NYSCEF DOC. MRF/mrf NO. 28 14235-63607 RECEIVED NYSCEF: 1336478_2 03/30/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE CITY NATIONAL BANK, a National Banking Association, for itself and as acquirer of certain assets and liabilities of IMPERIAL CAPITAL BANK, from the Federal Deposit Insurance Corporation acting as Receiver, Plaintiff, X Index No. EF008692-2016 VERIFIED ANSWER MONROE BUS CORP., JOSEPH FREUND, PINCUS FREUND and HERMAN FREUND, Defendants. X Defendants, JOSEPH FREUND and PINCUS FREUND, by their attorneys, CATANIA, MAHON, MILLIGRAM & RIDER, PLLC, answering the Verified Complaint of the plaintiff (the "Complaint") allege as follows: AS TO PLAINTIFF'S GENERAL ALLEGATIONS 1. Deny any knowledge or information sufficient to form a belief as to the truth or falsity of each and every allegation contained in the paragraphs of the Complaint numbered 1, 8, 12, and 26. 2. Admit the truth of the allegations contained in the paragraphs of the Complaint numbered 2, 3, 4, 5, 6, 7, 15, 16, 17, 18, 19 and 22. 3. Deny knowledge or information sufficient to form a belief as to the truth or falsity of each and every allegation contained in the paragraphs of the Complaint numbered 9, 10, 11, 27, and 28, and respectfully refer all questions of law and the interpretation of any referenced documents to this Honorable Court. 1 of 8
NYSCEF DOC. MRF/mrf NO. 28 14235-63607 RECEIVED NYSCEF: 1336478_2 03/30/2017 4. Deny each and every allegation contained in the paragraphs of the Complaint numbered 13, 21, and 24. 5. Deny knowledge or information sufficient to form a belief as to the truth or falsity of each and every allegation contained in the paragraphs of the Complaint numbered 14 and 23, and respectfully refer all questions of law to this Honorable Court. 6. Deny each and every allegation contained in the paragraph of the Complaint numbered 20, except admit that Herman Freund transferred fifty-three percent (53%) of his interest in Monroe Bus Corp. to Joseph Freund and Pincus Freund. 7. Deny knowledge or information sufficient to form a belief as to the truth or falsity of each and every allegation contained in the paragraph of the Complaint numbered 25, and respectfully refer the interpretation of any referenced documents to this Honorable Court. AS TO PLAINTIFF'S FIRST CAUSE OF ACTION 8. Defendants repeat and reallege each and every response to the allegations contained in the paragraphs of the Complaint numbered 1 through 28 inclusive, with the same force and effect as though more fully set forth at length herein. 9. Deny each and every allegation contained in the paragraphs of the Complaint numbered 30 and 32, and respectfully refer all questions of law to this Honorable Court. 10. Deny each and every allegation contained in the paragraphs of the Complaint numbered 31 and 34. 11. Deny knowledge or information sufficient to form a belief as to the truth or falsity of each and every allegation contained in the paragraph of the Complaint numbered 33. 2 of 8
NYSCEF DOC. NO. 28 MRF/mrf 14235-63607 RECEIVED NYSCEF: 1336478_2 03/30/2017 AS TO PLAINTIFF'S SECOND CAUSE OF ACTION 12. Plaintiff's Second Cause of Action was dismissed by Order of this Honorable Court dated March 17, 2017. AS TO PLAINTIFF'S THIRD CAUSE OF ACTION 13. Defendants repeat and reallege each and every response to the allegations contained in the paragraphs of the Complaint numbered 1 through 39 inclusive, with the same force and effect as though more fully set forth at length herein. 14. Deny knowledge or information sufficient to form a belief as to the truth or falsity of each and every allegation contained in the paragraphs of the Complaint numbered 41 and 43, and respectfully refer all questions of law to this Honorable Court. 15. Deny each and every allegation contained in the paragraphs of the Complaint numbered 42 and 44. AS TO PLAINTIFF'S FOURTH CAUSE OF ACTION 16. Defendants repeat and reallege each and every response to the allegations contained in the paragraphs of the Complaint numbered 1 through 44 inclusive, with the same force and effect as though more fully set forth at length herein. 17. Deny each and every allegation contained in the paragraph of the Complaint numbered 46 and 47, and respectfully refer all questions of law to this Honorable Court. 18. Deny each and every allegation contained in the paragraph of the Complaint numbered 48. AS TO ALL CAUSES OF ACTION 19. Defendants deny all other allegations that were not heretofore admitted or denied. 3 of 8
NYSCEF DOC. NO. 28 MRF/mrf 14235-63607 RECEIVED NYSCEF: 1336478_2 03/30/2017 AS AND FOR A FIRST AFFIRMATIVE DEFENSE 20. Each of the Transfers referenced in the Complaint was undertaken to partially satisfy an antecedent debt in favor of the defendants. 21. Said Transfers were undertaken and conducted in good faith. 22. Said Transfers were supported by fair consideration. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 23. The Transfers referenced in the Complaint were part of business succession planning undertaken prior to the events underlying the Complaint. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 24. Upon information and belief, the Transfers referenced in the Complaint were "conveyances" as that term is defined in 272 of the Debtor and Creditor Law. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 25. The Complaint fails to state a cause of action. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 26. The equitable relief sought by plaintiff is barred by the doctrine of unclean hands. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 27. The equitable relief sought by plaintiff is barred by the doctrine of equitable estoppel. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 28. Defendants performed services for and on behalf of Monroe Bus Corp. and Herman Freund for many years prior to the circumstances alleged in the Complaint, which performance continues to the present date. 4 of 8
NYSCEF DOC. NO. 28 MRF/mrf 14235-63607 RECEIVED NYSCEF: 1336478_2 03/30/2017 29. Upon information and belief, prior to the circumstances alleged in the Complaint, defendants and Herman Freund entered into one or more agreements for the transfer of all of Herman Freund's equity interest in Monroe Bus Corp. to the defendants as partial consideration for the prior and subsequent performance of services for and on behalf of Monroe Bus Corp. 30. Upon information and belief, defendants have fully performed their obligations under the aforesaid agreements. 31. Herman Freund has not transferred all of his equity interest in Monroe Bus Corp. to the defendants. 32. Accordingly, defendants have an equitable lien on Herman Freund's remaining equity interest in Monroe Bus Corp., which lien predates and is superior to any and all claims of plaintiff. AS AND FOR A FIRST CROSS-CLAIM AGAINST HERMAN FREUND 33. Defendants repeat and reallege the allegations contained in paragraphs "28" through "32" above, with the same force and effect as though more fully set forth at length herein. 34. If plaintiff is successful in this action, the Transfers described in the Complaint may be voided. 35. Upon information and belief, if said Transfers are voided, defendants will be deprived of their respective equity interests in Monroe Bus Corp., which interests represent valuable and substantial compensation for their many years of faithful service for and on behalf of Monroe Bus Corp. 36. Defendants agreed to accept equity in Monroe Bus Corp. und in lieu of other forms of compensation in reliance upon the validity of the Transfers and enforceability of the underlying agreement(s). RU. BOX 1479 NEWBURGH, N.Y. 12551 (845) 565-1100 5 of 8
NYSCEF DOC. MRF/mrf NO. 28 14235-63607 RECEIVED NYSCEF: 1336478_2 03/30/2017 37. Accordingly, if the Transfers are voided, defendants will be entitled to monetary compensation from Herman Freund as the owner of one hundred percent (100%) of the equity of Monroe Bus Corp., such monetary compensation being the sum of the values of the equity interests at the time each such interest was transferred. AS AND FOR A FIRST COUNTERCLAIM FOR DECLARATORY RELIEF 38. Defendants repeat and reallege the allegations contained in paragraphs "28" through "37" above, with the same force and effect as though more fully set forth at length herein. 39. Defendants are entitled to a declaration that they are presently the bona fide owners of fifty-three percent (53%) of the equity of Monroe Bus Corp. and are entitled to receive the remaining forty-seven percent (47%) of such equity from Herman Freund on such terms and conditions as may be agreed between defendants and Herman Freund. WHEREFORE, defendants JOSEPH FREUND and PINCUS FREUND demand judgment: 1. dismissing the Complaint; 2. in the alternative, on the First Cross-Claim, awarding defendants monetary damages for the loss of any equity interest in Monroe Bus Corp. in an amount to be determined at the trial of this action; 3. in the alternative, on the First Counterclaim, declaring that defendants are the bona fide owners of fifty-three percent (53%) of the equity of Monroe Bus Corp. and are entitled to receive the remaining forty-seven percent (47%) of such equity from Herman Freund on such terms and conditions as may be agreed between defendants and Herman Freund 4. for costs, interest, disbursements and attorneys' fees incurred in this action; and 5. for such other and further relief as this Court may deem just and proper. 6 of 8
NYSCEF DOC. MRF/mrf NO. 28 14235-63607 RECEIVED NYSCEF: 1336478_2 03/30/2017 Dated: Newburgh, New York March 29, 2017 Yours, etc., CATANIA, MAHON, MILL G & RIDAR. PLL By: MICHAEL R. FRASCARELLI Attorneys for Defendants Joseph Freund and Pincus Freund One Corwin Court P.O. Box 1479 Newburgh, New York 12550 Tel. No. (845) 565-1100 TO: James M. Andriola, Esq. Andriola Law, PLLC Attorneys for Plaintiff 1385 Broadway, 22nd Floor New York, NY 10018 Gardiner S. Barone, Esq. Blustein, Shapiro, Rich & Barone, LLP Attorneys for Defendant Herman Freund 10 Matthews Street Goshen, NY 10924 RO. BOX 1479 NEWBURGH, N.Y. 12551 (845) 565-1100 7 of 8
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/30/2017 MRP/mrf 14235-63607 1336478_2 VERIFICATION STATE OF NEW YORK COUNTY OF ORANGE ss.: JOSEPH FREUND, being sworn says: I am defendant in the action herein; I have read the annexed Verified Answer, know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters I believe them to be true, Sworn to before me this *),1 day of March 20 JOSEPH FREUND NOTARY PUBLIC NIA11-11SMERTZ Notary Publio, State of New York No. 01-me6085847 C5011n6d. in Kings CountY Connniesion Expires 011061201m CATANIA, IVIAHON, MILLIGRAM & RIDER, PLLC P.O. BOX 1479 NEWBURGH, N.Y. 12561 (846) 665-1100 8 of 8