FILED: KINGS COUNTY CLERK 05/31/ :16 PM INDEX NO /2015 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 05/31/2016

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1 FILED: KINGS COUNTY CLERK 05/31/ :16 PM INDEX NO /2015 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 05/31/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X CHAIM MILLER and 49 DUPONT LOFTS LLC, -against- Plaintiff, Index No /2015 (Hon. Sylvia G. Ash) VERIFIED ANSWER JOSEPH BRUNNER, ANMUTH HOLDINGS LLC, and BLACK ROCK TITLE AGENCY Defendants X Defendants Joseph Brunner ( Brunner ) and Anmuth Holdings LLC, ( Anmuth ), by their attorneys, Tuttle Yick LLP, as and for their Answer to the Amended Verified Complaint (the Complaint ), allege as follows: Parties 1. Deny the allegations contained in Paragraphs 1, 2, and 3 of the Complaint. 2. Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraphs 4 and 5 of the Complaint. 3. Admit the truth of the allegations set forth in Paragraphs Deny the allegations contained in Paragraph 7 of the Complaint, except admit that Anmuth is a domestic limited liability company with a place of business in New York. 5. Deny the allegations contained in Paragraph 8 of the Complaint. 6. Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 9 of the Complaint. Factual Background 7. Deny the allegations contained in Paragraph 10 of the Complaint. 1 of 22

2 8. Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraphs 11, 12, 13, 14, and 15 of the Complaint. 9. Deny the allegations contained in Paragraphs 16, 17, 18, and 19 of the Complaint, except admit that Dupont Street Developers LLC ( Dupont Developers ) entered into a contract of sale with 49 Dupont Realty Corp., dated June 8, 2012 (the Contract of Sale ), to purchase the real property and improvements located at 49 Dupont Street, Brooklyn, New York ( 49 Dupont ), and respectfully refer the Court to such document. 10. Deny the allegations contained in Paragraphs 20, 21, and 22 of the Complaint, except admit that Anmuth, successor by assignment to Brooklyn Realty Holdings LLC, agreed, pursuant to an assignment contract (the Original Assignment Contract ), to transfer its membership interests in Dupont Developers to Plaintiff 49 Dupont Lofts LLC ( Dupont Lofts ), an entity formed by Miller, and respectfully refer the Court to such document. 11. Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 23 of the Complaint. 12. Deny the allegations contained in Paragraphs 24, 25, 26, and 27 of the Complaint. 13. Deny the allegations contained in Paragraphs 28, 29, and 30 of the Complaint, except admit that Anmuth and Dupont Lofts entered into an agreement, dated January 28, 2014 (the Side Agreement ), and respectfully refer the Court to such document. 14. Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 31 of the Complaint. 2 2 of 22

3 15. Deny the allegations contained in Paragraphs 32, 33, 34, 35, 36, 37, 38, 39, 40, and 41 of the Complaint, except admit that the Contract of Sale closed on or about May 20, Deny the allegations contained in Paragraphs 42, 43, 44, and 45 of the Complaint, except admit that (i) a portion of 49 Dupont was listed on the New York State Registry of Inactive Waste Disposal Sites in New York State and the NYSDEC Spills Database; (ii) certain remediation work was required to be performed at 49 Dupont; and (iii) Dupont Developers was required, pursuant to the Contract of Sale, to obtain letter(s) of credit to secure the performance of such remediation work. 17. Deny the allegations contained in Paragraphs 46 and 47 of the Complaint, except admit that Dupont Developers obtained three (3) Letters of Credit, all dated May 20, 2014, in the aggregate amount of $4,700,000, and respectfully refer the Court to such documents. 18. Deny the allegations contained in Paragraphs 48 and 49 of the Complaint, except admit that Anmuth signed an Agreement Regarding Letter of Credit, dated September 18, 2014 (the LC Agreement ), and respectfully refer the Court to such document. 19. Deny the allegations contained in Paragraphs 50, 51, and 52 of the Complaint. 20. Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 53 of the Complaint. 21. Deny the allegations contained in Paragraph 54 of the Complaint. Answer to First Cause of Action 22. Deny the allegations contained in Paragraph 55 of the Complaint. 3 3 of 22

4 23. Deny the allegations contained in Paragraphs 56 and 57 of the Complaint and respectfully refer the Court to the applicable documents. 24. Deny the allegations contained in Paragraph 58 of the Complaint, except admit that the Contract of Sale closed on or about May 20, Deny the allegations contained in Paragraphs 59, 60, 61, and 62 of the Complaint. Answer to Second Cause of Action 26. Deny the allegations contained in Paragraph 63 of the Complaint. 27. Deny the allegations contained in Paragraphs 64 and 65 of the Complaint and respectfully refer the Court to the applicable documents. 28. Deny the allegations contained in Paragraph 66 of the Complaint, except admit that the Contract of Sale closed on or about May 20, Deny the allegations contained in Paragraphs 67, 68, and 69 of the Complaint. 30. Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraphs 70, and 71 of the Complaint. 31. Deny the allegations contained in Paragraph 72 of the Complaint. 32. Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 73 of the Complaint. Answer to Third Cause of Action 33. Deny the allegations contained in Paragraph 74 of the Complaint. 34. Deny the allegations contained in Paragraph 75 of the Complaint and respectfully refer the Court to the applicable documents. 4 4 of 22

5 35. Deny the allegations contained in Paragraphs 76, 77, 78, and 79 of the Complaint. Answer to Fourth Cause of Action 36. Deny the allegations contained in Paragraph 80 of the Complaint. 37. Deny the allegations contained in Paragraphs 81 and 82 of the Complaint and respectfully refer the Court to the applicable documents. 38. Deny the allegations contained in Paragraphs 83, 84, 85, and 86 of the Complaint. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 39. The Complaint fails to state a cause of action against Anmuth and Brunner upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 40. If Plaintiffs have been damaged as alleged herein, which damage is expressly denied, then such damage is the result of the sole and exclusive conduct of the Plaintiffs and/or their agents, without any conduct on the part of the answering Defendants contributing thereto. THIRD AFFIRMATIVE DEFENSE 41. Whatever damages Plaintiffs may have sustained as alleged in their underlying Complaint, all of which are denied by Anmuth and Brunner, they will have been caused and/or brought about in whole or in part by the affirmative wrongdoing, fault, poor business judgment, negligence, and failure of due care of the Plaintiffs or their agents and any 5 5 of 22

6 recovery should be thereby diminished in the proportion which Plaintiffs or their agents culpable conduct bears to the conduct which caused the alleged damages. FOURTH AFFIRMATIVE DEFENSE 42. The claims against Anmuth and Brunner are barred by waiver, estoppel, unclean hands, laches, and release, including general releases, freely entered into by Plaintiffs in favor of Defendants. FIFTH AFFIRMATIVE DEFENSE 43. Plaintiffs claims against Anmuth and Brunner lack merit and are frivolous. SIXTH AFFIRMATIVE DEFENSE 44. Plaintiffs have no standing to allege the claims set forth in the Complaint. SEVENTH AFFIRMATIVE DEFENSE 45. Plaintiffs claims and allegations are premature and not ripe. EIGHTH AFFIRMATIVE DEFENSE 46. The Complaint is barred by documentary evidence. NINTH AFFIRMATIVE DEFENSE 47. The Complaint fails to join a necessary party. COUNTERCLAIMS Background 1. Anmuth is the managing member of Clay Riverview LLC, which owns 100% of the Membership Interest in Dupont Developers. 6 6 of 22

7 2. On or about June 8, 2012, Dupont Developers entered into the Contract of Sale with 49 Dupont Realty Corp. (the Seller ) to purchase the real property and improvements located at 49 Dupont. 3. Plaintiff Chaim Miller ( Miller ) is a front man for Sam Sprei ( Sprei ) and may have been a front man for Abraham Lesser ( Lesser ). The Assignment Contract 4. In or about June 2013, Brunner sought to assign the Contract of Sale. 5. On June 24, 2013, Brunner s attorney delivered the Original Assignment Contract to an attorney purporting to be counsel for Lesser. 6. Brunner believed Miller worked for Lesser s organization The Lesser Group. 7. Miller has acted on behalf of Lesser on other transactions. Indeed, Miller and Lesser have many intertwined transactions. 8. Brunner s counsel addressed all s, which included counsel for Miller and Sprei, with the header Proposed Transfer to Lesser. 9. At a sit down contract negotiation on June 27, 2013, Brunner and his counsel met with Miller and Sprei, and their counsel, believing them to be associated with Lesser. 10. The Original Assignment Contract provided that Brunner s entity, Anmuth, successor by assignment to Brooklyn Realty Holdings LLC, would transfer its membership interests in Dupont Developers to Plaintiff Dupont Lofts, an entity formed by Miller. 7 7 of 22

8 11. The Original Assignment Contract provided that Dupont Lofts was obligated to deliver to Brunner (i) a Letter of Credit to the Seller; and (ii) the purchase price of $39,000,000 prior to the scheduled closing date. 12. Brunner signed the Original Assignment Contract believing Lesser to be involved. Brunner would not have signed the Original Assignment Contract had he known Lesser was not involved. 13. Miller counter-signed the Original Assignment Contract on behalf of Dupont Lofts. Sprei attended the signing and actively participated in the negotiation of the Original Assignment Contract. 14. Miller s counsel returned the fully executed Original Assignment Contract to Brunner s counsel on July 1, The original check delivered by Miller to Brunner bounced. Miller replaced the bounced check with two wires totaling $2,500, Miller s Defaults 16. As of August 15, 2013, Miller could not pay his additional $1,500,000 deposit required under the Original Assignment Contract. 17. Brunner agreed that Miller could split the deposit into two (2) payments: (1) $500, due on August 15, 2013; and (2) $1,000, due on September 17, As of September 17, 2013, Miller could not pay the additional $1,000,000 deposit. 19. Consequently, Brunner and Miller agreed that Miller could further split the $1,000,000 payment into two (2) payments: (1) $400, due on September 17, 2013; and (2) $600, due on October 4, of 22

9 20. On October 4, 2013, Brunner delivered a default notice to Miller for failure to make the $600, payment. 21. On October 16, 2013, Miller wired the $600,000 payment to Brunner. Miller s Attempts to Restructure the Original Assignment Contract 22. On October 25, 2013, Miller and Sprei requested a sit down meeting with Brunner in an attempt to restructure the Original Assignment Contract. 23. The Original Assignment Contract provided that it could not be assigned (directly or indirectly) by Dupont Lofts without Dupont Developers prior written consent. 24. Miller and Sprei requested that Brunner enter into a new contract at $48,500, to show a higher purchase price for financing purposes. Miller proposed that his money would stay in the transaction as equity. Brunner considered such transaction to be bank fraud and would not participate. 25. Brunner s counsel advised Miller s counsel that it was fraud and that Brunner would not participate. 26. Miller s counsel then offered an indemnity against any liability arising from this new contract, but Brunner still refused. Miller Fails to Close Under the Original Assignment Contract 27. In December 2013, Miller could not comply with Dupont Lofts obligations under the Original Assignment Contract. 28. Dupont Lofts could not deliver (i) a Letter of Credit to the Seller; and (ii) the balance of the purchase price under the Original Assignment Contract to Dupont Developers prior to the scheduled closing date. 9 9 of 22

10 29. Upon information and belief, in or about December 2013, Sprei created a false contract between Anmuth and Dupont Lofts, and signed Brunner s name on the contract (the False Contract ). 30. Upon information and belief, in or about December 2013, Sprei delivered the False Contract to Bo Jin Zhu ( Zhu ). 31. In January 2014, Zhu visited Brunner and showed him the False Contract and the Original Assignment Contract. Zhu inquired which contract was accurate. Zhu further expressed concern that Sprei was not being truthful. The False Contract was, indeed, fraudulent. 32. On January 27, 2014, Brunner sent Miller a termination notice under the Original Assignment Contract based upon Miller s failure to pay the balance of the purchase price and deliver the Letter of Credit. 33. On January 28, 2014, Brunner, Zhu, Miller, and Sprei and their respective counsel met. 34. Sprei and Miller admitted to falsely signing Brunner s name to the False Contract. 35. Consequently, Sprei and Miller agreed that they would (i) terminate the Original Assignment Contract; (ii) enter into a replacement contract with Zhu (the Replacement Contract ); and (iii) enter into the Side Agreement, which provided that certain profits would be returned to Miller if and when the Replacement Contract closed. 36. On January 28, 2014, in consideration of the Side Agreement, Miller and Sprei executed and delivered a general release in favor of Brunner, Dupont Developers, and Anmuth (the First Release ). Brunner required this document as a condition to terminating the Original Assignment Contract to make certain that he would not have any lawsuits from Sprei of 22

11 and Miller who acted like criminals in falsifying documents. Brunner wished to never deal with any of these issues again. Miller Knew the Letters of Credit Could Last Indefinitely 37. The Side Agreement provided that Brunner would pay Miller $11,424,000 less the amount of the Letter of Credit. Brunner and Miller intended this amount to be the profits otherwise due Miller plus the amount of any deposits Miller advanced under the Original Assignment Contract, less the amount of the Letter of Credit that Miller and Sprei assured Zhu they would provide. 38. The Contract of Sale for 49 Dupont sets forth the criteria for the Letter of Credit. The Letter of Credit is required to secure the performance of specific environmental work at 49 Dupont. 39. The requisite environmental work is extensive and time consuming. The approval process with the Department of Environmental Conservation can take years just to create a remedial action plan to define the scope of work before even commencing the work. 40. At all times, Miller and Sprei knew or should have known that the Letter of Credit is required to be outstanding during the pendency of the environmental work. In fact, the Contract of Sale, which included the requirements for the Letter of Credit, is annexed to the Original Assignment Contract. 41. Miller and Sprei further knew that the collateral securing the Letter of Credit would not be returned until the owner of 49 Dupont completed the environmental remediation in its entirety. This includes receipt of a Certificate of Completion and acknowledgment from the New York Department of Environmental Conservation ( DEC ) that institutional engineering controls ( IECs ) are no longer required. This could take many years, if of 22

12 it was ever finished (e.g., if DEC required a garage on the ground floor of the premises, the IECs would be in existence for the life of the new building). 42. Sprei and Miller further knew that the requirement to maintain the Letter of Credit throughout the existence of any IECs at 49 Dupont meant that the Letter of Credit could remain outstanding in perpetuity. 43. Sprei and Miller agreed to pay for the costs of the Letter of Credit for the benefit of Zhu. Zhu required this as a condition to entering into the Replacement Contract. 49 Dupont Fails to Close Under the Replacement Contract 44. On February 7, 2014, Zhu requested an amendment to the Replacement Contract because he was unable to pay the $1,000, deposit then coming due. Brunner and Zhu agreed that $400,000 would be due on February 7, 2014 and the additional $600, would be due on February 14, Because Zhu was unable to obtain financing for the acquisition of the Membership Interests under the Replacement Contract, on February 26, 2014, Brunner and Zhu entered into an amendment to the Replacement Contract to extend the closing date from February 19, 2014 to March 31, At Zhu s request, Brunner negotiated an amendment to the Contract of Sale to (i) extend the closing date thereunder; and (ii) provide for a possible release of the Letter of Credit collateral based upon specific work completion milestones. Rather than being required to maintain a $4,700, Letter of Credit through the completion of all IECs, $3,700, of the Letter of Credit could be released by the performance of specific work with the remaining $1,000, being required to be in place through the pendency of all IECs of 22

13 47. Zhu was still unable to obtain a Letter of Credit or financing for the acquisition. 48. On April 28, 2014, Brunner sent a default notice to Zhu for Zhu s failure to timely comply with his obligations under the Replacement Contract. 49. Brunner and Zhu continued discussions under the Replacement Contract into May Zhu confirmed that he did not have the funds to close under the Replacement Contract, as he did not have the ability to obtain a Letter of Credit or the ability to procure mortgage financing on 49 Dupont. 51. Brunner requested that Zhu raise the funds necessary to close by selling some of their other interests. 52. In order to raise the funds to close, Zhu attempted to sell Membership Interests in four (4) other entities in which Zhu partnered with Miller and/or Sprei: (i) 97 Grand Avenue, Brooklyn, New York; (ii) North 8th Street, Brooklyn, New York; (iii) Fifth Avenue, Brooklyn, New York; and (iv) 29 Ryerson Street, Brooklyn, New York (the Zhu Interests ). Brunner Separately Closes on 49 Dupont 53. In May 2014, Renatus Portfolio Company ( RPC ) entered into an Option to Purchase the Zhu Interests (the RPC Option ). RPC then entered into an Agreement of Purchase and Sale to sell the Zhu Interests to Miller for $31,000, (the Miller Assignment ) of 22

14 54. However, the Miller Assignment provided for a closing date on August 11, This would not be timely for the time of the essence closing date under the Contract of Sale for 49 Dupont. 55. As part of the Miller Assignment, Brunner arranged for $7,000, to be credited toward the balance of the purchase price due RPC. Miller signed a letter acknowledging that the Liquidated Sum under the Side Agreement would be reduced by that $7,000, This amount was credited on the Closing Statement for the Miller Assignment. 56. In May 2014, Brunner funded the closing under the Contract of Sale by arranging for a mortgage for $25,000, and funding all additional required capital himself. Brunner signed guarantees in connection with the financing. 57. Brunner s entity, Anmuth, owned an 80% controlling stake in the purchasing entity. In settlement of any claims Zhu might have in connection with the Replacement Contract, Brunner allowed Zhu to own a 20% interest in the property. Brunner and Zhu used Clay Riverview LLC as their joint venture entity. 58. Anmuth arranged for and paid for the Letters of Credit with Investors Bank. Brunner signed a personal guaranty in connection with the Letters of Credit. 59. In sum, Brunner closed under the Contract of Sale himself, including funding all amounts due and owing at the closing under the Contract of Sale. The closing under the Replacement Contract never took place. No assignment of membership interests took place. Zhu did not pay Brunner for any assignment. Miller and Sprei were fully aware of this transaction and participated in discussions concerning the transaction of 22

15 Settlement of Miller s Claims Under the Replacement Contract 60. Even though the closing under the Replacement Contract never occurred, and that the Liquidated Sum would be reduced under the Miller Assignment, Miller wrongfully made a demand for payment of the full amount of the Liquidated Sum under the Side Agreement an amount equal $11,424,000 less the sums expended for the Letters of Credit on May 21, By letter, dated May 22, 2014, Brunner rejected that notice. Specifically, Brunner s counsel advised Miller that (i) the Closing under the Replacement Contract never took place and the consideration therefor was never delivered; and (ii) no Liquidated Sum ever transferred to any person. Brunner s counsel further advised that Miller made certain false representations concerning escrow funds, jeopardized the Closing of the Contract of Sale, and failed to take any affirmative action to attempt to obtain the Letter of Credit. 62. Notwithstanding, Brunner agreed to meet with Miller to discuss each side s respective claims. 63. Miller, Sprei, and Lesser engaged in substantive discussions with Brunner regarding the Miller Assignment and the rights under the Side Agreement culminating in a meeting in June In June 2014, Miller, Sprei, Lesser, RPC, and Brunner agreed to move forward with the Miller Assignment from RPC; and Miller, Sprei, and Lesser delivered general releases in favor Brunner, Hansen Law PLLC, Dupont Developers, Clay Riverview LLC and Anmuth (the Second Release ) of 22

16 65. In addition, Miller, Sprei, and Lofts LLC agreed to issue a Stand Still Agreement in favor of Black Rock Title Agency pending the closing under the Miller Assignment on August 11, In July 2014, Miller s counsel requested an extension to the Miller Assignment closing date. Miller, Zhu, and RPC negotiated a tri-party agreement whereby (i) all parties issued general releases in favor of each other; (ii) Miller agreed to take an assignment of the Zhu Interests directly from Zhu; (iii) the closing date under the Miller Assignment and the RPC Option was extended to September 15, 2014, time being of the essence for Miller to perform his obligations; and (iv) Miller would make an additional deposit in the amount of $1,500, in favor of RPC from Miller. 67. Miller did not have the entire $1,500,000.00, so he borrowed $750, from Brunner. Miller has never fully repaid this money. 68. On September 18, 2014, at a closing held at Herrick Feinstein LLP, Miller closed the Miller Assignment transaction with RPC and Zhu. 69. A court reporter transcribed the entire closing. As part of the closing, Miller and Sprei executed a general release, dated September 18, 2014, in favor of Brunner, Hansen Law PLLC, Dupont Developers, Clay Riverview LLC, Anmuth, and Black Rock Title Agency, in settlement of all claims (the Third Release ). 70. On that Closing Statement, Miller accepted a $7,000,000 credit the same $7,000,000 that Miller claims to be the fraudulently induced document in his false affirmation to the Court in opposition to Anmuth s and Brunner s motion to dismiss this Action. 71. The Third Release releases, as against the Defendants, all actions, causes of action, suits, debts, dues, sums of money, accounts, covenants, contracts, agreements, of 22

17 promises, damages, judgments, executions, claims and demands, in law, admiralty, or equity, from the beginning of the world to the date of the release. The Third Release was expressly negotiated and deemed drafted by all parties to the release. Miller s Sole Remaining Contingent Interest in the Letters of Credit 72. On the record, Miller s attorney discussed the possible return of the Letter of Credit. Brunner agreed to enter into a separate side agreement, that if the collateral securing the Letters of Credit were ever returned to Anmuth then and only then Anmuth would deliver same to Miller. 73. On September 18, 2014, as part of the closing of the Zhu Interests, Anmuth signed the LC Agreement, which states, in pertinent part: In the event that Anmuth Holdings LLC receives a return of the collateral of $4,700,00.00 that was given to Investors Bank as collateral security for the Letters of Credit, the first $70, will be used to pay Anmuth back its fees, and from the remainder, Miller, shall be entitled to receive the last $4,353,500 ($4,424,000 applied towards the letter of credit less the fees in connection therewith). Anmuth will deliver the same to Chaim Miller prompt upon receipt of same. 74. Miller s interest in the collateral under the LC Agreement, held by Investors Bank, is expressly contingent upon the return of those funds to Anmuth. 75. Since September 2014, Miller has taken many underhanded steps to cause Investors Bank to return the collateral and put Brunner and Zhu into default of their surviving obligations under the Base Contract. 76. Plaintiffs counsel, Robert Rimberg, Esq., sent written notice to Investors Bank demanding a return of the Collateral despite (i) a lack of privity; and (ii) without any rights of 22

18 under the LC Agreement. They knowingly attempted to cause Investors Bank not to renew the LC Agreement. 77. To date, Investors bank has not returned the collateral to Dupont Developers, Anmuth, or any other individual or entity. 78. At all times, the Letters of Credit have remained in full force and effect. FIRST COUNTERCLAIM AGAINST PLAINTIFF TO WHICH AN ANSWER IS DEMANDED: DECLARATORY RELIEF (Against All Plaintiffs) 79. Defendants repeat and reallege the allegations contained in the foregoing paragraphs as if fully set forth herein. 80. Plaintiffs executed the First, Second, and Third Release, as against Brunner and Anmuth, and the Third Release against all Defendants, releasing all actions, causes of action, suits, debts, dues, sums of money, accounts, covenants, contracts, agreements, promises, damages, judgments, executions, claims and demands, in law, admiralty, or equity, from the beginning of the world to the date of the release. parties to the Third Release. 81. The Third Release was expressly negotiated and deemed drafted by all 82. The LC Agreement, is a contingent claim by Miller based upon circumstances that have not, in fact, occurred. 83. The LC Agreement states that: In the event that Anmuth Holdings LLC receives a return of the collateral of $4,700,00.00 that was given to Investors Bank as collateral security for the Letters of Credit, the first $70, will be used to pay Anmuth back its fees, and from the remainder, Miller, shall be entitled to receive the last $4,353,500 ($4,424,000 applied towards the letter of credit less the fees in connection therewith). Anmuth will deliver the same to Chaim Miller prompt upon receipt of same of 22

19 84. Anmuth has not received a return of the collateral. 85. The Letters of Credit have, at all times, remained in full force and effect and have never been released to any party, including Anmuth. 86. Consequently, Brunner and Anmuth should be awarded declaratory relief on the grounds that (i) Plaintiffs claims, and any future claims, are expressly barred by the First Release, Second Release, and Third Release, precluding Plaintiffs from making any and all claims against Anmuth, Brunner, and Black Rock Title Agency from the beginning of time through the date of the release; and (ii) there was no agreement, as a matter of law, under the Letters of Credit or otherwise to return funds to Plaintiff by May 20, SECOND COUNTERCLAIM AGAINST PLAINTIFF TO WHICH AN ANSWER IS DEMANDED: BREACH OF CONTRACT (Against Miller) 87. Defendants repeat and reallege the allegations contained in the foregoing paragraphs as if fully set forth herein. 88. On July 16, 2014, Miller agreed to repay Brunner the $750,000 Brunner loaned to Miller so that Miller could provide a deposit to RPC. 89. Miller s agreement to repay the loan is a valid and enforceable contract. 90. Miller breached this contract by failing to fully repay Brunner the entire $750,000 and repaying a portion of that amount owed. trial. 91. Miller s breach caused Brunner damages in an amount to be determined at of 22

20 THIRD COUNTERCLAIM AGAINST PLAINTIFF TO WHICH AN ANSWER IS DEMANDED (Against All Plaintiffs) 92. Defendants repeat and reallege the allegations contained in the foregoing paragraphs as if fully set forth herein. 93. A valid contract exists between 49 Dupont Realty Corp. and Dupont Developers, pursuant to the Contract of Sale, for Dupont Developers to purchase the property located at 49 Dupont. 94. Under the Contract of Sale, Brunner, by and through the entity Dupont Developers, is obligated to perform certain environmental remediation efforts at 49 Dupont. 95. By the acts described herein, including with respect to the Letters of Credit, Plaintiffs have intentionally sought to interfere with Dupont Developers obligations under the Contract of Sale and their agreement with Investors Bank. 96. Plaintiffs conduct was willful and malicious. 97. As a direct and proximate result of the aforesaid tortious interference with Dupont Developers Contract of Sale with 49 Dupont Realty Corp., Defendants are entitled to damages in an amount to be determined at trial in an amount to be determined at trial, but not less than $14,700,000 in damages. WHEREFORE, Defendants demand judgment, (a) Dismissing the complaint in its entirety; (b) Awarding Defendants all its attorneys fees, disbursements and costs incurred in defending the complaint; (c) Granting such other and further relief that this court deems just, proper, and equitable, including injunctive relief as may be necessary of 22

21 Dated: New York, New York May 31, 2016 TUTTLE YICK LLP By: Alexander D. Tuttle Attorneys for Defendants Joseph Brunner, and Anmuth Holdings LLC, 220 East 42 nd Street, 29 th Floor New York, New York (646) of 22

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