FILED: NASSAU COUNTY CLERK 05/18/2023 05:09 PM
`NYSCEF DOC. NO. 5
`
`
`INDEX NO. 604547/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NASSAU
`– – – – – – – – – – – – – – – – – – – – – – – – – – – – X
`R&R ASSETS LLC,
`
`
`
`Plaintiff,
`
`
`Index No. 604547/2023
`
`ANSWER
`
`
`
`-against-
`
`
`OFER BITON and VERED BITON,
`
`
`Defendants.
`
`
`– – – – – – – – – – – – – – – – – – – – – – – – – – – – X
`
`
`
`
`Defendants, OFER BITON and VERED BITON (together, “Defendants”), by
`
`their attorneys, Blank Rome LLP, as and for their answer to the Complaint (“Complaint”)
`
`(NYSCEF Doc. No. 2) herein, hereby respond as follows:
`
`NATURE OF THE CASE
`
`1.
`
`Defendants deny the allegations contained in paragraph 1 of the
`
`Complaint.
`
`THE PARTIES
`
`2.
`
`Defendants deny knowledge or information sufficient to form a belief as
`
`to the truth of the allegations set forth in paragraph 2 of the Complaint.
`
`3.
`
`Defendants deny the allegations contained in paragraph 3 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`4.
`
`Defendants deny the allegations contained in paragraph 4 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`
`
`
`
`
`999998.05636/131579598v.1
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`1 of 8
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`NYSCEF DOC. NO. 5
`
`
`INDEX NO. 604547/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NASSAU
`– – – – – – – – – – – – – – – – – – – – – – – – – – – – X
`R&R ASSETS LLC,
`
`
`
`Plaintiff,
`
`
`Index No. 604547/2023
`
`ANSWER
`
`
`
`-against-
`
`
`OFER BITON and VERED BITON,
`
`
`Defendants.
`
`
`– – – – – – – – – – – – – – – – – – – – – – – – – – – – X
`
`
`
`
`Defendants, OFER BITON and VERED BITON (together, “Defendants”), by
`
`their attorneys, Blank Rome LLP, as and for their answer to the Complaint (“Complaint”)
`
`(NYSCEF Doc. No. 2) herein, hereby respond as follows:
`
`NATURE OF THE CASE
`
`1.
`
`Defendants deny the allegations contained in paragraph 1 of the
`
`Complaint.
`
`THE PARTIES
`
`2.
`
`Defendants deny knowledge or information sufficient to form a belief as
`
`to the truth of the allegations set forth in paragraph 2 of the Complaint.
`
`3.
`
`Defendants deny the allegations contained in paragraph 3 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`4.
`
`Defendants deny the allegations contained in paragraph 4 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`
`
`
`
`
`999998.05636/131579598v.1
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`1 of 8
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`FILED: NASSAU COUNTY CLERK 05/18/2023 05:09 PM
`NYSCEF DOC. NO. 5
`
`
`INDEX NO. 604547/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`JURISDICTION AND VENUE
`
`5.
`
`Defendants deny the allegations contained in paragraph 5 of the
`
`Complaint.
`
`FACTUAL BACKGROUND
`
`6.
`
`Defendants deny knowledge or information sufficient to form a belief as
`
`to the truth of the allegations set forth in paragraph 6 of the Complaint.
`
`7.
`
`Defendants deny the allegations contained in paragraph 7 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`8.
`
`Defendants deny knowledge or information sufficient to form a belief as
`
`to the truth of the allegations set forth in paragraph 8 of the Complaint.
`
`9.
`
`Defendants deny the allegations contained in paragraph 9 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`10.
`
`Defendants deny the allegations contained in paragraph 10 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`11.
`
`Defendants deny the mischaracterization of alleged payment obligations
`
`set forth in the subject commercial lease (the “Lease”), contained in paragraph 11 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`12.
`
`Defendants deny the mischaracterization contained in paragraph 12 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`13.
`
`Defendants deny the mischaracterization contained in paragraph 13 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`14.
`
`Defendants deny the allegations contained in paragraph 14 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`999998.05636/131579598v.1
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`FILED: NASSAU COUNTY CLERK 05/18/2023 05:09 PM
`NYSCEF DOC. NO. 5
`
`
`INDEX NO. 604547/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`15.
`
`Defendants deny the allegations contained in paragraph 15 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`16.
`
`Defendants deny the allegations contained in paragraph 16 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`17.
`
`Defendants deny the allegations contained in paragraph 17 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`18.
`
`Defendants deny the allegations contained in paragraph 18 of the
`
`Complaint, and respectfully refer the Court to the referenced document.
`
`19.
`
`Defendants deny the allegations contained in paragraph 19 of the
`
`Complaint.
`
`Complaint.
`
`Complaint.
`
`Complaint.
`
`Complaint.
`
`20.
`
`Defendants deny the allegations contained in paragraph 20 of the
`
`21.
`
`Defendants deny the allegations contained in paragraph 21 of the
`
`22.
`
`Defendants deny the allegations contained in paragraph 22 of the
`
`23.
`
`Defendants admit the allegations contained in paragraph 23 of the
`
`AS AND FOR A FIRST CAUSE OF ACTION
`
`Defendants repeat their responses set forth above regarding paragraphs 1
`
`
`24.
`
`through 23 of the Complaint.
`
`25.
`
`Defendants deny the allegations contained in paragraph 25 of the
`
`Complaint.
`
`999998.05636/131579598v.1
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`FILED: NASSAU COUNTY CLERK 05/18/2023 05:09 PM
`NYSCEF DOC. NO. 5
`
`
`INDEX NO. 604547/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`26.
`
`Defendants deny the allegations contained in paragraph 26 of the
`
`Complaint.
`
`Complaint.
`
`27.
`
`Defendants deny the allegations contained in paragraph 27 of the
`
`28. While paragraph 28 of the Complaint calls for a legal conclusion, and
`
`therefore no response is required, to the extent a response is necessary, Defendants deny the
`
`allegations contained in paragraph 28 of the Complaint.
`
`AS AND FOR A SECOND CAUSE OF ACTION
`
`Defendants repeat their responses set forth above regarding paragraphs 1
`
`29.
`
`through 28 of the Complaint.
`
`30.
`
`Defendants deny the allegations contained in paragraph 30 of the
`
`Complaint.
`
`Complaint.
`
`Complaint.
`
`31.
`
`Defendants deny the allegations contained in paragraph 31 of the
`
`32.
`
`Defendants deny the allegations contained in paragraph 32 of the
`
`33. While paragraph 33 of the Complaint calls for a legal conclusion, and
`
`therefore no response is required, to the extent a response is necessary, Defendants deny the
`
`allegations contained in paragraph 33 of the Complaint.
`
`AS AND FOR A THIRD CAUSE OF ACTION
`
`Defendants repeat their responses set forth above regarding paragraphs 1
`
`34.
`
`through 33 of the Complaint.
`
`999998.05636/131579598v.1
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`FILED: NASSAU COUNTY CLERK 05/18/2023 05:09 PM
`NYSCEF DOC. NO. 5
`
`
`INDEX NO. 604547/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`35.
`
`Defendants deny the allegations contained in paragraph 35 of the
`
`Complaint.
`
`Complaint.
`
`36.
`
`Defendants deny the allegations contained in paragraph 36 of the
`
`37. While paragraph 37 of the Complaint calls for a legal conclusion, and
`
`therefore no response is required, to the extent a response is necessary, Defendants deny the
`
`allegations contained in paragraph 37 of the Complaint.
`
`FIRST AFFIRMATIVE DEFENSE
`
`38.
`
`Plaintiff’s claims are barred, in whole or in part, because the Complaint
`
`fails to state a cause of action upon which relief may be granted.
`
`SECOND AFFIRMATIVE DEFENSE
`
`39.
`
`Plaintiff’s claims are barred, in whole or in part, because Plaintiff
`
`breached its duty of good faith and fair dealing.
`
`THIRD AFFIRMATIVE DEFENSE
`
`40.
`
`Plaintiff’s claims are barred, in whole or in part, by the doctrine of unclean
`
`hands as Plaintiff has committed wrongdoing(s), and this lawsuit is attempting to benefit from
`
`the wrongdoing(s).
`
`FOURTH AFFIRMATIVE DEFENSE
`
`41.
`
`Plaintiff’s claims are barred, in whole or in part, because Defendants did
`
`not damage Plaintiff in the sum or manner alleged, or in any sum or manner at all.
`
`
`
`
`
`
`
`999998.05636/131579598v.1
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`FILED: NASSAU COUNTY CLERK 05/18/2023 05:09 PM
`NYSCEF DOC. NO. 5
`
`
`INDEX NO. 604547/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`FIFTH AFFIRMATIVE DEFENSE
`
`42.
`
`Plaintiff’s claims are barred, in whole or in part, insofar as Defendants’
`
`alleged actions or omissions were not the proximate cause of any alleged injury, loss, and/or
`
`damages incurred by Plaintiff.
`
`SIXTH AFFIRMATIVE DEFENSE
`
`43.
`
`Plaintiff’s claims are barred, in whole or in part, in whole or in part, for
`
`Plaintiff’s failure to mitigate their alleged damages.
`
`SEVENTH AFFIRMATIVE DEFENSE
`
`44.
`
`Plaintiff’s claims are barred, in whole or in part, by promissory or
`
`equitable estoppel.
`
`EIGHTH AFFIRMATIVE DEFENSE
`
`45.
`
`Plaintiff’s claims are barred, in whole or in part, by failure to satisfy
`
`conditions precedent to filing suit.
`
`NINTH AFFIRMATIVE DEFENSE
`
`46.
`
`Plaintiff’s claims are barred, in whole or in part, by offset.
`
`TENTH AFFIRMATIVE DEFENSE
`
`47.
`
`Plaintiff’s claims are barred, in whole or in part, by accord and
`
`satisfaction.
`
`mootness.
`
`ELEVENTH AFFIRMATIVE DEFENSE
`
`48.
`
`Plaintiff’s claims are barred, in whole or in part, by the doctrine of
`
`
`
`
`
`999998.05636/131579598v.1
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`FILED: NASSAU COUNTY CLERK 05/18/2023 05:09 PM
`NYSCEF DOC. NO. 5
`
`
`INDEX NO. 604547/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`TWELFTH AFFIRMATIVE DEFENSE
`
`49.
`
`Plaintiff possesses no statutory, common law, or contractual right to their
`
`attorneys’ fees sought herein.
`
`THIRTEENTH AFFIRMATIVE DEFENSE
`
`50.
`
`Plaintiff’s claims are barred, in whole or in part, by Plaintiff’s repeated
`
`and material breach of the subject Lease, including but not limited to Plaintiff’s material failure
`
`to maintain the subject building and/or to provide required necessary services pursuant to the
`
`Lease, which breaches are ongoing, and which breaches relieve the subject tenant and therefore
`
`Defendants of any obligation to pay rent and/or additional rent pursuant to the Lease.
`
`FOURTEENTH AFFIRMATIVE DEFENSE
`
`51.
`
`Plaintiff’s claims are barred, in whole or in part, by New York City
`
`Administrative Code § 22-1005, entitled “Personal Liability Provisions in Commercial Leases,”
`
`because the subject tenant was a restaurant business required to cease serving customers food or
`
`beverage for on-premises consumption or to cease operation as a result of the COVID-19
`
`pandemic and resulting governmental regulations, and Defendants are therefore relieved of
`
`personal liability arising from the subject Lease.
`
`RESERVATION OF RIGHTS
`
`52.
`
`Defendants reserve
`
`the right
`
`to
`
`interpose additional defenses as
`
`information becomes available through the progress of this action or during the course of
`
`discovery.
`
`
`
`999998.05636/131579598v.1
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`FILED: NASSAU COUNTY CLERK 05/18/2023 05:09 PM
`NYSCEF DOC. NO. 5
`
`
`INDEX NO. 604547/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`WHEREFORE, the Defendants respectfully request that the Court enter
`
`judgment as follows:
`
`(a)
`
`Judgment in Defendants’ favor and against Plaintiff dismissing the
`
`Complaint together with costs, disbursements, and attorney’s fees awarded to Defendants; and
`
`(b)
`
`Granting to Defendants such other and further relief as the Court may
`
`deem appropriate.
`
`Dated: New York, New York
`
`May 18, 2023
`
`
`
`
`BLANK ROME LLP
`
`By:_/s/ Massimo F. D’Angelo______
`
`Massimo F. D’Angelo, Esq.
`Attorneys for Defendants
`
`
`1271 Avenue of the Americas
`
`New York, New York 10020
`
`(212) 885-5000
`
`999998.05636/131579598v.1
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