FILED: ALBANY COUNTY CLERK 08/22/ :53 PM INDEX NO. A00427/2014 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 08/22/2017

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1 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY THE ELEC-CON TRUST, Plaintiff, ANSWER TO THIRD- PARTY COMPLAINT WITH AFFIRMATIVE DEFENSES AND CROSS-CLAIMS vs. Index No. A00427/2014 AMPUL ELECTRIC, INC., BATTLE CONSTRUCTION CO., INC., BER-NATIONAL AUTOMATION, INC., BRUCE ELECTRIC, INC., BURNS ELECTRIC CO., INC., CANALE ELECTRIC CORP., CONTROL NETWORK COMMUNICATIONS, INC., D'AMICO ELECTRIC CORP., DEMAND ELECTRIC INC., DOUGLAS ELECTRICAL CONTRACTING LLC, G. CRAIG ELECTRICAL CONTRACTING CORP., G. O. WICK, INC., HEALY ELECTRIC CONTRACTING, INC., HEWITT YOUNG ELECTRIC, LLC, INDUSTRIAL POWER AND LIGHTING CORP., J.D. PARRELLA ELECTRIC, INC., JATA ELECTRICAL CONSTRUCTION CORP, JEMCO ELECTRICAL CONTRACTORS, INC., JUNE ELECTRIC CORP., KASSELMAN ELECTRIC CO. INC, LACORTE COMPANIES, INC., LIGHTMORE ELECTRIC ASSOCIATES, INC., LONG ISLAND ENERGY SERVICES, INC. D/B/A SUNRAY SERVICES, INC., MATCO ELECTRIC CORPORATION, N.E.R.S., INC., NABER ELECTRIC CORP., R. GUNZER, INC. D/B/A GUNZER ELECTRIC, ROBIN ELECTRICAL CO. INC., SENTINEL SECURITY AND COMMUNICATIONS, INC., SUNRAY SYSTEMS, INC., THE R.D.C. COMPANY OF NEW YORK, INC., TNT ELECTRIC CO., INC. and TNT TECHNOLOGIES, LTD. D/B/A AMBROSE ELECTRIC, Hon. Richard Platkin Defendants. 1 of 5

2 KASSELMAN ELECTRIC CO. INC. vs. Defendant/Third-Party Plaintiff, BER-NATIONAL AUTOMATION, INC., BRUCE ELECTRIC, INC., G. CRAIG ELECTRICAL CONTRACTING CORP., G. O. WICK, INC., HEALY ELECTRIC CONTRACTING, INC., HEWITT YOUNG ELECTRIC, LLC, JEMCO ELECTRICAL CONTRACTORS, INC., LIGHTMORE ELECTRIC ASSOCIATES, INC., JOHN DOE A-C, JOHN S. KOGUT, JOHN (JAY) F. MANGIONE, JOHN MARICH, GEORGE SCHLEMMER, JAMES MCCALL, MATTHEW LABOSKY, GORDON SEAMAN JR., JOHN DOE ## 1-12, Third-Party Defendants. Defendant/third-party defendant, Hewitt Young Electric, LLC ( Hewitt Young ), through its attorneys, Leclair Korona Giordano Cole LLP, hereby answers the Third-Party Complaint of defendant/third-party plaintiff Kasselman Electric Co., Inc. ( Kasselman ) as follows: 1. Hewitt Young lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 1, 2, 5, 6, 7, 8, 9, 10, 12, 13,14,15,16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 31, 32, 33, 34, 36, 38, 39, 42, 44, 45, 46, 47, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 65, 66, 67, 68, 69, 71 and 79 of the Complaint. Complaint. 2. Hewitt Young admits the allegations in paragraphs 11, 27 and 28 of the 2 2 of 5

3 3. Hewitt Young denies the allegations in paragraphs 3, 4, 74, 75, 76, 77, 80, 81, 83, 84 and 85 of the Complaint, and all other allegations in the Complaint not specifically admitted herein. 4. Hewitt Young refers to the allegations of the complaint filed in the Underlying Action and otherwise denies the allegations in paragraphs 25, 29 and 30 of the Complaint. 5. Hewitt Young admits that it executed the documents referenced in paragraphs 35, 37(a), 37(b), 37(c), 37(d), 72 and 73, refers to the terms of the referenced documents and otherwise denies the allegations in paragraph 35, 37(a), 37(b), 37(c), 37(d), 72 and With respect to paragraphs 40, 41 and 43, Hewitt Young admits that a stipulation of discontinuance was filed as to Hewitt Young and otherwise lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 40, 41 and With respect to paragraphs 48, 64, 70, 78 and 82 of the Complaint, Hewitt Young incorporates its responses set forth above as if fully set forth herein. First Affirmative Defense 8. Kasselman fails to state a cause of action upon which relief may be granted. Second Affirmative Defense 9. Kasselman s claims are barred, in whole or in part, by the applicable statute of limitations. 3 3 of 5

4 Third Affirmative Defense 10. Kasselman s claims are barred, in whole or in part, by the express terms of the trust agreement, participation agreement, by-laws and indemnity agreement. Fourth Affirmative Defense 11. The terms of the mutual release between Hewitt Young and Elec-Con Trust, dated February 3, 2015, together with the stipulation of discontinuance, constitute a release from liability of Hewitt Young; thus, Kasselman s claims are barred, in whole or in part. Fifth Affirmative Defense 12. Kasselman s claims are barred, in whole or in part, by the equitable doctrine of laches. Sixth Affirmative Defense 13. Kasselman s claims are barred, in whole or in part, by the equitable doctrine of accord and satisfaction. Seventh Affirmative Defense 14. Kasselman s claims are barred, in whole or in part, by the doctrines of waiver, estoppel, and/or unclean hands. Eighth Affirmative Defense 15. Kasselman failed to mitigate its damages. 4 4 of 5

5 Cross-Claim against Third-Party Defendants 16. In the event Kasselman is able to recover any part of its alleged damages from Hewitt Young which damages Hewitt Young denies then some or all of the third-party defendants should be held responsible for some or all of such loss. 17. Hewitt Young is entitled to statutory, contractual and/or common law contribution and/or indemnification from the third-party defendants in an amount commensurate with their pro-rata share of any assessed liability. WHEREFORE, Hewitt Young respectfully requests that the Court dismiss the Third Party Complaint with prejudice, award it judgment against all third-party defendants for statutory, contractual and/or common law contribution and indemnification, together with costs and disbursements; and grant such other and further relief as the Court deems just and proper. Dated: August 22, 2017 Rochester, New York LECLAIR KORONA GIORDANO COLE LLP /s/ Paul L. Leclair Paul L. Leclair, Esq. Kamran F. Hashmi, Esq. Attorneys for Third-Party Defendant Hewitt Young Electric, LLC 150 State Street, Suite 300 Rochester, New York Telephone: (585) of 5