Preview
INDEX NO. 650159/2010
FILED: NEW YORK COUNTY CLERK 0372472011
NYSCEF DOC. NO. 43 RECEIVED NYSCEF 03/24/2011
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
noose: penenen nena ne
HARVEY RUDMAN and HAROLD KUPLESKY,
on behalf of Each of Them Individually And
Derivatively,
Plaintiffs, Index No. 650159/10
-against-
ANSWER OF DD SPRING
CREEK LLC, SK SPRING
CAROL GRAM DEANE, ESTATE OF DISQUE D. CREEK LLC, DD SHOPPING
DEANE BY CAROL G. DEANE AS TEMPORARY CENTER LLC AND SK
EXECUTRIX, SALT KETTLE LLC, ST. GERVAIS SHOPPING CENTER LLC
LLC, STARRETT CITY PRESERVATION LLC,
DD SPRING CREEK LLC, SK SPRING CREEK
LLC, SPRING CREEK PLAZA LLC, DD
SHOPPING CENTER LLC and SK SHOPPING
CENTER LLC,
Defendants.
wetter nent nee einen eRe Rnnnnnenneeneeeeeeee
Defendants DD Spring Creek LLC, SK Spring Creek LLC, DD Shopping Center
LLC and SK Shopping Center LLC, by its attorneys, Warner Partners, P.C., as and for their
Answer to Plaintiffs! Second Amended Complaint (the "Complaint"), state as follows:
1-4. Deny having knowledge or information sufficient to admit or deny the truth of
the allegations in Paragraphs 1 through 4 of the Complaint.
5. Deny having knowledge or information sufficient to admit or deny the truth of the
allegation in Paragraph 5 of the Complaint, except admit that a limited liability company
a
called Starrett City Preservation LLC (“Preservation") was formed and plaintiffs, among
others, acquired membership interests in Preservation.
6. Deny the allegation in Paragraph 6 of the Complaint, except admit that on
December 17, 2009, a $531.4 million refinancing of Starrett City was completed.
7. Deny the allegation in Paragraph 7 of the Complaint.
8-10. Admit the allegations in Paragraphs 8 through 10 of the Complaint.
11-16. Deny having knowledge or information sufficient to admit or deny the truth
of the allegations in Paragraphs 11 through 16 of the Complaint.
17. Admit the allegation in Paragraph 17 of the Complaint.
18. Deny the allegation in Paragraph 18 of the Complaint, except admit that a) St.
Gervais is a Delaware limited liability company, b) The Prentice-Hall Corporation System,
Inc. is St. Gervais's agent for service of process, and c) St. Gervais is the largest member of
Preservation, the sole member of SKI and the largest limited partner of SCA.
19, Admit the allegation in Paragraph 19 of the Complaint.
20. Admit the allegation in Paragraph 20 of the Complaint, except deny that Carol
Deane is the vice-president of DD/SCA.
21. Admit the allegation in Paragraph 21 of the Complaint.
22. Deny the allegation in Paragraph 22 of the Complaint, except admit that Spring
Creek is a Delaware limited liability company formed in or about November 2009 with its
principal place of business in New York, New York, that in December 2009 SCA
ome
transferred certain parcels of land referred to to Spring Creek, that DD Shopping Center
LLC is the Managing Member of Spring Creek and that Carol Deane initially was the Vice-
President and is now the President of Spring Creek and deny knowledge or information as to
what "as discussed below" refers to.
23. Admit the allegation in Paragraph 23 of the Complaint, except deny having
knowledge or information as to what "discussed further below" refers to.
. 24. Admit the allegation in Paragraph 24 of the Complaint, except deny having
knowledge or information as to what "discussed further below" refers to and deny the
assertions in the last sentence of Paragraph 24.
25. Personal jurisdiction is not contested.
26. Venue is not contested.
27. Admit the allegation in Paragraph 27 of the Complaint.
28-32. Deny having knowledge or information sufficient to admit or deny the truth
of the allegations in Paragraphs 28-32 of the Complaint.
33. Deny having knowledge or information sufficient to admit or deny the truth of
the allegation in Paragraph 33 of the Complaint, which is also irrelevant and does not
require any response.
34-45, Deny having knowledge or information sufficient to admit or deny the truth
of the allegations in Paragraphs 34-45 of the Complaint.
46, Deny having knowledge or information sufficient to admit or deny the truth of
the allegation in Paragraph 46 of the Complaint, except admit that a copy of the Preservation
Agreement is attached as Exhibit 1 to the Complaint and refers the Court thereto.
47. Admit the allegation in Paragraph 47 of the Complaint, except deny that Carol
Deane controls any interest in the “Board” of Preservation.
48. Deny the allegation in Paragraph 48 of the Complaint, and refer the Court to the
Preservation Agreement and related writings and to the assignments,
49, Deny the allegation in Paragraph 49 of the Complaint, except admit that the
partial quotation from the Agreement is quoted accurately as far as it goes.
50. Deny the allegation in Paragraph 50 of the Complaint, except admit that the
Omnibus Assignments executed by the MGP and SKI are attached to the Complaint as
Exhibits 2 and 3, respectively, and the partial quotations from the Agreement are accurate as
far as they go.
51. Deny the allegation in Paragraph 51 of the Complaint, except admit that the
partial quotations from the Agreement are accurate as far as they go.
52-53, Admit the allegations in Paragraphs 52 and 53 of the Complaint.
54, Deny the allegation in Paragraph 54 of the Complaint, except admit that the
partial quotations from the Agreement are accurate as far as they go.
55, Admit the allegation in Paragraph 55 of the Complaint.
56. Deny the allegation in Paragraph 56 of the Complaint.
57-58. Deny having knowledge or information sufficient to admit or deny the truth
of the allegations in Paragraphs 57 and 58 of the Complaint.
59. Deny the allegation in Paragraph 59 of the Complaint.
60-78. Deny having knowledge or information sufficient to admit or deny the truth
of the allegations in Paragraphs 60-78 of the Complaint.
79, Admit the allegation in Paragraph 79 that on December 17, 2009, the
refinancing of Starrett City closed and refer to the Closing Documents for the terms and
conditions of that refinancing.
80. Deny the allegation in Paragraph 80 of the Complaint.
81. Admit the allegation in Paragraph 81 of the Complaint, except deny that a
$250,000 reserve for the shopping center exists.
82, Deny the allegation in Paragraph 82 of the Complaint, except admit that on or
about December 23, 2009, SCA returned the partners’ original net equity contribution
aggregating approximately $119 million.
83. Deny the allegation in Paragraph 83 of the Complaint and refer the Court to the
legal documents involved.
84. Deny the allegation in Paragraph 84 of the Complaint and refer the Court to the
legal documents involved, except admit that the total interest of the MGP and SKI in SCA
increased to 19.9%.
85-90. Deny the allegations in Paragraphs 85 through 90 of the Complaint.
91. Deny having knowledge or information sufficient to admit or deny the truth of
the allegation in Paragraphs 91 of the Complaint.
92. Deny the allegation in Paragraph 92 of the Complaint.
93. Deny the allegation in Paragraph 93 of the Complaint, except admit that
Kuplesky ceased employment by Deane-related entities no later than December 15, 2008,
and ceased being a member of Cork and a member of the Board of Preservation no later than
December 15, 2008, and admit that Rudman ceased employment by Deane-related entities
no later than April 29, 2009.
94, Admit the allegation in Paragraph 94 of the Complaint, except assert that the
share ratios of plaintiffs have been reduced to zero in accordance with the Preservation
Agreement.
95. Deny the allegation in Paragraph 95 of the Complaint.
96. Admit the allegation in Paragraph 96 of the Complaint.
97. Deny the allegation in Paragraph 97 of the Complaint.
98-100. Admit the allegations in Paragraphs 98-100 of the Complaint.
101. Deny the allegation in Paragraph 101 of the Complaint, except admit that
footnote | is quoted accurately. ,
102, Deny the allegation in Paragraph 102 of the Complaint.
103. Admit the allegation in Paragraph 103 of the Complaint.
104. Deny the allegation in Paragraph 104 of the Complaint, except admit that
Exhibit 5 to the Solicitation is attached as Exhibit 4 to the Complaint.
105-106. Deny the allegations in Paragraphs 105 and 106 of the Complaint.
107. Admit the allegation in Paragraph 107 of the Complaint.
108. Deny the allegation in Paragraph 108 of the Complaint.
109. Deny the allegation in Paragraph 109 of the Complaint, except admit that a non-
Deane family employee was hired and he replaced Rudman as President of SCI in April
2009 and was also appointed as President of Spring Creek upon its creation.
110-111. Deny the allegations in Paragraphs 110-111 of the Complaint.
ANSWERING THE FIRST CLAIM FOR RELIEF
112-118. Make no response to the allegations in Paragraphs 112-118 of the
Complaint because they are not named as parties under the First Claim for Relief.
ANSWERING THE SECOND CLAIM FOR RELIEF
119. Answering Paragraph 119 of the Complaint, repeat and reallege their responses
to Paragraphs | through 118 of the Complaint as though fully set forth herein,
120. Deny the allegation in Paragraph 120 of the Complaint.
121. Deny the allegation in Paragraph 121 of the Complaint.
122. Deny the allegation in Paragraph 122 of the Complaint.
123. Deny the allegation in Paragraph 123 of the Complaint.
ANSWERING THE THIRD THROUGH FIFTH CLAIMS FOR RELIEF
112-118. Make no response to the allegations in Paragraphs 124-147 of the
Complaint because they are not named as parties under the Third through Fifth Claims for
Relief.
ANSWERING THE SIXTH CLAIM FOR RELIEF
147. Answering Paragraph 147 of the Complaint, repeat and reallege their responses
to Paragraphs 1 through 146 of the Complaint as though fully set forth herein.
148. Deny the allegation in Paragraph 148 of the Complaint.
149. Deny the allegation in Paragraph 149 of the Complaint because it states a legal
conclusion and therefore does not require a response.
150, Deny the allegation in Paragraph 150 of the Complaint.
151. Deny the allegation in Paragraph 151 of the Complaint.
152. Deny the allegation in Paragraph 152 of the Complaint.
153. Deny the allegation in Paragraph 153 of the Complaint.
ANSWERING THE SEVENTH CLAIM FOR RELIEF
154. Answering Paragraph 154 of the Complaint, repeat and reallege their responses
to Paragraphs | through 153 of the Complaint as though fully set forth herein.
155. Admit the allegation in Paragraph 155 of the Complaint.
156. Deny the allegation in Paragraph 156 of the Complaint.
157. Deny the allegation in Paragraph 157 of the Complaint.
ANSWERING THE EIGHTH CLAIM FOR RELIEF
158. Answering Paragraph 158 of the Complaint, repeat and reallege their responses
to Paragraphs 1 through 157 of the Complaint as though fully set forth herein,
159. Admit the allegation in Paragraph 159 of the Complaint.
160. Deny the allegation in Paragraph 160 of the Complaint.
161. Deny the allegation in Paragraph 161 of the Complaint.
162. Deny the allegation in Paragraph 162 of the Complaint.
ANSWERING THE NINTH CLAIM FOR RELIEF
163. Answering Paragraph 163 of the Complaint, repeat and reallege their responses
to Paragraphs | through 162 of the Complaint as though fully set forth herein.
164. Deny the allegation in Paragraph 164 of the Complaint, except admit that the
interests of the MGP and SKI in SCA are continuing and that assignments to Preservation
were made, as reflected in the Omnibus Assignments.
165. Deny the allegation in Paragraph 165 of the Complaint.
166. Admit that Section 3.3 of the Preservation Agreement is accurately but only
partially quoted in Paragraph 166 of the Complaint and refer to the Preservation Agreement
for the full text of that Section.
167. Deny the allegation in Paragraph 167 of the Complaint.
168, Deny the allegation in Paragraph 168 of the Complaint.
169. Admit that the allegation in Paragraph 169 of the Complaint appears to reflect
plaintiffs' claim, but deny that it has any validity.
170. Deny the allegation in Paragraph 170 of the Complaint, but admit there is a
dispute between the parties.
171. Deny the allegation in Paragraph 171 of the Complaint.
ANSWERING THE TENTH CLAIM FOR RELIEF
172. Answering Paragraph 172 of the Complaint, repeat and reallege their responses
to Paragraphs | through 171 of the Complaint as though fully set forth herein.
173. Deny the allegation in Paragraph 173 of the Complaint, except admit that the
interests of Deane and SKI in SCA are continuing and that assignments to Preservation were
made, as reflected in the Omnibus Assignments.
174. Deny the allegation in Paragraph 174 of the Complaint.
175. Deny the allegation in Paragraph 175 of the Complaint, except admit that on or
about December 17, 2009 SCA transferred tax free the shopping center and the vacant
parcels to Spring Creek with the same percentage structure as exists for the interests held in
SCA.
176. Deny the allegation in Paragraph 176 of the Complaint.
177. Deny the allegation in Paragraph 177 of the Complaint.
178. Admit that the allegation in Paragraph 178 of the Complaint appears to reflect
plaintiffs’ baseless claim, but deny that it has any validity.
10
179, Deny the allegation in Paragraph 179 of the Complaint, but admit that
plaintiffs’ baseless position is at odds with defendants’ meritorious position.
180. Deny the allegation in Paragraph 180 of the Complaint.
FIRST AFFIRMATIVE DEFENSE
181. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of estoppel
SECOND AFFIRMATIVE DEFENSE
182. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of waiver.
THIRD AFFIRMATIVE DEFENSE
183. Plaintiffs' claims are barred, in whole or in part, by the doctrine of unclean
hands.
lL
WHEREFORE, defendants DD Spring Creek LLC, SK Spring Creek LLC, DD
Shopping Center LLC and SK Shopping Center LLC demand judgment dismissing the
Complaint in its entirety and for such other and further relief as this Court may deem just
and proper.
Dated: New York, New York
March 24, 2011
WARNER PARTNERS, P.C.
Attorneys for DD Spring Creek LLC, SK
Spring Creek LLC, DD Shopping Center
LLC and SK Shopping Center LLC
py, ——
GC Wad
Kenneth E. Warner
950 Third Avenue, 32" Floor
New York, NY 10022
Tel: 212-593-8000
12
Preview
INDEX NO. 650159/2010 FILED: NEW YORK COUNTY CLERK 0372472011 NYSCEF DOC. NO. 43 RECEIVED NYSCEF 03/24/2011 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK noose: penenen nena ne HARVEY RUDMAN and HAROLD KUPLESKY, on behalf of Each of Them Individually And Derivatively, Plaintiffs, Index No. 650159/10 -against- ANSWER OF DD SPRING CREEK LLC, SK SPRING CAROL GRAM DEANE, ESTATE OF DISQUE D. CREEK LLC, DD SHOPPING DEANE BY CAROL G. DEANE AS TEMPORARY CENTER LLC AND SK EXECUTRIX, SALT KETTLE LLC, ST. GERVAIS SHOPPING CENTER LLC LLC, STARRETT CITY PRESERVATION LLC, DD SPRING CREEK LLC, SK SPRING CREEK LLC, SPRING CREEK PLAZA LLC, DD SHOPPING CENTER LLC and SK SHOPPING CENTER LLC, Defendants. wetter nent nee einen eRe Rnnnnnenneeneeeeeeee Defendants DD Spring Creek LLC, SK Spring Creek LLC, DD Shopping Center LLC and SK Shopping Center LLC, by its attorneys, Warner Partners, P.C., as and for their Answer to Plaintiffs! Second Amended Complaint (the "Complaint"), state as follows: 1-4. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 1 through 4 of the Complaint. 5. Deny having knowledge or information sufficient to admit or deny the truth of the allegation in Paragraph 5 of the Complaint, except admit that a limited liability company a called Starrett City Preservation LLC (“Preservation") was formed and plaintiffs, among others, acquired membership interests in Preservation. 6. Deny the allegation in Paragraph 6 of the Complaint, except admit that on December 17, 2009, a $531.4 million refinancing of Starrett City was completed. 7. Deny the allegation in Paragraph 7 of the Complaint. 8-10. Admit the allegations in Paragraphs 8 through 10 of the Complaint. 11-16. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 11 through 16 of the Complaint. 17. Admit the allegation in Paragraph 17 of the Complaint. 18. Deny the allegation in Paragraph 18 of the Complaint, except admit that a) St. Gervais is a Delaware limited liability company, b) The Prentice-Hall Corporation System, Inc. is St. Gervais's agent for service of process, and c) St. Gervais is the largest member of Preservation, the sole member of SKI and the largest limited partner of SCA. 19, Admit the allegation in Paragraph 19 of the Complaint. 20. Admit the allegation in Paragraph 20 of the Complaint, except deny that Carol Deane is the vice-president of DD/SCA. 21. Admit the allegation in Paragraph 21 of the Complaint. 22. Deny the allegation in Paragraph 22 of the Complaint, except admit that Spring Creek is a Delaware limited liability company formed in or about November 2009 with its principal place of business in New York, New York, that in December 2009 SCA ome transferred certain parcels of land referred to to Spring Creek, that DD Shopping Center LLC is the Managing Member of Spring Creek and that Carol Deane initially was the Vice- President and is now the President of Spring Creek and deny knowledge or information as to what "as discussed below" refers to. 23. Admit the allegation in Paragraph 23 of the Complaint, except deny having knowledge or information as to what "discussed further below" refers to. . 24. Admit the allegation in Paragraph 24 of the Complaint, except deny having knowledge or information as to what "discussed further below" refers to and deny the assertions in the last sentence of Paragraph 24. 25. Personal jurisdiction is not contested. 26. Venue is not contested. 27. Admit the allegation in Paragraph 27 of the Complaint. 28-32. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 28-32 of the Complaint. 33. Deny having knowledge or information sufficient to admit or deny the truth of the allegation in Paragraph 33 of the Complaint, which is also irrelevant and does not require any response. 34-45, Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 34-45 of the Complaint. 46, Deny having knowledge or information sufficient to admit or deny the truth of the allegation in Paragraph 46 of the Complaint, except admit that a copy of the Preservation Agreement is attached as Exhibit 1 to the Complaint and refers the Court thereto. 47. Admit the allegation in Paragraph 47 of the Complaint, except deny that Carol Deane controls any interest in the “Board” of Preservation. 48. Deny the allegation in Paragraph 48 of the Complaint, and refer the Court to the Preservation Agreement and related writings and to the assignments, 49, Deny the allegation in Paragraph 49 of the Complaint, except admit that the partial quotation from the Agreement is quoted accurately as far as it goes. 50. Deny the allegation in Paragraph 50 of the Complaint, except admit that the Omnibus Assignments executed by the MGP and SKI are attached to the Complaint as Exhibits 2 and 3, respectively, and the partial quotations from the Agreement are accurate as far as they go. 51. Deny the allegation in Paragraph 51 of the Complaint, except admit that the partial quotations from the Agreement are accurate as far as they go. 52-53, Admit the allegations in Paragraphs 52 and 53 of the Complaint. 54, Deny the allegation in Paragraph 54 of the Complaint, except admit that the partial quotations from the Agreement are accurate as far as they go. 55, Admit the allegation in Paragraph 55 of the Complaint. 56. Deny the allegation in Paragraph 56 of the Complaint. 57-58. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 57 and 58 of the Complaint. 59. Deny the allegation in Paragraph 59 of the Complaint. 60-78. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 60-78 of the Complaint. 79, Admit the allegation in Paragraph 79 that on December 17, 2009, the refinancing of Starrett City closed and refer to the Closing Documents for the terms and conditions of that refinancing. 80. Deny the allegation in Paragraph 80 of the Complaint. 81. Admit the allegation in Paragraph 81 of the Complaint, except deny that a $250,000 reserve for the shopping center exists. 82, Deny the allegation in Paragraph 82 of the Complaint, except admit that on or about December 23, 2009, SCA returned the partners’ original net equity contribution aggregating approximately $119 million. 83. Deny the allegation in Paragraph 83 of the Complaint and refer the Court to the legal documents involved. 84. Deny the allegation in Paragraph 84 of the Complaint and refer the Court to the legal documents involved, except admit that the total interest of the MGP and SKI in SCA increased to 19.9%. 85-90. Deny the allegations in Paragraphs 85 through 90 of the Complaint. 91. Deny having knowledge or information sufficient to admit or deny the truth of the allegation in Paragraphs 91 of the Complaint. 92. Deny the allegation in Paragraph 92 of the Complaint. 93. Deny the allegation in Paragraph 93 of the Complaint, except admit that Kuplesky ceased employment by Deane-related entities no later than December 15, 2008, and ceased being a member of Cork and a member of the Board of Preservation no later than December 15, 2008, and admit that Rudman ceased employment by Deane-related entities no later than April 29, 2009. 94, Admit the allegation in Paragraph 94 of the Complaint, except assert that the share ratios of plaintiffs have been reduced to zero in accordance with the Preservation Agreement. 95. Deny the allegation in Paragraph 95 of the Complaint. 96. Admit the allegation in Paragraph 96 of the Complaint. 97. Deny the allegation in Paragraph 97 of the Complaint. 98-100. Admit the allegations in Paragraphs 98-100 of the Complaint. 101. Deny the allegation in Paragraph 101 of the Complaint, except admit that footnote | is quoted accurately. , 102, Deny the allegation in Paragraph 102 of the Complaint. 103. Admit the allegation in Paragraph 103 of the Complaint. 104. Deny the allegation in Paragraph 104 of the Complaint, except admit that Exhibit 5 to the Solicitation is attached as Exhibit 4 to the Complaint. 105-106. Deny the allegations in Paragraphs 105 and 106 of the Complaint. 107. Admit the allegation in Paragraph 107 of the Complaint. 108. Deny the allegation in Paragraph 108 of the Complaint. 109. Deny the allegation in Paragraph 109 of the Complaint, except admit that a non- Deane family employee was hired and he replaced Rudman as President of SCI in April 2009 and was also appointed as President of Spring Creek upon its creation. 110-111. Deny the allegations in Paragraphs 110-111 of the Complaint. ANSWERING THE FIRST CLAIM FOR RELIEF 112-118. Make no response to the allegations in Paragraphs 112-118 of the Complaint because they are not named as parties under the First Claim for Relief. ANSWERING THE SECOND CLAIM FOR RELIEF 119. Answering Paragraph 119 of the Complaint, repeat and reallege their responses to Paragraphs | through 118 of the Complaint as though fully set forth herein, 120. Deny the allegation in Paragraph 120 of the Complaint. 121. Deny the allegation in Paragraph 121 of the Complaint. 122. Deny the allegation in Paragraph 122 of the Complaint. 123. Deny the allegation in Paragraph 123 of the Complaint. ANSWERING THE THIRD THROUGH FIFTH CLAIMS FOR RELIEF 112-118. Make no response to the allegations in Paragraphs 124-147 of the Complaint because they are not named as parties under the Third through Fifth Claims for Relief. ANSWERING THE SIXTH CLAIM FOR RELIEF 147. Answering Paragraph 147 of the Complaint, repeat and reallege their responses to Paragraphs 1 through 146 of the Complaint as though fully set forth herein. 148. Deny the allegation in Paragraph 148 of the Complaint. 149. Deny the allegation in Paragraph 149 of the Complaint because it states a legal conclusion and therefore does not require a response. 150, Deny the allegation in Paragraph 150 of the Complaint. 151. Deny the allegation in Paragraph 151 of the Complaint. 152. Deny the allegation in Paragraph 152 of the Complaint. 153. Deny the allegation in Paragraph 153 of the Complaint. ANSWERING THE SEVENTH CLAIM FOR RELIEF 154. Answering Paragraph 154 of the Complaint, repeat and reallege their responses to Paragraphs | through 153 of the Complaint as though fully set forth herein. 155. Admit the allegation in Paragraph 155 of the Complaint. 156. Deny the allegation in Paragraph 156 of the Complaint. 157. Deny the allegation in Paragraph 157 of the Complaint. ANSWERING THE EIGHTH CLAIM FOR RELIEF 158. Answering Paragraph 158 of the Complaint, repeat and reallege their responses to Paragraphs 1 through 157 of the Complaint as though fully set forth herein, 159. Admit the allegation in Paragraph 159 of the Complaint. 160. Deny the allegation in Paragraph 160 of the Complaint. 161. Deny the allegation in Paragraph 161 of the Complaint. 162. Deny the allegation in Paragraph 162 of the Complaint. ANSWERING THE NINTH CLAIM FOR RELIEF 163. Answering Paragraph 163 of the Complaint, repeat and reallege their responses to Paragraphs | through 162 of the Complaint as though fully set forth herein. 164. Deny the allegation in Paragraph 164 of the Complaint, except admit that the interests of the MGP and SKI in SCA are continuing and that assignments to Preservation were made, as reflected in the Omnibus Assignments. 165. Deny the allegation in Paragraph 165 of the Complaint. 166. Admit that Section 3.3 of the Preservation Agreement is accurately but only partially quoted in Paragraph 166 of the Complaint and refer to the Preservation Agreement for the full text of that Section. 167. Deny the allegation in Paragraph 167 of the Complaint. 168, Deny the allegation in Paragraph 168 of the Complaint. 169. Admit that the allegation in Paragraph 169 of the Complaint appears to reflect plaintiffs' claim, but deny that it has any validity. 170. Deny the allegation in Paragraph 170 of the Complaint, but admit there is a dispute between the parties. 171. Deny the allegation in Paragraph 171 of the Complaint. ANSWERING THE TENTH CLAIM FOR RELIEF 172. Answering Paragraph 172 of the Complaint, repeat and reallege their responses to Paragraphs | through 171 of the Complaint as though fully set forth herein. 173. Deny the allegation in Paragraph 173 of the Complaint, except admit that the interests of Deane and SKI in SCA are continuing and that assignments to Preservation were made, as reflected in the Omnibus Assignments. 174. Deny the allegation in Paragraph 174 of the Complaint. 175. Deny the allegation in Paragraph 175 of the Complaint, except admit that on or about December 17, 2009 SCA transferred tax free the shopping center and the vacant parcels to Spring Creek with the same percentage structure as exists for the interests held in SCA. 176. Deny the allegation in Paragraph 176 of the Complaint. 177. Deny the allegation in Paragraph 177 of the Complaint. 178. Admit that the allegation in Paragraph 178 of the Complaint appears to reflect plaintiffs’ baseless claim, but deny that it has any validity. 10 179, Deny the allegation in Paragraph 179 of the Complaint, but admit that plaintiffs’ baseless position is at odds with defendants’ meritorious position. 180. Deny the allegation in Paragraph 180 of the Complaint. FIRST AFFIRMATIVE DEFENSE 181. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of estoppel SECOND AFFIRMATIVE DEFENSE 182. Plaintiffs’ claims are barred, in whole or in part, by the doctrine of waiver. THIRD AFFIRMATIVE DEFENSE 183. Plaintiffs' claims are barred, in whole or in part, by the doctrine of unclean hands. lL WHEREFORE, defendants DD Spring Creek LLC, SK Spring Creek LLC, DD Shopping Center LLC and SK Shopping Center LLC demand judgment dismissing the Complaint in its entirety and for such other and further relief as this Court may deem just and proper. Dated: New York, New York March 24, 2011 WARNER PARTNERS, P.C. Attorneys for DD Spring Creek LLC, SK Spring Creek LLC, DD Shopping Center LLC and SK Shopping Center LLC py, —— GC Wad Kenneth E. Warner 950 Third Avenue, 32" Floor New York, NY 10022 Tel: 212-593-8000 12