FILED: NEW YORK COUNTY CLERK 11/14/ :12 PM INDEX NO /2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/14/2016 EXHIBIT 1

Transcription

1 FILED: NEW YORK COUNTY CLERK 11/14/ :12 PM INDEX NO /2015 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/14/2016 EXHIBIT 1

2 FILED: NEW YORK COUNTY CLERK 10/24/ :17 PM INDEX NO /2015 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 10/24/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X DEIRDRE O BRIEN, - against - Plaintiff/ Counterclaim-Defendant, PETER MARINO ARCHITECT, PLLC and PETER MARINO (Individually), Index No /2015 Hon. Robert R. Reed ANSWER TO AMENDED COMPLAINT AND COUNTERCLAIMS Defendants, PETER MARINO ARCHITECT, PLLC, Counterclaim-Plaintiff X Defendants Peter Marino Architect, PLLC ( PMA ) and Peter Marino ( Marino, and with PMA, Defendants ), and PMA as counterclaim-plaintiff, by and through their undersigned counsel, hereby respond to the allegations in the Amended Complaint of Deirdre O Brien ( Plaintiff or O Brien ) dated June 27, 2016 (the Complaint ), and set forth the below counterclaims, and state as follows: PRELIMINARY STATEMENT IN RESPONSE TO COMPLAINT Deirdre O Brien is a disgruntled former employee of PMA who quit and then was rebuffed when she tried to reclaim her job. Far from being distraught as a result of any vulgar language that she alleges was used by her employer, O Brien was well known in the office for using invective and profane language, and being ill-mannered and nasty with her colleagues. Worse, in investigating her baseless claims, PMA discovered that she herself used sex-based vulgarities and gender-biased language directed at her PMA subordinates. Even worse yet, in processing paperwork to provide for statutorily required continuation of health insurance (i.e., COBRA forms) following her termination, PMA discovered that O Brien had engaged in an 1 of 23

3 eight-year insurance fraud scheme that she continually covered up while in PMA s employ. Had PMA known any of this at the time, she would have been terminated for cause long before the events she alleges in her Complaint. Last October, following a yelling match that she instigated with her boss (and PMA founder) Marino, O Brien flew into a rage and quit her job as office manager. When PMA declined to give her her job back, O Brien brought this legal action alleging unlawful discrimination even though she had worked for PMA for 15 years and had never before made any complaint to PMA about her working conditions, much less a claim of gender discrimination or sexual harassment. In her Complaint, she alleges that she was shaken and sick to her stomach by Marino s alleged use of the word cunt outside of her presence, but the truth is she herself routinely used similarly harsh and vulgar terms, including (unbeknown to PMA at the time) gender-biased language that she herself directed at other PMA employees. O Brien s allegation of unlawful discrimination is nothing more than a post hoc fabrication; her complaint in this action has no basis in truth and is meritless. While her complaint centers on the use of a single profanity allegedly uttered by Marino after O Brien instigated the heated October confrontation, in truth, an internal investigation revealed that O Brien herself regularly used profanity in the work place including sexist and homophobic slurs aimed at humiliating her subordinates. Thus, for example, an internal review of O Brien s work demonstrated that she routinely used her work account to send, among other inappropriate s: explicit pornographic images of women and men; referring to female co-workers as bitch, slut, and at least one female co-worker as a fucking o bitch ; and referring to a male co-worker as a big HOMO. This review also revealed rank insubordination, including s in which O Brien referred to her superiors as bastards 2 2 of 23

4 about whom she could give a flying FUCK. These s alone provide a valid basis for her termination for cause, and, had she not concealed these s and her own workplace biases and insubordination, PMA would have terminated her long before she quit in October of last year. PMA s investigation uncovered even worse misconduct. For many years, O Brien had committed insurance fraud, defrauding PMA of significant funds. As detailed in the counterclaims brought herein, O Brien falsely claimed her ex-husband as a family member who was eligible to participate in her PMA paid-for health insurance plan, even though he was ineligible for coverage because she had divorced him years before she even began working at PMA. By making these false insurance claims, O Brien committed insurance fraud and defrauded PMA, which incurred significant costs in insurance premiums for an ineligible participant and increased premium rates for all PMA employees based on O Brien s false claims. RESPONSE TO NATURE OF CLAIMS 1. Defendants deny the allegations of paragraph 1 of the Complaint, except admit Marino is the owner and principal of PMA and that Plaintiff was the office manager at PMA and had been employed with PMA for almost 15 years. 2. Defendants deny the allegations contained in Paragraph 2 of the Complaint. 3. Defendants deny the allegations contained in Paragraph 3 of the Complaint. 4. Defendants deny the allegations contained in Paragraph 4 of the Complaint 5. Defendants deny the allegations contained in Paragraph 5 of the Complaint. 6. Defendants deny the allegations contained in Paragraph 6 of the Complaint. 7. Defendants deny the allegations contained in Paragraph 7 of the Complaint, except admit they accepted Plaintiff s resignation after she quit on October 26, 2015 and declined to re-hire her when she showed up at PMA s offices uninvited on November 2, Defendants deny the allegations contained in Paragraph 8 of the Complaint. 3 3 of 23

5 9. Defendants deny the allegations contained in Paragraph 9 of the Complaint, except admit that PMA filed counterclaims against Plaintiff. 10. Defendants deny the allegations contained in Paragraph 10 of the Complaint. 11. Defendants deny the allegations contained in Paragraph 11 of the Complaint. 12. Paragraph 12 of the Complaint contains legal conclusions to which no response is required. To the extent a response is required, Defendants deny these allegations. 13. Paragraph 13 of the Complaint contains no allegations which require a response. To the extent a response is required, Defendants deny these allegations. RESPONSE TO JURISDICTION AND VENUE 14. Paragraph 14 of the Complaint contains legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations contained in this paragraph of the Complaint, except admit that PMA s principal place of business is in the City of New York and that Marino has a residence in New York City. 15. Paragraph 15 of the Complaint contains legal conclusions to which no response is required. To the extent a response is required, Defendants deny them, except admit that venue is proper in this Court. RESPONSE TO PARTIES 16. Defendants deny the allegations contained in Paragraph 16 of the Complaint, except admit that Plaintiff worked at PMA as the office manager for approximately 15 years starting in January Defendants deny the allegations of Paragraph 17, except admit that Plaintiff worked at PMA s office in New York City. 18. Defendants admit the allegations contained in Paragraph 18 of the Complaint. 19. Defendants admit the allegations contained in Paragraph 19 of the Complaint. 4 4 of 23

6 20. Defendants admit the allegations contained in Paragraph 20 of the Complaint. 21. Defendants deny the allegations of Paragraph 21, except admit that PMA works in the United States and other countries, that PMA is headquartered in the City of New York, and that PMA has offices in other locations. 22. Paragraph 22 contains legal conclusions to which no response is required. 23. Paragraph 23 contains legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations contained in that paragraph. RESPONSE TO FACTUAL ALLEGATIONS 24. Defendants deny the allegations contained in Paragraph 24 of the Complaint, except admit that on the date in question Plaintiff was meeting with Marino and two others in Marino s office. 25. Defendants deny the allegations of Paragraph 25, except admit that Marino was unhappy with Plaintiff s misconduct during the October 26, 2015 meeting. 26. Defendants deny the allegations contained in Paragraph 26, except admit that Marino was unhappy with Plaintiff s insubordination and with her hostility and improper conduct directed towards him. 27. Defendants deny the allegations of Paragraph 27, except admit that Marino ordered Plaintiff out of his office on October 26, 2015 after Plaintiff s insubordination and her hostility directed towards Marino. 28. Defendants deny the allegations contained in Paragraph 28 of the Complaint. 29. Defendants deny the allegations contained in Paragraph 29 of the Complaint. 30. Defendants deny the allegations contained in Paragraph 30, except admit that, in a further act of insubordination, Plaintiff re-entered Marino s office after she had been ordered to 5 5 of 23

7 leave and confronted Marino demanding that he answer her question about what she had allegedly heard. 31. Defendants deny the allegations contained in Paragraph 31 of the Complaint. 32. Defendants deny the allegations contained in Paragraph 32 of the Complaint. 33. Defendants deny the allegations contained in Paragraph 33 of the Complaint, except admit that Plaintiff engaged in improper conduct toward Marino, including insubordination and hostility. 34. Defendants deny the allegations contained in Paragraph 34 of the Complaint. 35. Defendants deny knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 35 of the Complaint. To the extent a response is required, Defendants deny the allegations. 36. Defendants deny the allegations contained in Paragraph 36 of the Complaint. To the extent that paragraph refers to an , the document speaks for itself, and Defendants incorporate that writing by reference for its full meaning construed in context, and further note that Plaintiff also sent a copy of that same referenced to her personal address. 37. Defendants deny the allegations contained in Paragraph 37 of the Complaint. 38. Defendants deny the allegations contained in Paragraph 38 of the Complaint, except admit that Plaintiff removed her personal belongings from the firm and left the firm without permission in dereliction of duty. 39. Defendants deny the allegations contained in Paragraph 39 of the Complaint. 40. Defendants deny the allegations contained in Paragraph 40 of the Complaint. 6 6 of 23

8 41. Defendants deny the allegations contained in Paragraph 41 of the Complaint, except admit that Plaintiff turned her office keys in to Lohr before she left the firm without permission in dereliction of duty. 42. Defendants deny the allegations contained in Paragraph 42 of the Complaint and in particular deny knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations concerning Plaintiff s observations after she quit PMA and left the office on October 26, To the extent a response is required to such allegations, Defendants deny such allegations. 43. Defendants deny the allegations contained in Paragraph 43 of the Complaint. 44. Defendants deny the allegations contained in Paragraph 44 of the Complaint. 45. Defendants deny the allegations contained in Paragraph 45 of the Complaint, except admit that her title at PMA was office manager and that she reported to Marino and Lohr. 46. Defendants deny the allegations contained in Paragraph 46 of the Complaint. 47. Defendants deny the allegations of Paragraph 47, except admit that Plaintiff received positive feedback, praise, and merit-based raises while she was employed at PMA. 48. Defendants deny the allegation contained in Paragraph 48 of the Complaint, except admit that plaintiff received numerous raises during her employment at PMA. 49. Defendants deny knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 49 of the Complaint. 50. Defendants deny the allegations contained in Paragraph 50 of the Complaint. 51. Defendants deny the allegations contained in Paragraph 51 of the Complaint. 52. Defendants deny the allegations contained in Paragraph 52 of the Complaint. 53. Defendants deny the allegations contained in Paragraph 53 of the Complaint. 7 7 of 23

9 54. Defendants deny the allegations contained in Paragraph 54 of the Complaint. 55. Defendants deny the allegations contained in Paragraph 55 of the Complaint. 56. Defendants deny the allegations contained in Paragraph 56 of the Complaint. 57. Defendants deny the allegations contained in Paragraph 57 of the Complaint. 58. Defendants deny the allegations contained in Paragraph 58 of the Complaint. 59. Defendants deny the allegations contained in Paragraph 59 of the Complaint. 60. Defendants deny the allegations contained in Paragraph 60 of the Complaint. 61. Defendants deny the allegations contained in Paragraph 61 of the Complaint. 62. Defendants deny the allegations contained in Paragraph 62 of the Complaint. 63. Defendants deny the allegations contained in Paragraph 63 of the Complaint. 64. Defendants deny the allegations contained in Paragraph 64 of the Complaint. 65. Defendants deny the allegations contained in Paragraph 65 of the Complaint. 66. Defendants deny the allegations contained in Paragraph 66 of the Complaint. 67. Defendants deny the allegations contained in Paragraph 67 of the Complaint. 68. Defendants deny the allegations contained in Paragraph 68 of the Complaint, except admit on October 28, 2015 Plaintiff sent an to Ms. Llerena, copying Lohr and herself at her personal address and refer to and incorporate by reference that for its full meaning and context. 69. Defendants deny the allegations contained in Paragraph 69 of the Complaint. 70. Defendants deny the allegations contained in Paragraph 70 of the Complaint, except admit that PMA sent Plaintiff written correspondence after she quit on October 26, of 23

10 71. Defendants deny the allegations contained in Paragraph 71 of the Complaint, except admit that Plaintiff s health benefits expired on October 26, 2015 as a result of her voluntary resignation. 72. Defendants deny the allegations contained in Paragraph 72 of the Complaint, except admit that Plaintiff sent an referred to in that paragraph, which is incorporated by reference herein and reference is made to the actual for its full meaning and context. 73. Defendants deny the allegations contained in Paragraph 73 of the Complaint. 74. Defendants deny the allegations contained in Paragraph 74 of the Complaint, except admit that Ms. Llerena met Plaintiff when she arrived and brought her to a conference room. 75. Defendants deny knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 75 of the Complaint. To the extent a response is required, Defendants deny the allegations contained in Paragraph 75 of the Complaint. 76. Defendants deny knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 76 of the Complaint. To the extent a response is required, Defendants deny the allegations contained in Paragraph 76 of the Complaint. 77. Defendants deny the allegation contained in Paragraph 77 of the Complaint, except admit that Lohr spoke with Plaintiff on the date identified in that paragraph. 78. Defendants deny the allegation contained in Paragraph 78 of the Complaint, except admit that Plaintiff said she wanted to reclaim her prior position at PMA. 9 9 of 23

11 79. Defendants deny the allegations contained in Paragraph 79 of the Complaint, except admit that on November 2, 2015 Lohr discussed with Plaintiff the fact that she had surrendered her keys to the office on October 26, Defendants deny the allegations contained Paragraph 80 of the Complaint. 81. Defendants deny the allegations contained in Paragraph 82 of the Complaint, but admit that Lohr informed Plaintiff that PMA would not permit her to rescind her prior resignation. 82. Paragraph 82 of the Complaint contains legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and conclusions contained in Paragraph 82 of the Complaint, except admit that on or about December 3, 2015, Plaintiff filed this lawsuit. 83. Defendants deny the allegations contained in Paragraph 83 of the Complaint, except admit that PMA filed its counterclaims against Plaintiff when they uncovered her fraudulent scheme. 84. Defendants deny the allegations contained in Paragraph 84 of the Complaint, except admit that Plaintiff s fraud was discovered in Defendants deny the allegations contained in Paragraph 85 of the Complaint, except admit PMA s counterclaims are based on the undisputed fact that Plaintiff misrepresented that Alfred Chamarro was her lawful spouse to whom she was legally married in order to obtain health benefits for him during the period 2001 through Defendants deny the allegations contained in Paragraph 86 of the Complaint, except admit that defendants counterclaim is based in part on the allegation that O Brien misrepresented that Chamarro was her lawful spouse of 23

12 87. Defendants deny knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 87 of the Complaint. 88. Defendants deny knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 88 of the Complaint. 89. Defendants deny knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 89 of the Complaint. 90. Defendants deny knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 90 of the Complaint. 91. Defendants deny knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 91 of the Complaint, except that admit, upon information and belief, that Alfred Chamarro died in Defendants deny knowledge or information sufficient to form a belief as to the truth or accuracy of the allegations contained in Paragraph 92 of the Complaint. 93. Defendants deny the allegations contained in Paragraph 93 of the Complaint. 94. Defendants deny the allegations contained in Paragraph 94 of the Complaint. 95. Defendants deny the allegations contained in Paragraph 95 of the Complaint. 96. Defendants deny the allegations contained in Paragraph 96 of the Complaint. 97. Defendants deny the allegations contained in Paragraph 97 of the Complaint, except admit that PMA never informed Plaintiff of an issue with Chamarro s insurance coverage until after PMA uncovered Plaintiff s fraud and determined that, contrary to Plaintiff s repeated representations, Plaintiff had divorced Chamarro years before she even began working at PMA of 23

13 RESPONSE TO FIRST CAUSE OF ACTION Sex Discrimination: City Law 98. Paragraph 98 of the Complaint contains no allegations which require a response. To the extent a response is required, Defendants refer to and incorporate their responses to Paragraphs 1-97 of the Complaint. 99. Paragraph 99 of the Complaint contains legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and conclusions contained in Paragraph 99 of the Complaint Paragraph 100 of the Complaint contains legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and conclusions contained in Paragraph 100 of the Complaint. RESPONSE TO SECOND CAUSE OF ACTION Retaliation: City Law 101. Paragraph 101 of the Complaint contains no allegations which require a response. To the extent a response is required, Defendants refer to and incorporate their responses to Paragraphs of the Complaint Paragraph 102 of the Complaint contains legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and conclusions contained in Paragraph 102 of the Complaint Paragraph 103 of the Complaint contains legal conclusions to which no response is required. To the extent a response is required, Defendants deny the allegations and conclusions contained in Paragraph 103 of the Complaint. RESPONSE TO PRAYER FOR RELIEF Plaintiff has no valid causes of action or right to recover from Defendants, and should be awarded no judgment against Defendants and no damages whatsoever of 23

14 GENERAL DENIAL Unless explicitly admitted herein, Defendants deny each and every allegation in the Complaint and demand strict proof thereof. AFFIRMATIVE DEFENSES Without assuming the burden of proof where such burden properly rests with Plaintiff, and without waiving and hereby expressly reserving the right to assert any and all such defenses at such time and to such extent as discovery and factual developments may establish a basis therefore and expressly reserving the right to add additional affirmative defenses that become known after discovery, Defendants hereby assert, as and for separate and additional defenses to Plaintiff s Complaint, that: FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a claim upon which relief may be granted or for which the damages sought can be awarded. SECOND AFFIRMATIVE DEFENSE Plaintiff s claims are barred, in whole or part, by the applicable statute of limitations or laches. THIRD AFFIRMATIVE DEFENSE Plaintiff s claims are barred, in whole or in part, by the doctrine of unclean hands. FOURTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred, in whole or in part, to the extent that Plaintiff has not suffered any actual injury or damages as a result of the facts alleged in the Complaint of 23

15 FIFTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred, in whole or in part, on the basis that Plaintiff would be unjustly enriched if allowed to recover all or any portion of the damages alleged in the Complaint. SIXTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred, in whole or in part, to the extent Plaintiff s injuries or damages, which injuries or damages are denied, were the result of Plaintiff s own conduct and actions. SEVENTH AFFIRMATIVE DEFENSE Plaintiff s claims are barred, in whole or in part, to the extent Plaintiff s injuries or damages, which injuries or damages are denied, were not caused in fact or proximately caused by acts and/or omissions of Defendants. EIGHTH AFFIRMATIVE DEFENSE To the extent Plaintiff is entitled to any recovery on its claims, which Defendants deny, such recovery is subject to set-off in favor of Defendants of 23

16 COUNTERCLAIMS Peter Marino Architect, PLLC ( PMA or Counterclaim-Plaintiff ), as and for its counterclaims against Deirdre O Brien ( O Brien ), alleges as follows: NATURE OF THE ACTION 1. This is a fraud and breach of contract action. From the very start of her employment, O Brien lied to PMA and perpetrated an unlawful insurance fraud scheme that lasted for eight years and then was covered-up and concealed by O Brien through the date of her employment termination in October 2015, causing significant monetary damages to PMA. These counterclaims are brought to recover compensatory and punitive damages in amounts to be determined at trial and/or rescission. 2. After O Brien terminated her employment last October, a comprehensive investigation of her PMA account and personnel file uncovered her insurance fraud. In applying for insurance pursuant to the PMA-provided medical and health insurance plan for its employees, O Brien lied about her marital status from 2001 through 2009 in order to obtain insurance coverage unlawfully and fraudulently for Alfred Chamarro as her supposed spouse under a family health care plan offered by PMA. In fact, Chamarro was not at the time her spouse. They had divorced before O Brien first began her employment with PMA. Thus, at all relevant times, Chamarro was not O Brien s spouse or otherwise a family member within the meaning of PMA s insurance plan or under New York law, and he was not entitled to insurance coverage under PMA s health care plan for PMA employees and direct family members. 3. By falsely affirming otherwise in various PMA insurance forms submitted over eight years, O Brien committed insurance fraud by making materially false claims and omissions, including the false claim that Chamarro was her lawful spouse. O Brien made these false claims and omissions with the specific intent to illegally obtain medical and health of 23

17 insurance coverage for him under the PMA plan to which he was not entitled and to the detriment of PMA and its employees. Further, following Chamarro s death in 2009, O Brien continued to cover up her fraud, preventing PMA from discovering her perfidy and fraud until she finally left PMA s employment in PARTIES 4. Counterclaim-Plaintiff PMA is a New York professional services limited liability company headquartered in New York. 5. Counterclaim-Defendant Deirdre O Brien was an employee of PMA from 2001 until October 26, She resides in New York and is the plaintiff in this action. JURISDICTION AND VENUE 6. This action is proper in this Court pursuant to CPLR Additionally, O Brien is subject to jurisdiction pursuant to CPLR 301, and venue is proper in this Court pursuant to CPLR 503. FACTS A. The PMA Medical Care and Health Plan 7. As part of its compensation package for all full-time PMA employees, PMA provided during the relevant period health and medical-care insurance, with premiums paid in full by PMA (the PMA plan ). After an initial three-month waiting period at the start of employment, each full-time employee became eligible to enroll in the PMA plan. To enroll, an employee had to submit enrollment forms and had to elect coverage either for the employee only or for the employee and his or her family, defined to include only the employee s spouse and child dependents. In enrolling, an employee was required to submit an application form and affirm, among other information, her marital status and, if electing family coverage, the names of of 23

18 all immediate family members, including the name and identifying information for any spouse, as well as the names and identity of any dependent children. 8. All PMA employees must submit new enrollment forms on a periodic basis and are obligated pursuant to the PMA plan s terms to inform PMA promptly of any change in eligibility of any family member covered by the PMA plan. 9. During the relevant time, PMA obtained health and medical insurance coverage for PMA employees through various insurance carriers licensed to do business in New York and registered with the New York State Insurance Department and, later, the Department of Financial Services. The insurance plan was administered by PMA working with the insurance carriers. 10. At all relevant times, PMA was fully responsible for paying, and did pay, all premiums on behalf of the PMA employees enrolled in the PMA plan, including paying family rates for those enrolled for family coverage. 11. At all relevant times, all employees, including O Brien, were fully informed of the PMA plan terms, policies, rules, regulations, guidelines and requirements, including the requirement that only immediate family members were eligible for coverage under the PMA plan. All employees, including O Brien, were notified of their obligation to notify PMA of any change in eligibility by the employee, spouse or other family member, and each promised to do so. B. O Brien Obtained PMA Insurance for Chamarro 12. On February 1, 2001, shortly after she started her job with PMA, O Brien filled out and submitted the enrollment form electing to participate in the PMA plan. (Exhibit A.) As her enrollment indicates, she indicated that she is married to Alfred Chamarro and she selected the Employee & Spouse plan in order to extend insurance coverage under the PMA plan to Chamarro on the ground that he is her lawful spouse. Reasonably relying on her representation of 23

19 about her marital status and relationship with Chamarro, PMA approved O Brien s enrollment and her selection of a spousal plan to include coverage of Chamarro. Her and Chamarro s participation in the PMA plan was effective as of April 8, 2001, approximately three months after O Brien started work with PMA. 13. When PMA changed insurance carriers at various times, O Brien (like other PMA employees in the PMA plan) were required to submit additional insurance-related forms and applications. For example, in March 2009, O Brien submitted to PMA an updated insurance form for PMA s insurance carrier at the time, The Guardian Insurance & Annuity Company. On this form, she again represented (falsely) that Chamarro was her lawful husband and that, as such, he was entitled to coverage under the PMA plan. (See Exhibit B.) She also disclosed on that form that she had married Chamarro on November 28, Upon information and belief, Mr. Chamarro died from cancer in November 2009 after a long illness and extensive medical treatment, much (if not all) of which was paid for by the PMA plan. From April 2001 until November 2009, O Brien continually (and falsely) represented through affirmative statements and material omissions that Chamarro was her spouse and that he was entitled to coverage as her spouse under her enrollment in the PMA plan. Even after his death, O Brien continued to represent to PMA and its employees that she had been married to Mr. Chamarro until his passing. 15. While Mr. Chamarro was covered by PMA s insurance, O Brien and/or Chamarro submitted numerous health insurance claims either directly or indirectly through medical providers to the PMA plan insurers to pay medical bills for medical treatment of Chamarro as an insured under the plan. The PMA plan and/or its insurers paid the Chamarro medical bills submitted by him and/or O Brien. Each time O Brien submitted medical bills to the PMA plan of 23

20 or its insurers for payment of Chamarro s medical care, O Brien made false representations and/or made material false omissions concerning O Brien s marital status and Chamarro s eligibility for coverage under the PMA plan. C. O Brien s Divorce From Chamarro 16. O Brien was born in Ireland and immigrated to the United States in the 1980s. She obtained an Immigration and Naturalization Service Green Card under the name Deirdre Chamarro on February 28, 1986, three months after she had married Chamarro, a U.S. citizen. Based on that marriage, INS records indicate that her immigration status was adjusted to Permanent Resident, entitling her to work lawfully in the U.S. as well as other privileges under the laws of the United States. 17. During their marriage, O Brien used the surname Chamarro and she and Chamarro had joint bank accounts and other marital property. They jointly obtained mortgages on various residences in the State of New York in the 1980s and early 1990s. 18. In the mid-1990s, they were both named as Defendants in various foreclosure proceedings in state court, and judgments of foreclosure were entered against them jointly in Then, in December 1994, they jointly filed for bankruptcy in the Eastern District of New York. The bankruptcy proceeding concluded in June Shortly after the discharge of their bankruptcy, on November 15, 1996, O Brien and Chamarro filed for a voluntary divorce in an action captioned Deirdre Chamarro v. Alfred Chamarro, Index No /1996 (N.Y. Cnty.). This divorce was granted on March 17, 1997, approximately four years before O Brien started her employment with PMA. 20. At no time thereafter, on information and belief, was O Brien ever married to Chamarro. Thus, at all times relevant to this action, Chamarro was not O Brien s spouse and was not eligible for participation in the PMA plan. O Brien made material misrepresentations of 23

21 and/or material omissions each time she submitted insurance forms for the PMA plan and/or its insurers indicating that Chamarro was her lawful spouse; further, each time she submitted Chamarro s medical bills for payment under the PMA plan she committed insurance fraud and made materially false representations and omissions, reasonably relied on by PMA to its detriment. D. PMA s Damages 21. As a result of O Brien s insurance fraud, breach of contract and other wrongful actions, PMA incurred significant monetary damages. Chamarro incurred substantial medical bills as a result of his cancer treatment and fatal illness, and the PMA plan insurers paid hundreds of thousands of dollars in insurance coverage with respect to Chamarro s bills submitted under O Brien s enrollment with the PMA plan. This resulted in the PMA plan insurers paying significant amounts in medical coverage that they should not have been required to pay and, but for O Brien s material falsehoods and insurance fraud, would not have paid. 22. As a direct result of O Brien s insurance fraud, PMA paid premiums to insure Chamarro and O Brien that PMA was not obligated to pay and should not have paid. Moreover, as a result of paying claims the PMA plan insurers should not have been obligated to pay, PMA incurred significant increases in insurance premiums for all PMA employees and family members legitimately participating in the PMA plan. The premium increases attributable to O Brien s fraud occurred over multiple years and have directly caused PMA to incur significant monetary damages. FIRST CAUSE OF ACTION FRAUD 23. PMA repeats and realleges the foregoing paragraphs of these counterclaims as if fully set forth herein of 23

22 24. In falsely claiming Chamarro to be her lawful spouse and thus an eligible participant under O Brien s enrollment in the PMA plan, O Brien made numerous material false statements and material omissions to PMA both verbally and in writing over the course of many years. 25. PMA reasonably relied on O Brien s representations and omissions concerning her marital status and the eligibility of Chamarro to participate under her enrollment in the PMA plan. 26. As a direct result of O Brien s falsehoods, PMA incurred significant monetary damages over many years, including increased insurance premiums for all PMA employees over the years. SECOND CAUSE OF ACTION BREACH OF CONTRACT 27. PMA repeats and realleges the foregoing paragraphs of these counterclaims as if fully set forth herein. 28. As part of O Brien s employment with PMA, PMA made available to O Brien the PMA plan, i.e., a fully-paid health care and medical care insurance plan. In electing to participate in the PMA plan, O Brien entered into a contract incident to her employment wherein she agreed to provide truthful information about herself and her marital status, among other things, and to provide faithful service to PMA as a PMA employee, and in return PMA promised to provide, among other things, health and medical insurance plans and to pay the premium for O Brien and any of her eligible direct family members participating in the plan. 29. At all times PMA fully performed its contractual obligations incident to the employment relationship, including among other things, paying the premiums each year for O Brien s participation in the PMA plan, from 2001 through her resignation in of 23

23 30. O Brien materially breached her contractual obligations and/or her implied duty of good faith and fair dealing, and concealed these breaches, each time she falsely claimed that Chamarro was her lawful spouse and was thereby eligible to participate in the PMA plan under her enrollment. 31. PMA incurred significant damages as a result of O Brien s breach of contract, and/or breach of the implied duty of good faith and fair dealing, in an amount to be determined at trial. PRAYER FOR RELIEF WHEREFORE, Defendants and Counterclaim-Plaintiff PMA respectfully demands judgment in its favor and against Plaintiff-Counterclaim-Defendant O Brien as follows: a. dismissing O Brien s Complaint with prejudice; b. awarding PMA its costs, expenses, disbursements, and attorneys fees incurred as a result of defending against the Complaint; c. on the Counterclaims, awarding PMA compensatory and punitive damages in an amount to be determined at trial, plus costs and fees, including attorneys fees, as well as equitable relief, including an order of rescission and/or restitution; and, d. granting such other and further relief to Counterclaimant as the Court may deem just and appropriate of 23

24 Dated: New York, New York October 24, 2016 KASOWITZ, BENSON, TORRES & FRIEDMAN, LLP By: /s/ Eric D. Herschmann Eric D. Herschmann Michael P. Bowen Andrew R. Kurland 1633 Broadway New York, New York (212) Attorneys for Defendant Peter Marino and Defendant-Counterclaim-Plaintiff Peter Marino Architect, PLLC of 23