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STATE OF NEW YORKSUPREME COURT : COUNTY OF ERIE __________________________________________

PHILLIP A. DELMONT, as Administrator

of the Estate of WILLIAM A. DELMONT,

Plaintiff,

v.

SOUTH PARK AVE. PROPERTIES, LLC,G. STEVEN PIGEON,JOHN F. O’DONNELL, JR., andSADEQ S. AHMED,

Defendants. __________________________________________

ANSWER TO COMPLAINT

Index No.: 811246/2014

Defendants, South Park Ave. Properties, LLC, G. Steven Pigeon and John F.

O’Donnell, Jr., by their attorneys, DeMarie, Schoenborn & Betz, P.C., answering the complaint

of plaintiff, Phillip A. Delmont, as Administrator of the Estate of William A. Delmont

(“Plaintiff”), upon information and belief:

1.  Admits the allegation contained in paragraph numbered 1 of the

complaint.

2.  Admits the allegation contained in paragraph numbered 2 of the

complaint.

3.  Admits the allegation contained in paragraph numbered 3 of the

complaint.

4.  Denies knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraph numbered 4 of the complaint.

ILED: ERIE COUNTY CLERK 02/09/2015 06:30 PM  INDEX NO. 811246/

YSCEF DOC. NO. 43 RECEIVED NYSCEF: 02/09/

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5.  In response to paragraph 5 of the complaint, states that such paragraph

consists of conclusions of law to which no response is required.

6.  In response to paragraph 6 of the complaint, states that such paragraph

consists of conclusions of law to which no response is required.

7.  In response to paragraph 7 of the complaint, states that such paragraph

consists of conclusions of law to which no response is required and refers to the document for

its terms.

8.  In response to paragraph 8 of the complaint, states that such paragraph

consists of conclusions of law to which no response is required and refers to the document for

its terms.

9.  Denies the allegations contained in paragraph numbered 9 of the

complaint.

10.  Denies knowledge and information sufficient to form a belief as to the

truth of the allegations contained in paragraph numbered 10 of the complaint except admits that

Defendants Pigeon and O’Donnell signed a guaranty dated as of October 22, 2010 and refers to

the guaranty for its terms.

11.  In response to paragraph 11 of the complaint, states that such paragraph

consists of conclusions of law to which no response is required.

12.  In response to paragraph 12 of the complaint, states that such paragraph

consists of conclusions of law to which no response is required.

13.  Denies the allegations contained in paragraph numbered 13 of the

complaint.

14.  Denies all other allegations not admitted above.

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FIRST DEFENSE

15.  The complaint fails to state a cause of action.

SECOND DEFENSE

16.  Plaintiff has failed to mitigate his alleged damages, if any.

THIRD DEFENSE

17.  Plaintiff’s claim is barred by the doctrines of waiver, estoppel, laches and

unclean hands.

FOURTH DEFENSE

18. 

Plaintiff has no legal capacity to sue for the claims alleged in the

complaint.

FIFTH DEFENSE

19.  Plaintiff is not the real party in interest concerning the claims alleged in

the complaint.

SIXTH DEFENSE

20. 

Plaintiff has failed to comply with one or more conditions precedent.

SEVENTH DEFENSE

21.  The defendants were released from any liability resulting from the claim

alleged in the complaint.

EIGHTH DEFENSE

22.  The Plaintiff failed to provide consideration.

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NINTH DEFENSE

23.  The defendants were released from any liability by Plaintiff’s fraudulent

inducement.

24.  In 2010, in order to induce defendants to enter into the secured promissory

note alleged in the complaint, as well as the stock purchase agreement underlying the secured

 promissory note and the guaranties described in the complaint, and with the intention that

defendants reply upon his statement, William A. Delmont (“Delmont”) assured defendants that

they were purchasing a viable and profitable business.

25.  Delmont also published the distribution of his papers on his advertising

rate cards, on which he based the price of advertising in his papers.

26.  These rate cards, which were provided to, and replied upon by defendants,

listed the combined circulation as 13,500.

27.  Based on these representations, defendants agreed to purchase Delmont’s

stock and a building, and agreed to his proposed purchase price of $150,000 for the stock and

$250,000 for the building.

28.  Shortly after the transaction, defendants discovered that Delmont’s

statements were false, as evidenced by the rapid loss of money at The Front Page News and The

South Buffalo News.

29.  Defendants also learned that the circulation was not 13,500, as it had

consistently been advertised by Delmont, but was instead about 6,000.

30.  The statements made by Delmont were false and fraudulent when made,

and were so known by Delmont.

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