FILED: NEW YORK COUNTY CLERK 09/09/2013 INDEX NO. 850095/2013 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 09/09/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CAPITAL ONE, N.A., Index No.: 850095/13 Plaintiff, - against REGINA KISLIN; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; and "JOHN DOE" and "MARY DOE," (Said names being fictitious, it being the intention of plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein.), VERIFIED REPI.,~' '~'O COUNTERCLAIM Defendants. Plaintiff Capital One, N.A. ("Plaintiff' ox "Capital One"), by its attorneys, Zeichner Ellman & Krause LLP, replies to the counterclaim (the "Counterclaim") of defendant Regina Kislin ("Defendant") contained in the Verified Answer to Amended Counterclaim dated August 5, 2013, upon information and belief, as follows: 1. It denies each and every allegation contained in paragraph 19. FIR~'~' AFFIRMATIVE DEFENSE Capital One. 2. The Counterclaim fails to state a cause of action against
SECOND r~ffirivia'i'i'~e DEFENSE documentary evidence. 3. Capital One has a complete defense to the Counterclaim based on THIRD AFFIRI~ATI~E DEFENSE 4. Defendant's claims and/or requested relief are barred, in whole or in part, by her own intentional, negligent or otherwise culpable wrongdoing. FOURTH AF~~RMATIVE DEFEl>1SE 5. Capital One made all required legal disclosures relating to the Loan Documents (as that term is defined in the amended verified complaint filed by Capital One on June 12, 2013). FIFTH AFFIRMATIVE DEFENSE 6. Defendant's claims are barred, in whole or in part, because Capital One's conduct at issue was consistent with the express language and terms of the Loan Documents or otherwise provided by law. SIXTH AFFIRMATIVE DEFENSE 7. The Counterclaim is barred by the statute of limitations. 2
SEVENTH AFFIRI'l~ATI't~E DEFENSE 8. Defendant's claims are barred by her own conduct, inasmuch as her damages, if any, were caused by her own actions or omissions. EIGH'~H AFFIRMATI'~E DEFENSE 9. Defendant has failed to mitigate her damages. NI1~T~I AFFIRMATIVE DEFENSE 3016(b). 10. Defendant fails to plead fraud with the detail required by CPLR TENTH AFFIRl~~iATI~E DEFENSE Documents. 11. The Counterclaim is barred because Defendant ratified the Loan ELEVENTH AFFIRMATIVE DEFENSE of unclean hands and laches. 12. The Counterclaim is barred, in whole or in part, by the doctrine T'~VEL~TH AFFT~A'~IVE DEFENSE omission by Capital One. 13. Defendant has not suffered any damage by reason of any act or 3
THIRTE~IVT~I AFFIPiVIATIVE DEI'ENSE 14. Defendant's allegations are barred in whole or in part by the statute of frauds. I+'OURTEENTH AFFIRMATIVE DEFENSE 15. The proceeds of the loan extended by Capital One to Defendant were used for the benefit of Defendant. I+'IFTEENTH AFFIRMATIVE DEFEI~TSE attorney's fees. 16. Defendant fails to state a cause of action for the recovery of WI~EREFORE, Plaintiff demands judgment dismissing the Counterclaim, together with the costs and disbursements of this action, including without limitation an award of reasonable attorneys' fees and expenses. Dated: New York, New York September 9, 2013 ZEICHNER ELLMAN & KRAUSE LLP By. ~ Stephen. Ellman Daniel P. Rubel Attorneys for Plaintiff 1211 Avenue of the Americas New York, New York 10036 (212) 223-0400 726862v2
ATTORNEY'S VERIFICATION STEPHEN F. ELLMAN, affirms, under penalties of perjury, that I am a member of the law firm of Zeichner Ellman &Krause LLP, attorneys for plaintiff Capital One, N.A.; that I have read the foregoing reply and know the contents thereof; that same are true to my own knowledge, except as to matters therein stated to be alleged upon information and belief, the basis of which is a review of the relevant loan documents, and that as to those matters I believe them to be true. This verification is made by Zeichner Ellman &Krause LLP as attorneys and not plaintiff as plaintiff is not within the County of New York where I maintain our office. Dated: New York, New York September 9, 2013 STEPHEN F. ELLMAN, ESQ. 726862v2
STATE OF NEW YORK, COUNTY OF NEW YORK. AFFIDAVIT OF SERVICE BY FIRST CLASS MAIL Michael W. Antonivich, being duly sworn, says: that I am over the age of eighteen years, am not a party herein, and reside in Nassau County, New York and that on the 9th day of September, 2013, I served a true copy of the within CAPITAL ONE, N.A.'S VERIFIED REPLY TO COUNTERCLAIM upon the attorney hereinafter named at the place hereinafter stated and set opposite her name by depositing the same, properly enclosed in a post-paid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Post Office Department within the City and State of New York, directed to said attorney at there last known addresses given below. Jack L. Lester, Esq. 261 Madison Avenue 26th Floor New York, New York 10016 Michael W. Antonivich Sworn to before me on this 9th day of September, 2013 NOT C,y ~..~ Af~~N(?NV RO~ARIC~ Notary Pudic, S~at~ of New Yc,r~ 6Vo. Q~ ~~6212Q71 (~uali#ied in ~r~n~ County ~arrtr~issi~n ~x~ireu 10/05/20!
SLTPRElV1E COURT OF THE STATE OF NEW PORK COTI~ITX OF NSW YORK Index No.: 850095/13 C.P~PITA.L `JNVE N.A., - against - Plaintiff, 12EGINA KISLIN; NEW YORK CITI' TRANSIT AI~JUI~ICATIOIV BUI~EAU; NEW Z'OF~K CITZ' EI~TVIRONMENTAL CONTROL BOARD; NEW PORK CI'~I' PARKING VIOLATIONS BUREAU; and "JOHN DOE" and "MARY DOE," (Said names being fictitious, it being the intention of plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein.) Defendants. V~~~I~~ ~~~.~ `~O COUNT~~CI..~IIVIS ZEICHNER ELLMAN & KRAUSE LLP 1211 AVENUE OF THE AMERICAS NEW YORK, NEW YORK 10036 TEL: (212} 223-0400 FAX: (212) 753-0396 www.zeklaw.com