FILED: NEW YORK COUNTY CLERK 07/07/ :53 PM INDEX NO /2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 07/07/2015

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1 FILED: NEW YORK COUNTY CLERK 07/07/ :53 PM INDEX NO /2013 NYSCEF DOC. NO. 64 RECEIVED NYSCEF: 07/07/2015 SUPREME COURT: STATE OF NEW YORK NEW YORK COUNTY THE BOARD OF MANAGERS OF EAST 70TH ST. CONDOMINIUM, Plaintiff, Index No /2013 -against- 11 EAST 70TH CORP., BERRY-HILL GALLERIES, INC., HSBC BANK USA, NATIONAL ASSOCIATION, PAULSON & CO., INC., ROBERT BURNS, THE NEW YORK STATE DEPARTMENT OF LABOR, 624 ART HOLDINGS, LLC, THE NEW YORK CITY DEPARTMENT OF FINANCE, THE NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, AND THE NEW YORK CITY PARKING VIOLATIONS BUREAU. Defendants. ANSWER Defendant 624 Art Holdings, LLC (the Defendant ), as and for its answer to the amended complaint ( AC ) filed by plaintiff The Board of Managers of East 70th St. Condominium (the Plaintiff ), by and through its undersigned counsel, Sam P. Israel, P.C., states as follows: ANSWER TO ALLEGATIONS 1. In response to Paragraph 1 of the AC, the Defendant denies knowledge or information sufficient to form a belief as to the truthfulness of the assertions set forth therein regarding the ownership of the alleged apartment building or its recordation, and further states that no response is required as to the documents referenced in Paragraph 1, which speak for themselves. 2. In response to Paragraph 2 of the AC, the Defendant denies knowledge or information sufficient to form a belief as to the truthfulness of the assertions set forth 1

2 therein regarding the Plaintiff s alleged actions and intentions, including, those concerning the filings of liens alleged in Paragraph 2, and otherwise denies all other allegations contained in that paragraph. 3. In response to Paragraphs 3-9, 11-14, 20, 26-28, 30, 34-35, 37, 39, 45, 51, 55 56, 58, 60, 66, 69, 73, of the AC, the Defendant denies knowledge or information sufficient to form a belief as to the truthfulness of the assertions set forth in those paragraphs. 4. In response to Paragraph 10 of the AC, the Defendant admits that 624 Art Holdings LLC is a New York limited liability company, and that it holds a judgment against Berry-Hill Galleries, Inc., as well as the company s principal, James Hill; denies all other allegations contained in Paragraph 10, and further states that it holds a valid and enforceable judgment lien on all real and personal property owned by James Hill and Berry-Hill Galleries, Inc. 5. In response to Paragraph 21 of the AC, the Defendant admits that it is a judgment creditor of Berry-Hill Galleries, Inc. and that it has an interest in the alleged property; the Defendant denies knowledge or information sufficient to form a belief as to the truthfulness of the remaining allegations contained in Paragraph In response to Paragraphs 17, 18, 22, 38, 40, 59, and 61 of the AC, the Defendant denies knowledge or information sufficient to form a belief as to the truthfulness of the assertions set forth therein, and further states that no response is required as to the documents referenced in those paragraphs, which speak for themselves. 7. In response to Paragraph 23-25, 32, 33, 41, 46, 53 54, 62, 67, and 77 of the AC, the Defendant denies knowledge or information sufficient to form a belief as to the truthfulness of the assertions set forth therein regarding the various provisions of the alleged Condominium s By-Laws and Rules and Regulations, and further states that no response is required as to any of the documents referenced in those paragraphs, which speak for themselves. 2

3 8. Paragraph 19 of the AC does not require a response; to the extent that a response is required, the Defendant admits that a document purporting to be a deed is attached to the AC as Exhibit B, and denies all other allegations contained in this paragraph. 9. The allegations set forth in Paragraphs 15, 16, 31, 36, 42-44, 48, 52, 57, 63 65, 70 and 74 of the AC comprise legal conclusions and are therefore respectfully referred to the Court for its deliberations upon a full and complete record; to the extent a response is required to any purported factual allegations in the aforesaid paragraphs, they are denied. 10. In response to Paragraphs 29, 50, and 71 of the AC, the Defendant repeats, re-alleges, and incorporates by reference, each and every one of its responses to the paragraphs numerically preceding them. 11. In response to Paragraph 72 of the AC, the Defendant denies all allegations contained therein with respect to the Defendant, and denies knowledge or information sufficient to form a belief as to the truthfulness of all other assertions set forth therein. 12. In response to Paragraphs 47 and 68 of the AC, the Defendant denies that any interests, claims or liens of 624 Art Holdings, LLC in connection with the alleged real property units are subordinate to the alleged liens, and denies knowledge or information sufficient to form a belief as to the truthfulness of all other assertions set forth therein; the Defendant further states that Defendant is entitled to the proceeds, in whole or in part, from the sale of the subject property in order to satisfy its judgment lien. 13. In responding to Paragraphs 49, 78 and the Wherefore clause of the AC, the Defendant denies that the Plaintiff is entitled to judgment in its favor or for any relief whatsoever, including the relief requested in Paragraphs 49, 78 and in the "Wherefore" clause of the AC. 14. The Defendant denies each and every allegation set forth in the AC that is not otherwise expressly addressed herein. 3

4 AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE The AC fails to state a claim, in whole or in part, upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE The Plaintiff s claims are barred by the doctrines of waiver and estoppel, and/or by other equitable doctrines. THIRD AFFIRMATIVE DEFENSE The Plaintiff s claims are barred by the doctrine of unclean hands. FOURTH AFFIRMATIVE DEFENSE The Plaintiff s claims are barred by the applicable statute of limitations. FIFTH AFFIRMATIVE DEFENSE The Plaintiff s claims are barred, in whole or in part, due to the Plaintiff s failure to mitigate the damages alleged in the AC. SIXTH AFFIRMATIVE DEFENSE The Plaintiff s claims are barred, in whole or in part, because the AC fails to establish that the Plaintiff suffered any actual damages. SEVENTH AFFIRMATIVE DEFENSE One or more of the Plaintiff s claims are barred, in whole or in part, due to of accord and satisfaction of the alleged debt. EIGHTH AFFIRMATIVE DEFENSE One or more of the Plaintiff s claims are barred, in whole or in part, by reason of the Plaintiff s failure to perform in accordance with alleged contract. NINTH AFFIRMATIVE DEFENSE The Plaintiff would be unjustly enriched if its claims are successful. TENTH AFFIRMATIVE DEFENSE The Plaintiff s claims are barred by Plaintiff s lack of standing because Plaintiff was not the legal owner of the Note and/or Mortgage at the time it commenced this foreclosure lawsuit. 4

5 ELEVENTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred, in whole or in part, inasmuch as Plaintiff s demands for interest are usurious and violate state and federal laws. TWELFTH AFFIRMATIVE DEFENSE Plaintiff failed to deliver the necessary pre-foreclosures notices prior to filing this lawsuit. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff has failed to name all necessary parties. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred because its interests, claims or liens, if any, are subordinate to the Defendant s interest, claims and liens in the real property at issue in the AC. FIFTEENTH AFFIRMATIVE DEFENSE The Defendant is entitled to the proceeds, in whole or in part, from the sale of the subject property in order to satisfy its judgment lien. RESERVATION OF RIGHTS The Defendant reserves the right to assert any additional and further defenses as may be revealed in discovery or otherwise. PRAYER FOR RELIEF WHEREFORE, the Defendant respectfully requests that this Court enter a judgment against the Plaintiff, granting the following relief: 1) That the AC be dismissed with prejudice; 2) That the Defendant be awarded attorney's fees, costs and applicable interest; and 3) Whatever other and further relief the Court deems just and proper. 5

6 Dated: New York, New York July 7, 2015 Eleonora Zlotnikova Attorneys for Defendant 624 Art Holdings, LLC 1 Liberty Plaza-Thirty Fifth Floor New York, New York T: (646) I F: (646) E: elzlotnikova@spi-pc.com 6