FILED: KINGS COUNTY CLERK 04/21/ :00 PM INDEX NO /2015 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 04/21/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ASTORIA 48 TH STREET CAPITAL, INC., INDEX NO /2015 Plaintiff, ANSWER TO AMENDED -against- COMPLAINT AND COUNTERCLAIMS OP EQUITIES, LLC AND BENJAMIN ERPST, AGAINST PLAINTIFF Individually and as sole general and managing member AND ADDITIONAL Of OP Equities, LLC DEFENDANTS ON THE COUNTERCLAIMS Defendants. OP EQUITIES, LLC, Defendant and Plaintiff on the Counterclaims -against- ANNA LOURIE; ELON LEBOVICH and VIERA NOVAK., Additional Defendants on the Counterclaims, INTRODUCTION In a Notice of Rejection dated April 21, 2017, Defendant and Plaintiff on the Counterclaims OP EQUITIES, LLC rejected and returned an Amended Complaint, dated March 20, 2016 and filed by plaintiff on March 20, 2017, on the grounds that said purported Amended Complaint was improperly filed without court leave as required by CPLR 3025 and bears an incorrect caption. In the event it is determined by the court that the Amended Complaint was properly filed, the within Answer shall be deemed timely field and served by OP EQUITIES, LLC. 1 of 20

2 ANSWER TO AMENDED COMPLAINT AND COUNTERCLAIMS AGAINST PLAINTIFF AND ADDITIONAL DEFENDANTS ON THE COUNTERCLAIMS Defendant OP EQUITIES, LLC ( OP Equities ), by its attorneys Eli S. Fixler, Esq. and John Lonuzzi, Esq. hereby answers the complaint and allege as follows: 1. Denies each and every allegation set forth in 4, 27, 30, 36 and 37 of the Amended Complaint. 2. Denies that it has knowledge or information sufficient to form a belief as to the allegations set forth in 1, 3, 5, 6, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 31, 32, 34, 35, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 67, 68, 69, 70, 71 and 72 of the Amended Complaint and to the extent said allegations refer to certain documents all questions of law concerning said documents are respectfully referred to the court. INTRODUCTION TO COUNTERCLAIMS AGAINST PLAINTIFF AND ADDITIONAL DEFENDANTS ON THE COUNTERCLAIMS 3. OP Equities is the victim of a fraudulent scheme perpetrated by Additional Defendants to acquire title to the real properties known as 733 Ocean Parkway, Brooklyn, New York, Kings County Tax Map Block 5428, Lot 7 ("733 Ocean 2 2 of 20

3 Parkway") and 735 Ocean Parkway, Brooklyn, New York, Kings County Tax Map Block 5428, Lot 6 ("735 Ocean Parkway"), (collectively, the "Premises" or "Properties"). 4. On or about December 26, 2013 Additional Defendants fraudulently and knowingly induced OP Equities to execute purported documents/deeds to the said Properties to Defendant Viera Novak by making intentional misrepresentations and/or failing to provide material information to OP Equities. Additionally, as part of the fraudulent scheme, Additional Defendants failed to pay OP Equities any consideration whatsoever for the execution of the purported documents/deeds and literally stole the Properties from OP Equities. 5. This action is brought, inter alia, pursuant to Article 15 Real Property Actions and Proceedings Law of the State of New York and Real Property Law 329 for a judgment directing that the fraudulent deed to Novak be set aside and canceled of record and that any and all subsequent deeds or other instruments claiming under that deed be set aside and canceled of record including, but not limited to, the deeds to Astoria. This action also seeks injunctive relief and damages as set forth herein. 6. Venue is properly laid in this Court pursuant to C.P.L.R. 507 because the property, which is the subject of this action, is located within the County of Kings within the territorial jurisdiction of this Court. 3 3 of 20

4 FACTS COMMON TO ALL CAUSES OF ACTION/COUNTERCLAIMS 7. That at all times hereinafter mentioned, OP EQUITIES, LLC ( OP Equities or the LLC ) was and still is a duly formed limited liability company under the laws of the State of New York. 8. That upon information and belief, the defendant ASTORIA 48TH STREET CAPITAL INC ( Astoria ) is now and at all times hereinafter mentioned was a New York State corporation, with offices at st Road, Forest Hills, New York. 9. That upon information and belief the defendant ANNA LOURIE ( Lourie ) is now and at all times hereinafter mentioned was a resident of the County of Kings, State of New York. 10. That upon information and belief the defendant ELON LEBOVICH ( Lebovich ) is now and at all times hereinafter mentioned was a resident of the County of Kings, State of New York. 11. That upon information and belief the defendant VIERA NOVAK ( Novak ) is now and at all times hereinafter mentioned was a resident of the County of Westchester, State of New York. 4 4 of 20

5 12. The OP Equities acquired fee simple title to the Properties by virtue of two separate deeds, each dated September 26, 2007 and executed by Viera Novak, as nominee for OP Equities LLC ( OP Equities Deeds ). 13. The OP Equities Deeds were duly recorded on July 9, 2008 in the Office of the New York City Register, County of Kings in City Register File No. (CRFN): and On September 26, 2007, simultaneously with the execution of the OP Equities Deeds, all of the membership interest in OP Equities, belonging to Novak, as nominee, and her husband Eli Noy ( Noy ) was assigned and transferred to Aaron C. Purec a/k/a Ari Chitrik ( Purec ). 15. Since September 26, 2007 and to date, Purec has remained and still is the sole and managing member of OP Equities. 16. At the time the OP Equities Deeds were executed and recorded and the LLC membership interest assigned to Purec, the Properties were encumbered by various mortgages which had been executed by Novak and/or Noy. 17. Thereafter, in or about 2012, upon OP Equities experiencing difficulty in being able to make the mortgage payments on the Properties, OP Equities was 5 5 of 20

6 approached by Lourie and Lebovich who represented that they are brokers and would research and arrange for a sale of the Properties to a third party who would pay off all the existing mortgage debt on the Properties, plus yield a significant surplus to OP Equities. 18. Sometime in 2013 Lourie and Lebovich informed Purec on behalf of OP Equities that they found a purchaser who was willing to pay off all the existing mortgage debt on the Properties, plus yield a significant surplus to OP Equities but Lourie and Lebovich refused to provide OP Equities with any details of the transaction or proposed closing. 19. On or about December 26, 2013, Lourie informed OP Equities that she needs some documents (without specifying what they were) signed urgently in connection with proposed transaction. 20. On or about December 26, 2013, late in the night, Lourie telephoned OP Equities and requested to meet him in her car where she would present him the alleged unidentified documents for signature. 21. Without mentioning that OP Equities was signing a Deed to the Properties, Lourie presented various documents to Purec on behalf of OP Equities for 6 6 of 20

7 signature in her dark car in Brooklyn, while simply stating that these documents are needed for the purported transaction. 22. Relying on Additional Defendants ' representations and assurances, Purec on behalf of OP Equities executed the documents which, completely unbeknownst to Purec, consisted of Deeds and transfer documents to the Properties to Novak. ("Fraudulent Deed"). 23. Upon information and belief Novak thereafter executed deeds to the Properties to ASTORIA 48TH STREET CAPITAL INC on January 16, The Real Property Transfer Report (RP-5217NYC) which is executed and filed with the deeds to Astoria states that the Sale Contract Date between Novak and Astoria is July 8, However, on July 8, 2013, it is undisputed that Novak was not the owner of the Properties and could not possibly have had executed a contract of sale to Astoria, thus evidencing a conspiracy between Astoria and Novak. 25. Further evidence of a conspiracy is that according to the said Real Property Transfer report filed on ACRIS, Astoria only paid $660, for the Properties when the Property s actual fair market value is close to 2 million dollars. 7 7 of 20

8 26. Purec on behalf of OP Equities was completely unaware that it executed a deed to the Properties on or about December 26, Purec never intended to convey the Properties. 27. The Fraudulent Deed to Novak states that Purec signed before a notary public named Michael P. Williams in Queens County. However, Purec did not appear before the notary public Michael P. Williams on December 26, 2013 in Queens County to sign the Fraudulent Deed. 28. The Fraudulent deed was prepared and executed without the knowledge or consent of OP Equities and the signature which appears on the deed, which purports to be on behalf of OP Equities, has been fraudulently obtained. 29. In addition to Additional Defendants arranging for the execution of the Fraudulent Deed, Additional Defendants failed pay any consideration whatsoever to OP Equities. 30. As a direct result of Additional Defendants fraudulent actions, numerous misrepresentations and conspiracy, OP Equities has sustained and continues to sustain significant damages. 8 8 of 20

9 AS A FIRST COUNTERCLAIM QUIET TITLE 31. OP Equities repeats and realleges each and every allegation contained in the preceding paragraphs as if more fully stated herein. 32. The Fraudulent Deeds are deemed a forgery and were fraudulently executed as an attempted conversion of OP Equities s real property. 33. OP Equities is entitled to judgment declaring title to the Property quietly rests in OP Equities and forever barring Defendant and every person claiming under him from any and all claims to an estate or interest in the Property. 34. No Defendant is unknown. abuser. 35. No defendant is an infant, mentally retarded, mentally ill or an alcohol 36. The judgment sought will not affect any person not in being or ascertained at the commencement of the action who by any contingency contained in a devise or grant or otherwise could afterward become entitled to a beneficial estate or interest in the property involved. 9 9 of 20

10 AS A SECOND COUNTERCLAIM CANCELLATION OF DEEDS 37. OP Equities repeats and realleges each and every allegation contained in the preceding paragraphs as if more fully stated herein. 38. By reason of the foregoing, this Court, pursuant to Real Property Law 329, should cancel the Fraudulent Deeds and declare said deeds null and void ab initio and direct the Office of the New York City Register, County of Queens, to cancel said deed from its records and remove the deed from the records of the Property. AS A THIRD COUNTERCLAIM - INJUNCTION 39. OP Equities repeats and realleges each and every allegation contained in the preceding paragraphs as if more fully stated herein. 40. Upon information and belief, Defendant may be marketing the Properties for sale or in negotiations to sell the Properties. 41. Since OP Equities is the rightful owner of the Properties, Defendant has no legal authority to either claim ownership of the Properties or attempt to market or sell the Property of 20

11 42. By reason of the foregoing, the Court should enjoin and restrain defendant from selling, transferring, encumbering, entering into leases or otherwise disposing of the Properties, and any monies received by defendant from a third party should be deemed to be received in trust for and on behalf of OP Equities. AS A FOURTH COUNTERCLAIM - FRAUD 43. OP Equities repeats and realleges the allegations contained in the preceding paragraphs, as if fully set forth herein. 44. Prior to execution of the Fraudulent Deeds, Additional Defendants made the following representations to OP Equities: a. Additional Defendants have located a purchaser who is willing to satisfy all the mortgage debt on the Properties and pay OP Equities a substantial sum in exchange for a Deed to the Properties. b. At a closing to be mutually scheduled, OP Equities would receive a substantial sum as consideration for the Deeds to the Properties with the mortgages being fully paid by the proposed purchaser of 20

12 c. OP Equities would be present at a closing to execute a deed and transfer and receive consideration therefor. 45. OP Equities acted in complete reliance upon said statements and representations. 46. At the time said representations were made by defendant knew that said representations were false and defendant had no intention whatsoever of fulfilling any representations. 47. Defendant made said false representations with intent to deceive the OP Equities and to fraudulently induce OP Equities to execute deeds to the Properties without compensating OP Equities in any way whatsoever. 48. OP Equities was completely ignorant of the falsity of the representations at the time it was made and OP Equities in complete reliance upon said representations was lured and deceived into executing the Fraudulent Deeds without receiving any consideration. 49. Had OP Equities known that said representations were false, the OP Equities would never have executed the Fraudulent Deeds of 20

13 50. The OP Equities had no reason to suspect the falsity of defendant s representations and being ignorant of the falsity, the OP Equities relied upon those representations and in reliance thereon, executed the Fraudulent Deeds to the benefit of defendant. 51. As a direct result of defendant s false representations, OP Equities had been damaged in an amount to be determined at trial, but not less than the $1,000, plus interest still accruing. 52. By reason of the above, defendant is liable to OP Equities in the amount of to be determined at trial, but not less than $1,000, with interest accrued and accruing plus punitive damages. AS A FIFTH COUNTERCLAIM UNJUST ENRICHMENT 53. OP Equities repeats and realleges the allegations contained in the preceding paragraphs, as if fully set forth herein. 54. Defendant has improperly received the Properties without paying any consideration whatsoever of 20

14 55. By reason of the above, defendant has been unjustly enriched in an amount to be determined at trial but not less than $1,000, By reason of the above, defendant is liable to pay OP Equities in the amount to be determined at trial but not less than $1,000, with interest accrued and accruing. AS A SIXTH COUNTERCLAIM BREACH OF FIDUCIARY DUTY 57. OP Equities repeats and realleges the allegations contained in the preceding paragraphs, as if fully set forth herein. 58. Defendant Lourie represented and held herself out to be a licensed real estate/mortgage broker and would act for the benefit of OP Equities. 59. As such, defendant Lourie owed a fiduciary duty to OP Equities to act honestly and in good faith in all dealings with OP Equities. 60. Defendant breached her fiduciary duty towards OP Equities by misrepresenting various critical facts which caused significant damages to OP Equities of 20

15 61. By reason of the above, defendant is liable to pay OP Equities in the amount to be determined at trial but not less than $1,000, with interest accrued and accruing. AS A SEVENTH COUNTERCLAIM - RECISSION 62. OP Equities repeats and realleges the allegations contained in the preceding paragraphs, as if fully set forth herein. 63. Defendant s willful misrepresentations warrant a rescission of the purported Fraudulent Deeds. 64. OP Equities has no adequate remedy at law. AS A EIGHTH COUNTERCLAIM GENERAL BUSINESS LAW ( GBL ) OP Equities repeats and realleges the allegations contained in the preceding paragraphs, as if fully set forth herein. 66. Defendant s actions constitute an egregious violation of GBL 349, known as the Deceptive Practices Act of 20

16 67. The actions of defendant were consumer-oriented; they were misleading in a material way; and OP Equities was injured as a result of the deceptive acts of defendant. 68. By reason of the foregoing, OP Equities has been damaged in an amount to be determined at trial, but not less than approximately $1,000,000.00, plus interest accrued and accruing. 69. In addition to compensatory damages the court should impose punitive damages in the sum of $500, AS A NINTH COUNTERCLAIM - FRAUDULENT CONSPIRACY 70. OP Equities repeats and realleges the preceding paragraphs with the same force and effect as if fully set forth herein. 71. The Additional Defendants acted with fraudulent intent in having documents executed in stealth and without consent of OP Equities and in their hiding of this fraud by executing fraudulent statement with governmental agencies. 72. That the individual Additional Defendants are liable in an amount to be determined at trial, but not less than approximately $1,000, and for treble or punitive damages for their wrongful conduct, jointly and severally of 20

17 AS A TENTH COUNTERCLAIM - Declaratory judgment 73. OP Equities repeats and realleges the preceding paragraphs with the same force and effect as if fully set forth herein. Astoria to be void. 74. OP Equities seeks a Judgment declaring the Fraudulent deed and deed to the Properties. 75. OP Equities seeks a judgment declaring OP Equities to be the owner of WHEREFORE, the OP Equities requests an order and judgment as follows: a. On the First and Tenth Causes of Action: Pursuant to RPAPL Article 15 a declaration that defendant and every person claiming under it be barred from all claim to an estate or interest in the Properties described herein and that possession and ownership be awarded to OP Equities. b. On the Second Cause of Action: pursuant to Real Property Law 329, cancelling the Fraudulent Deeds and declaring it null and void ab initio and directing the Office of the New York City Register, County of Kings, to cancel said deed from its records and remove it from the records of the Property and further directing the New York City of 20

18 Register, County of Kings, to record, file, and index the order of this Court against the Property. c. On the Third Cause of Action: Permanently enjoining defendant from selling, transferring, encumbering, entering into leases or otherwise disposing of the Properties, d. On the Fourth through Tenth Causes of Action: an amount to be determined at trial but no less than $1,000, and punitive damages. and awarding a judgment against the defendant for the costs and disbursements of this action including attorney s fees together with such other and further relief as this Court may deem just, proper, and equitable. Dated: Brooklyn, New York April 21, 2017 /s Eli Fixler ELI FIXLER, ESQ. Attorney for OP Equities LLC 1507 Avenue M Brooklyn, New York (718) John Lonuzzi, Esq. Lonuzzi & Woodland LLP 60 Sackett Street Brooklyn, New York (718) Co-Counsel of 20

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