FILED: NEW YORK COUNTY CLERK 11/13/ :06 PM INDEX NO /2015 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/13/2015

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1 FILED: NEW YORK COUNTY CLERK 11/13/ :06 PM INDEX NO /2015 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 11/13/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NICKOL SOUTHERLAND, Plaintiff, -against- PHOENIX CONSTRUCTORS JV; FLUOS ENTERPRISES, INC.; SKANSKA USA CIVIL NORTHEAST, INC.; BOVIS LEND LEASE LMB, INC.; GRANITE CONSTRUCTION NORTHEAST INC.; KENNETH PRIMIANO; JOE DEROSA; and, DUDLEY EISSER, Index No.: /2015 ANSWER Defendants. Defendant, JOSEPH DEROSA (named herein as "JOE DEROSA" and referred to herein as "Defendant") by and through his undersigned counsel, hereby responds to the allegations in Plaintiff's Complaint ("Complaint"), as follows: AS TO "INTRODUCTION" 1. Defendant admits that Plaintiff purports to bring this action pursuant to the statutes and regulations cited in paragraph 1 of the Complaint, but denies that Plaintiff has stated a cause of action. 2. Defendant denies the allegations contained in paragraph 2 of the Complaint except admits that Plaintiff previously worked at the World Trade Center site in lower Manhattan as a laborer. AS TO "THE PARTIES AND VENUE" 3. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 3 of the

2 4. Defendant lacks knowledge or infoimation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 4 of the 5. Defendant lacks knowledge or information sufficient to foal' a belief as to the truth or falsity of the allegations contained in paragraph 5 of the 6. Defendant lacks knowledge or infon iation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 6 of the 7. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 7 of the 8. Defendant lacks knowledge or infofination sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 8 of the 9. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 9 of the 10. Defendant lacks knowledge or information sufficient to folin a belief as to the truth or falsity of the allegations contained in paragraph 10 of the 11. No response is required because paragraph 11 does not contain any factual allegation. 12. Defendant lacks knowledge or infonnation sufficient to fol. n a belief as to the truth or falsity of the allegations contained in paragraph 12 of the 13. Defendant denies the allegations contained in paragraph 13 of the Complaint, except admits Defendant worked for Phoenix Constructors JV at the World Trade Center site as a labor foreman with supervisory authority over Plaintiff 14. Defendant lacks knowledge or info' iation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 14 of the 2

3 15. No response is required because paragraph 15 does not contain any factual allegation. 16. Defendant lacks knowledge or information sufficient to than a belief as to the truth or falsity of the allegations contained in paragraph 16 of the AS TO "FACTS RELEVANT TO ALL CLAIMS" 17. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 17 of the 18. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 18 of the 19. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 19 of the 20. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 20 of the 21. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 21 of the 22. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 22 of the 23. Defendant lacks knowledge or infoitnation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 23 of the 24. Defendant lacks knowledge or infolination sufficient to folin a belief as to the truth or falsity of the allegations contained in paragraph 24 of the 25. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 25 of the 3

4 26. Defendant lacks knowledge or information sufficient to foi i a belief as to the truth or falsity of the allegations contained in paragraph 26 of the 27. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 27 of the 28. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 28 of the 29. Defendant denies the allegations contained in paragraph 29 of the Complaint, except admits that laborers were constantly added to the World Trade Center site on an as needed basis. 30. Defendant denies the allegations contained in paragraph 30 of the Complaint, except admits Defendant and Giovanni Santillo commenced work at the World Trade Center site in or around Defendant denies the allegations contained in paragraph 31 of the 32. Defendant admits the allegations contained in paragraph 32 of the 33. Defendant lacks knowledge or information sufficient to fatin a belief as to the truth or falsity of the allegations contained in paragraph 33 of the 34. Defendant lacks knowledge or infoimation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 34 of the 35. Defendant lacks knowledge or info' iation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 35 of the 4

5 36. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 36 of the 37. Defendant lacks knowledge or information sufficient to foun a belief as to the truth or falsity of the allegations contained in paragraph 37 of the 38. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 38 of the 39. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 39 of the 40. Defendant lacks knowledge or infoimation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 40 of the 41. Defendant lacks knowledge or information sufficient to foim a belief as to the truth or falsity of the allegations contained in paragraph 41 of the 42. Defendant lacks knowledge or information sufficient to forth a belief as to the truth or falsity of the allegations contained in paragraph 42 of the 43. Defendant denies the allegations contained in paragraph 43 of the Complaint, except admits Defendant, Kenneth Primiano and Dudley Eisser, at various times during their employment with Phoenix Constructors JV, used the same two-way radio system as Plaintiff and Giovanni Santillo. 44. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 44 of the 45. Defendant lacks knowledge or information sufficient to fomi a belief as to the truth or falsity of the allegations contained in paragraph 45 of the 5

6 46. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 46 of the 47. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 47 of the 48. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 48 of the 49. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 49 of the 50. Defendant lacks knowledge or information sufficient to folin a belief as to the truth or falsity of the allegations contained in paragraph 50 of the 51. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 51 of the 52. Defendant lacks knowledge or infolination sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 52 of the 53. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 53 of the 54. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 54 of the 55. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 55 of the 56. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 56 of the Complaint, except admits that Plaintiff was moved to the Gate 2 ramp. 6

7 57. Defendant admits the allegations contained in paragraph 57 of the 58. Defendant denies the allegations contained in paragraph 58 of the 59. Defendant denies the allegations contained in paragraph 59 of the 60. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 60 of the 61. Defendant denies the allegations contained in paragraph 61 of the 62. Defendant denies the allegations contained in paragraph 62 of the 63. Defendant denies the allegations contained in paragraph 63 of the 64. Defendant denies the allegations contained in paragraph 64 of the 65. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 65 of the 66. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 66 of the 67. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 67 of the 7

8 68. Defendant denies Plaintiff was subjected to any discriminatory treatment and further lacks knowledge or infoll iation sufficient to form a belief as to the truth or falsity of the remaining allegations contained in paragraph 68 of the 69. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 69 of the 70. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 70 of the 71. Defendant admits the allegations contained in paragraph 71 of the 72. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 72 of the 73. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 73 of the 74. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 74 of the 75. Defendant lacks knowledge or information sufficient to Rhin a belief as to the truth or falsity of the allegations contained in paragraph 75 of the 76. Defendant lacks knowledge or infotination sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 76 of the 77. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 77 of the 78. Defendant denies the allegations contained in paragraph 78 of the 8

9 AS TO "COUNT I HOSTILE WORK ENVIRONMENT IN VIOLATION OF NYSHRL AGAINST ALL CORPORATE DEFENDANTS" 79. Defendant repeats and realleges each and every response contained in paragraphs numbered 1 through 78, with the same force and effect as if more fully set forth herein. 80. Defendant lacks knowledge or information sufficient to fon a belief as to the truth or falsity of the allegations contained in paragraph 80 of the 81. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 81 of the 82. Defendant lacks knowledge or infoimation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 82 of the Complaint AS TO "COUNT II AIDING AND ABETTING HOSTILE WORK IENVIROMENT OF NYSHRL AGAINST DEFENDANTS PRIMIANO AND EISSER" 83. Defendant repeats and realleges each and every response contained in paragraphs numbered 1 through 82, with the same force and effect as if more fully set forth herein. 84. Defendant lacks knowledge or info' iation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 84 of the 85. Defendant lacks knowledge or infoimation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 85 of the AS TO "COUNT III HOSTILE WORK ENVIORMENT IN VIOLATION OF THE CITY LAW AGAINST ALL DEFENDANTS" 86. Defendant repeats and realleges each and every response contained in paragraphs numbered 1 through 85, with the same force and effect as if more fully set forth herein. 87. Defendant denies the allegations contained in paragraph 87 of the 9

10 88. Defendant denies the allegations contained in paragraph 88 of the 89. Defendant denies the allegations contained in paragraph 89 of the AS TO "COUNT IV AIDING AND ABETTING HOSTILE WORK ENVIRONMENT IN VIOLATION OF THE CITY LAW AGAINST DEFENDANTS PRIMIANO AND EISSER" 90. Defendant repeats and realleges each and every response contained in paragraphs numbered 1 through 89, with the same force and effect as if most fully set forth herein. 91. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 91 of the 92. Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 92 of the AS TO "COUNT V RETALIATION IN VIOLATION OF NYSHRL AGAINST ALL DEFENDANTS" 93. Defendant repeats and realleges each and every allegation contained in paragraphs numbered 1 through 92 with the same force and effect as if more fully set forth herein. 94. Paragraph 94 contains a legal conclusion to which no response is required. To the extent a response is required, Defendant lacks knowledge or information sufficient to four a belief as to the truth or falsity of any factual allegations contained in paragraph 94 of the 95. Defendant denies the allegations contained in paragraph 95 of the 96. Defendant denies the allegations contained in paragraph 96 of the 10

11 AS TO "COUNT VI RETALIATION IN VIOLATION OF THE CITY LAW AGAINST ALL DEFENDANTS" 97. Defendant repeats and realleges each and every response contained in paragraphs numbered 1 through 96, with the same force and effect as if more fully set forth herein. 98. Paragraph 98 contains a legal conclusion to which no response is required. To the extent a response a required, Defendant lacks knowledge or information sufficient to foi Ja a belief as to the truth or falsity of any factual allegations contained in paragraph 98 of the 99. Defendant denies the allegations contained in paragraph 99 of the 100. Defendant denies the allegations contained in paragraph 100 of the AS TO "COUNT VII RETALIATION IN VIOLATION OF NYSHRL AGAINST ALL CORPORATE DEFENDANTS" 101. Defendant repeats and realleges each and every response contained in paragraphs numbered 1 through 100, with the same force and effect as if more fully set forth herein Defendant denies the allegations contained in paragraph 102 of the 103. Defendant denies the allegations contained in paragraph 103 of the 104. Defendant denies the allegations contained in paragraph 104 of the 105. Defendant denies the allegations contained in paragraph 105 of the 11

12 AS TO "COUNT VIII FAILURE TO ACCOMMODATE IN VIOLATION OF NYSHRL AGAINST ALL CORPORATE DEFENDANTS" 106. Defendant repeats and realleges each and every response contained in paragraphs numbered 1 through 105, with the same force and effect as if more fully set forth herein Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 107 of the 108. Defendant denies the allegations contained in paragraph 108 of the 109. Defendant denies the allegations contained in paragraph 109 of the 110. Defendant denies the allegations contained in paragraph 110 of the AS TO "COUNT IX DISABILITY DISCRIMINATION IN VIOLATION OF THE CITY LAW AGAINST ALL CORPORATE DEFENDANTS" 111. Defendant repeats and realleges each and every response contained in paragraphs numbered 1 through 110, with the same force and effect as if more fully set forth herein Defendant lacks knowledge or info _illation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 112 of the 113. Defendant denies the allegations contained in paragraph 113 of the 114. Defendant denies the allegations contained in paragraph 114 of the 12

13 115. Defendant denies the allegations contained in paragraph 115 of the AS TO "COUNT X DISABILITY DISCRIMINATION IN VIOLATION OF THE CITY LAW AGAINST ALL CORPORATE DEFENDANTS" 116. Defendant repeats and realleges each and every response contained in paragraphs numbered 1 through 115, with the same force and effect as if more fully set forth herein Defendant lacks knowledge or information sufficient to foul' a belief as to the truth or falsity of the allegations contained in paragraph 117 of the 118. Defendant denies the allegations contained in paragraph 118 of the 119. Defendant denies the allegations contained in paragraph 119 of the 120. Defendant denies the allegations contained in paragraph 120 of the AS TO "COUNT XI NEGLIGENT HIRING, RETENTION AND SUPERVISION AGAINST ALL CORPORATE DEFENDANTS" 121. Withdrawn pursuant to Stipulation filed October 9, Withdrawn pursuant to Stipulation filed October 9, Withdrawn pursuant to Stipulation filed October 9, Withdrawn pursuant to Stipulation filed October 9, Withdrawn pursuant to Stipulation filed October 9, Withdrawn pursuant to Stipulation filed October 9, AS TO "JURY DEMAND" Defendant denies Plaintiff is entitled to a trial by jury for some or all claims. 13

14 AS TO "WHEREFORE CLAUSE" Defendant denies all statements and allegations contained therein, including any claim for relief set forth in the "Wherefore Clause." AFFIRMATIVE DEFENSES Without assuming the burden of proof as to any of the following defenses where the law does not impose such a burden on Defendant, Defendant asserts the following defenses: AS AND FOR A FIRST AFFIRMATIVE DEFENSE Plaintiff's Complaint should be dismissed for failure to state a cause of action. AS AND FOR A SECOND AFFIRMATIVE DEFENSE The Complaint is barred, in whole or in part, because: (a) Defendant exercised reasonable care to prevent and correct promptly any discriminatory behavior, and (b) Plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities or to avoid harm otherwise. AS AND FOR A THIRD AFFIRMATIVE DEFENSE Any and all actions taken by Defendant with regard to Plaintiff's employment with Phoenix Constructors JV, or the terms and conditions thereof, were based upon legitimate, non-discriminatory and non-retaliatory business reasons and would have been taken regardless of Plaintiff's gender, alleged disability or purported protected activity. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE To the extent Plaintiff has failed to make diligent and good faith efforts to mitigate her damages, any relief awarded upon her claims in this action must be dismissed or reduced in whole or in part. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE To the extent that Plaintiff engaged in conduct prior to or during her employment 14

15 with Phoenix Constructors JV which would have resulted in denial of employment or in her discharge had said acts or omissions been known to Defendant, any relief awarded to Plaintiff should be reduced, in whole or in part, due to Plaintiff having engaged in such misconduct, whenever discovered. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE All claims should be dismissed to the extent that they are barred by the applicable statute of limitations and/or doctrine of laches. AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE At all times relevant hereto, Defendant acted in good faith and has not violated any rights which may be secured to Plaintiff under any state, local or other law, rule, regulation, code or guideline. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE To the extent that Plaintiff's claims are compensable under the New York Workers' Compensation Law, those claims are barred by the exclusive remedy provision of said law. AS AND FOR A NINTH AFFIRMATIVE DEFENSE In the event it is concluded that a prohibited factor motivated any discriminatory act against Plaintiff, the same act(s) would have been taken even absent the alleged discriminatory motive and, as such, no relief or recovery should be awarded. AS AND FOR A TENTH AFFIRMATIVE DEFENSE Plaintiff's recovery of front or back pay or any other recovery should be reduced by any period of Plaintiffs inability or unavailability to work due to any alleged disability or other reasons. 15

16 AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE Plaintiff's Complaint should be dismissed to the extent she is not disabled within the meaning of the New York City and/or New York State Human Rights Laws. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE Plaintiff's Complaint should be dismissed to the extent she failed to fulfill any jurisdictional prerequisites or exhaust her administrative remedies. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff's Complaint should be dismissed to the extent her claims are subject to arbitration. AS TO A FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff's retaliation claims should be dismissed because Plaintiff did not engage in any protected activity known to Defendant. AS TO A FIFTEENTH AFFIRMATIVE DEFENSE Plaintiff's disability discrimination claims should be dismissed because Plaintiff never requested a reasonable accommodation. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims should be dismissed because Defendant was not Plaintiffs employer. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred, in whole or in part, to the extent Plaintiff is not a qualified individual with a disability or otherwise could not perform the essential functions of her position with or without a reasonable accommodation. 16

17 AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or part, because reasonable efforts were made to accommodate Plaintiff. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE The Complaint, and each of the purported claims for relief alleged therein, is barred by the equitable doctrines of unclean hands and/or estoppel. SUPPLEMENT AFFIRMATIVE DEFENSES Defendant reserves the right to supplement these Affirmative Defenses as additional information becomes known through the course of discovery in this action or otherwise. WHEREFORE, Defendant requests that the Court: 1. dismiss with prejudice Plaintiff's Complaint; 2. deny each and every demand, claim and prayer for relief contained in Plaintiff's Complaint; 3. award to Defendant reimbursement for the costs, attorneys' fees incurred in the defense of this case; and, 4. grant such other and further relief as the Court deems just and proper. 17

18 Dated: Melville, New York November 13, 2015 Respectfully submitted, JACKSON LEWIS P.C. 58 South Service Road, Suite 250 Melville, New York (631) By: MARC/S. WENGER KIMBERLY N. DOBSON ATTORNEYS FOR DEFENDANTS TO: DANIELA NANAU, ESQ. LAW OFFICES OF DANIELA NANAU, P.C Rutledge Avenue Glendale, New York ATTORNEYS FOR PLAINTIFF 18

19 AFFIDAVIT OF SERVICE STATE OF NEW YORK COUNTY OF SUFFOLK )ss.: The undersigned being duly sworn, deposes and says: Deponent is not a party to this action, is over 18 years of age and resides at Medford, New York. I hereby swear that on November 13, 2015, DEFENDANT JOSEPH DEROSA'S ANSWER was electronically filed with the clerk of the Court and served in accordance with the New York State Courts Electronic Filing System Rules on Electronic Service upon the following parties and participants via First Class Mail and electronic mail. DANIELA NANAU, ESQ. LAW OFFICES OF DANIELA NANAU, P.C. Attorneys for Plaintiff Rutledge Avenue Glendale, New York dn@danielananau.com Sworn to before me this 13th 1 day of November, Notary Public , v. 1 PAULETTEDI MARCO Notary Public, State of New stork No Qualified In Suffolk County 7 Commission Expires Nov