Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 1 of 22
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 1 of 22
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`Vnited Qrates Disrie Court
`
`ANNALISA RIVERA-FRANZ,
`
`Plaintiff,
`
`- against -
`DAVID 441 LLC, 441 EAST 12 RICATTO LLC
`AND BORIS & HORTON EAST VILLAGE LLC,
`
`bo
`Civil Action
`} No. 1:24-cv-00836-JLR
`}
`} ANSWERand CROSS-
`CLAIM WITH JURY
`} DEMAND
`
`; }
`
`Defendants.
`
`Pursuant to Federal Rule of Civil Procedure 15(a)(1)(A), Defendants DAVID 441
`
`LLC, 441 EAST 12 RICATTO LLC, (“Defendant”), by its attorneys FISCHMAN &
`
`FISCHMAN,
`
`files
`
`this Answer
`
`to ANNALISA RIVERA-FRANZ’s Complaint
`
`(“Complaint”):
`
`ANSWER
`
`Defendantspecifically denies any andall allegations contained in headings, or
`
`unnumbered paragraphs in the Complaint to the extent that any allegations exist
`
`therein:
`
`1.
`
`Paragraph 1 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and containsallegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation and legal effect of the statutes and/or regulations alluded to therein.
`
`2.
`
`Defendant denies each and every allegation contained in §2 of the
`
`Complaint.
`
`
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 1 of 22
`
`Vnited Qrates Disrie Court
`
`ANNALISA RIVERA-FRANZ,
`
`Plaintiff,
`
`- against -
`DAVID 441 LLC, 441 EAST 12 RICATTO LLC
`AND BORIS & HORTON EAST VILLAGE LLC,
`
`bo
`Civil Action
`} No. 1:24-cv-00836-JLR
`}
`} ANSWERand CROSS-
`CLAIM WITH JURY
`} DEMAND
`
`; }
`
`Defendants.
`
`Pursuant to Federal Rule of Civil Procedure 15(a)(1)(A), Defendants DAVID 441
`
`LLC, 441 EAST 12 RICATTO LLC, (“Defendant”), by its attorneys FISCHMAN &
`
`FISCHMAN,
`
`files
`
`this Answer
`
`to ANNALISA RIVERA-FRANZ’s Complaint
`
`(“Complaint”):
`
`ANSWER
`
`Defendantspecifically denies any andall allegations contained in headings, or
`
`unnumbered paragraphs in the Complaint to the extent that any allegations exist
`
`therein:
`
`1.
`
`Paragraph 1 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and containsallegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation and legal effect of the statutes and/or regulations alluded to therein.
`
`2.
`
`Defendant denies each and every allegation contained in §2 of the
`
`Complaint.
`
`
`
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 2 of 22
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 2 of 22
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`AS TO JURISDICTION AND VENUE
`
`3.
`
`A.
`
`Defendant consentsto jurisdiction as indicated in 43 of the Complaint.
`
`Defendant consentsto jurisdiction as indicated in 44 of the Complaint.
`
`AS TO PARTIES
`
`5.
`
`Defendant lacks knowledgeor information sufficient to form a belief as
`
`to the truth of the allegations in 95 of the Complaint.
`
`6.
`
`Defendant lacks knowledgeor information sufficient to form a belief as
`
`to the truth of the allegations in 46 of the Complaint.
`
`Defendant admits the allegations contained in {7 of the Complaint.
`
`Defendant admist the allegations contained in Paragraph. 8 of the
`
`Defendant admits the allegations contained in {9 of the Complaint.
`
`Defendant admits the allegations contained in Paragraph 10 of the
`
`7.
`
`8.
`
`Complaint.
`
`9.
`
`10.
`
`complaint.
`
`11.
`
`Defendant denies knowledge and information sufficient to form a belief
`
`as to the allegations contained in Paragraph 11 of the Complaint except that Boris &
`
`Horton operates a café in the East Village.
`
`12.
`
`Defendant admits the allegations contained in paragraph 12 of the
`
`Complaint.
`
`13.
`
`Defendant admits the allegations contained in Paragraph 13 of the
`
`Complaint.
`
`14,
`
`Defendant admits the allegations contained in Paragraph 14 of the
`
`Page 2
`
`
`
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`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 3 of 22
`
`Complaint.
`
`15.
`
`Denies knowledge andinformation sufficient to form a belief as to each
`
`and every allegation contained in paragraph 15 of the complaint except admits that
`
`David 441 LLC and 441 East 12 Ricatto LLC are licensed to do business in New York
`
`State.
`
`16.
`
`17.
`
`Defendant admits the allegations contained in 416 of the Complaint.
`
`Defendant denies each and every allegation set forth in paragraph 17 of
`
`the Complaint.
`
`AS TO COMMON ALLEGATIONS
`
`18.
`
`Defendant lacks knowledgeor information sufficient to form a belief as
`
`to the truth of the allegations in 418 of the Complaint as to Plaintiffs disabilities and
`
`denies each and every otherallegation contained in said Paragraph.
`
`19.
`
`Paragraph 19 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation and legal effect of the statutes and/or regulations alluded to therein.
`
`20.
`
`Paragraph 20 of the Complaint does not contain anyfactual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation and legal effect of the statutes and/or regulations alluded to therein.
`
`21.
`
`Defendant denies each and every allegation contained in 421 of the
`
`Complaint.
`
`Page 3
`
`
`
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`22.
`
`Paragraph 22 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation and legal effect of any “alterations”or ownership thereof alluded to
`
`therein.
`
`23.
`
`Paragraph 23 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation and legal effect of any “alterations” or ownership thereof alluded to
`
`therein.
`
`24.
`
`Defendant lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations in 24.
`
`25.
`
`Defendant lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations in 925.
`
`26.
`
`Defendant lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations in §26.
`
`27.
`
`Defendant lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations in 27.
`
`28.
`
`Defendant lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations in 928 of the Complaint as to Plaintiffs desire to
`
`patronize Defendant’s location, and denies each and everyotherallegation contained
`
`in said Paragraph.
`
`Page 4
`
`
`
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`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 5 of 22
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`29.
`
`Defendant denies each and every allegation contained in 429 of the
`
`Complaint.
`
`30.
`
`Paragraph 30 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation and legal effect of any references to statutes or codes or the
`
`Congressional Record alluded to therein.
`
`31.
`
`Defendant denies each and every allegation contained in 431 of the
`
`Complaint.
`
`32.
`
`Defendant denies each and every allegation contained in 432 of the
`
`Complaint.
`
`33.
`
`Defendant lacks knowledgeor information sufficient to form a belief as
`
`to the truth of the allegations in 433 of the Complaint as to Plaintiffs “low vision”.
`
`Defendant denies each and every allegation contained in 933 of the Complaint.
`
`34.
`
`Defendant denies each and every allegation contained in 434 of the
`
`Complaint.
`
`35.
`
`Defendant denies each and every allegation contained in 435 of the
`
`Complaint.
`
`36.
`
`Defendant denies each and every allegation contained in {36 of the
`
`Complaint.
`
`37.
`
`Defendant denies each and every allegation contained in 437 of the
`
`Complaint, and include the sub-paragraphs thereunder.
`
`Page 5
`
`
`
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`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 6 of 22
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`38.
`
`Defendant denies each and every allegation contained in 438 of the
`
`Complaint.
`
`39.
`
`Defendant denies each and every allegation contained in 439 of the
`
`Complaint.
`
`AO.
`
`Al.
`
`Complaint.
`
`Paragraph40 does not contain and facts which can be admitted or denied.
`
`Defendant denies each and every allegation contained in 442 of the
`
`42.
`
`Defendant denies each and every allegation contained in 442 of the
`
`Complaint.
`
`43.
`
`Defendant denies each and every allegation contained in 448 of the
`
`Complaint.
`
`44,
`
`Defendant lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations in §[44 of the Complaint.
`
`Ab.
`
`Defendant lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations in {45 of the Complaint.
`
`46.
`
`Defendant lacks knowledgeor information sufficient to form a belief as
`
`to the truth of the allegations in 746 of the Complaint as to Plaintiff's intention to
`
`patronize Defendant’s premises, and denies any other allegation contained in said
`
`Paragraph.
`
`AS TO FIRST CAUSE OF ACTION
`(VIOLATIONS OF THE AMERICANSWITH DISABILITIES ACT)
`
`AT.
`
`Defendant realleges and incorporates by reference all allegations set forth
`
`Page 6
`
`
`
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 7 of 22
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 7 of 22
`
`in this Answerasif fully set forth herein.
`
`48.
`
`Defendant lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations in 46 of the Complaint.
`
`49.
`
`Defendant lacks knowledge or information sufficient tot form a belief as
`
`to the truth of the allegations contained in {49 of the Complaint.
`
`50.
`
`Paragraph 50 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation andlegal effect of any references to statutes or codes alludedto therein.
`
`51.
`
`Paragraph 51 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation andlegaleffect of any references to statutes or codes alluded to therein.
`
`52.
`
`Defendant denies each and every allegation contained in 952 of the
`
`Complaint.
`
`53.
`
`Defendant denies each and every allegation contained in 453 of the
`
`Complaint.
`
`54.
`
`Defendant denies each and every allegation contained in 454 of the
`
`Complaint.
`
`55.
`
`Defendant denies each and every allegation contained in 455 of the
`
`Complaint.
`
`56.
`
`Defendant denies each and every allegation contained in 456 of the
`
`Page 7
`
`
`
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`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 8 of 22
`
`Complaint.
`
`57.
`
`Defendant denies each and every allegation contained in [57 of the
`
`Complaint.
`
`58.
`
`Defendant denies each and every allegation contained in 458 of the
`
`Complaint.
`
`59.
`
`Defendant denies each and every allegation contained in 459 of the
`
`Complaint.
`
`60.
`
`Paragraph 60 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation andlegal effect of any references to statutes or codesalludedto therein.
`
`61.
`
`Paragraph 61 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation andlegaleffect of any references to statutes or codesalludedto therein.
`
`62.
`
`Defendant denies each and every allegation contained in 462 of the
`
`Complaint.
`
`AS TO SECOND CAUSE OF ACTION
`(VIOLATIONS OF THE NEW YORK STATE HUMANRIGHTS LAW)
`
`63.
`
`Defendantrealleges and incorporates by referenceall allegationsset forth
`
`in this Answerasif fully set forth herein.
`
`Page 8
`
`
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`64.
`
`Defendant lacks knowledge or information sufficient to form a belief as
`
`to the truth of the allegations in 964 of the Complaint as to Plaintiffs “medical
`
`conditions”, and denies anyother allegation contained in said Paragraph.
`
`65.
`
`Defendant lacks knowledgeor information sufficient to form a belief as
`
`to the truth of the allegations in {65 of the Complaint.
`
`66.
`
`Paragraph 66 of the Complaint does not contain anyfactual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation and legal effect of the statutes and the legislative history alluded to
`
`therein. Defendant avers the statute, rules, or regulations referenced by said
`
`Paragraphis the best proofof its contents.
`
`67.
`
`Paragraph 67 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation and legal effect of the statutes and the legislative history alluded to
`
`therein.
`
`68.
`
`Defendant denies each and every allegation contained in 68 of the
`
`Complaint.
`
`69.
`
`Defendant denies each and every allegation contained in 469 of the
`
`Complaint.
`
`70.
`
`Defendant denies each and every allegation contained in 470 of the
`
`Complaint.
`
`Page 9
`
`
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`71.
`
`Defendant denies each and every allegation contained in 471 of the
`
`Complaint.
`
`72.
`
`Defendant cannot admit or denythe allegations contained in Paragraph
`
`72 because said allegations falsely state that Defendant’s place of public
`
`accommodation is not fully accessible.
`
`73.
`
`Defendant cannot admit or deny the allegations contained in Paragraph
`
`73 because said allegations
`
`falsely state that Defendant’s place of public
`
`accommodation is not fully accessible.
`
`74.
`
`Defendant denies each and every allegation contained in 474 of the
`
`Complaint.
`
`75.
`
`Defendant denies each and every allegation contained in {75 of the
`
`Complaint.
`
`AS TO THIRD CAUSE OF ACTION
`(VIOLATIONS OF THE NEW YORK CITY HUMANRIGHTS LAW)
`
`76.
`
`Defendantrealleges and incorporatesby referenceall allegationsset forth
`
`in this Answerasif fully set forth herein.
`
`77.
`
`Defendant lacks knowledgeor information sufficient to form a belief as
`
`to the truth of the allegations in {77 of the Complaintasto “life activity of Plaintiff
`
`both walking and body motion range” and denies each and every other allegation
`
`containedin said Paragraph.
`
`78.
`
`Defendant denies each and every allegation contained in 478 of the
`
`Page 10
`
`
`
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`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 11 of 22
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`Complaint.
`
`79.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in {79 of the
`
`Complaint.
`
`80.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in 480 of the
`
`Complaint.
`
`81.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in 481 of the
`
`Complaint.
`
`82.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in 482 of the
`
`Complaint.
`
`83.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in §/83 of the
`
`Complaint.
`
`84.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in 784 of the
`
`Complaint.
`
`85.
`
`Paragraph 85 of the Complaint does not contain anyfactual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation and legal effect of the statutes and/or regulations alluded to therein.
`
`86.
`
`Paragraph 86 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law andfalsely state that the entrance from the public sidewalk wasnot constructed,
`
`and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation andlegal effect of the statutes and/or regulations alluded to therein.
`
`Page 11
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`
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`87.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in 487 of the
`
`Complaint.
`
`88.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in 788 of the
`
`Complaint.
`
`89.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in {89 of the
`
`Complaint.
`
`90.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in {90 of the
`
`Complaint.
`
`91.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in 491 of the
`
`Complaint.
`
`92.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in {92 of the
`
`Complaint.
`
`93.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in 493 of the
`
`Complaint.
`
`94.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in 494 of the
`
`Complaint.
`
`95.
`
`Defendant denies
`
`each and every
`
`allegation
`
`contained in 495 of the
`
`Complaint.
`
`AS TO FOURTH CAUSE OF ACTION
`(VIOLATIONS OF THE NEW YORKSTATE CIVIL RIGHTS LAW)
`
`96.
`
`Defendant realleges and incorporates by reference all allegations set forth
`
`Page 12
`
`
`
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`in this Answerasif fully set forth herein.
`
`97.
`
`Defendant denies each and every allegation contained in 497 of the
`
`Complaint.
`
`98.
`
`Paragraph 98 of the Complaint does not contain any factual allegations
`
`which can be admitted or denied, and contains allegations which calls for conclusions
`
`of law, and Defendant respectfully refers to the Court all questions concerning the
`
`interpretation andlegal effect of the statutes and/or regulations alluded to therein.
`
`99.
`
`Defendant does not admit or denythe allegations containedin 499 of the
`
`Complaint, and refer to the Court the Records and documentsfiled on NYSCEF or with
`
`the County Clerk concerningservice of process.
`
`AS TO INJUNCTIVE RELIEF
`
`100.
`
`Defendant denies each and every allegation contained in 4100 of the
`
`Complaint, and refers to the Court any conclusions relating to said Paragraph.
`
`101.
`
`Paragraph 101 does not contain any facts which can be admitted or
`
`denied, and contains a false claim that the premises are not readily accessible to and
`
`usable by Plaintiff.
`
`102.
`
`Defendant denies each and every allegation contained in 7102 of the
`
`Complaint, and refers to the Court any conclusions relating to said Paragraph.
`
`AFFIRMATIVE DEFENSES
`
`103.
`
`The Complaintfails to state a cause of action sincethe date of the alleged
`
`visit by the Plaintiff to the Defendant’s real property is omitted.
`
`Page 13
`
`
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`104.
`
`105.
`
`The Complaint should be dismissed in its entirety.
`
`Should the Court grant Plaintiff permission to amend the Complaint, then
`
`Defendantreserves its rights to amend this answer with appropriate defenses which
`
`could include but are not limited to a morespecific statute of limitations defense or
`
`other defense(s) based upon the dateof the alleged visit by Plaintiff.
`
`106.
`
`Without admitting or acknowledging that Defendant bears any burden
`
`of proof as to any of them, Defendant asserts the following affirmative defenses.
`
`Defendant intends and specifically reserves the right to rely upon any additional
`
`defenses that become available or apparent while this action is pending and reserves
`
`the right to amend this answerin orderto otherwise assert any such further defense(s).
`
`FIRST DEFENSE
`
`107.
`
`The allegations in the Complaintfail to state a claim for which relief may
`
`be had, in addition to the facts stated above.
`
`SECOND DEFENSE
`
`108.
`
`Plaintiffs claims, are or may be barred, in whole or in part, by the
`
`applicable statute of limitations including the New York Executive Law § 297(5) and
`
`the New York City Administrative Code Chapter 5 § 8-502.
`
`THIRD DEFENSE
`
`109.
`
`The allegations in the Complaint must be dismissed by reason of
`
`Page 14
`
`
`
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`Plaintiffs failure to comply with one or more conditions precedentto filing the within
`
`lawsuit.
`
`FOURTH DEFENSE
`
`110.
`
`Plaintiff's claims, are barred in whole or part because any modifications
`
`do not trigger the “alteration” legal standard.
`
`111.
`
`Plaintiffs claims, are barred because, to the extent architectural barriers
`
`alleged by the Plaintiff exist (which supposition is explicitly denied and merely stated
`
`for the purpose of this additional defense) the removal of such barriersis virtually
`
`impossible.
`
`FIFTH DEFENSE
`
`112.
`
`Plaintiffs claims, are barred because any alterations made to the
`
`Premises are sufficient in that they satisfy the “to the maximum extent feasible”
`
`standardto the extent applicable.
`
`SIXTH DEFENSE
`
`113.
`
`Plaintiffs claims, are barred because, to the extent architectural barriers
`
`alleged by Plaintiff exist (which supposition is explicitly denied and merely stated for
`
`the purposeof this additional defense) the modification of such barriers is not readily
`
`achievable.
`
`Page 15
`
`
`
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`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 16 of 22
`
`SEVENTH DEFENSE
`
`114,
`
`Plaintiffs claims, are barred in whole or part because architectural
`
`barriers in the Premises have been removed sufficient
`
`to satisfy the “readily
`
`achievable” standard to the extent applicable.
`
`EIGHTH DEFENSE
`
`115.
`
`The applicable statutory ceilings on recoverable damages mustlimit any
`
`damagesrecovered by Plaintiff from Defendant.
`
`NINTH DEFENSE
`
`116.
`
`To the extent Defendant is determined to be liable, it is, or may be,
`
`entitled to contribution from Defendant BORIS & HORTON EAST VILLAGE LLC
`
`basedonits actions, inactions, negligence, recklessness and/or other conduct,including
`
`but not limited to its actions alleged in Plaintiff's Complaint.
`
`TENTH DEFENSE
`
`117.
`
`Plaintiffs claims, are barred because,to the extent architectural barriers
`
`alleged by Plaintiff exist (which supposition is explicitly denied and merely stated for
`
`the purposeof this additional defense) the barriers are de minimis and/or are within
`
`conventional building industry tolerances.
`
`ELEVENTH DEFENSE
`
`118.
`
`Anyservices alleged to be required would constitute an undue burden as
`
`defined in the Treasury Regulations as “significant difficulty or expense” andis not
`
`Page 16
`
`
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`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 17 of 22
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 17 of 22
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`required.
`
`TWELFTH DEFENSE
`
`119.
`
`The applicable statutory ceilings on recoverable damages mustlimit any
`
`damagesrecovered by Plaintiff from Defendant.
`
`THIRTEENTH DEFENSE
`
`120.
`
`Plaintiffs claims against Defendant, are barred because Defendant has
`
`complied with all applicable regulationsof the federal, state and city governments.
`
`FOURTEENTH DEFENSE
`
`121.
`
`Plaintiff fails to allege facts or a cause of action against Defendant
`
`sufficient to support a claim for attorneys’ fees.
`
`122.
`
`Plaintiff is not entitled to damages or attorney’s fees because Plaintiff
`
`acted in badfaith by failing to give Defendantnoticeof alleged violationspriorto filing
`
`lawsuit, when alleged violations could have been handledin a cost-efficient manner,
`
`in a transparent attempt to extract a settlement.
`
`FIFTEENTH DEFENSE
`
`123.
`
`Plaintiffs claims, are barred in whole or part pursuant to 28 C.F.R.
`
`§ 36.403(f) in that any alleged alteration required to conform is disproportionate to the
`
`overall alteration, if any.
`
`SIXTEENTH DEFENSE
`
`124,
`
`The Complaint was not initiated in good faith and is barred by the
`
`Page 17
`
`
`
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 18 of 22
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 18 of 22
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`doctrine of unclean hands.
`
`SEVENTEENTH DEFENSE
`
`125.
`
`Plaintiff is not entitled to injunctiverelief because Plaintiff has failed to
`
`show an injury-in-fact or a threat of real and immediate harm.
`
`EIGHTEENTH DEFENSE
`
`126.
`
`127.
`
`The Defendant has been adversely impacted economically by Covid-19.
`
`As a result of the devastating economic drain on the Defendant, the
`
`Defendantis incapable of effectuating any remedial actions due to the economiceffects
`
`of Covid -19.
`
`128.
`
`By reason of the foregoing the complaint should be dismissed.
`
`NINETEENTH DEFENSE
`
`129.
`
`Should the designation of the subject building be changed to an Historic
`
`District, then Defendant reservesits rights to amend its Answeraccordingly, or as
`
`described in this paragraph.
`
`130.
`
`Plaintiff's claims are barred in whole or in part because the Premises
`
`and/or the neighborhood in which subject premises are located have/has been
`
`designated as a landmark pursuant to the New York City Landmarks Law.
`
`CROSS-CLAIM AGAINST THE TENANT
`
`131.
`
`Defendant Tenant was responsible for insuring that the Premises
`
`Page 18
`
`
`
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 19 of 22
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 19 of 22
`
`complied with certain specified legal requirements, including,interalia, those required
`
`under the Americans with Disabilities Act, if applicable.
`
`132.
`
`In accordance with the Lease, Defendant Tenant agreed to indemnify and
`
`hold Landlord harmless from and against claims arising out of certain acts and
`
`omissions by the Defendant Tenant.
`
`133.
`
`Pursuant to 28 CFR § 36.201 (b) and the Lease Tenanthasresponsibility
`
`for complying with the obligations hereunder.
`
`134,
`
`That ifthe Plaintiff recovers herein against Defendant, such recovery will
`
`have been caused and brought about by reason of the negligence or culpable conduct
`
`or actions encompassedby contractual obligations of said Tenant, and Defendantwill
`
`be entitled to judgment against Tenant in the amount of any recovery herein against
`
`Defendant and for all damages flowing from Tenant’s breach of contract, together with
`
`attorneys'fees, or in the alternative, to a determination of the comparative degrees of
`
`negligenceof all parties and to a judgmentoverin accordance with such determination
`
`by virtue of either commonlaw or contractual indemnity through contribution.
`
`135.
`
`By reason of the foregoing,if it is found that the answering Defendantis
`
`liable, in whole or in part, to the Plaintiff herein, which liability is expressly denied,
`
`then the Defendantis entitled to indemnification from and against the Defendant
`
`Tenant (BORIS AND HORTON), for any judgmentor otherrelief that the Plaintiff
`
`mayrecover against the answering Defendant,in addition to reasonable attorneysfees
`
`and disbursementsincurred in defense of this action.
`
`136.
`
`Paragraph 124 of the Lease Rider states in pertinent part:
`
`Page 19
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`
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`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 20 of 22
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 20 of 22
`
`Tenant’s Obligation to Comply with Laws. Tenant shall as
`its sole responsibility, and at Tenant’s sole cost and expense,
`take all action, including making any required alterations
`necessary to comply with all requirements (including,
`without limitation, the Tenant’s useof the elevator used by
`the residential occupants of the subject building, and
`including, but not
`limited to, applicable terms of the
`Americans with Disabilities Act of 1990 (the “ADA”), as
`modified and supplemented from time to time) which shall
`impose any violation, order or duty upon Landlord or
`Tenant arising from, or in connection with, the demised
`premises, Tenant’s occupancy, use or mannerofuse of the
`demised premises (including, without
`limitation, any
`occupancy, use or mannerof use thatconstitutes a “place of
`public accommodation” under the ADA), or any installations
`in the demised premises, or required by reason of a breach
`of any of Tenant’s covenants or agreementsunderthislease,
`whetheror not such requirements shall now be in effect or
`hereafter enacted or issued, and whetheror not any work
`required shall be ordinary or extraordinary or foreseen or
`unforeseen at the date hereof.
`
`RESERVATION OF ADDITIONAL DEFENSES
`
`137.
`
`Defendant reservestherightto allege additional defenses as they become
`
`knownduring discovery and to amendits answeraccordingly.
`
`DEMANDFOR TRIAL BY JURY
`
`WHEREFORE, Defendant demandsa trial by juryfor all claims andissuesin this
`
`action for which defendantis or maybe entitled to a jurytrial.
`
`WHEREFORE, Defendant respectfully requests that the Court enter judgmentin
`
`favor of Defendant:
`
`A. Dismissing the Complaint in its entirety, and granting the costs and
`
`Page 20
`
`
`
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 21 of 22
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 21 of 22
`
`disbursementsof this action; and
`
`B. That the Court issue an award of counsel fees, costs, and disbursements in
`
`favor of DAVID 441 LLC, and 441 EAST 12 RICATTO LLC andagainst the Plaintiff
`
`ANNALISA RIVERA-FRANZ,; and
`
`C. That the Court issue an award of damages, counsel fees, costs, and
`
`disbursements against the Defendant Tenant BORIS & HORTON EAST VILLAGE
`
`LLC in favor of the Defendants DAVID 441 LLC, and 441 EAST 12 RICATTO LLC. by
`
`reason of its breach of its duty to be in compliance with the ADA if such is found to be
`
`true by this Court; and
`
`D. That the Court award the Defendants DAVID 441 LLC, and 441 EAST 12
`
`RICATTO LLC a judgment pursuant to its cross-claim against Defendant Tenant
`
`BORIS & HORTON EAST VILLAGE LLC awarding damagesto the said Defendants,
`
`along with attorneys fees; and
`
`E. That the Court award the Defendants DAVID 441 LLC, and 441 EAST 12
`
`RICATTO LLC suchotherrelief as the Court may deem appropriate and just.
`
`Dated: April 15, 2024
`New York NY
`
`/s/ Doreen J. Fischman
`Respectfully submitted
`Doreen J. Fischman,Esq. (2362)
`Fischman & Fischman
`Attorneys for Defendants
`DAVID 441 LLC, and 441 EAST 12
`RICATTO LLC
`2166 Broadway STE 6D
`New York NY 10024
`(212) 274-0555
`doreen.fischman@verizon.net
`
`Page 21
`
`
`
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 22 of 22
`Case 1:24-cv-00836-JLR Document 24 Filed 04/15/24 Page 22 of 22
`
`PARKER HANSKI LLC
`
`Glen H. Parker, Esq.
`Attorneysfor Plaintiff
`40 Worth Street, Suite 602
`New York, New York 10013
`Telephone: (212) 248-7400 ex. 15
`Facsimile: (212) 248-5600
`Email: ghp@parkerhanski.com
`
`Page 22
`
`
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