Amended Complaint contains a recitation of the regulation,
which speaks for itself and does not require an answer.
45 Deny that Hornblower is or was an employer of Plaintiffs, but admits the remaining
allegations of paragraph 45 of the Amended Complaint.
46 Deny the allegations of paragraph 46 of the Amended Complainant and affirmatively
assert that Hornblower Cruises & Events is not an entity and is a d/b/a of Hornblower.
47 Deny the allegations of paragraph 47 of the Amended Complaint and note that
Hornblower Yachts, LLC, has been dismissed from this case.
48 Deny the allegations of paragraph 48 of the Amended Complaint.
49 Deny the allegations of paragraph 49 of the Amended Complaint that Plaintiffs and
other similarly situated are employees with the meaning of New York Labor Law
Section 190(2) and supporting regulations.
50 Deny the allegations of paragraph 50 of the Amended Complaint.
Sl Deny the allegations of paragraph 51 of the Amended Complaint.
52. Deny the allegations of paragraph 52 of the Amended Complaint.
53 Deny the allegations of paragraph 53 of the Amended Complaint.
54 Deny the allegations of paragraph 54 of the Amended Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
55 The Amended Complaint fails to state a cause of action against Hornblower pursuant
to New York Labor Law Section 196-d.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
56. The Amended Complaint fails to state a cause of action against MacRae pursuant to
New York Labor Law Section 196-d.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
57. Plaintiff xxxxxxxx xxxx was never an employee of Hornblower.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
58. Plaintiff Jade Star Rivera was never an employee of Hornblower.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
59. Defendants were never joint employers with Plaintiff xxxx’s employer, PWS.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
60. Defendants were never joint employers with Plaintiff Rivera’s employer, Walsh
Associates, Inc.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
61. Defendant MacRae is not an employer as defined by the New York Labor Law.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
62. Plaintiff xxxx lacks standing to be and is not an adequate representative of the
putative class and therefore the Court should not authorize notice to be issued or a
class action to be maintained under the CPLR.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
63. Plaintiff xxxx worked at only one Hornblower event for which no service or
administrative fee was charged to the customer.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
64. Plaintiff Rivera lacks standing to be and is not an adequate representative of the
putative class and therefore the Court should not authorize notice to be issued or a
class action to be maintained under the CPLR.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
65. Plaintiff Rivera worked only two (2) cruise events, the Charter Contract for which
contained an explicit disclosure in conformity with the New York Hospitality Wage
Order stating that the administrative fee is not a gratuity and is not distributed to the
service staff.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
66 On the Charter Agreements for all Hornblower events for which an administrative
fee is charged and on Hornblower’s website, Hornblower includes an explicit
disclosure in conformity with the New York Hospitality Wage Order stating that the
administrative fee is not a gratuity and is not distributed to the service staff.
AS AND FOR A THIRTENTH AFFIRMATIVE DEFENSE
67 Defendants have never withheld or retained any payments purporting to be a gratuity
from Plaintiffs or any similarly situated individuals.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
68 At all times relevant hereto, Defendants acted in good faith and have not violated any
rights which may be secured by Plaintiffs under any state or local laws, rules,
regulations or guidelines.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
69. Any acts or omissions on the part of Defendants or any of them were in good faith,
and Defendants had reasonable grounds for believing that any such act or omission
was not a violation of New York Labor Law.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
70 Class certification is not appropriate pursuant to New York Practice Law and Rules
(“CPLR”).
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
71 This case may not be maintained as a class action as the putative class is not so
numerous that joinder of all members is impractical.
AS AND FOR A EIGTHTEENTH AFFIRMATIVE DEFENSE
72 This case is not appropriate for class action because the facts and law common to the
case, if any, are insignificant compared to the individual facts and issues particular to
the named Plaintiffs and to the purported collective action members.
AS AND FOR AN NINETEENTH AFFIRMATIVE DEFENSE
73 Plaintiffs cannot establish or maintain a class action because it cannot be
demonstrated that a class action is superior to other methods available for
adjudicating any controversy.
AS AND FOR A TWENTIETH AFFIRAMTIVE DEFENSE
74 To the extent that Plaintiffs seek to include employees of Hornblower in the putative
class, such employees are bound by an agreement to submit all disputes regarding
their employment with Hornblower to binding arbitration and to waive their right to
file a civil suit in court and therefore cannot participate in a class action.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
75. The Amended Complaint is barred in whole or in part by the statute of limitations.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
76. The Amended Complaint is barred by the doctrine of laches.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
77. The Amended Complaint is barred by the doctrine of unclean hands.
AS AND FOR A TWNETY-FOURTH AFFIRMATIVE DEFENSE
78. The Amended Complaint is barred by the doctrines of accord and satisfaction,
waiver, acquiescence and estoppel.
AS AND FOR A TWENTY-FFIFTH AFFIRMTIVE DEFENSE
79. To the extent Plaintiffs seek injunctive relief in whole or part, Plaintiffs are not
entitled to a trial by jury on such claims.
AS AND FOR A TWENTY-FIXTH AFFIRMATIVE DEFENSE
80. In addition to the foregoing defenses, Defendants reserve their right to amend their
Answer to raise additional affirmative and other defenses or pursue any available
counterclaims against Plaintiffs or any putative class members who joins this action
as those claims become known during this litigation.
WHEREFORE, Defendants respectfully request that this Amended Complaint be
dismissed in its entirety and that Defendants be awarded the costs and disbursements of this
action, together with such other, further and different relief as to the Court may seem just and
proper.
Dated: New York, N.Y.
May 26, 2015
SBS
Respectfully submitted,
1350 Avenue of the Americas
New York, N.Y. 10019
T. (212)519-5165
F, (212)541-9799
jstoll@kanekessler.com
TO: VIRGINIA & AMBINDER,
Attorneys for Plaintiff
111 Broadway, Suite 1403
New York, N.Y. 10016
(212)943-9080
LEEDS BROWN LAW, P.C.
Attorneys for Plaintiff
One Old Country Road, Suite 347
Carle Place, New York 11514
(516)873-9550
Preview
INDEX NO. 160993/2014 FILED: NEW YORK COUNTY CLERK 05/26/2015 03:14 PM NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/26/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK xxxxxxxx xxxx and STAR JADA RIVERA, on behalf of themselves and others similarly situated, Index No. 160993/2014 Plaintiffs, ANSWER TO FIRST AMENDED COMPLAINT -against- HORNBLOWER NEW YORK, LLC; HORNBLOWER YACHTS, INC.; HORNBLOWER CRUISES & EVENTS; TERRY MACRAE, and other related entities, Defendants. x Defendants Hornblower New York, LLC d/b/a Hornblower Cruises & Events (hereinafter “Hornblower’”) and Terry MacRae, by their attorneys, Kane Kessler, P.C., answer the First Amended Complaint as follows:! PRELIMINARY STATEMENT 1 Deny the allegations of paragraph 1 of the Amended Complaint to the extent it alleges that Defendants unlawfully retained gratuities and to the extent that it alleges that Plaintiffs were employed by Defendants. Deny the allegations of paragraph 2 of the Amended Complaint. Deny the allegations of paragraph 3 of the Amended Complaint. Deny the allegations of paragraph 4 of the Amended Complaint. Deny the allegations of paragraph 5 of the Amended Complaint Deny the allegations of paragraph 6 of the Amended Complaint. Deny the allegations of paragraph 7 to the extent it alleges that Plaintiffs and other similarly situated were deprived of compensation, including gratuities. ' Hornblower Yachts, Inc. has been dismissed from this case pursuant to the Order of Judge Edmead dated May 5, 2015. THE PARTIES 8 Deny that Plaintiff xxxx was employed by Defendants in any capacity and deny having knowledge or information sufficient to form a belief as to the remaining allegations of paragraph 8 of the Amended Complaint. Deny that Plaintiff Rivera was employed by Defendants in any capacity and deny having knowledge or information sufficient to form a belief as to the remaining allegations of paragraph 9 of the Amended Complaint. 10. Admit the allegations of paragraph 10 of the Amended Complaint. ll Deny the allegations in paragraph 11 of the Amended Complaint that Hornblower Yachts, LLC, named herein as Hornblower Yachts, Inc., is a domestic corporation existing under the laws of the State of New York with a principal place of business at 353 West St., New York, N.Y. and affirmatively notes that Hornblower Yachts, Inc. has been dismissed as a defendant in this matter. 12. Deny the allegations of paragraph 12 of the Amended Complaint and affirmatively note that Hornblower Cruises & Events is a d/b/a for Defendant Hornblower New York, LLC. 13 Deny the allegations of paragraph 13 of the Amended Complaint that the principal place of business of Terry MacRae is 353 West Street, New York, N.Y., and admit the remaining allegations of paragraph 13. CLASS ALLEGATIONS 14 Deny the allegations of paragraph 14 of the Amended Complaint. 15 Paragraph 15 of the Amended Complaint contains no factual allegation requiring an answer. 16 Deny the allegations of paragraph 16 of the Amended Complaint. 17. Deny the allegations of paragraph 17 of the Amended Complaint. 18 Deny the allegations of paragraph 18 of the Amended Complaint. 19 Deny the allegations of paragraph 19 of the Amended Complaint. 20. Deny having knowledge or information sufficient to form a belief as to the allegations of paragraph 20 of the Amended Complaint. 21 Deny knowledge or information sufficient to form a belief as to the allegations in paragraph 21 of the Amended Complaint regarding the financial resources of Plaintiffs and/or putative class members. 22. Deny the allegations of paragraph 22 of the Amended Complaint. FACTS 23 Deny the allegations of paragraph 23 of the Amended Complaint. 24 Deny the allegations of paragraph 24 of the Amended Complaint. 25 Admit the allegations of paragraph 25 that for many cruise events, Hornblower utilized forms such as contracts, bills, invoices and/or menus. 26 Admit the allegations of paragraph 26 of the Amended Complaint. 27 Admit the allegations of paragraph 27 that for some cruises, Hornblower contracted with customers to pay an individual price per person. 28 Admit the allegations of paragraph 28 of the Amended Complaint that for each cruise, Hornblower employed service workers to perform food and service-related tasks. 29 Admit the allegations of paragraph 29 of the Amended Complaint. 30 Deny the allegations of paragraph 30 of the Amended Complaint, but admit that Hornblower included an administrative fee of approximately 20% in some of its cruise events. 31 Deny the allegations of paragraph 31 of the Amended Complaint. 32 Deny the allegations of paragraph 32 of the Amended Complaint. 33 Deny the allegations of paragraph 33 of the Amended Complaint. 34 Deny the allegations of paragraph 34 of the Amended Complaint. 35 Admit the allegations of paragraph 35 of the Amended Complaint. 36 Deny having knowledge or information sufficient to form a belief as to the allegations that Plaintiffs xxxx and Rivera were compensated on an hourly basis. 37 Deny having knowledge or information as to the allegations of paragraph 37 of the Amended Complaint. 38 Admit the allegations of paragraph 38 of the Amended Complaint. 39. Deny the allegations of paragraph 39 of the Amended Complaint. 40. Deny the allegations of paragraph 40 of the Amended Complaint. 41 Deny the allegations of paragraph 41 of the Amended Complaint that Defendant MacRae had the authority to hire and fire Plaintiffs, supervise or control their work, determine their rate of pay or maintain employment records for them since they were not employees of Hornblower. FIRST CAUSE OF ACTION AGAINST DEFENDANTS UNLAWFUL WITHHOLDING OF GRATUITIES 42 Paragraph 42 of the Amended Complaint contains a recitation of the statute, which speaks for itself and does not require an answer. 43 Paragraph 43 of the Amended Complaint contains a recitation of the regulation, which speaks for itself and does not require an answer. 44 Paragraph 44 of the Amended Complaint contains a recitation of the regulation, which speaks for itself and does not require an answer. 45 Deny that Hornblower is or was an employer of Plaintiffs, but admits the remaining allegations of paragraph 45 of the Amended Complaint. 46 Deny the allegations of paragraph 46 of the Amended Complainant and affirmatively assert that Hornblower Cruises & Events is not an entity and is a d/b/a of Hornblower. 47 Deny the allegations of paragraph 47 of the Amended Complaint and note that Hornblower Yachts, LLC, has been dismissed from this case. 48 Deny the allegations of paragraph 48 of the Amended Complaint. 49 Deny the allegations of paragraph 49 of the Amended Complaint that Plaintiffs and other similarly situated are employees with the meaning of New York Labor Law Section 190(2) and supporting regulations. 50 Deny the allegations of paragraph 50 of the Amended Complaint. Sl Deny the allegations of paragraph 51 of the Amended Complaint. 52. Deny the allegations of paragraph 52 of the Amended Complaint. 53 Deny the allegations of paragraph 53 of the Amended Complaint. 54 Deny the allegations of paragraph 54 of the Amended Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 55 The Amended Complaint fails to state a cause of action against Hornblower pursuant to New York Labor Law Section 196-d. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 56. The Amended Complaint fails to state a cause of action against MacRae pursuant to New York Labor Law Section 196-d. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 57. Plaintiff xxxxxxxx xxxx was never an employee of Hornblower. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 58. Plaintiff Jade Star Rivera was never an employee of Hornblower. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 59. Defendants were never joint employers with Plaintiff xxxx’s employer, PWS. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 60. Defendants were never joint employers with Plaintiff Rivera’s employer, Walsh Associates, Inc. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 61. Defendant MacRae is not an employer as defined by the New York Labor Law. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 62. Plaintiff xxxx lacks standing to be and is not an adequate representative of the putative class and therefore the Court should not authorize notice to be issued or a class action to be maintained under the CPLR. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 63. Plaintiff xxxx worked at only one Hornblower event for which no service or administrative fee was charged to the customer. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 64. Plaintiff Rivera lacks standing to be and is not an adequate representative of the putative class and therefore the Court should not authorize notice to be issued or a class action to be maintained under the CPLR. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 65. Plaintiff Rivera worked only two (2) cruise events, the Charter Contract for which contained an explicit disclosure in conformity with the New York Hospitality Wage Order stating that the administrative fee is not a gratuity and is not distributed to the service staff. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 66 On the Charter Agreements for all Hornblower events for which an administrative fee is charged and on Hornblower’s website, Hornblower includes an explicit disclosure in conformity with the New York Hospitality Wage Order stating that the administrative fee is not a gratuity and is not distributed to the service staff. AS AND FOR A THIRTENTH AFFIRMATIVE DEFENSE 67 Defendants have never withheld or retained any payments purporting to be a gratuity from Plaintiffs or any similarly situated individuals. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 68 At all times relevant hereto, Defendants acted in good faith and have not violated any rights which may be secured by Plaintiffs under any state or local laws, rules, regulations or guidelines. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 69. Any acts or omissions on the part of Defendants or any of them were in good faith, and Defendants had reasonable grounds for believing that any such act or omission was not a violation of New York Labor Law. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 70 Class certification is not appropriate pursuant to New York Practice Law and Rules (“CPLR”). AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 71 This case may not be maintained as a class action as the putative class is not so numerous that joinder of all members is impractical. AS AND FOR A EIGTHTEENTH AFFIRMATIVE DEFENSE 72 This case is not appropriate for class action because the facts and law common to the case, if any, are insignificant compared to the individual facts and issues particular to the named Plaintiffs and to the purported collective action members. AS AND FOR AN NINETEENTH AFFIRMATIVE DEFENSE 73 Plaintiffs cannot establish or maintain a class action because it cannot be demonstrated that a class action is superior to other methods available for adjudicating any controversy. AS AND FOR A TWENTIETH AFFIRAMTIVE DEFENSE 74 To the extent that Plaintiffs seek to include employees of Hornblower in the putative class, such employees are bound by an agreement to submit all disputes regarding their employment with Hornblower to binding arbitration and to waive their right to file a civil suit in court and therefore cannot participate in a class action. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 75. The Amended Complaint is barred in whole or in part by the statute of limitations. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 76. The Amended Complaint is barred by the doctrine of laches. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 77. The Amended Complaint is barred by the doctrine of unclean hands. AS AND FOR A TWNETY-FOURTH AFFIRMATIVE DEFENSE 78. The Amended Complaint is barred by the doctrines of accord and satisfaction, waiver, acquiescence and estoppel. AS AND FOR A TWENTY-FFIFTH AFFIRMTIVE DEFENSE 79. To the extent Plaintiffs seek injunctive relief in whole or part, Plaintiffs are not entitled to a trial by jury on such claims. AS AND FOR A TWENTY-FIXTH AFFIRMATIVE DEFENSE 80. In addition to the foregoing defenses, Defendants reserve their right to amend their Answer to raise additional affirmative and other defenses or pursue any available counterclaims against Plaintiffs or any putative class members who joins this action as those claims become known during this litigation. WHEREFORE, Defendants respectfully request that this Amended Complaint be dismissed in its entirety and that Defendants be awarded the costs and disbursements of this action, together with such other, further and different relief as to the Court may seem just and proper. Dated: New York, N.Y. May 26, 2015 SBS Respectfully submitted, 1350 Avenue of the Americas New York, N.Y. 10019 T. (212)519-5165 F, (212)541-9799 jstoll@kanekessler.com TO: VIRGINIA & AMBINDER, Attorneys for Plaintiff 111 Broadway, Suite 1403 New York, N.Y. 10016 (212)943-9080 LEEDS BROWN LAW, P.C. Attorneys for Plaintiff One Old Country Road, Suite 347 Carle Place, New York 11514 (516)873-9550