FILED: NEW YORK COUNTY CLERK 08/25/ :15 AM INDEX NO /2016 NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 08/25/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EVA SCRIVO FIFTH AVENUE, INC., vs. Plaintiff, ANNIE RUSH and COSETTE FIFTH AVENUE, LLC, Defendants. Index No /2016 VERIFIED ANSWER TO DEFENDANTS COUNTERCLAIMS Plaintiff, Eva Scrivo Fifth Avenue, Inc. (hereafter Plaintiff ), by and through undersigned counsel, Connell Foley LLP, hereby answers the Counterclaims filed by Defendants, Annie Rush and Cosette Fifth Avenue, LLC (hereafter Defendants ) as follows: 137) No response is required. AS AND FOR A FIRST COUNTERCLAIM (Abuse of Process against Plaintiff) 138) This Counterclaim was dismissed pursuant to the Decision and Order of Judge 139) This Counterclaim was dismissed pursuant to the Decision and Order of Judge 140) This Counterclaim was dismissed pursuant to the Decision and Order of Judge 141) This Counterclaim was dismissed pursuant to the Decision and Order of Judge 142) This Counterclaim was dismissed pursuant to the Decision and Order of Judge of 6

2 143) This Counterclaim was dismissed pursuant to the Decision and Order of Judge 144) This Counterclaim was dismissed pursuant to the Decision and Order of Judge 145) This Counterclaim was dismissed pursuant to the Decision and Order of Judge 146) This Counterclaim was dismissed pursuant to the Decision and Order of Judge AS AND FOR A SECOND COUNTERCLAIM (Tortious and Intentional Interference with Business Relations against Plaintiff) 147) Plaintiff repeats and realleges its answers to Defendants Counterclaims as set forth in the foregoing paragraphs, as if fully set forth herein. 148) Plaintiff lacks sufficient knowledge or information to form a belief as to the truth of the allegations set forth in Paragraph 148 of Defendants Second Counterclaim. 149) Plaintiff denies the allegations in Paragraph 149 of Defendants Second Counterclaim. 150) To the extent the allegations at Paragraph 150 of Defendants Second Counterclaim leaves Defendants to their proofs. The remaining allegations of Paragraph 150 are denied. 151) To the extent the allegations at Paragraph 151 of Defendants Second Counterclaim leaves Defendants to their proofs. The remaining allegations of Paragraph 151 are denied. 2 2 of 6

3 152) To the extent the allegations at Paragraph 152 of Defendants Second Counterclaim leaves Defendants to their proofs. The remaining allegations of Paragraph 152 are denied. 153) To the extent the allegations at Paragraph 153 of Defendants Second Counterclaim leaves Defendants to their proofs. The remaining allegations of Paragraph 153 are denied. WHEREFORE, Plaintiff demands judgment dismissing Defendants Second Counterclaim in its entirety with prejudice, together with legal fees and costs of suit. SEPARATE AND AFFIRMATIVE DEFENSES FIRST SEPARATE DEFENSE Defendants remaining Counterclaim, and each allegation therein, fails to state a claim upon which relief can be granted. SECOND SEPARATE DEFENSE The actions allegedly taken by Plaintiff in Defendants remaining Counterclaim were justified in that Plaintiff s goal was to preserve the financial health of the company and/or was otherwise in pursuit of its legitimate economic interests. THIRD SEPARATE DEFENSE Prior to and at the time of the commission of the acts complained of in the Defendants remaining Counterclaim, Plaintiff had no knowledge that the Defendants had entered in contractual or business relations with any third parties, as alleged in Defendants remaining Counterclaim. Therefore, Plaintiff acted in good faith, in the ordinary course of business, and without any intention of injuring Defendants. FOURTH SEPARATE DEFENSE The injuries, if any, alleged to have been sustained by Defendant Cosette Fifth Avenue, LLC, were caused, in whole or in part, by the culpable conduct of Defendant Annie Rush. 3 3 of 6

4 FIFTH SEPARATE DEFENSE The relief sought in the Defendants remaining Counterclaim is barred by the doctrine of unclean hands. SIXTH SEPARATE DEFENSE Defendants remaining Counterclaim, and each allegation of fraud and misrepresentation therein, fails to aver the circumstances constituting fraud with particularity as required by CPLR 3016(b); therefore, all such allegations should be dismissed as a matter of law. SEVENTH SEPARATE DEFENSE The relief sought in Defendants remaining Counterclaim is barred by the applicable statute of limitations. EIGHTH SEPARATE DEFENSE Defendants remaining Counterclaim is barred by the doctrines of waiver, laches, estoppel, consent, ratification and/or unjust enrichment. NINTH SEPARATE DEFENSE Defendants right to recovery, if any, must be offset by their failure to reasonably mitigate the alleged losses. TENTH SEPARATE DEFENSE Plaintiff denies that Defendants have been damaged or, alternatively, if Defendants have been damaged, Plaintiff has no liability for any such damages. ELEVENTH SEPARATE DEFENSE Plaintiff reserves the right to move to dismiss the Defendants remaining Counterclaim on the grounds that Defendants claims are barred or reduced - in part or in their entirety - by the doctrines of setoff and/or recoupment. 4 4 of 6

5 TWELFTH SEPARATE DEFENSE Plaintiff reserves the right to supplement these affirmative defenses with such additional defenses as may be determined in discovery. WHEREFORE, Plaintiff demands judgment dismissing the Defendants remaining Counterclaim with prejudice and awarding attorneys fees, costs and such other relief as the Court deems just and equitable. CONNELL FOLEY LLP Attorneys for Plaintiff, Eva Scrivo Fifth Avenue, Inc. BY: s/leo J. Hurley, Jr Leo J. Hurley, Jr., Esq. DATED: August 24, of 6

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