FILED: NEW YORK COUNTY CLERK 07/15/2016 11:34 AM INDEX NO. 154310/2016 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/15/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x KRISHNA DEBYSINGH, -against- Plaintiff, NORTH SHORE TOWERS APARTMENTS INCORPORATED, GLEN E. KOTOWSKI, STEVEN CAIRO, CHARLES H. GREENTHAL MANAGEMENT CORP., and WILLIAM WEST, Index No.: 154310/2016 Defendants. DEFENDANTS' VERIFIED ANSWER Defendants, North Shore Towers Apartments Incorporated ("NST"), Glen E. Kotowski ("Kotowski"), Steven Cairo ("Cairo"), Charles H. Greenthal Management Corp. ("Greenthal Management") and William West ("West"), (collectively "Defendants") by their attorneys, Jackson Lewis P.C., as and for their answer to the Complaint of Krishna Debysingh ("Plaintiff"), respond the allegations in the Verified Complaint, as follows: 1. The allegations contained in Paragraph "1" of the Verified Complaint constitute legal conclusions to which no response is required. To the extent Paragraph "1" consists of additional factual allegations, Defendants deny the allegations contained therein. 2. Defendants deny the allegations contained in Paragraph "2" of the 3. Defendants deny the allegations contained in Paragraph "3" of the x 1 of 13
4. Defendants deny the allegations contained in Paragraph "4" of the Verified Complaint except admit that Plaintiff brings the action for the relief stated therein, but deny that Plaintiff is entitled to any relief. AS TO "THE PARTIES" 5. Defendants deny the allegations contained in Paragraph "5" of the Verified Complaint except admit that Plaintiff was employed by Defendant NST, that he held the position of Security Director, and reported to Defendant Kotowski. 6. Defendants admit the allegations contained in Paragraph "6" of Plaintiff's 7. Defendants deny the allegations contained in Paragraph "7" of the Verified Complaint except admit that Kotowski is the General Manager of NST, is listed with the State of New York as the Chief Executive Officer of NST and was Plaintiffs direct supervisor and manager. 8. Defendants deny the allegations contained in Paragraph "8" of the Verified Complaint, except admit that Cairo reported to Kotowski. 9. Defendants deny the allegations contained in Paragraph "9" of the Verified Complaint except admit that Greenthal Management is a New York State corporation with a principal place of business at 4 Park Avenue, New York, New York, and admit that Greenthal Management was responsible for the management of Defendant North Shore Towers. 10. Defendants admit the allegations contained in Paragraph "10" of the 2 2 of 13
AS TO "STATEMENT OF CLAIMS" 11. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph "11" of the 12. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph "12" of the Verified Complaint, except admit that acid leaked from the batteries. 13. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph "13" of the 14. Defendants deny the allegations contained in Paragraph "14" of the 15. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph "15" of the 16. Defendants admit the allegations contained in Paragraph "16" of the 17. Defendants deny the allegations contained in Paragraph "17" of the 18. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph "18" of the 19. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph "19" of the 20. Defendants deny the allegations contained in Paragraph "20" of the 3 3 of 13
21. Defendants deny the allegations contained in Paragraph "21" of the 22. Defendants deny the allegations contained in Paragraph "22" of the 23. Defendants deny the allegations contained in Paragraph "23" of the 24. Defendants deny the allegations contained in Paragraph "24" of the 25. Defendants deny the allegations contained in Paragraph "25" of the 26. Defendants deny the allegations contained in Paragraph "26" of the 27. Defendants deny the allegations contained in Paragraph "27" of the 28. Defendants deny the allegations contained in Paragraph "28" of the 29. Defendants deny the allegations contained in Paragraph "28" of the Verified Complaint, except deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations concerning how Plaintiff felt. 30. Defendants deny the allegations contained in Paragraph "30" of the 4 4 of 13
31. Defendants deny the allegations contained in Paragraph "31" of the Verified Complaint, except admit that Plaintiff submitted a report to his supervisor Kotowski on February 10, 2016. 32. Defendants deny the allegations contained in Paragraph "32" of the Verified Complaint, except admit that Kotowski advised Plaintiff to stay away from Cairo. Kotowski also advised Cairo to stay away from Plaintiff. 33. Defendants deny the allegations contained in Paragraph "33" of the Verified Complaint, except deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations concerning Plaintiff's feelings. 34. Defendants deny the allegations contained in Paragraph "34" of the Verified Complaint, except admit that no formal charges or reports were filed with the police department. 35. Defendants deny the allegations contained in Paragraph "35" of the Verified Complaint, except admit Plaintiff was suspended for one week without pay. 36. Defendants deny the allegations contained in Paragraph "36" of the 37. Defendants deny the allegations contained in Paragraph "37" of the Verified Complaint except admit that Kotowski suspended Plaintiff for another week. 38. Defendants deny the allegations contained in Paragraph "38" of the 39. Defendants deny the allegations contained in Paragraph "39" except admit that Kotowski terminated Plaintiff's employment on March 7, 2016. 5 5 of 13
40. Defendants deny the allegations contained in Paragraph "40" of the AS TO THE "FIRST CAUSE OF ACTION FOR VIOLATIONS OF NEW YORK LABOR LAW 740 AGAINST ALL DEFENDANTS" 41. Defendants repeat, reiterate and reallege each and every denial, admission or other response to the allegations contained in paragraphs "1" through "40" of the Verified Complaint, as set forth fully herein. 42. Defendants deny the allegations contained in Paragraph "42" of the 43. Defendants deny the allegations contained in Paragraph "43" of the 44. Defendants deny the allegations contained in Paragraph "44" of the 45. Defendants deny the allegations contained in Paragraph "45" of the 46. Defendants deny the allegations contained in Paragraph "46" of the 47. Defendants deny the allegations contained in Paragraph "47" of the AS TO THE "SECOND CAUSE OF ACTION FOR COMMON LAW ASSAULT AGAINST DEFENDANT STEVEN CAIRO" 48. Defendants repeat, reiterate and reallege each and every denial, admission or other response to the allegations contained in paragraphs "1" through "47" of the Verified Complaint, as set forth fully herein. 6 6 of 13
49. Defendants deny the allegations contained in Paragraph "49" of the 50. Defendants deny the allegations contained in Paragraph "50" of the 51. Defendants deny the allegations contained in Paragraph "51" of the 52. Defendants deny the allegations contained in Paragraph "52" of the AS TO "WHEREFORE" CLAUSE Defendants deny all statements and allegations set forth in the "Wherefore" paragraph; deny Plaintiff is entitled to any of the relief demanded therein; and, further deny Plaintiff has stated a claim upon which relief can be granted. ADDITIONAL AVERMENTS Defendants deny all claims and allegations not unequivocally admitted herein. * * * * 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 Defendants, Defendants assert the following defenses. Defendants reserve the right to plead additional separate and affirmative defenses, which may be ascertained during the course of discovery in this action or otherwise. AS AND FOR A FIRST AFFIRMATIVE DEFENSE The Verified Complaint should be dismissed, in whole or in part, because it fails to state a claim upon which relief may be granted. 7 7 of 13
AS AND FOR A SECOND AFFIRMATIVE DEFENSE Plaintiff was, at all times, an at-will employee, and therefore his employment could be terminated at any time for any reason or for no reason. AS AND FOR A THIRD AFFIRMATIVE DEFENSE At all times relevant herein, Defendants acted in good faith and did not violate any rights which may be secured to Plaintiff under federal, state, local, or common laws, rules, regulations or guidelines. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Defendants acted in good faith and without any unlawful motive, intent, malice or reckless disregard for Plaintiffs rights. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE Plaintiff's Verified Complaint must be dismissed because he has failed to allege that his employer engaged in an activity, policy, or practice that constituted an actual violation of law. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Plaintiff's Complaint must be dismissed because he has failed to allege an actual violation which presented a substantial and specific danger to the public health or safety. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Plaintiff's claims for damages are barred, in whole or in part, because Plaintiff failed to mitigate his alleged damages. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE Plaintiff's claims for damages are barred, in whole or in part, because any employment actions taken with respect to Plaintiff were based on reasonable, legitimate non- 8 8 of 13
retaliatory factors unrelated to any disclosures of actual violations which presented a substantial and specific danger to the public health or safety and were taken in good faith. AS AND FOR A NINTH AFFIRMATIVE DEFENSE To the extent that Plaintiff engaged in acts of misconduct prior to or during employment which, if known by Defendants, would have resulted in termination of Plaintiff's employment, any relief awarded to Plaintiff should be reduced, in whole or in part. AS AND FOR A TENTH 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 that law. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE Plaintiff's requests for compensatory and consequential damages must be dismissed, as those damages are not available under New York Labor Law Section 740. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE The New York Labor Law Section 740 claims must be dismissed as against Defendants Charles H. Greenthal Management Corp., Glen E. Kotowski, Steven Cairo and William West, because they were not Plaintiff's employer. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE The Verified Complaint fails to set forth facts and circumstances that would support an award of punitive damages against Defendants. 9 9 of 13
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE Defendants acted in good faith and without any unlawful motive, intent, malice or reckless disregard for Plaintiff's rights, and therefore, punitive damages are improper and unwarranted. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE Upon information and belief, the injuries and damages allegedly sustained by Plaintiff, if any, were the result of the acts of independent third person(s) over whom Defendants exercised no direction or control. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE Upon information and belief, the injuries and damages allegedly sustained by Plaintiff, if any, were the result of the acts of superseding and/or intervening acts of negligence by persons over whom the Defendants had neither control nor the right of control. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred, in whole or in part, by the doctrine of unclean hands, estoppel, waiver, mistake and/or offset. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE Any alleged misconduct by any of NST's or Greenthal Management's employees that affected Plaintiff was done without the authority, knowledge, approval or ratification of NST or Greenthal Management, and in conflict with and in violation of NST's and/or Greenthal Management's policies. As such, any liability cannot be imputed to NST, Greenthal Management or to the other individual Defendants. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE If any of the individual Defendants engaged in any wrongdoing, said conduct was taken outside the scope of their employment and not as an agent of NST or Greenthal 10 10 of 13
Management. As such, any liability cannot be imputed to NST, Greenthal Management or to the other individual Defendants. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE Plaintiff is not entitled to a trial by jury as to any issue of law or fact relating to Plaintiff's alleged entitlement to any form of equitable relief. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE Defendants reserve the right to plead additional separate affirmative defenses, which may be ascertained during the course of this action. WHEREFORE, Defendants pray that: (a) (b) Plaintiff's Verified Complaint be dismissed with prejudice; Each and every demand, claim and prayer for relief contained in Plaintiff's Verified Complaint be denied; (c) Defendants be awarded reimbursement for costs and attorneys' fees of defending this action; and, (d) The Court grant to Defendants such other and further relief as is deemed just and proper. Dated: Melville, New York July 15, 2016 Respectfully submitted, JACKSON LEWIS P.C. Attorney for Defendants 58 S. Service Road, Suite 250 Melville, N.Y. 11747 (631) 247-0404 By: athryn J. Russo q. Stephania Sanon, Esq. 11 11 of 13
ATTORNEY VERIFICATION KATHRYN J. RUSSO, ESQ., an attorney admitted to practice before the Courts of the State of New York hereby affirms, under penalty of perjury and pursuant to CPLR 3020(d)(3) as follows: 1. I am a Principal of the law firm Jackson Lewis P.C., counsel for Respondents in the above-captioned proceeding. My office is located at 58 South Service Road, Suite 250, Melville, New York 11747, in the County of Suffolk. This verification is made by me because Defendants are not located within the County of Suffolk, which is where I have my office. 2. I have read the foregoing Verified Answer; know the contents thereof and the same are true to my knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. Affirmed on this 15th day of July, 2016. KATHRYN J. RIDS SO 12 12 of 13
AFFIDAVIT OF SERVICE STATE OF NEW YORK ) )ss.: COUNTY OF SUFFOLK ) Diane Carroll, being duly sworn, deposes and says, I am not a party to the within action, am over 18 years of age and reside in Mineola, New York. On July 15, 2016, I served the within Defendants' Verified Answer to Plaintiff's Complaint via the CM/ECF System, via e-mail to the e-mail address below, and by depositing a true copy thereof enclosed in a postage paid wrapper, in an official depository under the exclusive care and custody of Federal Express addressed to: John Howley, Esq. Attorney for Plaintiff 350 Fifth Avenue, 59th Floor New York, N.Y. 10118 jhowley@johnhowleyesq.com Diane Carroll Sworn to before me on this 15th day of July, 2016. 4836-9419-9348, v. 1 PATRICIA J. RUSSOLESE Notary Public, State Of New York No, 01AM4898520 Qualified In Nas:3au County Commission Expires June 15, 20 13 13 of 13