FILED: NEW YORK COUNTY CLERK 09/05/2014 12:37 PM INDEX NO. 156171/2014 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 09/05/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------X SEARS ROEBUCK AND CO., -against- Plaintiff, VORNADO REALTY TRUST, ALEXANDERS, INC., ALEXANDERS REGO SHOPPING CENTER, INC., REGO II BORROWER LLC, ALEXANDERS REGO PARK CENTER, INC., ALEXANDERS OF REGO PARK II, INC. AND ALEXANDERS OF REGO PARK INC., Index No.: 156171/14 ANSWER TO CORRECTED FIRST AMENDED COMPLAINT Defendants. -------------------------------------------------------------------------X Defendants VORNADO REALTY TRUST ( VORNADO ), ALEXANDERS, INC., ALEXANDERS REGO SHOPPING CENTER, INC., REGO II BORROWER LLC, ALEXANDERS REGO PARK CENTER, INC., ALEXANDERS OF REGO PARK II, INC. and ALEXANDERS OF REGO PARK INC., by their attorneys, FRENCH & CASEY, LLP, as and for their Answer to the Corrected First Amended Complaint (the Complaint ) of Plaintiff, respectfully set forth: AS TO THE FIRST CAUST OF ACTION 1. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1 and 8. 2. Admit the allegation contained in paragraphs 2 through 5, and 7. 3. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph 6, but aver upon information and belief that this foreign (Delaware) business corporation s active status was terminated on or about October 2, 2008. 4. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph 9 and references as to the defendant identified as Alexanders of Rego Park, which is presumably the defendant named as Alexanders of Rego Park Inc., the last named defendant in the caption, but aver upon information and belief that Alexanders of Rego Park Inc. was a foreign (Delaware) business corporation that is now inactive and was rendered inactive as a result of a dissolution by proclamation/annulment of authority on or about September 23, 1998. 5. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 10 through 22, 25 through 39, 41 through 44, 47, 48, 51, 52, and 55 through 60, and refer all questions of law to this Honorable Court at the time of trial. 6. Deny the allegations contained in paragraphs 23, 24, 40, 45, 46, 49, 50, 53, 54, and 61 through 64, and refer all questions of law to this Honorable Court at the time of trial. AS TO THE SECOND CAUSE OF ACTION 7. With regard to paragraph 65, answering defendants repeat and reallege the denials to each and every allegation of the Complaint contained in paragraphs 1 through 64 8. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 66 through 71, and 74, and refer all questions of law to this Honorable Court at the time of trial. 9. Deny the allegations contained in paragraphs 72, 73, and 75 through 77, and refer all questions of law to this Honorable Court at the time of trial. 2
AS TO THE THIRD CAUSE OF ACTION 10. With regard to paragraph 78, answering defendants repeat and reallege the denials to each and every allegation of the Complaint contained in paragraphs 1 through 77 11. Deny the allegations contained in paragraphs 79 through 81, and refer all questions of law to this Honorable Court at the time of trial. AS TO THE FOURTH CAUSE OF ACTION 12. With regard to paragraph 82, answering defendants repeat and reallege the denials to each and every allegation of the Complaint contained in paragraphs 1 through 81 13. Deny the allegations contained in paragraphs 83 through 85, and refer all questions of law to this Honorable Court at the time of trial. AS TO THE FIFTH CAUSE OF ACTION 14. With regard to paragraph 86, answering defendants repeat and reallege the denials to each and every allegation of the Complaint contained in paragraphs 1 through 85 15. Deny the allegations contained in paragraphs 87 and 88, and refer all questions of law to this Honorable Court at the time of trial. AS TO THE SIXTH CAUSE OF ACTION 16. With regard to paragraph 89, answering defendants repeat and reallege the denials to each and every allegation of the Complaint contained in paragraphs 1 through 88 3
17. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph 90, and refer all questions of law to this Honorable Court at the time of trial. 18. Deny the allegations contained in paragraph 91, and refer all questions of law to this Honorable Court at the time of trial. AS TO THE SEVENTH CAUSE OF ACTION 19. With regard to paragraph 92, answering defendants repeat and reallege the denials to each and every allegation of the Complaint contained in paragraphs 1 through 91 20. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph 93 and 94, and refer all questions of law to this Honorable Court at the time of trial. 21. Deny the allegations contained in paragraph 95, and refer all questions of law to this Honorable Court at the time of trial. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 22. Plaintiff fails to state any cause of action against the answering defendants. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 23. The claims made in the Complaint are barred, in whole or in part, by applicable statutes of limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 24. Plaintiff s claims are barred by laches. 4
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 25. The claims made in the Complaint are barred, in whole or in part, on the basis that prior actions based, in whole or in part, on the same allegations and underlying facts have already been adjudicated. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 26. Each of the purported claims set forth in this Complaint is barred by the doctrines of waiver, acquiescence, and estoppel. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 27. Plaintiff s damages, if any, were not caused by any answering Defendants. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 28. Plaintiff s claims are barred by the doctrine of unclean hands. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 29. Plaintiff failed to allege any irreparable harm sufficient to warrant injunctive relief. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 30. To the extent Plaintiff suffered any injury or damage as alleged in the Complaint, Plaintiff would be adequately compensated by damages. Thus, Plaintiff has a complete and adequate remedy at law and is not entitled to seek equitable relief AS AND FOR A TENTH AFFIRMATIVE DEFENSE 31. Plaintiff failed to mitigate its damages, if any. 5
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 32. Plaintiff breached the agreements alleged in the Complaint. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 33. Plaintiff failed to substantially perform under the agreements alleged in the Complaint. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 34. Plaintiff s first, second, third, fifth, sixth and seventh causes of action should be dismissed as to Vornado, because Vornado is not a party to Plaintiff s lease agreement, and bears no legal or contractual duty to Plaintiff under the lease agreement. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 35. Plaintiff s first, second, third, and seventh causes of action should be dismissed as to Vornado, because upon information and belief Plaintiff lacks privity with Vornado. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 36. Plaintiff s first, second, third, and seventh causes of action should be dismissed as to Vornado, because upon information and belief Plaintiff lacks standing to enforce or sue under Vornado s management agreement. DEFENSES RESERVED 37. Answering defendants hereby gives notice that it intends to rely upon any other defenses that may become available or apparent during the discovery proceedings in this matter, and hereby reserves their right to amend their Answer and to assert any such defense. 6
WHEREFORE, defendants VORNADO REALTY TRUST, ALEXANDERS, INC., ALEXANDERS REGO SHOPPING CENTER, INC., REGO II BORROWER LLC, ALEXANDERS REGO PARK CENTER, INC., ALEXANDERS OF REGO PARK II, INC. AND ALEXANDERS OF REGO PARK INC., demand judgment dismissing the Corrected First Amended Complaint. Dated: New York, New York September 5, 2014 FRENCH & CASEY, LLP By: s/victoria Kennedy Victoria Kennedy Attorneys for Defendants VORNADO REALTY TRUST, ALEXANDERS, INC., ALEXANDERS REGO SHOPPING CENTER, INC., REGO II BORROWER LLC, ALEXANDERS REGO PARK CENTER, INC., ALEXANDERS OF REGO PARK II, INC. AND ALEXANDERS OF REGO PARK INC. Tel: (212) 797-3544 Fax: (212) 797-3545 File No. 6645.1084 Via E-file Henry J. Bergman, Esq. Jordan Greenberger, Esq. Moses & Singer, LLP Attorneys for Plaintiff 405 Lexington Avenue New York, New York 10174 (212) 554-7800 7