FILED: KINGS COUNTY CLERK 02/24/ /31/ :26 08:31 PM AM INDEX NO /2016 NYSCEF DOC. NO. 637 RECEIVED NYSCEF: 02/24/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X MARIA C. CORSO, FRANK J. IANNO -against- Plaintiff, ANSWER WITH COUNTERCLAIMS Index Number /2016 Defendant X Defendant FRANK J. IANNO, by and through their attorneys, The Law Offices of Michael J.S. Pontone, Esq. P.C. answers the complaint as follows: 1. Defendant denies the allegations contained in the first paragraph 2. Defendant denies the allegations contained in the second paragraph. 3. Defendant lacks knowledge or information sufficient to form a belief with respect to the allegations contained in the third paragraph. 4. Defendant admits the allegations contained in the fourth paragraph. 5. Defendant lacks knowledge or information sufficient to form a belief with respect to the allegations contained in the fifth paragraph. 6. Defendant lacks knowledge or information sufficient to form a belief with respect to the allegations contained in the sixth paragraph. 7. Defendant denies the allegations contained in the seventh paragraph. 8. Defendant denies the allegations contained in the eighth paragraph. 9. Defendant denies the allegations contained in the ninth paragraph. 10. Defendant denies the allegations contained in the tenth paragraph. 11. Defendant denies the allegations contained in the eleventh paragraph. 12. Defendant denies the allegations contained in the twelfth paragraph. 1 of 10

2 13. Defendant denies the allegations contained in the thirteenth paragraph. 14. Defendant denies the allegations contained in the fourteenth paragraph. 15. Defendant denies the allegations contained in the fifteenth paragraph. 16. Defendant denies the allegations contained in the sixteenth paragraph. 17. Defendant denies the allegations contained in the seventeenth paragraph. 18. Defendant denies the allegations contained in the eighteenth paragraph. 19. Defendant denies the allegations contained in the nineteenth paragraph. 20. Defendant denies the allegations contained in the twentieth paragraph. 21. Defendant denies the allegations contained in the twenty-first paragraph. 22. Defendant denies the allegations contained in the twenty-second paragraph. 23. Defendant denies the allegations contained in the twenty-third paragraph. 24. Defendant denies the allegations contained in the twenty-fourth paragraph. 25. Defendant denies the allegations contained in the twenty-fifth paragraph. 26. Defendant denies the allegations contained in the twenty-sixth paragraph. 27. Defendant denies the allegations contained in the twenty-seventh paragraph. 28. Defendant denies the allegations contained in the twenty-eighth paragraph. 29. Defendant denies the allegations contained in the twenty-ninth paragraph. 30. Defendant denies the allegations contained in the thirtieth paragraph. 31. Defendant denies the allegations contained in the thirty-first paragraph. 32. Defendant denies the allegations contained in the thirty-second paragraph. 33. Defendant denies the allegations contained in the thirty-third paragraph. 34. Defendant denies the allegations contained in the thirty-fourth paragraph. 35. Defendant denies the allegations contained in the thirty-fifth paragraph. 2 of 10

3 36. Defendant denies the allegations contained in the thirty-sixth paragraph. 37. Defendant denies the allegations contained in the thirty-seventh paragraph. 38. Defendant denies the allegations contained in the thirty-eighth paragraph. 39. Defendant denies the allegations contained in the thirty-ninth paragraph. 40. Defendant denies the allegations contained in the fortieth paragraph. 41. Defendant denies the allegations contained in the forty-first paragraph. 42. Defendant denies the allegations contained in the forty-second paragraph. 43. Defendant denies the allegations contained in the forty-third paragraph. 44. Defendant denies the allegations contained in the forty-fourth paragraph. 45. Defendant denies the allegations contained in the forty-fifth paragraph. 46. Defendant denies the allegations contained in the forty-sixth paragraph. 47. Defendant denies the allegations contained in the forty-seventh paragraph. 48. Defendant denies the allegations contained in the forty-eighth paragraph. 49. Defendant denies the allegations contained in the forty-ninth paragraph. 50. Defendant denies the allegations contained in the fiftieth paragraph. 51. Defendant denies the allegations contained in the fifty-first paragraph. 52. Defendant denies the allegations contained in the fifty-second paragraph. 53. Defendant denies the allegations contained in the fifty-third paragraph. 54. Defendant denies the allegations contained in the fifty-fourth paragraph. 55. Defendant denies the allegations contained in the fifty-fifth paragraph. 56. Defendant denies the allegations contained in the fifty-sixth paragraph. 57. Defendant denies the allegations contained in the fifty-seventh paragraph. 58. Defendant denies the allegations contained in the fifty-eighth paragraph. 3 of 10

4 59. Defendant denies the allegations contained in the fifty-ninth paragraph. 60. Defendant denies the allegations contained in the sixtieth paragraph. 61. Defendant denies the allegations contained in the sixty-first paragraph. 62. Defendant denies the allegations contained in the sixty-second paragraph. 63. Defendant denies the allegations contained in the sixty-third paragraph. 64. Defendant denies the allegations contained in the sixty-fourth paragraph. 65. Defendant denies the allegations contained in the sixty-fifth paragraph. 66. Defendant denies the allegations contained in the sixty-sixth paragraph. 67. Defendant denies the allegations contained in the sixty-seventh paragraph. 68. Defendant denies the allegations contained in the sixty-eighth paragraph. 69. Defendant denies the allegations contained in the sixty-ninth paragraph. 70. Defendant denies the allegations contained in the seventieth paragraph. 71. Defendant denies the allegations contained in the seventy-first paragraph. 72. Defendant denies the allegations contained in the seventy-second paragraph. 73. Defendant denies the allegations contained in the seventy-third paragraph. 74. Defendant denies the allegations contained in the seventy-fourth paragraph. 75. Defendant denies the allegations contained in the seventy-fifth paragraph. 76. Defendant denies the allegations contained in the seventy-sixth paragraph. 77. Defendant denies the allegations contained in the seventy-seventh paragraph. 78. Defendant denies the allegations contained in the seventy-eighth paragraph. 79. Defendant denies the allegations contained in the seventy-ninth paragraph. 80. Defendant denies the allegations contained in the eightieth paragraph. 81. Defendant denies the allegations contained in the eighty-first paragraph. 4 of 10

5 82. Defendant denies the allegations contained in the eighty-second paragraph. 83. Defendant denies the allegations contained in the eighty-third paragraph. 84. Defendant denies the allegations contained in the eighty-fourth paragraph. FIRST AFFIRMATIVE DEFENSE: 85. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 86. The Defendant asserts that the plaintiff did not clearly state the amount or issues in this case, making it difficult for the defendant to respond. The defendant requests that the court grant leave to amend this Answer to allow additional defenses once additional information is discovered that will allow any additional defenses to be known by the defendant. SECOND AFFIRMATIVE DEFENSE: 87. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 88. As a separate and distinct affirmative defense, Defendant allege that the Complaint, and each and every alleged cause of action therein, fails to state facts sufficient to constitute a cause of action upon which relief can be granted. THIRD AFFIRMATIVE DEFENSE: 89. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 90. As a separate and distinct affirmative defense, Defendant asserts that the plaintiff has failed to state an essential element for one or more causes of action, specifically: i. Breach of contract: a. The plaintiff did not state the date the contract was entered into, if there was a contract. b. The plaintiff did not state the date the contract was breached or otherwise not complied with, if there was a contract. 5 of 10

6 c. The plaintiff failed to adequately describe the material terms of the contract or attach a copy of the contract as an exhibit to the complaint. ii. Fraud a. The plaintiff failed to specifically allege the representations that supposedly constituted the fraud, if there was one. iii. Prima Facie Tort a. The plaintiff failed to specifically allege the intent behind the accused acts. b. The plaintiff failed to specifically allege the duty owed to them. FOURTH AFFIRMATIVE DEFENSE: 91. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein. 92. As a separate and distinct affirmative defense, Defendant asserts that the Complaint and each and every alleged cause of action therein are barred, in whole or in part, by the equitable doctrine of laches. FIFTH AFFIRMATIVE DEFENSE: 93. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein 94. As a separate and distinct affirmative defense, Defendant asserts that the plaintiff has failed to take reasonable steps to reduce or minimize the damages experienced. SIXTH AFFIRMATIVE DEFENSE: 95. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein 6 of 10

7 96. As a separate and distinct affirmative defense, Defendant asserts that there is no contractual relationship or agreement between the plaintiff, specifically: 97. The Defendant never entered into the contract or agreement alleged in the Complaint. SEVENTH AFFIRMATIVE DEFENSE 98. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein 99. As a separate and distinct affirmative defense, Defendant allege that the Complaint and each and every alleged cause of action therein are barred, in whole or in part, because Plaintiff s consented to the conduct which they now complaint. EIGTH AFFIRMATIVE DEFENSE 100. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein 101. As a separate and distinct affirmative defense, Defendant asserts that the plaintiff is suing under a theory of an oral contract, but such an oral contract would be unenforceable because it is required to be in writing pursuant to New York General Obligations Law NINTH AFFIRMATIVE DEFENSE 102. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein 103. As a separate and distinct affirmative defense, Defendant asserts that the plaintiff had assumption of the risk in the alleged conduct or activity, specifically: 104. The plaintiff had actual knowledge of the risk involved in the conduct or activity The plaintiff voluntarily accepted the risk, either expressly through agreement or implied by their words and conduct. 7 of 10

8 TENTH AFFIRMATIVE DEFENSE 106. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein As a separate and distinct affirmative defense, Defendant asserts that no fraud or misrepresentation occurred because no contract was formed. ELEVENTH AFFIRMATIVE DEFENSE 108. Defendant repeats and re-alleges the foregoing paragraphs as if fully set forth herein 109. As a separate and distinct affirmative defense, Defendant asserts that no unjust enrichment occurred because no contract was formed. TWELFTH AFFIRMATIVE DEFENSE 110. As a separate and distinct affirmative defense, Defendant asserts no fraud in inducement as no contract was formed. 8 of 10

9 WHEREFORE, Defendant prays to this court for: 1. Judgment dismissing Plaintiff s Complaint. 2. An order granting judgment to the Defendant awarding reasonable attorneys fees, costs, and disbursements. 3. Any other and further relief this court finds just and proper. Dated: Brooklyn, New York February 24, 2017 Michael J.S. Pontone, Esq. The Law Offices of Michael J.S. Pontone, Esq. Attorney for the Defendant 388 Bridge Street, Ste. 36G Brooklyn, New York michael@pontonelaw.com TO: TOSOLINI, LAMURA, RASILE & TANIUTTI, LLP Attorney(s) for Plaintiff 70 West 36 th Street, Suite 12A New York, New York Telephone: (212) of 10

10 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X MARIA C. CORSO, FRANK J. IANNO -against- Plaintiff, Index Number /2016 Defendant X ANSWER Signature Rule 130.1(a) Michael J.S. Pontone, Esq. The Law Offices of Michael J.S. Pontone, Esq. Attorney for the Defendant 388 Bridge Street, Ste. 36G Brooklyn, New York of 10