FILED NEW YORK COUNTY CLERK 10/31/2016 1229 PM INDEX NO. 653256/2016 NYSCEF DOC. NO. 37 RECEIVED NYSCEF 10/31/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------- X ENCORE 49 HOUSING DEVELOPMENT FUND COMPANY, INC., Plaintiff, -against- FRATELLI ITALIANI, LLC, PIATTI ITALIANI LLC, CRAIG PERRI, KAVITA JAGNARINE, JOSEPH GAMBUTO, AND FRED MARINO Defendants. ------------------------------------------------------------------- X Index No. 653256/2015 VERIFIED REPLY TO FIRST AMENDED COUNTERCLAIMS Plaintiff Encore 49 Housing Development Fund Company, Inc. ( Encore 49 or Plaintiff ), by and through its undersigned attorneys, Allegaert Berger & Vogel LLP, as and for its Verified Reply to the First Amended Counterclaims ( Counterclaims ) of defendants Fratelli Italiani LLC ( Fratelli Italiani ), Craig Perri ( Perri ), and Kavita Kay Jagnarine ( Jagnarine, together with Fratelli Italiani and Perri, the Fratelli Italiani Defendants ), respectfully states as follows upon personal knowledge as to its own acts and status and upon information and belief as to all other matters 1. Plaintiff restates and reiterates the allegations of its Verified Complaint (NYSCEF Doc. No. 2) as if fully set forth herein. 2. Plaintiff denies the allegations of Paragraph 163 of the Counterclaims. 3. Plaintiff states that the allegations of Paragraph 164 of the Counterclaims state legal conclusions to which no responsive pleading is required. Plaintiff respectfully refers the Court to the Agreement of Lease between Encore 49 Housing Development Company, Inc. and Fratelli Italiani, LLC, dated as of November 12, 2015 (the Claimed Lease ) for a complete 1 of 11
recitation of its terms and conditions. To the extent a response is required, Encore 49 denies the allegations in Paragraph 164. 4. Plaintiff admits the allegations of Paragraph 165 of the Counterclaims to the extent that it is true that Plaintiff seeks by its Verified Complaint, among other things, a declaration that the Claimed Lease is Void and/or otherwise not binding on Encore 49. Verified Complaint at Demand for Relief. Plaintiff respectfully refers the Court to its Verified Complaint for a complete statement of Plaintiff s claims. To the extent a further response is required, Encore 49 denies the allegations in Paragraph 165. 5. Plaintiff admits the allegations of Paragraph 166 of the Counterclaims to the extent that it is true that Plaintiff seeks by its Verified Complaint, among other things, an Order ejecting Fratelli Italiani from the restaurant known as Da Marino (the Premises ) on the ground floor of the building located at 220 West 49th Street, New York, New York and delivering possession of the Premises to Encore 49. Verified Complaint at Demand for Relief. Plaintiff respectfully refers the Court to its Verified Complaint for a complete statement of Plaintiff s claims. To the extent a further response is required, Encore 49 denies the allegations in Paragraph 166. 6. Plaintiff states that the allegations of Paragraph 167 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 167. 7. Plaintiff admits the allegations of Paragraph 168 of the Counterclaims to the extent that it admits it received a copy of the Claimed Lease on or about November 5, 2015, along with a letter from Perri and Jagnarine falsely and fraudulently stating that everything that has been present in the previous leases are included in this lease [the Claimed Lease]. Verified 2 2 of 11
Complaint at Exhibit 3 (emphasis added). To the extent a further response is required, Encore 49 denies the allegations in Paragraph 168. 8. Plaintiff denies the allegations of Paragraph 169 of the Counterclaims. 9. Plaintiff states that the letter, which is partially quoted in Paragraph 170 of the Counterclaims, speaks for itself and respectfully refers the Court to that letter, which was previously filed in its entirety as Exhibit 3 to the Verified Complaint. To the extent a further response is required, Encore 49 denies the allegations in Paragraph 170. 10. Plaintiff states that the Claimed Lease which is partially quoted in Paragraph 171 of the Counterclaims speaks for itself and respectfully refers the Court to the Claimed Lease for a complete recitation of its terms and conditions. To the extent a further response is required, Encore 49 denies the allegations in Paragraph 171. 11. Plaintiff states that the Claimed Lease which is partially quoted in Paragraph 172 of the Counterclaims speaks for itself and respectfully refers the Court to the Claimed Lease for a complete recitation of its terms and conditions. To the extent a further response is required, Encore 49 denies the allegations in Paragraph 172. 12. Plaintiff denies the allegations of Paragraph 173 of the Counterclaims. 13. Plaintiff denies the allegations of Paragraph 174 of the Counterclaims. 14. Plaintiff denies the allegations of Paragraph 175 of the Counterclaims, except admits that the Claimed Lease was signed by Sisters Lillian McNamara and Elizabeth Hasselt. 15. Plaintiff states that the allegations of Paragraph 176 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 176. 3 3 of 11
16. In response to Paragraph 177 of the Counterclaims, Plaintiff restates and reiterates the foregoing admissions and denials, and the allegations of its Verified Complaint as if fully set forth herein. 17. Plaintiff denies knowledge or information sufficient to form a belief as to the allegations of Paragraph 178 of the Counterclaims, except admits that a fire occurred in the premises in or around December 2015. 18. Plaintiff states that the Claimed Lease referred to in Paragraph 179 of the Counterclaims speaks for itself and respectfully refers the Court to the Claimed Lease for a complete recitation of its terms and conditions. To the extent a further response is required, Encore 49 denies the allegations in Paragraph 179. 19. Plaintiff states that the Claimed Lease referred to in Paragraph 180 of the Counterclaims speaks for itself and respectfully refers the Court to the Claimed Lease for a complete recitation of its terms and conditions. To the extent a further response is required, Encore 49 denies the allegations in Paragraph 180. 20. Plaintiff denies the allegations of Paragraph 181 of the Counterclaims. 21. Plaintiff states that the Claimed Lease referred to in Paragraph 182 of the Counterclaims speaks for itself and respectfully refers the Court to the Claimed Lease for a complete recitation of its terms and conditions. To the extent a further response is required, Encore 49 denies the allegations in Paragraph 182. 22. Plaintiff denies the allegations of Paragraph 183 of the Counterclaims. 23. Plaintiff states that the allegations of Paragraph 184 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 184. 4 4 of 11
24. Plaintiff denies the allegations of Paragraph 185 of the Counterclaims. 25. Plaintiff denies the allegations of Paragraph 186 of the Counterclaims. 26. Plaintiff denies the allegations of Paragraph 187 of the Counterclaims. 27. Plaintiff denies the allegations of Paragraph 188 of the Counterclaims. 28. Plaintiff denies the allegations of Paragraph 189 of the Counterclaims. 29. In response to Paragraph 190 of the Counterclaims, Plaintiff restates and reiterates the foregoing admissions and denials, and the allegations of its Verified Complaint as if fully set forth herein. 30. Plaintiff states that the allegations of Paragraph 191 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 191. 31. Plaintiff states that the Claimed Lease referred to in Paragraph 192 of the Counterclaims speaks for itself and respectfully refers the Court to the Claimed Lease for a complete recitation of its terms and conditions. To the extent a further response is required, Encore 49 denies the allegations in Paragraph 192. 32. Plaintiff denies knowledge or information sufficient to form a belief as to the allegations of Paragraph 193 of the Counterclaims. 33. Plaintiff denies the allegations of Paragraph 194 of the Counterclaims. 34. Plaintiff denies the allegations of Paragraph 195 of the Counterclaims. 35. Plaintiff denies the allegations of Paragraph 196 of the Counterclaims. 36. Plaintiff states that the allegations of Paragraph 197 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 197. 5 5 of 11
37. Plaintiff denies the allegations of Paragraph 198 of the Counterclaims. 38. Plaintiff denies the allegations of Paragraph 199 of the Counterclaims. 39. Plaintiff denies the allegations of Paragraph 200 of the Counterclaims. 40. In response to Paragraph 201 of the Counterclaims, Plaintiff restates and reiterates the foregoing admissions and denials, and the allegations of its Verified Complaint as if fully set forth herein. 41. Plaintiff states that the allegations of Paragraph 202 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 202. 42. Plaintiff denies the allegations of Paragraph 203 of the Counterclaims. 43. Plaintiff denies the allegations of Paragraph 204 of the Counterclaims. 44. Plaintiff denies the allegations of Paragraph 205 of the Counterclaims. 45. Plaintiff states that the allegations of Paragraph 206 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 206. 46. Plaintiff states that the allegations of Paragraph 207 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 207. 47. Plaintiff states that the allegations of Paragraph 208 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 208. 48. Plaintiff admits the allegations of Paragraph 209 of the Counterclaims to the extent that it is true that Plaintiff seeks by its Verified Complaint, among other things, an 6 6 of 11
award of damages, in an amount to be proven at trial, including but not limited to the expenses incurred by Encore 49 in satisfying obligations owed to the New York City Board of Water and the Department of Finance. Verified Complaint at Demand for Relief. Plaintiff respectfully refers the Court to its Verified Complaint for a complete statement of Plaintiff s claims. To the extent a further response is required, Encore 49 denies the allegations in Paragraph 209. 49. Plaintiff states that the allegations of Paragraph 210 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 210. 50. Plaintiff denies the allegations of Paragraph 211 of the Counterclaims. 51. Plaintiff denies the allegations of Paragraph 212 of the Counterclaims. 52. In response to Paragraph 213 of the Counterclaims, Plaintiff restates and reiterates the foregoing admissions and denials, and the allegations of its Verified Complaint as if fully set forth herein. 53. Plaintiff denies the allegations of Paragraph 214 of the Counterclaims. 54. Plaintiff denies the allegations of Paragraph 215 of the Counterclaims. 55. Plaintiff denies knowledge or information sufficient to form a belief as to the allegations of Paragraph 216 of the Counterclaims. 56. Plaintiff denies the allegations of Paragraph 217 of the Counterclaims. 57. Plaintiff states that the allegations of Paragraph 218 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 218. 7 7 of 11
58. Plaintiff states that the allegations of Paragraph 219 of the Counterclaims required, Encore 49 denies the allegations in Paragraph 219. 59. Plaintiff denies the allegations of Paragraph 220 of the Counterclaims. AS AND FOR PLAINTIFF S FIRST AFFIRMATIVE DEFENSE 60. The Fratelli Italiani Defendants Counterclaims fail to state a claim upon which relief can be granted. AS AND FOR PLAINTIFF S SECOND AFFIRMATIVE DEFENSE 61. The Fratelli Italiani Defendants Counterclaims are barred by the doctrines of waiver, estoppel and/or laches. AS AND FOR PLAINTIFF S THIRD AFFIRMATIVE DEFENSE 62. The Fratelli Italiani Defendants Counterclaims are barred by its own unclean hands and bad faith. AS AND FOR PLAINTIFF S FOURTH AFFIRMATIVE DEFENSE 63. The Fratelli Italiani Defendants Counterclaims are barred by its own breach of the Claimed Lease by, among other things, failing to maintain comprehensive insurance coverage for the benefit of Encore 49, a requirement of the Claimed Lease. AS AND FOR PLAINTIFF S FIFTH AFFIRMATIVE DEFENSE 64. The Fratelli Italiani Defendants Counterclaims are barred because any damages were caused by their own actions and/or omissions. AS AND FOR PLAINTIFF S SIXTH AFFIRMATIVE DEFENSE 65. The Fratelli Italiani Defendants Counterclaims are barred because any damages were caused by third-parties over whom the Plaintiff had no control. 8 8 of 11
AS AND FOR PLAINTIFF S SEVENTH AFFIRMATIVE DEFENSE 66. The Fratelli Italiani Defendants Counterclaims are barred because of their own failure to mitigate, obviate, diminish or otherwise act to lessen or reduce any damages. AS AND FOR PLAINTIFF S EIGHTH AFFIRMATIVE DEFENSE 67. Encore 49 reserves the right to raise any additional claims, defenses, cross-claims, and third-party claims not asserted herein of which they may become aware through discovery or other investigation, as may be appropriate at a later time. 9 9 of 11
WHEREFORE, in addition to the relief requested in its Verified Complaint (NYSCEF Doc. No.2), Plaintiff Encore 49 Housing Development Fund Company, Inc. respectfully requests judgment against Defendants Fratelli Italiani LLC, Craig Perri, and Kavita Jagnarine, as follows (A) (B) Dismissing the Counterclaims; and For such other and further relief as this Court deems just and proper under the circumstances. Dated October 27, 2016 New York, New York Respectfully submitted, VOGELLLP.ICJ"-'".~.u-- ~. erger ark S. Bauman John S. Craig Ill Broadway, 20th Floor New York, New York 10006 (212) 571-0550 Attorneys for Plaintiff Encore 49 Housing Development Fund Company, Inc. 10 of 11
VERIFICATION STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK ) William K. Flynn, being duly sworn, deposes and says I am the President of the boards of both Encore 49 and Encore Community Services and have reviewed the attached Verified Reply to the First Amended Counterclaims and know the contents thereof, and that the same are true to my own knowledge, except as to the matters herein stated to be alleged upon information and belief, and that as to those matters I believe them to be true. The sources of my information and the grounds for my belief as to all matters not herein stated upon personal knowledge include discussions with individuals and review of records in my possession. Sworn to before me this cqlth day of October 2016 KATONIA MORGAN Notary Public State of New York NO. 01 M06251490 Qualified in Queens County My Commission Expires Nov 14, 2019 11 of 11