Case 2:12-cv-03036-JS-ETB Document 9 Filed 08/10/12 Page 1 of 13 PageID #: 203

JASON J. REBHUN, P.C. Attorneys for Defendant WISEMAN 353 Amsterdam Avenue, 9S New York, NY 10024 (845) 821-1589

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------------------X AMIRON DEVELOPMENT CORP., HERZEL MEIRI and ITZHAK KHATAN, Plaintiff, -againstSTEWART SYTNER, HILARY SYTNER a/k/a HILARY BERLIN, THOMAS P. MEGAS, CEFEIDA, SA, SCOTT WAGMAN, MILTON MILLER and DAVID WISEMAN, Defendants. --------------------------------------------------------------------------X

Index No.: CV-12-3036

VERIFIED ANSWER

Defendant, DAVID WISEMAN, by and through his attorneys, JASON J. REBHUN, P.C., as and for an Answer to the complaint, alleges upon information and belief: ANSWERING THE NATURE OF ACTION ALLEGATIONS FIRST: the complaint. Denies each and every allegation in set forth in paragraph 1 and 2 of

ANSWERING THE THE PARTIES ALLEGATIONS SECOND: Denies knowledge or information sufficient to form a belief as to the truth

or falsity of the allegations set forth in paragraphs 3, 4, 5, 6, 7, 8, 9, and 10 the complaint. THIRD: Admits the allegation set forth in paragraph 11 of the complaint.

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ANSWERING THE JURISDICTION AND VENUE ALLEGATIONS

FOURTH: Denies the allegations set forth in paragraph 12, 13, and 14 of the complaint and refers all questions of law to the court.

ANSWERING THE FACTUAL BACKGROUND ALLEGATIONS FIFTH: Denies each and every allegations set forth in paragraph 15 and 16 of the complaint. SIXTH: Denies knowledge and information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph(s) 17, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 42, and 45 of the complaint. SEVENTH: Denies each and every allegation set forth in paragraph(s) 18, 19, 20, 21, 22, 23, 24, 35, 36, 37, 38, 39, 40, 41, 43, 44, 46, 47, 48 and 49 including the improperly and repeated numbers 19, 20 of the complaint as to answering defendant, but denies knowledge sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraphs 18, 19, 20, 21, 22, 23, 24, 35, 36, 37, 38, 39, 40, 41, 43, 44, 46, 47, 48 and 49 including the improperly and repeated numbers 19 and 20 of the complaint as to co-defendants.

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ANSWERING THE FIRST CAUSE OF ACTION EIGHTH: Repeats and realleges each and every denial and admission set forth in

answer to each and every allegation set forth herein above. NINTH: Denies the allegations set forth in paragraph 51, 55, and 56 of the

complaint and refers all questions of law to the court. TENTH: Denies each and every allegation in set forth in paragraph 52, 53,

54, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66 and 67 of the complaint.

ANSWERING THE SECOND CAUSE OF ACTION ELEVENTH: Repeats and realleges each and every denial and admission set forth in answer to each and every allegation set forth herein above. TWELFTH: Denies each and every allegation in set forth in paragraph 69, 70, 71, 72 and 73 of the complaint.

ANSWERING THE THIRD CAUSE OF ACTION THIRTEENTH: Repeats and realleges each and every denial and admission set

forth in answer to each and every allegation set forth herein above. FOURTEENTH: Denies knowledge and information sufficient to form a belief as to

the truth or falsity of the allegations set forth in paragraph(s) 75 and 87 of the complaint. FIFTEENTH: Denies each and every allegation set forth in paragraph(s) 76,

77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 88, 89, 90, 91 and 92 of the complaint as to answering defendant, but denies knowledge sufficient to form a belief as to

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the truth or falsity of the allegations set forth in paragraphs 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 88, 89, 90, 91 and 92 of the complaint as to codefendants.

ANSWERING THE FOURTH CAUSE OF ACTION SIXTEENTH: Repeats and realleges each and every denial and admission set forth in answer to each and every allegation set forth herein above. SEVENTEENTH: Denies each and every allegation set forth in paragraph(s) 94, 95, 96, 97, and 98 of the complaint as to answering defendant, but denies knowledge sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraphs 94, 95, 96, 97, and 98 of the complaint as to co-defendants. EIGHTEENTH: Denies each and every allegation in set forth in paragraph 99 of the complaint.

ANSWERING THE SIXTH CAUSE OF ACTION (THERE IS NO FIFTH CAUSE OF ACTION) NINETEENTH: Repeats and realleges each and every denial and admission set forth in answer to each and every allegation set forth herein above. TWENTIETH: Denies each and every allegation set forth in paragraph(s) 101, 102, 103 and 104 of the complaint as to answering defendant, but denies knowledge sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraphs 101, 102, 103 and 104 of the complaint as to co-defendants.

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TWENTY FIRST: Denies each and every allegation in set forth in paragraph 105, 106, and 107 of the complaint.

ANSWERING THE SEVENTH CAUSE OF ACTION TWENTY SECOND: Repeats and realleges each and every denial and admission set forth in answer to each and every allegation set forth herein above. TWENTY THIRD: Denies each and every allegation set forth in paragraph(s) 109, 110, and 111 of the complaint as to answering defendant, but denies knowledge sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraphs 109, 110, and 111 of the complaint as to co-defendants. TWENTY FOURTH: Denies each and every allegation in set forth in paragraph 112, and 113 of the complaint.

ANSWERING THE EIGHTH CAUSE OF ACTION TWENTY FIFTH: Repeats and realleges each and every denial and admission set forth in answer to each and every allegation set forth herein above. TWENTY SIXTH: Denies knowledge and information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph(s) 115, 116, 117, 118, 119, 120, and 121 of the complaint.

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ANSWERING THE NINTH CAUSE OF ACTION TWENTY SEVENTH: Repeats and realleges each and every denial and admission set forth in answer to each and every allegation set forth herein above. TWENTY EIGHTH: Denies each and every allegation set forth in paragraph(s) 123, 124, 125, 126, 127, and 128 of the complaint as to answering defendant, but denies knowledge sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraphs 123, 124, 125, 126, 127, and 128 of the complaint as to co-defendants.

ANSWERING THE TENTH CAUSE OF ACTION TWENTY NINTH: Repeats and realleges each and every denial and admission set forth in answer to each and every allegation set forth herein above. THIRTIETH: Denies the allegations set forth in paragraph 130 of the complaint and refers all questions of law to the court. THIRTY FIRST: Denies each and every allegation set forth in paragraph(s) 131 and 132 of the complaint as to answering defendant, but denies knowledge sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraphs 131 and 132 of the complaint as to co-defendants. THIRTY SECOND: Denies each and every allegation in set forth in paragraph 133, and 134 of the complaint.

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ANSWERING THE ELEVENTH CAUSE OF ACTION THIRTY THIRD: Repeats and realleges each and every denial and admission set forth in answer to each and every allegation set forth herein above. THIRTY FOURTH: Denies each and every allegation set forth in paragraph(s) 136, 137, 138, 139, 140, and 141 of the complaint as to answering defendant, but denies knowledge sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraphs 136, 137, 138, 139, 140, and 141of the complaint as to co-defendants. THIRTY FIFTH: Denies each and every allegation in set forth in paragraph 142, and 143 of the complaint.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE THIRTY SIXTH: If the damages were sustained by the plaintiffs at the time and place and in the manner alleged in the complaint, such damages and injuries are attributable, in whole or in part, to the culpable conduct of plaintiffs and co-defendants, and if any damages are recoverable against this answering defendant, the amount of such damages shall be diminished in the proportion which the culpable conduct attributable to the plaintiff and co-defendant bears to the culpable conduct which caused the damages.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE THIRTY SEVENTH: Plaintiffs have failed to mitigate damages, and this answering defendant will seek a reduction of any damages by the amount of damages plaintiffs could have mitigated.

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AS AND FOR A THIRD AFFIRMATIVE DEFENSE THIRTY EIGHTH: The answering defendant herein claims the benefit of each and

every provision of General Obligations Law Section 15-108.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THIRTY NINTH: defendant. There is no privity between plaintiffs and this answering

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE FOURTIETH: This answering defendant never made any representations in any capacity whatsoever, nor did it ever speak to plaintiffs about any matter whatsoever, which could render it liable for anything.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE FORTY FIRST: That the Plaintiffs are guilty of the Doctrine of Unclean Hands and are not entitled to any relief whatsoever.

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE FORTY SECOND: Plaintiffs are not entitled to punitive damages and such damages must not be awarded unless plaintiffs proves its case beyond a reasonable doubt in the determination of a unanimous jury.

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AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE FORTY THIRD: Plaintiffs' claims, or parts thereof, are barred by the doctrine of waiver and estoppel.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE FORTY FOURTH: Plaintiffs' claims, or parts thereof, are barred by the doctrine of accord and satisfaction.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE FORTY FIFTH: Plaintiffs' Complaint fails to state a claim upon which relief can be granted as against this answering defendant.

AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE FORTY SIXTH: The complaint is improperly numbered.

AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE FORTY SEVENTH: The facts not having been fully developed, this answering defendant further affirmatively pleads the following affirmative defenses as may be applicable in this action: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge and bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

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AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE FORTY EIGHTH: Without commenting on the merits of the case, and without admitting any facts thereto, this answering defendants had no business or personal involvement with plaintiff or any other party to this action, as evidenced by the fact that only this answering defendants email address, not even his name, is mentioned once in the 174 pages of exhibits. This answering defendant had nothing to do with anything alleged herein, or anyone associated with any fact whatsoever related to the causes of action and accordingly, this action should be dismissed as against defendant DAVID WISEMAN pursuant to F.R.C.P. (11)(b)(2).

AS A BASIS FOR AFFIRMATIVE RELIEF AND AS A CROSS-CLAIM AGAINST CODEFENDANTS, STEWART SYTNER, HILARY SYTNER a/k/a HILARY BERLIN, THOMAS P. MEGAS, CEFEIDA, SA, SCOTT WAGMAN, MILTON MILLER, THESE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF That if plaintiff was caused to sustain damages at the time and place set forth in the complaint through any reason other than plaintiff's own, said damages arose in whole or in part from the negligence/breach of contract/fraud/misrepresentation/conversion/unjust

enrichment/breach of fiduciary duty of co-defendants and if any judgment is recovered herein by plaintiff against this answering defendant, it will be damaged thereby and the answering defendant will be entitled to proportionate and/or full contribution/indemnity on the basis of proportionate responsibility in negligence, and/or common law contribution/indemnification and/or contractual indemnification from the co-defendants named above.

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WHEREFORE, defendant, DAVID WISEMAN, demands judgment dismissing the complaint of the plaintiff, together with costs and disbursements, and in the event any judgment is recovered against defendants, DAVID WISEMAN, it is further demanded that such judgment be reduced by the amount which is proportionate to plaintiffs and co-defendants degree of culpability; together with costs and disbursements of this action.

Dated: New York, NY August 8, 2012

Law Offices of JASON J. REBHUN, P.C.

By:

Jason J. Rebhun, Esq. (JR1152)

Attorneys for Defendant DAVID WISEMAN 353 Amsterdam Avenue 9S New York, New York 10024 (845) 821-1589

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VERIFICATION

JASON J. REBHUN, an attorney duly admitted to practice before the Courts of the State of New York, affirms under the penalties of perjury that: I am the President of JASON J. REBHUN, P.C. attorneys for defendant, DAVID WISEMAN, in the above-entitled action; that I have read the foregoing ANSWER and know the contents thereof, and upon information and belief, affirmant believes the matters alleged therein to be true. The reason the verification is made by affirmant and not by defendant is that the defendants herein are in a County other than the one in which affirmant maintains his office. The source of affirmants information and the grounds of affirmants beliefs are communications, papers, reports and investigations contained in the file.

Dated: New York, New York August 8, 2012

Jason J. Rebhun
JASON J. REBHUN

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AFFIRMATION OF SERVICE BY REGULAR MAIL

The undersigned, an attorney admitted to practice in the courts of New York State, shows: that he is the President of JASON J. REBHUN, P.C., and affirms this statement to be true under the penalties of perjury, pursuant to Rule 2106 CPLR: That on the 9th day of August, 2012, he served the annexed VERIFIED ANSWER by regular mail upon: Gallo & Associates, PLLC Attorneys for Plaintiff 445 Northern Blvd., Suite 11 Great Neck, New York 11021 Tel. (516) 342-5880 Stewart Sytner Hilary Sytner Ipswich Ave, Unit 1 Great Neck Plaza, NY 11021 Thomas P. Megas, Cefeida SA 522 LeBeauvoi, 48 Chemin DeBernes, Verbier 1936, Switerzland Scott Wagman, 398 Felter Avenue, Hewlett, NY 11557 Milton Miller, 515 Irvington Ave., Elizabeth, NJ 07208

being the address within the State theretofore designated by them for that purpose, by depositing a copy of the same, enclosed in a prepaid wrapper in a post office box situated at 225 Broadway in the Borough of Manhattan, City of New York, regularly maintained by the Government of the United States in said City.

Dated: New York, New York August 9, 2012

Jason J. Rebhun
JASON REBHUN