INDEX NO. 521852/2016 FILED : KINGS COUNTY CLERK 11:22 AM SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS RAHIM ALI, Index No.: 521852/2016 Plaintiff, - against - GIBRAN KHAN, 1886 SCHENECTADY AVE., INC., PROCTOR WONG, AS EXECUTOR OF THE ESTATE OF JOHN MAZZUKA, AND JOSE CAUTELA, VERIFIED ANSWER Defendants. Defendants Proctor Wong, as Executor of the Estate of John Mazzuka, and Jose Cautela (collectively the "Answering Defendants"), by and through its undersigned counsel, hereby files its Verified Answer to the Verified Complaint (the "Complaint") filed herein by Plaintiff, Rahim Ali ("Plaintiff") and states as follows: PARTIES, JURISDICTION, VENUE AND BACKGROUND 1. The Answering Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphs 1, 2, 3, 8, 9, 10, 11, 13, 14, 15, and 17 of the Complaint. 2. The Answering Defendants admit the allegations contained in paragraph 4 of the Complaint except that Proctor Wong's correct address is 107 Pinetree Lane, Roslyn Heights, New York 11577. 3. The Answering Defendants admit the allegations contained in paragraph 5 of the Complaint. 4. The Answering Defendants deny the allegations contained in paragraphs 6 and 20 of the Complaint. 1 of 8
INDEX NO. 521852 /2016 FILED : KINGS COUNTY CLERK 11:22 AM 5. The Answering Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 7 of the Complaint and respectfully refer the Court to the statutory law referred to therein for its construction, meaning and contents and respectfully refer all legal conclusions contained in paragraph 7 to the Court for interpretation and determination. 6. The Answering Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphs 12, 16 and 18 of the Complaint and respectfully refer the Court to any documents therein for an interpretation of their construction, meaning and contents and respectfully refer all legal conclusions coñtained in paragraphs 12, 16 and 18 to the Court for interpretation and determination. 7. The Answering Defendants admit the allegations contained in paragraph 19 of the Complaint that defendant 1886 Schenectady Ave Inc., obtained a loan from the Answering Defendants in the amount of $200,000.00 and encumbered the Property, as defined in the Complaint, and respectfully refers the Court to any loan documents therein for an interpretation of their construction, meaning and contents and respectfully refers all legal conclusions contained in paragraph 19 to the Court for interpretation and determination. THE FIRST CAUSE OF ACTION 8. The Answering Defendants restate and reallege their responses to paragraphs 1 through 20 above contained in the Complaint in response to paragraph 21 of the Complaint. 9. The Answering Defendants deny the allegations contained in paragraphs 22, 23, 24, 25, 26, 27 and 28 of the Complaint. 2 2 of 8
INDEX NO. 521852 /2016 FILED : KINGS COUNTY CLERK 11:22 AM THE SECOND CAUSE OF ACTION 10. The Answering Defendants restate and reallege their responses to paragraphs 1 through 28 above contained in the Complaint in response to paragraph 29 of the Complaiñt. 11. The Answering Defendants deny the allegations contained in paragraphs 30 and 31 of the Complaint. THE THIRD CAUSE OF ACTION 12. The Answering Defendants restate and reallege their responses to paragraphs 1 through 31 above contained in the Complaint in response to paragraph 32 of the Complaint. 13. The Answering Defendants deny the allegations contained in paragraphs 33 and 34 of the Complaint. THE FOURTH CAUSE OF ACTION 14. The Answering Defendants restate and reallege their responses to paragraphs 1 through 34 above contained in the Complaint in response to paragraph 35 of the Complaint. 15. The Answering Defendants deny the allegations contained in paragraphs 36 and 37 of the Complaint. FIRST AFFIRMATIVE DEFENSE 16. The Cornplaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE 17. Plaintiff's claims are barred by the doctrines of waiver, estoppel, laches and unclean hands. THIRD AFFIRMATIVE DEFENSE 18. Plaintiff's claims are barred by the doctrines of res judicata, collateral estoppel, issue preclusion and claim preclusion pursuant to the determinations made by the Court under 3 3 of 8
INDEX NO. 5 2 18 5 2 [FILED : KINGS COUNTY CLERK 11:22 / 2 0 1 6 AM the action pending in the Supreme Court of the State of New York, County of Kings under index number 13353/10 entitled Proctor Wong. as Executor of the Estate of John Mazzuka, and Jose Cautela v. 1886 Schenectady Ave., Inc. et al. FOURTH AFFIRMATIVE DEFENSE 19. Plaintiff's claims are barred by the applicable statute of limitations. FIFTH AFFIRMATIVE DEFENSE 20. Plaintiff's claims are barred by the Statute of Frauds. SIXTH AFFIRMATIVE DEFENSE 21. The Answering Defendants are innocent bona fide encumbrancers for value. SEVENTH AFFIRMATIVE DEFENSE 22. The Answering Defendants are entitled to be equitably subrogated to the position of prior liens paid off or reduced by the Answering Defendants and the Answering Defendants are entitled to a first priority equitable lien therefore. EIGHTH AFFIRMATIVE DEFENSE 23. Plaintiff's claims are barred because it had not suffered any damages as a result of any allegedly wrongful action and/or inaction by the Answering Defendants. NINTH AFFIRMATIVE DEFENSE 24. Any alleged damages sustained by Plaintiff were caused solely by conduct of a third party over whom the Answering Defendañts had/have no control, and were not caused nor contributed to by reason of any act or omission on the part of the Answering Defendants 4 4 of 8
INDEX NO. 521852/2016 [FILED : KINGS COUNTY CLERK 11:22 AM TENTH AFFIRMATIVE DEFENSE 25. Plaintiff's damages were caused by actions and inaction by Plaintiff, Plaintiff's assigns, employees, agents, servants and predecessors in interest. ELEVENTH AFFIRMATIVE DEFENSE 26. Plaintiff's claims are barred by the Parole Evidence Rule. TWELFTH AFFIRMATIVE DEFENSE 27. Plaintiff's claims are barred by the Doctrine of Ratification. THIRTEENTH AFFIRMATIVE_DEFENSE 28. Plaintiff has failed to plead its claims with detail and specificity as required by CPLR 3016. FOURTEENTH AFFIRMATIVE DEFENSE 29. Plaintiff's claims are barred for failure to join a necessary party. FIFTEENTH AFFIRMATIVE DEFENSE 30. The Answering Defendants' mortgage lien is superior to any alleged interest held by Plaintiff on the Property as defined in the Complaint. SIXTEENTH AFFIRMATIVE DEFENSE 31. The Answering Defendants have a partial or complete affirmative defense founded upon documentary evidence. 5 5 of 8
FILED: FILED KINGS : KINGS COUNTY COUNTY CLERK 08/21/2018 INDEX NO. 521852/2016 CLERK 04:37 PM INDEX NO. 521852/2016 11:22 AM NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/21/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: SEVENTEENTH AFFIRMATIVE DEFENSE 32. Plaintiff's recovery may be barred, precluded, reduced and/or limited by Plaintiff's failure to mitigate damages. Dated: New York, New York March 22, 2017 KILPATRICK TOWNSEND & STOCKTON LLP By Keith M. Brandofino, Esq. Maximiliano Rinaldi, Esq. Attorneys for Answering Defendants Proctor Wong, as Executor the of Estate of John Mazzuka and Jose Cautela 1114 Avenue of the Americas, 21st Floor New York, New York 10036 Tel: (718) 775 8700 Fax: (888) 775 8800 6 12665956V.1101080/1043377 6 of 8
INDEX NO. 5 2 1 8 5 2 / 2 0 1 6 FILED : KINGS COUNTY CLERK 11: 22 AM VERIFICATION STATE OF NEW YORK ) COUNTY OF NEW YORK ) : ss.: MAXIMILIANO RINALDI, being duly sworn, deposes and says that: that I am a an attorney at Kilpatrick Townsend & Stockton LLP, attorneys for Proctor Wong, as Executor of the Estate of John Mazzuka and Jose Cautela, defendants in this action; that I have read the foregoing Verified Answer to the Verified Complaint; which is true to my knowledge, except as to the matters stated to be alleged upon information and belief, and as to those matters, I believe them to be true based upon information supplied by my client; and that the reason the verification is made by me is because said defendants are not in the county where I have my principal office. MAXIMILIANO RINALDI Sworn to before me this 22nd day of March, 2017 Notary P -- oualmed ln King @@ W Commission Expires May 11 S@17 7 7 of 8
FILED: KINGS IFILED : KINGS COUNTY COUNTY CLERK 08/21/2018 INDEX NO. 521852/2016 CLERK 04:37 PM INDEX NO. 521852/2016 11:22 AM NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 08/21/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS RAHIM ALI, Plaintiff - against - Index No.: 521852/2016 GIBRAN KHAN, 1886 SCHENECTADY AVE., INC., PROCTOR WONG, AS EXECUTOR OF THE ESTATE OF JOHN MAZZUKA, AND JOSE CAUTELA, Defendants. VERIFIED ANSWER KILPATRICK TOWNSEND ATTORNEYS AT LAW ATTORNEYS FOR DEFENDANTS PROCTOR WONG, AS EXECUTOR OF THE ESTATE OF JOHN MAZZUKA, AND JOSE CAUTELA OFFICES AND POST OFFICE ADDRESS 1114 Avenue of the Americas, 21st Floor New York, New York 10036-7703 TEL. NO.: (212) 775-8700 FAX NO.: (212) 775-8800 12684916V.1101080/1043377 8 of 8