: : : : : : : : : : : : : : : : Plaintiff Said Hakim (Plaintiff) by his attorneys, Law Offices of Ian L. Blant, and

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SAID HAKIM, and SAID HAKIM on behalf of RANELL FREEZE COMPANY, and SAID HAKIM on behalf of RANELL FREEZE CORPORATION, Against Plaintiffs, KAMRAN HAKIM, MASUD HAKIM, and RANELL FREEZE COMPANY and RANELL FREEZE CORPORATION Defendants. Index No /05 REPLY AND OFFSETS OF PLAINTIFF SAID HAKIM TO COUNTERCLAIMS SET FORTH IN ANSWER OF KAMRAN HAKIM AND RANELL FREEZE COMPANY TO THIRD AMENDED COMPLAINT WITH COUNTERCLAIMS Plaintiff Said Hakim (Plaintiff) by his attorneys, Law Offices of Ian L. Blant, and Podvey, Meanor, Catenacci, Hildner, Cocoziello & Chattman, P.C., as and for its Reply to the Counterclaims of Defendants Kamran Hakim and Ranell Freeze Company ( Defendants ) contained in their Answer to the Third Amended Complaint dated May 10, 2006 (the Answer and Counterclaims), respectfully alleges 1. Repeats re-alleges and reaffirms the allegations set forth in paragraphs 1 through 44 of the Third Amended Complaint and incorporates same herein. 2. Denies the allegations contained in paragraphs 26, 28, 30, 32, 34, 36, and 38 of the Answer and Counterclaims.. AS TO DEFENDANT S FIRST COUNTERCLAIM 3. Responding to paragraph 39 of the Answer with Counterclaims, repeats, re-alleges and Reaffirms the allegations set forth in paragraphs 1 and 2 above as if set forth at length herein.

2 4. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 40 of the Answer with Counterclaims. 5. Admits the allegations contained in paragraph 41 of the Answer with Counterclaims. 6. Denies the allegations contained in paragraph 42 of the Answer with Counterclaims. 7. Denies the allegations contained in paragraph 43 of the Answer with Counterclaims. AS TO DEFENDANT S SECOND COUNTERCLAIM 8. Responding to paragraph 44 of the Answer with Counterclaims, repeats re-alleges and reaffirms the allegations set forth in paragraphs 1 through 7 above as if set forth at length herein. 9. Admits that Defendant Kamran Hakim had an interest in property known as 6122 Wilshire Boulevard and otherwise denies the allegations contained in paragraph 45 of the Answer with Counterclaims 10. Denies the allegations contained in paragraph 46 of the Answer with Counterclaims. 11. Denies the allegations contained in paragraph 47 of the Answer with Counterclaims. AS TO DEFENDANT S THIRD COUNTERCLAIM 12. Responding to paragraph 48 of the Answer with Counterclaims, repeats, re-alleges and reaffirms the allegations set forth in paragraphs 1 through 11 above as if set forth at length herein. 13. Denies the allegations contained in paragraph 49 of the Answer with Counterclaims. 14. Denies the allegations contained in paragraph 50 of the Answer with Counterclaims. 2

3 AS TO DEFENDANT S FOURTH COUNTERCLAIM 15. Responding to paragraph 51 of the Answer with Counterclaims, repeats, re-alleges and reaffirms the allegations set forth in paragraphs 1 through 14 above as if set forth at length herein. 16. Denies the allegations contained in paragraph 52 of the Answer with Counterclaims. 17. Denies the allegations contained in paragraph 53 of the Answer with Counterclaims. 18. Denies the allegations contained in paragraph 54 of the Answer with Counterclaims. 19. Denies the allegations contained in paragraph 55 of the Answer with Counterclaims. AS AND FOR A FIRST AFFIRMATIVE DEFENSE TO DEFENDANT S COUNTERCLAIMS 20. That each of the Counterclaims fails to state a claim for which relief may be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 21. That each of the Counterclaims is barred by the Statute of Limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 22. That each of the Counterclaims is barred by the doctrine of laches. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 23. That each of the Counterclaims is barred by estoppel. 3

4 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 24. That each of the Counterclaims is barred by the Statute of Frauds. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 25. That each of the Counterclaims is barred under the doctrine of unclean hands. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 26. That each of the Counterclaims is barred by Defendant s waiver of same. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 27. That the Defendant breached his agreement with Plaintiff, which breach relieved Plaintiff of any obligation to Defendant. AS AND FOR AN NINTH AFFIRMATIVE DEFENSE 28. That Defendant s Counterclaims involving acts taken in California are barred by the doctrine of Forum Non Conveniens. AS AND FOR PLAINTIFF SAID HAKIM S OFFSETS TO THE COUNTERCLAIMS OF DEFENDANT KAMRAN HAKIM (THE COUNTERCLAIMS ) 29. That Plaintiff Said Hakim and Defendant Kamran Hakim entered into a partnership agreement to purchase properties in New York City (the Partnership Agreement ). 30. That pursuant to this Partnership Agreement Defendant Kamran Hakim, who at all relevant times resided in New York, was to be responsible for the purchase, operation, control and management of any properties so purchased. 4

5 31. That pursuant to the Partnership Agreement, Defendant Kamran Hakim purchased on behalf of the partnership certain property in the City, County and State of New York, including, but not limited to 456 West 57 th St., New York, New York, 328 East 61 st St., New York, New York, and 728 Tenth Ave., New York, New York (The RF Company Properties ). 32. That at all relevant times, Defendant Kamran Hakim led Plaintiff Said Hakim to believe that these properties were part of a partnership known as RF Company. 33. That Plaintiff entrusted and relied on Defendant Kamran Hakim with respect to the RF Company Properties, over which at all relevant times, Kamran Hakim had complete control, including the management and operation thereof. 34. That Defendant Kamran Hakim had prepared and delivered to Said Hakim partnership forms K-1 indicating that Said Hakim is Partner #1 of the partnership. 35. That upon information and belief, Defendant Kamran Hakim has paid himself management fees from RF Company in excess of those agreed to by Said Hakim, which excess payments were fraudulently concealed by Kamran Hakim. 36. In early 2005, Plaintiff Said Hakim first learned of Defendant Kamran Hakim s fraudulent and wrongful acts described above, including the fact that Defendant Kamran Hakim had sold certain of the RF Companies Properties (purchased primarily with funds provided by Plaintiff Said Hakim) without disclosing those sales despite repeated communications with Plaintiff Said Hakim about those properties after the undisclosed sales. 37. The properties sold include but are not limited to, 456 West 57 th St., New York, New 5

6 York, 328 East 61 st St., New York, New York, and 728 Tenth Ave., New York, New York. AS AND FOR PLAINTIFF S FIRST OFFSET TO THE COUNTERCLAIMS (DISSOLUTION) 38. That Defendant Kamran Hakim has improperly and fraudulently withdrawn partnership funds from RF Company and fraudulently concealed such withdrawals from Said Hakim, who reasonably relied on the accuracy of information received from Kamran Hakim. 39. That Defendant Kamran Hakim paid himself management fees in excess of those agreed to with respect to RF Company and fraudulently concealed such payments from Said Hakim. 40. In furtherance of Kamran Hakim s fraudulent withdrawal of funds and fraudulent overpayment of management fees, that Defendant Kamran Hakim has failed and refused to furnish Plaintiff Said Hakim with Schedule K-1s for RF Company, income payments from RF Company and other documents and information concerning RF Company which he requires and to which he is entitled. 41. That Plaintiff Said Hakim has been damaged as a result of the improper actions of Defendants. 42. Based on the foregoing, Plaintiff Said Hakim is unable to carry on the partnership business with RF Company and is entitled to the dissolution of the partnership. 43. That Plaintiff Said Hakim is entitled to that portion of the partnership assets to which 6

7 he has a rightful interest including but not limited to assets from the RF Company Properties.. AS AND FOR PLAINTIFF S SECOND OFFSET TO THE COUNTERCLAIMS (ACCOUNTING) 44. Plaintiff repeats and re-alleges each of the allegations contained in Paragraphs 1 through 43 hereof, as if set forth at length herein. 45. That Defendant Kamran Hakim had a fiduciary duty to Plaintiff. 46. That the above mentioned acts of Defendant Kamran Hakim were fraudulent and in willful disregard and violation of his fiduciary duties to Plaintiff Said and reveal a likelihood that Said Hakim will not receive his proper share of partnership assets in the absence of a full accounting. 47. Based on the foregoing, Plaintiff is entitled to an accounting of all assets of the partnership, RF Company and RF Corporation, including but not limited to the RF Company Properties, from the inception of this action through the present in accordance with Fuchsberg & Fuchsberg v. Fuchsberg, 2 A.D.3d 158 (1 st Dep t 2003). AS AND FOR PLAINTIFF S THIRD OFFSET TO THE COUNTERCLAIMS (WASTE) 48. Plaintiff repeats and re-alleges each of the allegations contained in Paragraphs 1 through 47 hereof, as if set forth at length herein. 49. That Plaintiff Said Hakim is entitled to recover partnership funds fraudulently withdrawn by Defendant Kamran Hakim, which withdrawals were improperly concealed from Plaintiff Said Hakim. 7

8 50. That Plaintiff is entitled to recover management fees and other funds improperly and fraudulently paid to Defendant Kamran Hakim without the knowledge or consent of Plaintiff Said Hakim. 51. That the above mentioned acts of Defendant Kamran Hakim constitute fraudulent waste and mismanagement of the assets of the partnership, RF Company and/or RF Corporation. 52. That Plaintiff Said Hakim reasonably relied on Kamran Hakim to pay only those management fees that were proper and to withdraw only such funds that were properly used for the conduct of the business or properly distributed to the partners. 53. That based on the foregoing, Plaintiff Said Hakim suffered damages and is entitled to recover same from Defendant Kamran Hakim. AS AND FOR PLAINTIFF S FOURTH OFFSET TO THE COUNTERCLAIMS (CONVERSION) 54. Plaintiff repeats and re-alleges each of the allegations contained in Paragraphs 1 through 53 hereof, as if set forth at length herein. 55. That Defendant Kamran Hakim sold the RF Company Properties and/or partnership assets without the Plaintiff Said Hakim s consent and retained the proceeds of such sale. 56. That Defendant Kamran Hakim has retained the proceeds of such sales which were substantial. 57. That Defendant Kamran Hakim used proceeds of these sales to invest in other properties without including Plaintiff Said Hakim as a partner in same. 58. That certain of the proceeds of such sale rightfully belonged to Plaintiff Said Hakim. 8

9 59. That Defendant Kamran Hakim committed such acts with willful and wanton disregard for the rights of Plaintiff Said Hakim. 60. That these actions of Defendant Kamran Hakim constitute illegal conversions. 61. That Plaintiff sustained damage as a result of such conversions. 62. Based on the foregoing Plaintiff is entitled to recover damages and an interest in properties purchased by Defendant Kamran Hakim with the converted assets. AS AND FOR PLAINTIFF S FIFTH OFFSET TO THE COUNTERCLAIMS (FRAUD) 63. Plaintiff repeats and re-alleges each of the allegations contained in Paragraphs 1 through 62 hereof, as if set forth at length herein. 64. That Plaintiff Said Hakim and Defendant Kamran Hakim entered into agreement whereby they would jointly invest in properties. 65. That pursuant to the agreement Plaintiff Said Hakim was to furnish income and support from Iran, Defendant Kamran Hakim would purchase properties in New York, and any properties which were purchased would be through a partnership of the Hakim brothers, including Plaintiff Said Hakim 66. That on behalf of the partnership Defendant Kamran Hakim purchased properties in New York, including, but not limited to, the RF Company Properties, and Defendant Kamran Hakim represented to Plaintiff Said Hakim that Plaintiff Said Hakim owned all or part of the RF Company Properties. 67. That Defendant Kamran Hakim caused RF Company to render K-1 s to Plaintiff Said Hakim, listing Plaintiff Said Hakim as Partner # That Defendant Kamran Hakim represented to Plaintiff Said Hakim that these K-1 s 9

10 were for the RF Company Properties. 69. That Defendant Kamran Hakim fraudulently concealed from Plaintiff Said Hakim purchases of New York properties made by Defendant Kamran Hakim. 70. That the K-1s furnished to Plaintiff Said Hakim failed to reveal the unauthorized sale of the RF Company properties. 71. That Plaintiff Said Hakim reasonably relied on Defendant Kamran Hakim to disclose the purchase of any properties in New York. 72. That the representations that Defendant Kamran Hakim made concerning the Plaintiff Said Hakim s ownership of the RF Company Properties were false at the time that they were made. 73. At the time of making these representations, Defendant Kamran Hakim knew they were false. 74. That Defendant Kamran Hakim made the representations with intent to deceive Plaintiff Said Hakim and to induce him to act in reliance upon the representations. 75. That Plaintiff Said Hakim was ignorant of the falsity of these representations and believed them to be true. 76. That Plaintiff Said Hakim relied on these misrepresentations. 77. That, as a result of Plaintiff Said Hakim s reasonable reliance on Kamran Hakim and Kamran Hakim s fraudulent concealment and/or misrepresentations of certain purchases of property in New York, Plaintiff Said Hakim suffered damages. 78. Based on the foregoing wrongful and fraudulent actions, Plaintiff is entitled to recover damages. 79. That on or about February 20, 1991, Plaintiff Said Hakim and Defendant Kamran 10

11 Hakim entered into a written agreement (the Agreement ) whereby they agreed to apportion the recovery of any money received pursuant to the rules established by the Declaration of Algeria dated January 19, 1982 or by any action of the Iran-United States Claims Tribunal established by the Declaration of Algeria, a copy of which is annexed hereto as Exhibit A. 80. Pursuant to such apportionment, Plaintiff Said Hakim was to receive a portion of any recovery. 81. Defendant Kamran Hakim was informed that such funds were being sent and was under a duty to disclose that fact to Plaintiff Said Hakim. 82. That Defendant Kamran Hakim fraudulently concealed from Said Hakim the fact of receipt by Defendant Kamran Hakim of the monies that were subject to apportionment under the Agreement. 83. Plaintiff Said Hakim reasonably relied on Defendant Kamran Hakim to disclose the receipt of funds subject to apportionment under the Agreement. 84. Plaintiff Said Hakim later learned that such funds were received by Kamran Hakim and demanded payment of the amount due Plaintiff Said Hakim under the Agreement. 85. That Defendant Kamran Hakim has wrongfully and fraudulently retained such funds for himself. 86. That Plaintiff Said Hakim is entitled to receive his portion of the recovery made pursuant to the rules established by the Declaration of Algeria dated January 19, 1982 or by any action of the Iran-United States Claims Tribunal established by the Declaration of Algeria. 87. That Defendant Kamran Hakim has refused to pay same although duly demanded. 11

12 88. That, as a result of Plaintiff Said Hakim s reasonable reliance on Defendant Kamran Hakim and as a result of Kamran Hakim s fraudulent concealment of the receipt of such funds and Defendant Kamran Hakim s wrongful retention of all monies subject to apportionment under the Agreement, Plaintiff Said Hakim has sustained damages. 89. Based on the foregoing, Plaintiff is entitled to recover damages. AS AND FOR PLAINTIFF S SIXTH OFFSET TO THE COUNTERCLAIMS (BREACH OF CONTRACT) 90. Plaintiff repeats and re-alleges each of the allegations contained in Paragraphs 1 through 89 hereof, as if set forth at length herein. 91. The conduct complained of above in the First through Sixth Causes of Action, aside from being fraudulent, was in contravention of certain contractual duties owed by Kamran Hakim. Plaintiff Said Hakim suffered damages as a result of such breaches. AS AND FOR PLAINTIFF S SEVENTH OFFSET TO THE COUNTERCLAIMS (RECEIVER) 92. Plaintiff repeats and re-alleges each of the allegations contained in Paragraphs 1 through 87 hereof, as if set forth at length herein. 93. That a receiver should be appointed to a) operate the RF Company Properties during the pendency of this action and b) arrange for an equitable disposal of the properties which should include the transfer of title in properties to Plaintiff. WHEREFORE, Plaintiff Said Hakim demand judgment a. Dismissing Defendant s Counterclaims; b. Dissolving the partnership; 12

13 c. Declaring that Defendants Kamran Hakim, Ranell Freeze Company and Ranell Freeze Corporation shall account to Plaintiff for all sums which may be due Plaintiff Said Hakim under the partnership and determining the value of Plaintiff Said Hakim s share in the assets of this partnership and any property purchased with partnership assets; d. Declaring Plaintiff Said Hakim s interest in the RF Company Properties including any properties purchased by Defendant Kamran Hakim with the proceeds of the sale of properties mentioned herein; e. Awarding Plaintiff money damages in a sum to be determined at trial and/or an equitable interest in properties purchased by Defendant Kamran Hakim in New York without providing an interest in such properties to Plaintiff Said Hakim; Dated New York, New York July 5, 2006 Law Office of Ian L. Blant s/ Ian L. Blant By Ian L. Blant, Esq. Attorneys for Plaintiff 475 Park Avenue South, 16 th Floor New York, New York (212) Gregory Miller, Esq Podvey, Meanor, Catenacci, Hildner Cocoziello & Chattman One Riverfront Plaza, 8 th Floor Newark, NJ (973) To Leo Fox, Esq. Attorneys for Defendants, except Masud Hakim 13

14 630 Third Ave. New York, New York Peter Rossi, Esq. Lankler & Carragher, LLP 845 Third Avenue, 17 th Floor New York, New York and Ramin Azadegan, Esq. Law Offices of Ramin Azadegan 9107 Wilshire Boulevard, Suite 800 Beverly Hills, California Attorneys for Defendant, Masud Hakim 14