Preview
FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013
NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
———————X
-----------------------------------------------------------------------X
PETER STERN and EXPRESS TRADE CAPITAL, INC.
Plaintiffs, Index No. 653476/2013
-against- AMENDED ANSWER
OLEG ARDACHEV, AIR CARGO SERVICES L.L.C.,
DELEX INC., DELEX AIR CARGO, LLC, a Delaware
limited liability company, and DELEX AIR CARGO, LLC.
a Washington limited liability company.
Defendants.
----------------------------------------------------------------------X
Defendants OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., DELEX INC., and DELEX
"Defendants"
AIR CARGO, LLC (collectively, the "Defendants") by their attorney, Robert Bondar, Esq., as
Plaintiffs'
and for their Amended Answer to Amended Complaint allege, upon information and
belief:
PARTIES
1. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
2. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
3. Defendants admit the allegations contained in this paragraph.
4. Defendants deny the allegations contained in this paragraph.
5. Defendants admit the allegations contained in this paragraph.
6. Defendants deny the allegations contained in this paragraph.
7. Defendants deny the allegations contained in this paragraph.
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BACKGROUND
8. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
9. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
10. Defendants admit the allegations contained in this paragraph.
11. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
12. Defendants admit the allegations contained in this paragraph.
13. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
14. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
15. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
16. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
17. Defendants admit the allegations contained in this paragraph.
18. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
19. Defendants admit the allegations contained in this paragraph.
20. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
21. Defendants admit the allegations contained in thisparagraph.
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The Sale Agreement
22. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
23. Defendants deny the allegations contained in this paragraph.
24. Defendants deny the allegations contained in this paragraph.
25. Defendants deny the allegations contained in this paragraph.
26. Defendants deny the allegations contained in this paragraph.
AS AND FOR A FIRST CAUSE OF ACTION
27. Defendants repeat their answers to each and every allegation of paragraphs 1-26 of
Plaintiffs'
complaint, as if recited here verbatim.
28. Defendants deny the allegations contained in this paragraph.
29. Defendants deny the allegations contained in this paragraph.
AS AND FOR A SECOND CAUSE OF ACTION
30. Defendants repeat their answers to each and every allegation of paragraphs 1-29 of
Plaintiffs'
complaint, as if recited here verbatim.
31. Defendants deny the allegations contained in this paragraph.
32. Defendants deny the allegations contained in this paragraph.
33. Defendants deny the allegations contained in this paragraph.
AS AND FOR A THIRD CAUSE OF ACTION
34. Defendants repeat their answers to each and every allegation of paragraphs 1-33 of
Plaintiffs'
complaint, as if recited here verbatim.
35. Defendants deny the allegations contained in this paragraph.
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36. Defendants deny the allegations contained in this paragraph.
37. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
38. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
39. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
40. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
41. Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations contained in this paragraph.
42. Defendants deny the allegations contained in this paragraph.
AS AND FOR A FOURTH CAUSE OF ACTION
43. Defendants repeat their answers to each and every allegation of paragraphs 1-42 of
Plaintiffs'
complaint, as if recited here verbatim.
44. Defendants deny the allegations contained in this paragraph.
45. Defendants deny the allegations contained in this paragraph.
46. Defendants deny the allegations contained in this paragraph.
47. Defendants deny the allegations contained in this paragraph.
AS AND FOR A FIFTH CAUSE OF ACTION
48. Defendants repeat their answers to each and every allegation of paragraphs 1-47 of
Plaintiffs'
complaint, as if recited here verbatim.
49. Defendants deny the allegations contained in this paragraph.
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50. Defendants deny the allegations contained in this paragraph.
51. Defendants deny the allegations contained in this paragraph.
52. Defendants deny the allegations contained in this paragraph.
53. Defendants deny the allegations contained in this paragraph.
54. Defendants deny the allegations contained in this paragraph.
55. Defendants deny the allegations contained in this paragraph.
56. Defendants deny the allegations contained in this paragraph.
57. Defendants deny the allegations contained in this paragraph.
58. Defendants deny the allegations contained in this paragraph.
59. Defendants deny the allegations contained in this paragraph.
60. Defendants deny the allegations contained in this paragraph.
61. Defendants deny the allegations contained in this paragraph.
62. Defendants deny the allegations contained in this paragraph.
63. Defendants deny the allegations contained in this paragraph.
64. Defendants deny the allegations contained in this paragraph.
65. Defendants deny the allegations contained in this paragraph.
66. Defendants deny the allegations contained in this paragraph.
AS AND FOR A SIXTH CAUSE OF ACTION
67. Defendants repeat their answers to each and every allegation of paragraphs 1-66 of
Plaintiffs'
complaint, as if recited here verbatim.
68. Defendants deny the allegations contained in this paragraph.
69. Defendants deny the allegations contained in this paragraph.
70. Defendants deny the allegations contained in this paragraph.
71. Defendants deny the allegations contained in this paragraph.
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72. Defendants deny the allegations contained in this paragraph.
73. Defendants deny the allegations contained in this paragraph.
74. Defendants deny the allegations contained in this paragraph.
75. Defendants deny the allegations contained in this paragraph.
76. Defendants deny the allegations contained in this paragraph.
77. Defendants deny the allegations contained in this paragraph.
78. Defendants deny the allegations contained in this paragraph.
79. Defendants deny the allegations contained in this paragraph.
80. Defendants deny the allegations contained in this paragraph.
81. Defendants deny the allegations contained in this paragraph.
82. Defendants deny the allegations contained in this paragraph.
83. Defendants deny the allegations contained in this paragraph.
84. Defendants deny the allegations contained in this paragraph.
85. Defendants deny the allegations contained in this paragraph.
AS AND FOR A SEVENTH CAUSE OF ACTION
86. Defendants repeat their answers to each and every allegation of paragraphs 1-85 of
Plaintiffs'
complaint, as if recited here verbatim.
87. Defendants deny the allegations contained in this paragraph.
88. Defendants deny the allegations contained in this paragraph.
89. Defendants deny the allegations contained in this paragraph.
90. Defendants deny the allegations contained in this paragraph.
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AFFIRMATIVE DEFENSES
Defendants herein, pleading in the alternative and without prejudice to itsdenials asserted in
its Amended Answer to the Amended Complaint, assert and allege the following separate and
affirmative defenses to the Complaint. By listing any matter as a defense, Defendants do not
assume the burden of proving any matter upon which Plaintiffs bear the burden of proof under
the applicable law. In addition, Defendants specifically reserve the right to restate, amend, or
delete any defense and/or assert any additional defenses.
FIRST AFFIRMATIVE DEFENSE
The Complaint fails to state a cause of action upon which relief can be granted against
Defendants.
SECOND AFFIRMATIVE DEFENSE
Plaintiffs'
Seventh Cause of Action is barred by the applicable statute of limitations.
THIRD AFFIRMATIVE DEFENSE
If Plaintiffs suffered damages from the circumstances alleged in the Complaint, and which
alleged damages Defendants expressly deny, such damages were caused or contributed to by
Plaintiffs'
own conduct.
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs' Plaintiffs'
damages, if any, were caused or contributed by own fault, culpable conduct,
and assumption of risk, and any liability or responsibility for such damages rests with Plaintiff.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs'
claims are precluded and barred by the doctrines of laches, estoppel, accord and
satisfaction, and by such other principles of equity and good faith as are applicable.
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SIXTH AFFIRMATIVE DEFENSE
Plaintiffs' Plaintiffs'
claims are precluded and barred because injuries and damages, if any, are
too speculative and uncertain to merit compensation.
COUNTERCLAIMS AGAINST PLAINTIFF
(Malicious Prosecution)
1. Plaintiffs amended their complaint and asserted Seventh Cause of Action against the
liability"
Defendant DELEX AIR CARGO, LLC sounding in "successor and "mere continuation
doctrine"
without any basis in law.
2. Defendant AIR CARGO SERVICES, LLC has not been dissolved.
3. Plaintiffs make no allegations in their Amended Complaint that AIR CARGO
SERVICES, LLC has ever been dissolved.
4. Plaintiffs had never owned any membership interest of Defendant DELEX AIR CARGO,
LLC.
5. Defendant AIR CARGO SERVICES, LLC had never owned any membership interest of
Defendant DELEX AIR CARGO, LLC.
6. Plaintiffs make no allegations in their Amended Complaint, that either Plaintiffs or
Defendant AIR CARGO SERVICES, LLC had ever owned any membership interest in
Defendant DELEX AIR CARGO, LLC.
7. Plaintiffs are aware that the combination of the factors necessary to establish "successor
liability"
and "mere continuation doctrine": e.g. "continuity of ownership; cessation of ordinary
business and dissolution of the acquired corporation as soon as possible; assumption by the
successor of the liabilities ordinarily necessary for the uninterrupted continuation of the
business of the acquired corporation; and, continuity of management, personnel, physical
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location, assets and general business operation", Fitzgerald v. Fahnestock & Co., 286 A.D.2d
573 (1 Dept. 2001), is not present in this case.
8. Defendant AIR CARGO SERVICES, LLC did not convey any of its assets to another
Plaintiffs'
company to avoid judgment.
9. Plaintiffs had never obtained any judgments against any of the Defendants.
10. Plaintiffs are well aware that they cannot prevail on their newly concocted and asserted
liability" doctrine"
claims of "successor and "mere continuation against any of the Defendants.
11. The "continuity of ownership has been deemed essential to a de facto merger finding, as
ownership continuity is the essence of a merger". Van Nocker v A.W. Chesterton, Co. (In re NY
City Asbestos Litig.), 15 A.D.3d 254 (1 Dept. 2005);
12. In order for there to be a de facto merger finding: "The actual merger must take place
soon after the initial transaction, and (2) the seller corporation must quickly cease to exist".
Lirosi v Elkins, 89 A.D.2d 903 (2d Dept. 1982).
13. If a "predecessor corporation continues to exist after the transaction, in however
gossamer a form, the mere continuation exception is not applicable". See Diaz v South Bend
Lathe, Inc.,,707
707 F. Supp. 97 (EDNY 1989).
14. The main motivating factor of the complaint, as amended by Plaintiffs, is vindictiveness
and spite.
Defendants'
15. The amended complaint is filed in retaliation for the denials that Plaintiffs
had ever sold their interest in Defendant AIR CARGO SERVICES, LLC to any of the
Defendants.
16. Plaintiff asserted new claims in this action in an attempt to harass the Defendants and
cause the Defendants undue aggravation and prejudice.
17. The motivating factor for these proceedings is malice and revenge.
18. Plaintiffs have no probable cause or evidentiary support to maintain these proceedings.
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Plaintiffs'
19. As a result of wrongful conduct, Defendants incurred damages, including costs
attorneys'
and fees incurred during these proceedings.
20. Defendants are entitled to recover these losses from Plaintiffs.
WHEREFORE, the Defendants demand judgment against the Plaintiffs, as follows:
A. Dismissing the Complaint in itsentirety;
Defendants' Plaintiffs'
B. On the counterclaim, alldamages sustained by reason of wrongful
attorneys'
conduct, including costs and fees, in the amount of no less than $50,000, the exact
amount to be determined at trial,together with any other relief the Court may deem proper.
C. For such other and further relief as this Court may deem equitable and just.
DATED: Brooklyn, New York LAW OFFICE OF ROBERT BONDAR
July 16, 2018
By:
Ro rt Bondar, Esq.
28 Dooley Street,
3rd
flOOr
Brooklyn, New York 11235
Telephone (347) 462-3262
Attorney for Defendants
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ATTORNEY'S VERIFICATION
I,Robert Bondar, the attorney admitted to practice in the Courts of the State of New York, state
and affirm that I am the attorney of record for the Defendants OLEG ARDACHEV, AIR
CARGO SERVICES L.L.C., DELEX INC., and DELEX AIR CARGO, LLC in the within
action; that I have read the foregoing Amended Answer and know its contents; that itis true to
my own knowledge, except as to matters alleged to be on information and belief, and as to those
matters I believe itto be true. The reason that this verification is made by me and not by the
Defendants is because the Defendants are not located in the county in which your Affirmant
maintains his office.
The grounds of my belief as to allmatters not stated upon my own knowledge are as follows:
Records contained in my file and conversations I had with the Defendants.
I affirm that the foregoing statements are true, under the penalties of perjury.
Dated: Brooklyn, New York
July 16, 2018
..
obe Bon ar, sq.
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Preview
FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ———————X -----------------------------------------------------------------------X PETER STERN and EXPRESS TRADE CAPITAL, INC. Plaintiffs, Index No. 653476/2013 -against- AMENDED ANSWER OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., DELEX INC., DELEX AIR CARGO, LLC, a Delaware limited liability company, and DELEX AIR CARGO, LLC. a Washington limited liability company. Defendants. ----------------------------------------------------------------------X Defendants OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., DELEX INC., and DELEX "Defendants" AIR CARGO, LLC (collectively, the "Defendants") by their attorney, Robert Bondar, Esq., as Plaintiffs' and for their Amended Answer to Amended Complaint allege, upon information and belief: PARTIES 1. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 2. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 3. Defendants admit the allegations contained in this paragraph. 4. Defendants deny the allegations contained in this paragraph. 5. Defendants admit the allegations contained in this paragraph. 6. Defendants deny the allegations contained in this paragraph. 7. Defendants deny the allegations contained in this paragraph. 1 1 of 11 FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018 BACKGROUND 8. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 9. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 10. Defendants admit the allegations contained in this paragraph. 11. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 12. Defendants admit the allegations contained in this paragraph. 13. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 14. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 15. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 16. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 17. Defendants admit the allegations contained in this paragraph. 18. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 19. Defendants admit the allegations contained in this paragraph. 20. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 21. Defendants admit the allegations contained in thisparagraph. 2 2 of 11 FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018 The Sale Agreement 22. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 23. Defendants deny the allegations contained in this paragraph. 24. Defendants deny the allegations contained in this paragraph. 25. Defendants deny the allegations contained in this paragraph. 26. Defendants deny the allegations contained in this paragraph. AS AND FOR A FIRST CAUSE OF ACTION 27. Defendants repeat their answers to each and every allegation of paragraphs 1-26 of Plaintiffs' complaint, as if recited here verbatim. 28. Defendants deny the allegations contained in this paragraph. 29. Defendants deny the allegations contained in this paragraph. AS AND FOR A SECOND CAUSE OF ACTION 30. Defendants repeat their answers to each and every allegation of paragraphs 1-29 of Plaintiffs' complaint, as if recited here verbatim. 31. Defendants deny the allegations contained in this paragraph. 32. Defendants deny the allegations contained in this paragraph. 33. Defendants deny the allegations contained in this paragraph. AS AND FOR A THIRD CAUSE OF ACTION 34. Defendants repeat their answers to each and every allegation of paragraphs 1-33 of Plaintiffs' complaint, as if recited here verbatim. 35. Defendants deny the allegations contained in this paragraph. 3 3 of 11 FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018 36. Defendants deny the allegations contained in this paragraph. 37. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 38. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 39. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 40. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 41. Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations contained in this paragraph. 42. Defendants deny the allegations contained in this paragraph. AS AND FOR A FOURTH CAUSE OF ACTION 43. Defendants repeat their answers to each and every allegation of paragraphs 1-42 of Plaintiffs' complaint, as if recited here verbatim. 44. Defendants deny the allegations contained in this paragraph. 45. Defendants deny the allegations contained in this paragraph. 46. Defendants deny the allegations contained in this paragraph. 47. Defendants deny the allegations contained in this paragraph. AS AND FOR A FIFTH CAUSE OF ACTION 48. Defendants repeat their answers to each and every allegation of paragraphs 1-47 of Plaintiffs' complaint, as if recited here verbatim. 49. Defendants deny the allegations contained in this paragraph. 4 4 of 11 FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018 50. Defendants deny the allegations contained in this paragraph. 51. Defendants deny the allegations contained in this paragraph. 52. Defendants deny the allegations contained in this paragraph. 53. Defendants deny the allegations contained in this paragraph. 54. Defendants deny the allegations contained in this paragraph. 55. Defendants deny the allegations contained in this paragraph. 56. Defendants deny the allegations contained in this paragraph. 57. Defendants deny the allegations contained in this paragraph. 58. Defendants deny the allegations contained in this paragraph. 59. Defendants deny the allegations contained in this paragraph. 60. Defendants deny the allegations contained in this paragraph. 61. Defendants deny the allegations contained in this paragraph. 62. Defendants deny the allegations contained in this paragraph. 63. Defendants deny the allegations contained in this paragraph. 64. Defendants deny the allegations contained in this paragraph. 65. Defendants deny the allegations contained in this paragraph. 66. Defendants deny the allegations contained in this paragraph. AS AND FOR A SIXTH CAUSE OF ACTION 67. Defendants repeat their answers to each and every allegation of paragraphs 1-66 of Plaintiffs' complaint, as if recited here verbatim. 68. Defendants deny the allegations contained in this paragraph. 69. Defendants deny the allegations contained in this paragraph. 70. Defendants deny the allegations contained in this paragraph. 71. Defendants deny the allegations contained in this paragraph. 5 5 of 11 FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018 72. Defendants deny the allegations contained in this paragraph. 73. Defendants deny the allegations contained in this paragraph. 74. Defendants deny the allegations contained in this paragraph. 75. Defendants deny the allegations contained in this paragraph. 76. Defendants deny the allegations contained in this paragraph. 77. Defendants deny the allegations contained in this paragraph. 78. Defendants deny the allegations contained in this paragraph. 79. Defendants deny the allegations contained in this paragraph. 80. Defendants deny the allegations contained in this paragraph. 81. Defendants deny the allegations contained in this paragraph. 82. Defendants deny the allegations contained in this paragraph. 83. Defendants deny the allegations contained in this paragraph. 84. Defendants deny the allegations contained in this paragraph. 85. Defendants deny the allegations contained in this paragraph. AS AND FOR A SEVENTH CAUSE OF ACTION 86. Defendants repeat their answers to each and every allegation of paragraphs 1-85 of Plaintiffs' complaint, as if recited here verbatim. 87. Defendants deny the allegations contained in this paragraph. 88. Defendants deny the allegations contained in this paragraph. 89. Defendants deny the allegations contained in this paragraph. 90. Defendants deny the allegations contained in this paragraph. 6 6 of 11 FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018 AFFIRMATIVE DEFENSES Defendants herein, pleading in the alternative and without prejudice to itsdenials asserted in its Amended Answer to the Amended Complaint, assert and allege the following separate and affirmative defenses to the Complaint. By listing any matter as a defense, Defendants do not assume the burden of proving any matter upon which Plaintiffs bear the burden of proof under the applicable law. In addition, Defendants specifically reserve the right to restate, amend, or delete any defense and/or assert any additional defenses. FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a cause of action upon which relief can be granted against Defendants. SECOND AFFIRMATIVE DEFENSE Plaintiffs' Seventh Cause of Action is barred by the applicable statute of limitations. THIRD AFFIRMATIVE DEFENSE If Plaintiffs suffered damages from the circumstances alleged in the Complaint, and which alleged damages Defendants expressly deny, such damages were caused or contributed to by Plaintiffs' own conduct. FOURTH AFFIRMATIVE DEFENSE Plaintiffs' Plaintiffs' damages, if any, were caused or contributed by own fault, culpable conduct, and assumption of risk, and any liability or responsibility for such damages rests with Plaintiff. FIFTH AFFIRMATIVE DEFENSE Plaintiffs' claims are precluded and barred by the doctrines of laches, estoppel, accord and satisfaction, and by such other principles of equity and good faith as are applicable. 7 7 of 11 FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018 SIXTH AFFIRMATIVE DEFENSE Plaintiffs' Plaintiffs' claims are precluded and barred because injuries and damages, if any, are too speculative and uncertain to merit compensation. COUNTERCLAIMS AGAINST PLAINTIFF (Malicious Prosecution) 1. Plaintiffs amended their complaint and asserted Seventh Cause of Action against the liability" Defendant DELEX AIR CARGO, LLC sounding in "successor and "mere continuation doctrine" without any basis in law. 2. Defendant AIR CARGO SERVICES, LLC has not been dissolved. 3. Plaintiffs make no allegations in their Amended Complaint that AIR CARGO SERVICES, LLC has ever been dissolved. 4. Plaintiffs had never owned any membership interest of Defendant DELEX AIR CARGO, LLC. 5. Defendant AIR CARGO SERVICES, LLC had never owned any membership interest of Defendant DELEX AIR CARGO, LLC. 6. Plaintiffs make no allegations in their Amended Complaint, that either Plaintiffs or Defendant AIR CARGO SERVICES, LLC had ever owned any membership interest in Defendant DELEX AIR CARGO, LLC. 7. Plaintiffs are aware that the combination of the factors necessary to establish "successor liability" and "mere continuation doctrine": e.g. "continuity of ownership; cessation of ordinary business and dissolution of the acquired corporation as soon as possible; assumption by the successor of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the acquired corporation; and, continuity of management, personnel, physical 8 8 of 11 FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018 location, assets and general business operation", Fitzgerald v. Fahnestock & Co., 286 A.D.2d 573 (1 Dept. 2001), is not present in this case. 8. Defendant AIR CARGO SERVICES, LLC did not convey any of its assets to another Plaintiffs' company to avoid judgment. 9. Plaintiffs had never obtained any judgments against any of the Defendants. 10. Plaintiffs are well aware that they cannot prevail on their newly concocted and asserted liability" doctrine" claims of "successor and "mere continuation against any of the Defendants. 11. The "continuity of ownership has been deemed essential to a de facto merger finding, as ownership continuity is the essence of a merger". Van Nocker v A.W. Chesterton, Co. (In re NY City Asbestos Litig.), 15 A.D.3d 254 (1 Dept. 2005); 12. In order for there to be a de facto merger finding: "The actual merger must take place soon after the initial transaction, and (2) the seller corporation must quickly cease to exist". Lirosi v Elkins, 89 A.D.2d 903 (2d Dept. 1982). 13. If a "predecessor corporation continues to exist after the transaction, in however gossamer a form, the mere continuation exception is not applicable". See Diaz v South Bend Lathe, Inc.,,707 707 F. Supp. 97 (EDNY 1989). 14. The main motivating factor of the complaint, as amended by Plaintiffs, is vindictiveness and spite. Defendants' 15. The amended complaint is filed in retaliation for the denials that Plaintiffs had ever sold their interest in Defendant AIR CARGO SERVICES, LLC to any of the Defendants. 16. Plaintiff asserted new claims in this action in an attempt to harass the Defendants and cause the Defendants undue aggravation and prejudice. 17. The motivating factor for these proceedings is malice and revenge. 18. Plaintiffs have no probable cause or evidentiary support to maintain these proceedings. 9 9 of 11 FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018 Plaintiffs' 19. As a result of wrongful conduct, Defendants incurred damages, including costs attorneys' and fees incurred during these proceedings. 20. Defendants are entitled to recover these losses from Plaintiffs. WHEREFORE, the Defendants demand judgment against the Plaintiffs, as follows: A. Dismissing the Complaint in itsentirety; Defendants' Plaintiffs' B. On the counterclaim, alldamages sustained by reason of wrongful attorneys' conduct, including costs and fees, in the amount of no less than $50,000, the exact amount to be determined at trial,together with any other relief the Court may deem proper. C. For such other and further relief as this Court may deem equitable and just. DATED: Brooklyn, New York LAW OFFICE OF ROBERT BONDAR July 16, 2018 By: Ro rt Bondar, Esq. 28 Dooley Street, 3rd flOOr Brooklyn, New York 11235 Telephone (347) 462-3262 Attorney for Defendants 10 10 of 11 FILED: NEW YORK COUNTY CLERK 07/16/2018 05:17 PM INDEX NO. 653476/2013 NYSCEF DOC. NO. 166 RECEIVED NYSCEF: 07/16/2018 ATTORNEY'S VERIFICATION I,Robert Bondar, the attorney admitted to practice in the Courts of the State of New York, state and affirm that I am the attorney of record for the Defendants OLEG ARDACHEV, AIR CARGO SERVICES L.L.C., DELEX INC., and DELEX AIR CARGO, LLC in the within action; that I have read the foregoing Amended Answer and know its contents; that itis true to my own knowledge, except as to matters alleged to be on information and belief, and as to those matters I believe itto be true. The reason that this verification is made by me and not by the Defendants is because the Defendants are not located in the county in which your Affirmant maintains his office. The grounds of my belief as to allmatters not stated upon my own knowledge are as follows: Records contained in my file and conversations I had with the Defendants. I affirm that the foregoing statements are true, under the penalties of perjury. Dated: Brooklyn, New York July 16, 2018 .. obe Bon ar, sq. 11 11 of 11