On March 09, 2010 a
Answer
was filed
involving a dispute between
Kuplesky, Harold, Individually And On Behalf Of Starrett City Preservation Llc, Derivatively,
Rudman, Harvey, Individually And On Behalf Of Starrett City Preservation Llc, Derivatively,
and
Carol Gram Deane,
Dd Shopping Center Llc,
Dd Spring Creek Llc,
Disque D. Deane,
Salt Kettle Llc,
Sk Shopping Center Llc,
Sk Spring Creek Llc,
Spring Creek Plaza Llc,
Starrett City Preservation Llc,
St. Gervais Llc,
for Commercial Division
in the District Court of New York County.
Preview
FILED: NEW YORK COUNTY CLERK 06/20/2012 INDEX NO. 650159/2010
NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 06/20/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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HARVEY RUDMAN and HAROLD KUPLESKY, :
on Behalf of Each of Them Individually and :
on Behalf of Starrett City Preservation LLC, :
Derivatively, :
:
Plaintiffs, : Index No. 650159/2010
:
-against- : ORAL ARGUMENT REQUESTED
:
CAROL GRAM DEANE, THE ESTATE OF :
DISQUE D. DEANE by CAROL G. DEANE, : ANSWER OF SPRING
as TEMPORARY EXECUTRIX, SALT : CREEK PLAZA LLC
KETTLE LLC, ST. GERVAIS LLC, and :
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. :
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Defendant Spring Creek Plaza LLC (“Spring Creek”), by its attorneys, Foley & Lardner
LLP, as and for its Answer to Plaintiffs' Second Amended Complaint (the “Complaint”), states as
follows:
1-6. Deny having knowledge or information sufficient to admit or deny the truth of the
allegations in Paragraphs 1 through 6 of the Complaint.
7. Deny the allegation in Paragraph 7 of the Complaint.
8-21. Deny having knowledge or information sufficient to admit or deny the truth of the
allegations in Paragraphs 8 through 21 of the Complaint.
22. Deny the allegation in Paragraph 22 of the Complaint, except admit that: (i)
Spring Creek is a Delaware limited liability company formed in or about November 2009 with
1
its principal place of business in New York, New York, (ii) in December 2009, SCA transferred
certain parcels of land to Spring Creek, (iii) DD Shopping Center LLC is the Managing Member
of Spring Creek, and (iv) Carol Deane initially was the Vice-President and is now the President
of Spring Creek, and deny having knowledge or information as to what “as discussed below”
refers to.
23-24. Deny having knowledge or information sufficient to admit or deny the truth of the
allegations in Paragraphs 23 through 24 of the Complaint.
25-26. Admit the allegations in Paragraphs 25-26 of the Complaint.
27-32. Deny having knowledge or information sufficient to admit or deny the truth of the
allegations in Paragraphs 27-32 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.
34-80. Deny having knowledge or information sufficient to admit or deny the truth of the
allegations in Paragraphs 34-80 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 having knowledge or information sufficient to admit or deny the truth of the
allegation in Paragraph 82 of the Complaint.
83. Deny the allegation in Paragraph 83 of the Complaint and refer the Court to the
legal documents involved.
84-97. Deny having knowledge or information sufficient to admit or deny the truth of the
allegations in Paragraphs 84-97 of the Complaint.
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98. Deny having knowledge or information sufficient to admit or deny the truth of the
allegation in Paragraph 98, except admit that Disque Deane and Carol Deane sought consent by
the limited partners, in their capacity as the beneficial owners of Spring Creek, to donate the
vacant parcels to a charitable organization.
99-102. Deny having knowledge or information sufficient to admit or deny the truth of
the allegations in Paragraphs 98-102.
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. Deny the allegation in Paragraph 105 of the Complaint.
106. Deny having knowledge or information sufficient to admit or deny the truth of the
allegations in Paragraph 106.
107. Admit the allegation in Paragraph 107 of the Complaint.
108. Deny having knowledge or information sufficient to admit or deny the truth of the
allegations in Paragraph 108.
109. Deny the allegation in Paragraph 109 of the Complaint, except deny knowledge or
information sufficient to admit or deny the truth of the allegation that a non-Deane family
employee was hired and he replaced Rudman as President of SCI, and admit that a non-Deane
family employee was appointed as President of Spring Creek upon its creation.
110-11. Deny having knowledge or information sufficient to admit or deny the truth of
the allegations in Paragraphs 110-11.
3
ANSWERING THE TENTH CLAIM FOR RELIEF
172. Answering Paragraph 172 of the Complaint, repeat and reallege their responses to
Paragraphs 1 through 111 of the Complaint as though fully set forth herein.
173-74. Deny having knowledge or information sufficient to admit or deny the truth of
the allegations in Paragraphs 173-74.
175. Deny having knowledge or information sufficient to admit or deny the truth of 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 having knowledge or information sufficient to admit or deny the truth of the
allegation in Paragraph 176.
177. Deny the allegation in Paragraph 177 of the Complaint.
178-79. Deny having knowledge or information sufficient to admit or deny the truth of
the allegations in Paragraph 178, except deny the legal conclusion that the assignments to third
parties are void and unenforceable.
180. Deny the allegation in Paragraph 180 of the Complaint.
FIRST AFFIRMATIVE DEFENSE
(Estoppel)
181. Plaintiffs’ claim is barred, in whole or in part, by the doctrine of estoppel.
SECOND AFFIRMATIVE DEFENSE
(Waiver)
182. Plaintiffs’ claim is barred, in whole or in part, by the doctrine of waiver.
THIRD AFFIRMATIVE DEFENSE
(Unclean Hands)
183. Plaintiffs' claim is barred, in whole or in part, by the doctrine of unclean hands.
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FOURTH AFFIRMATIVE DEFENSE
(Failure to State a Claim)
184. Plaintiffs’ claim is barred, in whole or in part, because the Complaint fails to state
a cause of action.
FIFTH AFFIRMATIVE DEFENSE
(Lack of Privity)
185. Plaintiffs’ claim is barred, in whole or in part, by the lack of privity between
Plaintiffs and Spring Creek.
WHEREFORE defendant Spring Creek Plaza LLC demands 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 Respectfully submitted,
June 20, 2011 FOLEY & LARDNER LLP
By: /s/ Peter N. Wang
Peter N. Wang (pwang@foley.com)
Jonathan H. Friedman (jfriedman@foley.com)
90 Park Avenue
New York, New York 10016
Tel.: (212) 682-7474
Fax: (212) 687-2329
Attorneys for Defendant Spring Creek Plaza LLC
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Preview
FILED: NEW YORK COUNTY CLERK 06/20/2012 INDEX NO. 650159/2010 NYSCEF DOC. NO. 96 RECEIVED NYSCEF: 06/20/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X HARVEY RUDMAN and HAROLD KUPLESKY, : on Behalf of Each of Them Individually and : on Behalf of Starrett City Preservation LLC, : Derivatively, : : Plaintiffs, : Index No. 650159/2010 : -against- : ORAL ARGUMENT REQUESTED : CAROL GRAM DEANE, THE ESTATE OF : DISQUE D. DEANE by CAROL G. DEANE, : ANSWER OF SPRING as TEMPORARY EXECUTRIX, SALT : CREEK PLAZA LLC KETTLE LLC, ST. GERVAIS LLC, and : 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. : --------------------------------------------------------------------X Defendant Spring Creek Plaza LLC (“Spring Creek”), by its attorneys, Foley & Lardner LLP, as and for its Answer to Plaintiffs' Second Amended Complaint (the “Complaint”), states as follows: 1-6. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 1 through 6 of the Complaint. 7. Deny the allegation in Paragraph 7 of the Complaint. 8-21. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 8 through 21 of the Complaint. 22. Deny the allegation in Paragraph 22 of the Complaint, except admit that: (i) Spring Creek is a Delaware limited liability company formed in or about November 2009 with 1 its principal place of business in New York, New York, (ii) in December 2009, SCA transferred certain parcels of land to Spring Creek, (iii) DD Shopping Center LLC is the Managing Member of Spring Creek, and (iv) Carol Deane initially was the Vice-President and is now the President of Spring Creek, and deny having knowledge or information as to what “as discussed below” refers to. 23-24. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 23 through 24 of the Complaint. 25-26. Admit the allegations in Paragraphs 25-26 of the Complaint. 27-32. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 27-32 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. 34-80. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 34-80 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 having knowledge or information sufficient to admit or deny the truth of the allegation in Paragraph 82 of the Complaint. 83. Deny the allegation in Paragraph 83 of the Complaint and refer the Court to the legal documents involved. 84-97. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 84-97 of the Complaint. 2 98. Deny having knowledge or information sufficient to admit or deny the truth of the allegation in Paragraph 98, except admit that Disque Deane and Carol Deane sought consent by the limited partners, in their capacity as the beneficial owners of Spring Creek, to donate the vacant parcels to a charitable organization. 99-102. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 98-102. 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. Deny the allegation in Paragraph 105 of the Complaint. 106. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraph 106. 107. Admit the allegation in Paragraph 107 of the Complaint. 108. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraph 108. 109. Deny the allegation in Paragraph 109 of the Complaint, except deny knowledge or information sufficient to admit or deny the truth of the allegation that a non-Deane family employee was hired and he replaced Rudman as President of SCI, and admit that a non-Deane family employee was appointed as President of Spring Creek upon its creation. 110-11. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 110-11. 3 ANSWERING THE TENTH CLAIM FOR RELIEF 172. Answering Paragraph 172 of the Complaint, repeat and reallege their responses to Paragraphs 1 through 111 of the Complaint as though fully set forth herein. 173-74. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraphs 173-74. 175. Deny having knowledge or information sufficient to admit or deny the truth of 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 having knowledge or information sufficient to admit or deny the truth of the allegation in Paragraph 176. 177. Deny the allegation in Paragraph 177 of the Complaint. 178-79. Deny having knowledge or information sufficient to admit or deny the truth of the allegations in Paragraph 178, except deny the legal conclusion that the assignments to third parties are void and unenforceable. 180. Deny the allegation in Paragraph 180 of the Complaint. FIRST AFFIRMATIVE DEFENSE (Estoppel) 181. Plaintiffs’ claim is barred, in whole or in part, by the doctrine of estoppel. SECOND AFFIRMATIVE DEFENSE (Waiver) 182. Plaintiffs’ claim is barred, in whole or in part, by the doctrine of waiver. THIRD AFFIRMATIVE DEFENSE (Unclean Hands) 183. Plaintiffs' claim is barred, in whole or in part, by the doctrine of unclean hands. 4 FOURTH AFFIRMATIVE DEFENSE (Failure to State a Claim) 184. Plaintiffs’ claim is barred, in whole or in part, because the Complaint fails to state a cause of action. FIFTH AFFIRMATIVE DEFENSE (Lack of Privity) 185. Plaintiffs’ claim is barred, in whole or in part, by the lack of privity between Plaintiffs and Spring Creek. WHEREFORE defendant Spring Creek Plaza LLC demands 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 Respectfully submitted, June 20, 2011 FOLEY & LARDNER LLP By: /s/ Peter N. Wang Peter N. Wang (pwang@foley.com) Jonathan H. Friedman (jfriedman@foley.com) 90 Park Avenue New York, New York 10016 Tel.: (212) 682-7474 Fax: (212) 687-2329 Attorneys for Defendant Spring Creek Plaza LLC 5