FILED: NEW YORK COUNTY CLERK 09/03/2010 INDEX NO /2007 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 09/03/2010

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1 FILED: NEW YORK COUNTY CLERK 09/03/2010 INDEX NO /2007 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 09/03/2010 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X AMY L. ROBERTS, THOMAS I. SHAMY, DAVID AND ANNMARIE HUNTER, MARGARET CARROLL, KELLEY AND TONY LANNI, EVAN HORISK, and BETH ROSNER GIOKAS, on behalf of themselves and all others similarly situated, Index No /07 Assigned to Justice Lowe NYSCEF Case Plaintiffs, against ANSWER TISHMAN SPEYER PROPERTIES, L.P., PCV ST OWNER LP, ST OWNER LP, METROPOLITAN INSURANCE AND ANNUITY COMPANY, and METROPOLITAN TOWER LIFE INSURANCE COMPANY, Defendants X Defendants Metropolitan Insurance and Annuity Company ( MIAC ) and Metropolitan Tower Life Insurance Company ( Met Tower, and together with MIAC, the MetLife Defendants ), 1 by their undersigned attorneys, for their answer to the First Amended Consolidated Class Action Complaint of plaintiffs Amy L. Roberts, Thomas I. Shamy, David and Annmarie Hunter, Margaret Carroll, Kelley and Tony Lanni, Evan Horisk, and Beth Rosner Giokas (collectively, the Plaintiffs ), on behalf of themselves and purportedly on behalf of all others similarly situated, dated February 3, 2010 (the Complaint ), allege as follows: 1. Deny the allegations contained in paragraph 1 of the Complaint. 2. Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the Complaint. 1 MIAC merged into Met Tower and no longer exists as a separate entity.

2 3. Deny the allegations contained in paragraphs 3, 4 and 5 of the Complaint. 4. Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraphs 6, 7, 8, 9, 10, 11 and 12 of the Complaint. 5. Deny the allegations contained in paragraph 13 of the Complaint. 6. Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraphs 14, 15, 16 and 17 of the Complaint. 7. Deny the allegations contained in paragraph 18 of the Complaint, except admit that MIAC was a Delaware corporation. 8. Deny the allegations contained in paragraph 19 of the Complaint, except admit that Met Tower is a Delaware corporation. 9. Deny the allegations contained in paragraphs 20 and 21 of the Complaint and respectfully refer the court to the purported 1943 agreement between Metropolitan Life Insurance Company, Stuyvesant Town Corporation and the City of New York for the contents thereof, and to the Redevelopment Companies Law and Article V of the Private Housing Finance Law for the contents thereof. 10. Deny the allegations contained in paragraph 22 of the Complaint and respectfully refer the court to the purported 1952 agreement between Metropolitan Life Insurance Company, Stuyvesant Town Corporation and the City of New York for the contents thereof. 11. Deny the allegations contained in paragraph 23 of the Complaint and respectfully refer the court to the purported 1940 s agreement between Metropolitan Life Insurance Company and the City of New York for the contents thereof. 2

3 12. Deny the allegations contained in paragraph 24 of the Complaint and respectfully refer the court to the purported 1940 s agreement between Metropolitan Life Insurance Company and the City of New York and the Redevelopment Companies Law for the contents thereof. 13. Deny the allegations contained in paragraph 25 of the Complaint and respectfully refer the court to the Redevelopment Companies Law and any amendments thereto for the contents thereof. 14. Deny the allegations contained in paragraphs 26 and 27 of the Complaint and respectfully refer the court to the New York Rent Stabilization Law for the contents thereof. 15. Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraph 28 of the Complaint. 16. Deny the allegations contained in paragraph 29 of the Complaint except admit submitting applications for benefits under the J-51 program and respectfully refer the court to those applications for the contents thereof. 17. Deny knowledge and information sufficient to form a belief as to the truth of the allegations contained in paragraphs 30 and 31 of the Complaint. 18. Deny the allegations contained in paragraphs 32, 33 and 34 of the Complaint. 19. Deny the allegations contained in paragraph 35 of the Complaint and respectfully refer the court to Section (c) of the New York City Administrative Code for the contents thereof. 3

4 20. Deny the allegations contained in paragraph 36 of the Complaint and respectfully refer the court to the New York Rent Stabilization Law for the contents thereof. 21. Deny the allegations contained in paragraph 37 of the Complaint. 22. Deny the allegations contained in paragraph 38 of the Complaint and respectfully refer the court to the rules and regulations of the Department of Housing Preservation and Development for the contents thereof. 23. Deny the allegations contained in paragraph 39 of the Complaint and respectfully refer the court to the J-51 Guidebook for the contents thereof. 24. Deny the allegations contained in paragraph 40 of the Complaint. 25. Deny the allegations contained in paragraph 41 of the Complaint and respectfully refer the court to the New York State Division of Housing and Community Renewal s ( DHCR ) Operational Bulletin for the contents thereof. 26. Deny the allegations contained in paragraphs 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 54 of the Complaint. 27. Answering paragraph 55, repeat and reallege MetLife Defendants responses to paragraphs 1 through 54 of the Complaint as if fully set forth herein. 28. Deny the allegations contained in paragraphs 56, 57, 58, 59, 60, 61, 62 and 63 of the Complaint. 29. Answering paragraph 64, repeat and reallege MetLife Defendants responses to paragraphs 1 through 63 of the Complaint as if fully set forth herein. 30. Deny the allegations contained in paragraphs 65, 66, 67, 68 and 69 of the Complaint. 4

5 31. To the extent that each and every allegation contained in the Complaint is not otherwise admitted, denied or denied for lack of knowledge or information sufficient to form a belief as to the truth of the allegation, MetLife Defendants deny each and every other allegation in the Complaint. FIRST AFFIRMATIVE DEFENSE 32. Prior to entering into their leases at Peter Cooper Village and Stuyvesant Town, Plaintiffs apartment units were deregulated. 33. Plaintiffs voluntarily executed non-rent-stabilized leases for their apartment units. 34. Pursuant to the express terms of their leases, Plaintiffs acknowledged and agreed that their apartment units were not subject to rent stabilization. 35. Pursuant to the express terms of their leases, Plaintiffs acknowledged and agreed to pay market rate rents for their apartment units. 36. Plaintiffs lack standing to maintain this action. SECOND AFFIRMATIVE DEFENSE 37. Repeat and reallege the allegations in paragraphs 32 through 36 above as 38. MetLife Defendants relied upon the express representations made by Plaintiffs in their leases. 39. Plaintiffs intended MetLife Defendants to rely upon the representations made by Plaintiffs in their leases. 40. Some or all of the claims set forth in the Complaint are contrary to the express representations set forth in Plaintiffs leases. 5

6 41. MetLife Defendants will be damaged in the event Plaintiffs claims are sustained. 42. Plaintiffs claims are barred by the doctrine of estoppel. THIRD AFFIRMATIVE DEFENSE 43. Repeat and reallege the allegations in paragraphs 32 through 42 above as 44. Plaintiffs waived any claims they may have had to seek damages or other relief for their claims. FOURTH AFFIRMATIVE DEFENSE 45. Repeat and reallege the allegations in paragraphs 32 through 44 above as 46. MetLife Defendants acted in good faith in deregulating Plaintiffs apartment units and charging market rate rents therefor. 47. MetLife Defendants did not willfully overcharge Plaintiffs. FIFTH AFFIRMATIVE DEFENSE 48. Repeat and reallege the allegations in paragraphs 32 through 47 above as 49. Any award of damages or other relief would cause Plaintiffs to receive a windfall. SIXTH AFFIRMATIVE DEFENSE 50. Repeat and reallege the allegations in paragraphs 32 through 49 above as 6

7 51. Some or all of Plaintiffs claims are barred by the applicable statutes of limitation. SEVENTH AFFIRMATIVE DEFENSE 52. Repeat and reallege the allegations in paragraphs 32 through 51 above as 53. Some or all of Plaintiffs apartments were deregulated pursuant to orders issued by DHCR. 54. Plaintiffs failed to exhaust their administrative remedies prior to commencing the instant action. EIGHTH AFFIRMATIVE DEFENSE 55. Repeat and reallege the allegations in paragraphs 32 through 54 above as 56. Some or all of Plaintiffs claims have previously been determined or adjudicated by an administrative agency or court. 57. Some or all of Plaintiffs claims are barred by the doctrine of res judicata. NINTH AFFIRMATIVE DEFENSE 58. Repeat and reallege the allegations in paragraphs 32 through 57 above as 59. Some or all of Plaintiffs claims are barred by the doctrine of collateral estoppel. TENTH AFFIRMATIVE DEFENSE 60. Repeat and reallege the allegations in paragraphs 32 through 59 above as 7

8 61. DHCR has exclusive or primary jurisdiction over some or all of the claims asserted by Plaintiffs. ELEVENTH AFFIRMATIVE DEFENSE 62. Repeat and reallege the allegations in paragraphs 32 through 61 above as 63. Any award of retroactive damages, a declaration that the Stuyvesant Town and Peter Cooper Village apartments continue to be subject to rent stabilization, or other relief would violate MetLife Defendants rights under the United States Constitution and the New York State Constitution. TWELFTH AFFIRMATIVE DEFENSE 64. Repeat and reallege the allegations in paragraphs 32 through 63 above as 65. Plaintiffs are not entitled to attorneys fees under the Lease or applicable law. THIRTEENTH AFFIRMATIVE DEFENSE 66. Repeat and reallege the allegations in paragraphs 32 through 65 above as 67. Some or all of the Plaintiffs claims are barred because they are not occupying their Stuyvesant Town or Peter Cooper Village apartments as their primary residences. FOURTEENTH AFFIRMATIVE DEFENSE 68. Repeat and reallege the allegations in paragraphs 32 through 67 above as 8

9 69. MetLife Defendants properly relied upon duly promulgated provisions of the New York Rent Stabilization Code in deregulating Plaintiffs apartment units and charging market rate rents therefor. FIFTEENTH AFFIRMATIVE DEFENSE 70. Repeat and reallege the allegations in paragraphs 32 through 69 above as 71. Plaintiffs are not entitled to retroactive remedies or relief. SIXTEENTH AFFIRMATIVE DEFENSE 72. Repeat and reallege the allegations in paragraphs 32 through 71 above as 73. The Complaint fails to state a cause of action upon which relief may be granted. SEVENTEENTH AFFIRMATIVE DEFENSE 74. Repeat and reallege the allegations in paragraphs 32 through 73 above as 75. Joinder of all plaintiffs having claims is not impracticable. 76. Individual claims, questions of law and fact predominate over common claims and questions. 77. The claims of the purported representative parties are not typical. 78. A class action is not superior to other available methods for adjudication of the controversy and parties claims and defenses. 79. Plaintiffs seek to recover a penalty or minimum measure of recovery created or imposed by statute from MetLife Defendants. 9

10 80. Plaintiffs are not entitled to have this action certified as a class action. EIGHTEENTH AFFIRMATIVE DEFENSE 81. Repeat and reallege the allegations in paragraphs 32 through 80 above as 82. Plaintiffs claims against MetLife Defendants are barred by documentary evidence. 10

11 WHEREFORE, MetLife Defendants respectfully demand judgment as follows: (a) (b) (c) (d) an order dismissing the Complaint as against MetLife Defendants; that judgment be entered in MetLife Defendants favor; that in the event the Complaint is not dismissed as against MetLife Defendants, that Plaintiffs be awarded only prospective relief; and for such other and further relief as this court may deem just and proper. Dated: New York, New York September 2, 2010 DEBEVOISE & PLIMPTON LLP By: Bruce E. Yannett Mark P. Goodman Carl Micarelli Corey S. Whiting 919 Third Avenue New York, NY (212) GREENBERG TRAURIG, LLP By: Daniel J. Ansell Matthias Li 200 Park Avenue New York, NY (212) Attorneys for Defendants Metropolitan Insurance and Annuity Company and Metropolitan Tower Life Insurance Company By: /s/ Carl Micarelli Carl Micarelli 11

12 To: Wolf Haldenstein Adler Freeman & Herz LLP 270 Madison Avenue New York, NY Attn: Alexander H. Schmidt, Esq. Bernstein Liebhard & Lifshitz, LLP 10 East 40 th Street New York, NY Attn: Ronald J. Aranoff, Esq. Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY Attn: Jay B. Kasner, Esq. Belkin Burden Wenig & Goldman LLP 270 Madison Avenue New York, NY Attn: Sherwin Belkin, Esq. 12

13 AFFIRMATION OF SERVICE I, Carl Micarelli, an attorney admitted to practice before the courts of the State of New York, affirm under penalty of perjury as follows: I am not a party to the within action and am over eighteen (18) years of age. On September 2, 2010, I served the within Answer upon the attorneys who have appeared for the parties herein, by causing said papers to be delivered into the custody of persons at said attorneys offices responsible for receiving deliveries in a package directed to the addresses designated by said attorneys as follows: Alexander H. Schmidt, Esq. Wolf Haldenstein Adler Freeman & Herz LLP 270 Madison Avenue New York, NY Ronald J. Aranoff, Esq. Bernstein Liebhard & Lifshitz, LLP 10 East 40th Street New York, NY Jay B. Kasner, Esq. Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, NY Sherwin Belkin, Esq. Belkin Burden Wenig & Goldman LLP 270 Madison Avenue New York, NY Dated: September 3, 2010 /s/ Carl Micarelli Carl Micarelli v1