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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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205 WEST 13TH LLC,
Plaintiff,
Index No. 152311/2022
-againstCAROLINE CALLOWAY; RACHEL WHITE a/k/a
RACHEL RABBIT WHITE; NICO WALKER; JOHN DOE,
JANE DOE,
VERIFIED ANSWER
Defendants.
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Defendant Caroline Calloway (“Defendant” or “Calloway”) by and through her attorneys,
GERSTMAN SCHWARTZ LLP, hereby files her Answer to Plaintiff’s 203 West 13th LLC’s
(“Plaintiff” or “Landlord”) Verified Complaint herein, and upon information and belief, alleges:
THE PARTIES
1. Calloway denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 1 of the Complaint.
2. Calloway denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 2 of the Complaint, except that she was a tenant of 205 West
13th Street, New York, New York 10011, Apartment 2 H (the “Premises”) pursuant to a written
lease agreement (the “Lease”).
3. Calloway denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 3 of the Complaint.
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4. Paragraph 4 contains allegations to which no response is required. To the extent a response
is required, Calloway denies knowledge or information sufficient to form a belief as to the truth of
the allegations contained in paragraph 4 of the Complaint.
BACKGROUND FACTS
5. Calloway admits the allegations the allegations in paragraph 5 of the Complaint that she
entered into a lease agreement on or about August 26, 2011, in which she agreed to rent the
Premises for a period of one year, but denies knowledge or information sufficient to form a belief
as to the truth of the remaining allegations contained in paragraph 5 of the Complaint.
6. The allegations contained in paragraph 6 of the Complaint constitute legal conclusions and
questions of law to be determined solely by the Court and, therefore, no response is required. To
the extent a response is required, Calloway denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained in paragraph 6 of the Complaint, except to the
extent it refers to an Article 1, the content of which speaks for itself.
7. Calloway denies the allegations contained in paragraph 7, except admits that the Lease was
renewed on or about August 30, 2021 before it was terminated on or about March 1, 2022.
8. Calloway denies the allegations contained in paragraph 8, except that the Lease was
terminated on or about March 1, 2022.
9. Calloway denies the allegations contained in paragraph 9 of the Complaint.
10. Calloway denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 10 of the Complaint.
11. Calloway denies the allegations contained in paragraph 11 of the Complaint.
12. The allegations contained in paragraph 12 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
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To the extent a response is required, Calloway denies knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraph 12 of the Complaint.
13. The allegations contained in paragraph 13 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
To the extent a response is required, Calloway denies knowledge or information sufficient to form
a belief as to the truth of the allegations contained in paragraph 13 of the Complaint.
FIRST CAUSE OF ACTION
Declaratory Relief
14. Calloway repeats and realleges the allegations contained in paragraphs 1 through 13 with
the same force and effect as if fully set forth herein.
15. The allegations contained in paragraph 15 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
To the extent a response is required, Calloway denies the allegations contained in paragraph 15 of
the Complaint.
16. The allegations contained in paragraph 16 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
To the extent a response is required, Calloway denies the allegations contained in paragraph 16 of
the Complaint.
17. The allegations contained in paragraph 17 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
To the extent a response is required, Calloway denies the allegations contained in paragraph 17 of
the Complaint.
18. The allegations contained in paragraph 18 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
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To the extent a response is required, Calloway denies the allegations contained in paragraph 18 of
the Complaint.
19. Calloway denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 19 of the Complaint.
20. The allegations contained in paragraph 20 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
To the extent a response is required, Calloway denies the allegations contained in paragraph 20 of
the Complaint.
21. The allegations contained in paragraph 21 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
To the extent a response is required, Calloway denies the allegations contained in paragraph 21 of
the Complaint.
SECOND CAUSE OF ACTION
Violation of the Lease (Injunctive Relief)
22. Calloway repeats and realleges the allegations contained in paragraphs 1 through 21 with
the same force and effect as if fully set forth herein.
23. The allegations contained in paragraph 23 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
To the extent a response is required, Calloway denies the allegations contained in paragraph 23 of
the Complaint.
24. The allegations contained in paragraph 24 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
To the extent a response is required, Calloway denies the allegations contained in paragraph 24 of
the Complaint.
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25. The allegations contained in paragraph 25 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
To the extent a response is required, Calloway denies the allegations contained in paragraph 25 of
the Complaint.
26. Calloway denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 26 of the Complaint.
27. Calloway denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 27 of the Complaint.
28. The allegations contained in paragraph 28 of the Complaint constitute legal conclusions
and questions of law to be determined solely by the Court and, therefore, no response is required.
To the extent a response is required, Calloway denies the allegations contained in paragraph 28 of
the Complaint.
THIRD CAUSE OF ACTION
Trespass and Lease Violation (Monetary Damages)
29. Calloway repeats and realleges the allegations contained in paragraphs 1 through 28 with
the same force and effect as if fully set forth herein.
30. Calloway denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 30 of the Complaint.
31. Calloway denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 31 of the Complaint.
32. Calloway denies the allegations contained in Paragraph 32 of the complaint.
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FOURTH CAUSE OF ACTION
Breach of lease for Failure to Pay Rent
33. Calloway repeats and realleges the allegations contained in paragraphs 1 through 32 with
the same force and effect as if fully set forth herein.
34. Calloway denies the allegations contained in Paragraph 34 of the complaint.
35. Calloway denies the allegations contained in Paragraph 35 of the complaint.
36. Calloway denies the allegations contained in Paragraph 36 of the complaint.
37. Calloway denies the allegations contained in Paragraph 37 of the complaint.
38. Calloway denies the allegations contained in Paragraph 38 of the complaint.
PRAYER FOR RELIEF
39. The “WHEREFORE” paragraph that immediately follows paragraph 38 states various
demands for relief to which no response is required but, should a response be required, Calloway
denies that Plaintiff is entitled to any relief whatsoever.
40. Calloway denies any other allegations in the Complaint that are not specifically admitted
or denied herein.
AFFIRMATIVE DEFENSES
41. Calloway asserts the following affirmative defenses without assuming the burden of proof
on such defenses that would otherwise rest with Plaintiff.
FIRST AFFIRMATIVE DEFENSE
42.
Plaintiff’s Complaint fails to state a claim upon which relief can be granted.
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SECOND AFFIRMATIVE DEFENSE
43. Plaintiff has suffered no damages and/or have failed to mitigate their damages, if any, and
to act in a commercially reasonable manner. Plaintiff has taken no steps to mitigate its damages
whatsoever. To the extent that Calloway is found to owe Plaintiff, that amount must be offset by
the amount Plaintiff has received in mitigation or would have received if Plaintiff had fully
performed its obligation to mitigate damages.
THIRD AFFIRMATIVE DEFENSE
44. The express purpose of the Lease was to allow Calloway to use the Premises as a residence.
Due to unforeseeable events related to the COVID-19 pandemic, all of which were outside of
Calloway’s control, Calloway was deprived of the intended use and such use became impossible,
illegal, and/or impracticable. As a result, the purpose and object of the Lease was frustrated,
impossible, illegal, and commercially impracticable, Calloway’s performance became frustrated,
impossible, illegal, and impracticable, and the consideration Plaintiff received in exchange for
entering the Lease failed. Calloway is entitled to judicial rescission of the Lease.
FOURTH AFFIRMATIVE DEFENSE
45. The express purpose of the Lease was to allow Calloway to use the Premises as a residence.
Due to unforeseeable events related to the COVID-19 pandemic, all of which were outside of
Calloway’s control, Calloway was deprived of the intended use and such use became impossible,
illegal, and/or impracticable. As a result, the purpose and object of the Lease was frustrated,
impossible, illegal and commercially impracticable, Calloway’s performance became frustrated,
impossible, illegal, and impracticable, and the consideration Calloway received in exchange for
entering the Lease failed. Calloway is entitled to judicial reformation of the Lease.
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FIFTH AFFIRMATIVE DEFENSE
46. During and after the COVID-19 crisis, Plaintiff refused to reimburse Calloway for the
excess charges of rent attributable to the time that Calloway was deprived of her use of the
Premises. To the extent that the Court finds Calloway owes Plaintiff, Calloway’s liability to
Plaintiff must be setoff in whole or in part by the amounts that Plaintiff owes Calloway.
SIXTH AFFIRMATIVE DEFENSE
47. During and after the COVID-19 crisis, Calloway was experiencing financial hardship as a
direct result of COVID-19.
SEVENTH AFFIRMATIVE DEFENSE
48. With respect to the alleged rights, claims, and obligations that Plaintiff seeks to enforce
against Calloway, Calloway owed no duty to Plaintiff, and, therefore, Calloway is not liable to
Plaintiff for damages.
EIGHTH AFFIRMATIVE DEFENSE
49. Plaintiff is estopped from enforcing any of the alleged rights, claims, and obligations it
seeks to enforce against Calloway.
NINTH AFFIRMATIVE DEFENSE
50. Calloway’s obligation to perform any of her alleged obligations under the Lease was
excused because the purpose and object of the Lease was frustrated. Calloway’s ability to use the
Premises was the express purpose of the Lease, as both parties understood at the time of
contracting, and without Calloway’s ability to use the Premises, the transaction that the parties
entered that resulted in the Lease makes no sense.
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TENTH AFFIRMATIVE DEFENSE
51. Calloway’s obligation to perform any of her alleged obligations under the Lease was
excused for failure of consideration.
ELEVENTH AFFIRMATIVE DEFENSE
52. Calloway’s obligation to perform any of her alleged obligations under the Lease was
excused because the purpose, object, and performance of the Lease became impossible.
TWELFTH AFFIRMATIVE DEFENSE
53. Calloway’s obligation to perform any of her alleged obligations under the Lease was
excused because the purpose, object, and performance of the Lease became illegal.
THIRTEENTH AFFIRMATIVE DEFENSE
54. Calloway’s obligation to perform any of her alleged obligations under the Lease was
excused by Plaintiff’s actions or the actions of third parties.
FOURTEENTH AFFIRMATIVE DEFENSE
55. Plaintiff has not suffered any damages as a result of the actions taken by Calloway, and
Plaintiff is barred from asserting any cause of action against Calloway.
FIFTEENTH AFFIRMATIVE DEFENSE
56. Plaintiff failed to comply with the terms of the Lease and is therefore barred from asserting
any cause of action against Calloway, or its claimed damages must be offset by the amount of
damages caused by Plaintiff’s own failure to comply with the Lease.
SIXTEENTH AFFIRMATIVE DEFENSE
57. Plaintiff’s claims are barred because Plaintiff failed to join a necessary party.
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SEVENTEENTH AFFIRMATIVE DEFENSE
58. Plaintiff’s claims are barred by the doctrine of waiver.
EIGHTEENTH AFFIRMATIVE DEFENSE
59. Plaintiff’s claims are barred by the doctrine of laches.
NINETEENTH AFFIRMATIVE DEFENSE
60. Plaintiff’s claims are barred by the doctrine of abuse of process.
TWENTIETH AFFIRMATIVE DEFENSE
61. Plaintiff’s claims are barred by the doctrine of unclean hands.
TWENTY-FIRST AFFIRMATIVE DEFENSE
62. Plaintiff’s claims are barred by the doctrine of consent.
TWENTY-SECOND AFFIRMATIVE DEFENSE
63. Plaintiff’s claims are barred to the extent that any damages allegedly sustained by Plaintiff
are the proximate result of the acts and/or omissions of independent third parties over which
Calloway exercised no control.
TWENTY-THIRD AFFIRMATIVE DEFENSE
64. Plaintiff’s claims are barred because at all times Calloway acted in good faith and in a
commercially reasonable and lawful manner.
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TWENTY-FOURTH AFFIRMATIVE DEFENSE
65. Plaintiff’s claims are barred by the doctrine of de minimis non curat lex, as any damages
allegedly suffered by Plaintiff have been de minimis.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
66. The claims are barred and/or must be dismissed based upon expiration of the applicable
statute of limitations periods.
RESERVATION OF RIGHTS
67. Calloway reserves her right to add additional affirmative defenses as may be determined
applicable hereafter, including, without limitation, during the discovery or trial phases of this
action.
COUNTERCLAIMS
Pursuant to the general provisions of N.Y. CPLR § 3019(a), Defendant Caroline Calloway,
by and through her undersigned counsel, hereby asserts the following Counterclaims against
Plaintiff 205 West 13th LLC.
1. Defendant Calloway repeats, realleges, and incorporates each of the allegations, averments,
responses, denials, and affirmative defenses to the foregoing paragraphs as if set forth at length
herein.
FACTS
2. There are fancier apartment buildings in New York City than 205 West 13th Street (the
“Premises” or “205”), but to Ms. Calloway, for over ten years, it was the most perfect home she
had ever known. There is no doorman, no bedrooms even—every unit in 205 is a studio—but she
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loved that little building like no home she has had before or since. In fact, Ms. Calloway had a
very troubled childhood, which is why she spent so much money and time making improvements
to the property – because 205 was not only her favorite home, but also her first.
3. Ms. Calloway’s efforts started with the garden. It was the only real communal space at 205.
But when Ms. Calloway first moved into the building in September of 2011, the space that is now
a beautiful backyard was a barren, garbage-strewn, packed-dirt lot.
4. For the first few years Ms. Calloway lived there, this miniature muddy landfill stayed that
way. But, beginning in or about October 2017—after yet another spring and summer had come
and gone with so much wasted potential right outside her window—she realized that if she did not
fix this problem, no one would.
5. It took half a year just to clear out all the rot. Autumn upon autumn of decaying leaves.
Shredded wrappers and plastic bags. More broken glass than really made sense for an uninhabited
slice of land. One billion cigarette butts. Dozens upon dozens of hours of work. Ms. Calloway
bought gloves, hoes, rakes, more hoes, more rakes. She recruited friends. The glass kept ripping
their gloves, but they finally found a brand that worked. Once they cleared the debris, they realized
the earth underneath was packed down hard as bedrock and when it was tilled, the dirt filled the
air with a wretched smell. Ms. Calloway bought a black sand beach’s worth of topsoil and a
bioweapon’s worth of fertilizer.
6. Every spring after that initial deep cleaning, from 2018-2022, Ms. Calloway would have
to re-clean all the leaves that fell during the fall, but she did not mind the labor. In terms of plants,
she tried to focus on perennials—things that would not die each winter and would not have to be
replaced—but between 2017 and 2022, she easily spent $10,000 on gardening supplies and
seedlings.
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7. Certain plants, like daffodil bulbs or fern tubers only had to be purchased once. But tulips,
grass, wildflowers, and herbs had to be replaced anew each year. Then there were the expensive
plants like the two lilac bushes Ms. Calloway bought, the night-blooming jasmine, and the miniJapanese maple. However, the major expenses for the garden were not the plants or the
uncompensated labor, but rather infrastructure.
8. In or about 2018, Ms. Calloway added five winding paths through the garden, which
involved laying pavement stones, lining them with brick, and dotting them with 100 tea candles—
all of which were supplies she had to purchase out-of-pocket. She bought the base for a pond along
with water plants and erected several trellises in order to create a veranda. To encourage a return
of wildlife in the backyard, in 2018, she sourced and kept-filled an antique birdbath, in addition to
installing two birdhouses and a birdfeeder, for which she also bought birdseed.
9. In 2018, Ms. Calloway purchased a grill with a rain cover for everyone to use, two tables
to eat at, eight patio chairs, and a freestanding hammock. Not only did she leave these chattels
behind when she moved out so that Landlord (and its residents) could continue to enjoy them for
years to come, but she was pleased to see that the listing for her own apartment included photos of
the hammock, grill, and patio furniture (among other items and improvements) that she had
purchased to market the building to prospective tenants.
10. In her personal space, Ms. Calloway also spent approximately $25,000 improving it
between 2017 and 2019. The tiles in both the bathroom and kitchen were cracked, so she paid outof-pocket to have both spaces fully retiled. She bought a new porcelain sink for the bathroom
because the original ceramic one was splintering. She installed a French midcentury-modern
hanging-lamp in the bathroom, as well as a real Murano-glass Venetian chandelier from in the
entryway. The chandelier alone is worth more than $3,000, and the French lamp worth several
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hundred. Each of these antique chattels were left to be enjoyed by the future inhabitants of her
beloved 205. She also spent over $1,000 to design and install custom sconcing around the original
lighting fixture in the living room, which added an Old-World grandeur to an otherwise
unassuming studio. Similar to the backyard improvements, these improvements and antique pieces
were prominently featured in Landlord’s apartment listing as features to attract prospective
renters. She also bought a new air-conditioner, a custom shelving unit, and a new showerhead,
among other things, all of which she left behind.
11. The Landlord was well aware of Ms. Calloway’s costs and efforts expended but never
reimbursed Ms. Calloway despite its promises to do so. Insofar as Landlord was aware of the costs
and value associated with the foregoing additions and efforts, it ratified Ms. Calloway’s conduct
by permitting, and subsequently utilizing, the improvements and chattels Ms. Calloway
contributed to the Premises to help market the Premises to prospective tenants.
12. In March 2020, the COVID-19 pandemic presented unique and unprecedented
circumstances that were unforeseeable—indeed, unimaginable—even just a short time ago. The
disease was highly contagious, and its spread was rapid. The government’s reaction was profound
and prevented Ms. Calloway from being able to earn an income for more than two-years. And, like
innumerable other New York City residents, for the first time in her ten-years as a resident of the
250, Ms. Calloway found herself in the position of being unable to afford her rent.
13. These circumstances not only imposed severe and irreparable hardship on Ms. Calloway,
but they also frustrated the express purpose of the Lease she held for residential space at the
Premises, and made the principal object of the Lease illegal, impossible, and impracticable. Under
the circumstances, the Lease was terminated pursuant to law effective on or before March 1, 2020,
both under the terms of the Lease and the laws of the State of New York, and, to the extent Ms.
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Calloway did not pay any rent after this period, she had no further obligation to pay rent or other
consideration under it. Calloway is also entitled to a refund of the expenses she paid in services
and improvements made to Plaintiff’s building and in furtherance of Plaintiff’s interests,
declaratory relief regarding her obligations under the Lease, and the equitable remedies described
below.
14. The Tenant Safe Harbor Act, Chapter 127 of 2020, protects tenants from eviction for
failing to pay their rent that came due during the covered period from March 7, 2020 through
January 15, 2022 if they suffered a financial hardship due to COVID-19. To receive these
protections, tenants must raise financial hardship as a defense and affirm in court that they suffered
from financial hardship. If the court finds that the tenant had a financial hardship due to COVID19, the landlord will not be allowed to evict for the rent that was owed due to a tenant's
hardship. This Act reflects a recognition by the New York Legislature that many tenants suffered
significant financial hardship as a result of the COVID-19 pandemic, which adversely impacted
their ability to pay rent.
FIRST CAUSE OF ACTION
(Quantum Meruit)
15. Defendant Calloway repeats, realleges, and incorporates each of the allegations, averments,
responses, denials, and affirmative defenses to the foregoing paragraphs as if set forth at length
herein.
16. Landlord promised to pay Calloway certain compensation for the work, labor, and services
provided as described herein, which is usual and customary as and for the reasonable value of the
services rendered, and to-be-rendered for the foreseeable future.
17. Calloway performed these services with the full expectation of receiving the compensation
promised to her, which is reasonable, fair, and customary, as compared with what was paid to
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similarly situated individuals performing substantially the same work in which Calloway was
engaged.
18. Plaintiff fully performed all of her obligations.
19. Landlord failed and refused to pay to Calloway compensation that was fair and customary.
20. Landlord’s conduct with respect to Calloway is actionable as a breach of contract based
upon Quantum Meruit under New York’s quasi-contract law.
21. As a direct and proximate result of Landlord’s conduct, Calloway has been caused thereby
to suffer damages in an amount no less than $40,000, the exact amount to be proven at trial.
SECOND CAUSE OF ACTION (ALTERNATIVE)
(Unjust Enrichment)
22. Defendant Calloway repeats, realleges, and incorporates each of the allegations, averments,
responses, denials, and affirmative defenses to the foregoing paragraphs as if set forth at length
herein.
23. In the alternative, Landlord owed a legal duty to Calloway to not unfairly or unduly take
advantage of Calloway, or commit wrongful acts in order to unjustly enrich itself at Calloway’s
expense or at the expense of Calloway’s property or financial interests.
24. During the period from approximately September 2018 to the present date, Landlord
unjustly enriched itself by wrongfully converting, taking, utilizing, or managing the services,
property, and financial interests of Calloway as described herein.
25. Such acts and omissions leading to Landlord’s unjust enrichment were the actual and
proximate cause of harm to Calloway.
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26. Accordingly, Landlord is liable in damages to Calloway in an amount no less than $40,000,
the exact amount to be proven at trial, arising out of the Landlord’s unjust enrichment.
THIRD CAUSE OF ACTION (ALTERNATIVE)
(Quasi-Contract/Restitution)
27. Defendant Calloway repeats, realleges, and incorporates each of the allegations, averments,
responses, denials, and affirmative defenses to the foregoing paragraphs as if set forth at length
herein.
28.
In the alternative, as alleged herein, the Landlord intentionally, recklessly, and/or
negligently made misleading representations about its desire for Calloway to perform certain
services to induce Calloway to perform these services and make improvements that would benefit
the Landlord.
29. Calloway reasonably relied on these misleading representations and has not received
all of the benefits promised by Landlord. Calloway has therefore been induced by Landlord’s
misleading and false representations about these services and continued to perform these services
when she failed to receive monetary benefits from Landlord that she should have received.
30. Calloway has conferred a benefit upon Landlord as Landlord has retained monies due to
Calloway.
31. The benefits received by Landlord were obtained under circumstances that were at the
expense of Calloway – i.e., Calloway did not receive the full value of the benefits conferred upon
Landlord because Landlord did not provide the monies owed to Calloway totaling approximately
$40,000 for the services and improvements to the Premises to the Premises Calloway provided.
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32. Therefore, it is inequitable and unjust for Landlord to retain the profit, benefit,
or compensation conferred upon it without paying to Calloway of the value actually received.
33. As a direct and proximate result of the Landlord’s unjust enrichment, Calloway
is entitled to restitution, disgorgement, and/or the imposition of a constructive trust upon all
benefits and other compensation obtained by Landlord from its deceptive, misleading, and
unlawful conduct as alleged herein.
FOURTH CAUSE OF ACTION (ALTERNATIVE)
(Breach of Contract and Covenant of Good Faith and Fair Dealing)
34. Defendant Calloway repeats, realleges, and incorporates each of the allegations, averments,
responses, denials, and affirmative defenses to the foregoing paragraphs as if set forth at length
herein.
35. In the alternative, in connection with the services and improvements to the Premises
provided by Calloway as a tenant under the Lease, Landlord expressly represented to Calloway
that she would be fairly compensated for her efforts. Calloway performed these services in reliance
upon this express or implied covenant of the parties’ contract.
36. At all times relevant to this litigation, Calloway performed according to the terms of the
parties’ contract.
37. In one of more bad faith exercises of discretion, Landlord intentionally denied Calloway
the fruits of the parties’ contract by wrongfully converting, taking, utilizing, or managing services,
property, and financial interests of Calloway.
38. Such acts and omissions leading to Landlord’s breach of its duty to deal in good faith and
fairly with Calloway were the actual and proximate cause of harm to Calloway.
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39. Landlord’s conduct was outrageous, with its acts being done with malice, bad motives,
and/or reckless indifference to the interests of Calloway.
40. As a direct and proximate result of Landlord’s conduct, Calloway has been injured in an
amount no less than $40,000, the exact amount to be proven at trial.
FIFTH CAUSE OF ACTION (ALTERNATIVE)
(Breach of Implied Contract)
41. Defendant Calloway repeats, realleges, and incorporates each of the allegations, averments,
responses, denials, and affirmative defenses to the foregoing paragraphs as if set forth at length
herein.
42. In the alternative, even without an express written or oral agreement specifying the exact
terms of Calloway’s compensation, there was an implied contract to pay Calloway for her services
and improvements to the Premises that imparted a direct benefit on the Landlord.
43. Accordingly, based upon the prior conduct and “course of dealing” between Calloway and
Landlord, as well as Landlord’s practices of paying similarly situated individuals certain
compensation, an implied contract exists regarding the compensation Landlord would pay
Calloway for services rendered, but which Landlord never paid.
44. As a direct and proximate result of Landlord’s conduct, Calloway has been injured in an
amount no less than $40,000, the exact amount to be proven at trial.
SIXTH CAUSE OF ACTION (ALTERNATIVE)
(Promissory Estoppel)
45. Defendant Calloway repeats, realleges, and incorporates each of the allegations, averments,
responses, denials, and affirmative defenses to the foregoing paragraphs as if set forth at length
herein.
46. In the alternative, Landlord is liable to Calloway for promissory estoppel. Landlord
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sufficiently and unambiguously promised to refund Calloway for her services and improvements
to the Premises performed.
47. Calloway’s reliance on these promises was foreseeable for Landlord because Landlord is
in the business of facilitating and commissioning services like those performed by Calloway for
the Premises, and Landlord understands the reason and purpose for such services.
48. As a result of Landlord’s promises to refund Calloway for her services and improvements
to the Premises, and subsequent failure to do so upon request, Calloway has been damages in an
amount no less than $40,000, the exact amount to be proven at trial.
SEVENTH CAUSE OF ACTION (ALTERNATIVE)
(Conversion)
49. Defendant Calloway repeats, realleges, and incorporates each of the allegations, averments,
responses, denials, and affirmative defenses to the foregoing paragraphs as if set forth at length
herein.
50. In the alternative, Landlord is liable to Calloway for conversion. Calloway has a possessory
right or interest in the cash value of the services and improvements to the Premises she made to
the Premises over which Landlord exercised dominion or interference in derogation of Calloway’s
rights.
51. Calloway contributed the tangible property/chattel/fixtures described herein in order to
perform her services and improvements to the Premises to the Premises. However, Calloway was
never
compensated
for
her
services,
improvements,
or
contributions,
and
her
property/chattel/fixtures were never returned to her. When Calloway requested compensation or
the return of her property/chattel/fixtures, Landlord refused and kept her property/chattel/fixtures
for its own benefit. Landlord’s acts of conversion were committed with malice and with reckless
and willful disregard of Calloway’s rights.
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52. As a result of Landlord’s acts of conversion, Calloway has been damaged in an amount no
less than $40,000, the exact amount to be proven at trial.
PRAYER FOR RELIEF
WHEREFORE, Calloway demands judgment dismissing the Verified Complaint in its entirety,
and judgment in Calloway’s favor on her Counterclaims, together with the costs, reasonable
attorneys’ fees, disbursements, and other expenses incurred by Calloway in this action, and for
such other and further relief as the Court deems just and proper.
Dated:
Garden City, New York
July 6, 2022
Respectfully submitted,
GERSTMAN SCHWARTZ, LLP
By: /s/ Randy E. Kleinman
Randy E. Kleinman, Esq.
1399 Franklin Avenue, Suite 200
Garden City, New York 11530
Tel. No.: (516) 880 – 8170
rkleinman@gerstmanschwartz.com
Attorneys for Defendant Caroline Calloway
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ATTORNEY’S VERIFICATION
STATE OF NEW YORK
)
) ss.:
COUNTY OF NASSAU
)
I, the undersigned, an attorney admitted to practice in the Courts of the State of New York,
state that I am Randy E. Kleinman, Esq., the attorney of record for the within action; I have read
the foregoing VERIFIED COMPLAINT and know the contents thereof; the same is true to my
knowledge, except as to the matters therein stated to be alleged upon information and belief, and
as to those matters I believe to be true. The grounds to my belief as to all matters not stated upon
my own knowledge are based upon communications with my client.
Dated:
Garden City, NY
July 6, 2022
/s/ Randy E. Kleinman___________
RANDY E. KLEINMAN, ESQ.
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