FILED: NEW YORK COUNTY CLERK 12/21/ :41 PM INDEX NO /2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 12/21/ :41 PM NYSCEF DOC. NO. 34 INDEX NO /2016 RECEIVED NYSCEF: 12/21/2017

2 INDEX NO /20 t FILED : NEW YORK COUNTY CLERK 07 / : 3 4 AM NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/15/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X JW 70* 70 STREET LLC. Index No /2016 Plaintiff, VERIFIED ANSWER TO -against- VERIFIED COMPLAINT I JEAN P. SIMON, M.D. Defendant X Defendant Pro Se JEAN P. SIMON, M.D. (Defendant) hereby Answers the Complaint dated May 27, 2016 and served by mail postmarked on June 14, 2016 as follows: 1. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 1 of the Complaint. 2. Defendant denies the allegations contained in Paragraph 2 of the Complaint, except states that he is a resident of the State of New York, City of New York. 3. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 3 of the Complaint. 4. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 4 of the Complaint. 5. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraph 5 of the Complaint. 6. Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations of Paragraphs 6 of the Complaint. 7. Defendant denies the allegations contained in Paragraphs 7 of the Complaint. 1 1 of 10

3 8. Defendant denies the allegations contained in Paragraph 8 of the Complaint. 9. Defendant denies the allegations contained in Paragraph 9 of the Complaint. 10. Defendant denies the allegations contained in Paragraph 10 of the Complaint. ANSWERING THE FIRST CAUSE OF ACTION 11. Defendant repeats, reasserts and realleges the contents of Paragraphs 1 through 10 of this ANSWER with the same force and effect as if set forth at length herein. 12. Defendant denies the allegations contained in Paragraph 12 of the Complaint. 13. Defendant denies the allegations contained in Paragraph 13 of the Complaint. ANSWERING THE SECOND CAUSE OF ACTION 14. Defendant repeats, reasserts and realleges the contents of Paragraphs 1 through 13 of this ANSWER with the same force and effect as if set forth at length herein. 15. Defendant denies the allegations contained in Paragraph 15 of the Complaint. 16. Defendant denies the allegations contained in Paragraph 16 of the Complaint. 17. Defendant denies the allegations contained in Paragraph 17 of the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 18. Plaintiff has failed to state a cause of action pursuant to CPLR 3211 and, as such, this action should be dismissed in its entirety, with costs and attorney's fees awarded to Defendant. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 2 2 of 10

4 19. Plaintiff's Verified Complaint must be stricken and dismissed because it was not verified by an affidavit of the party nor an Officer of the Corporation, as required by CPLR CPLR 3020 does not provide any exception for a Verification signed by Frank Kick, who is not an Officer of the Corporation. According to the legend beneath his signature, be is a "member." I! i 21. Because Plaintiff JW 70d' 70 LLC is a limited liability company, not a corporation, therefore it does not meet the exception delineated in CPLR 3020 (d)(1). 22. In light of Plaintiff's failure to properly verify what purports to be a Verified Complaint, but which, in reality, is not, the Verified Complaint should be dismissed in entirety, with prejudice, with costs and attorneys' fees.. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 25. Plaintiff avers on its Summons that its address is 45 Sutton Place South, New York, New Jersey as the Situs and also as the Basis of Venue. 26. Venue is improper because New Jersey is a foreign jurisdiction and therefore this case must be dismissed with prejudice. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 27. Defendant is not licensed to practice medicine by the Department of Health, State of New Jersey, where Plaintiff's situs and basis of venue is alleged. 28. Defendant is not licensed to practice medicine in New Jersey and does not have a medical practice in New Jersey. 29. Defendant is not, and had never been a resident of New Jersey. 3 3 of 10

5 30. Plaintiff 's Complaint is rife with misrepresentations and misstated facts, firstly by fraudulently presenting what pretends to be a Verified Complaint, but is not, and then, under the rubric of having intentionally enticed Defendant to rely on misstatements that purport to be true and verified, then intimidates Defendant into acting in reliance of those misstatements, to his detriment. This is the very essence of fraud, and therefore Plaintiff's Complaint should be dismissed in entirety, with prejudice, with costs and attorneys fees awarded to Defendant. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 31. Plaintiff has failed to produce evidence of alleged "written leases" nor "amendments" with Defendant for an alleged situs of 45 Sutton Place South, New York, New Jersey. 32. Plaintiff's Complaint includes an Exhibit A to its Complaint which is an unsubstantiated, inadmissible, bare, naked and libelous document that contains the bears no relationship to a "rent ledger" as alleged. At the top, it bears only the legend "Dr. Simon" and below that, "Dr 's Office." 33. Plaintiff has failed to submit admissible documentation because it has none and therefore this Complaint must be dismissed with prejudice. AS AND FOR A SIXTH'AFFIRMATIV E DEFENSE 34. Plaintiff 's Complaint alleges "base rent," and "additional in paragraph 7 of its Complaint, yet it fails to allege what the amounts of those alleged "base and "additional are, nor does Exhibit A, the "rent ledger" contains statements about "base rent' or "additional rent'. 4 4 of 10

6 35. Plaintiff has failed to submit copies of leases, rent bills or other admissible documentation to substantiate the alleged "base and "additional amounts. 36. Plaintiff has failed to allege that any agreement with Defendant to as to "actual and "additional rent." 37. Plaintiff's plan to harass and intimidate Defendant was first effectuated by delivering a copy of the Summon and Complaint to Defendant's residence at a time when Plaintiff's attorney was aware that Defendant was away, as substantiated by a phone call between Plaintiff's attorney and Defendant, on his cellphone, on Friday, June 10, whereby Defendant said he was away. 38. Because Plaintiff s attorney was aware that Defendant was out of town, Plaintiff s Summons and Complaint was improperly delivered to somebody other than Defendant an unbeknownst to Defendant, neither a member of his household, family, nor anybody in his employ or with whom he had a fiduciary relationship. 39. Plaintiff s Summons and Complaint was left bare, open, unfolded and naked without neither cover nor envelope, for all the world to thumb through its pages, peruse, read, appreciate and discuss amongst themselves. 41. Plaintiff s intentional and unlawful presentation of the Summon and Complaint at Defendant's residence at a time when he knew Defendant would not be present, which contain numerous untruths and misrepresentations as described herein, was committed with intent and scienter, in order to embarrass, defame, humiliate, intimidate, harass, slander and libel Defendant. 5 5 of 10

7 42. Because Plaintiff's Summon and Complaint were intentionally delivered in an unlawful manner, the Complaint should be dismissed in its entirety, with prejudice, with costs and fees awarded to Defendant. AS AND FOR A FIRST COUNTERCLAIM 43. Defendant reiterates, repeats and re-alleges each and every allegation contained in paragraphs 1 through 42 of this ANSWER as if set forth fully herein. 44. Defendant seeks damages from Plaintiff for libel and slender for allowing Plaintiff's open, unfolded, unsealed multi-page, with each page loose, open and available for perusal and review, Summons and Complaint, which contained numerous untruths as described herein, and which was presented to just any passerby or simply left in a lobby, opened in public view, at a time when Plaintiff's attorney was aware that Defendant was away. This caused, enabled, allowed, and invited false information to be discussed between tenants, directors and officers, visitors, outside workers, professional colleagues, physicians with offices in the same building, patients of other physicians, and employees of the building and caused permanent damages to the Defendant's reputation with his peers. 45. Due to the false claim, such allegations are an abuse of process and malicious prosecution.. AS AND FOR A SECOND COUNTERCLAIM 46. Defendant reiterates, repeats and re-alleges each and every allegation contained in paragraphs 1 through 45 of this ANSWER as if set forth fully herein. 6 6 of 10

8 47. Defendant respectfully requests that this Court Impress a constructive trust of all of Plaintiff's assets due to the false abuse of process and malicious prosecution of claims herein, pursuant to 22NYCRR Section A constructive trust is necessary because it will cost considerable sums for Defendant to defend against the instant false Complaint, and Plaintiff can otherwise transfer its assets to a different downstream entity or other third parties upon adverse findings and claims against the entity.. AS AND FOR A THIRD COUNTERCLAIM 49. Defendant reiterates, repeats and re-alleges each and every allegation contained in paragraphs 1 through 48 of this ANSWER as if set forth fully herein. 50. Plaintiff published one or more oral and written false statements which were intended to impeach and impugn Defendant's honesty, integrity, virtue and/or reputation. 51. Said defamatory statements are among others, set forth in the pleadings herein by Plaintiff, and among other false charges, claim that Defendant owes large and unsubstantiated monies. 52. Defendant is not a public figure. 53. The statements made by Plaintiff slurs and soils and defames the character of Defendant. AS AND FOR A FOURTH COUNTERCLAIM 54. Defendant reiterates, repeats and re-alleges each and every allegation contained in paragraphs 1 through 53 of this ANSWER as if set forth fully herein. 7 7 of 10

9 55. Plaintiff intentionally and deliberately inflicted emotional distress to Defendant by defaming him to many people including his relatives, patients, employees, colleagues, friends and members of the Medical Community. WHEREFORE, Defendant respectfully requests that: the Complaint be dismissed in all respects; that judgment on the counterclaims be rendered in an amount to be set by this Court, and that Defendant be awarded the costs, disbursements and attorney's fees ofthis action, and any such other relief as may be deemed just and proper by this Court. Dated: July 14, 2016 New York, New York ' Jean on M.D. Defendant Pro Se P.O. Box 2040 New York, New York (212) SWORN TO ME THIS DAY OF JULY 2016 ADAM ADELMA Notary Public - Ne" State of Ne ~@ No. 01AD Qualified in New York County o!nmission Expires May 20, of 10

10 I VERIFICATION STATE OF NEW Y ORK ) I COUNTY OF NEW YORK ) ss. : Jean-Pascal Simon, M.D., being duly sworn, deposes and says: I I am the Defendant Pro Se in this action. I have read the foregoing VERIFIED ANSWER TO VERIFIED COMPLAINT of Plaintiff SANOFI PASTEUR INC., dated February 29, 2016, and know the contents thereof; the same is true to my knowledge, except as to those matters that are stated to be true upon information and belief, and, as to those matters, I believe to be true. JEAN-P AL SIMON, M.D SWORN TO BEFORE ME THIS ) I DAY F J 2016 ADAM ADELMAN Notary PubHC- State of New York NO. 01AD ualified in New York County My Commission Expires May 20, of 10

11 Mfgt' La/JI ILI lent IVIL Lr~Lrt ~~'vv' t>~ ~ Lrt~ Ir It IL ts ILI & ~Pl I Ls Ml vji Iel IsL It vv Ir &I\tv cji'll'i GNTY OF NEW YORK Index Number. ' 9 i Def dant dani I 575 IG (ü/t. Plaintiff AFElDAVIT OF SERVICE after - against - COMMENCEMENT of LITIGATION UEPvi' U [ ~[[/ I' ~ ~i [ ov Ov STATE OF NEW YORK, COUNTY OF h) 4) Û r- < ss: I, [name of person who served papers] 4 tfhnâ¾c(q( ~ ( MQW, being duty swam, lepose and say: I am over 18 years of age and am-net-e party to this case. I reside at [your address] Î 6 < T' f 28 () { ]' On [date of service] ] ( ( y 20(fo, 200_, at [time of day] AM / PM, I served a true copy of Tf following papers: [identify papers served], in the following manner. [check box that applies] [i Personal By personally delivering the papers to [identify person served) Service. at [address] The individual I served had the following characteristics [check one box in each category]: S_ex Heiaht Weight Age O Male O Under 5" o Under 100 Ibs years o Female a 5'0"- 5'3" a Ibs. a years a 5'4"- 5'8" a lbs. a years a 5'9"- 6'0". o Ibs. 0 Over 65 years 6' a Over a Over 200 Ibs. [describe]: Skin color Hair color' color Other identifying features, if any [describe):.m / By mailing the same in a sealed envelope, with postage prepaid thereon, in a post office or official depository of the U.S. Postal Service within the State of New York, addressed to the last-known address of the addressee(s) indicated below: Overnight By depositing the same with an overnight delivery service in a wrapper properly addressed. Said Delivery delivery was made prior to the latest time designated by the overnight delivery service for overnight Service delivery. The delivery service used was [name of delivery service] fame(s) and address(es) of person(s) served by maillovernight delivery] tp Prr~t tilv + ft &I ilr 15 < erg t for me C, this /5 y of '. ',, 20., g(6 (6 [si ame before a Notary] 4-og0 ALMANWYork '7 ttfia+ big, NIGE Slate p4cn Notary li Public Notary 6 g 9 6 [ print your name] Reg.N Quality>'iu litlhlciv york County C0gggiisoofOA iruxiritoa Ll p s Sept of 10