SUPREME COURT STATE OF NEW YORK COUNTY OF ONONDAGA MELISSA A. CONARTON, DEFENDANTS' VERIFIED ANSWER Plaintiff, Index No.: 003063/2018 v. DOUGLAS TARPINIAN DBA HOLY SMOKE BBQ AND CATERING LLC Defendants. The Defendants, Douglas Tarpinian DBA Holy Smoke BBQ and Catering LLC, "Defendants", Answer the Complaint as follows: 1. The Defendants DENY KNOWLEDGE sufficient to form a belief as to the truth Plaintiff" of the allegations set forth in paragraphs 1, 7, 10, 11, 18 and 73 of the Plaintiff's Complaint. 2. The Defendants ADMIT the allegations set forth in paragraphs 2, 5, 28, 65, 66, 69 and 72 of the Plaintiff's Complaint. 3. The Defendants ADMIT that Holy Smoke BBQ and Catering LLC was the caterer although some food items, beverages and other consumed items were supplied by other persons or entities and DENY the remainder of the allegations set forth in paragraph 3 of the Plaintiff's Complaint. 4. The Defendants ADMIT that Holy Smoke BBQ and Catering LLC agreed to provide catering and DENY the remainder of the allegations set forth in paragraph 4 of the Plaintiff's Complaint. 1 of 12
5. The Defendants ADMIT that Holy Smoke BBQ and Catering LLC provided the Plaintiff" catering and DENY the remainder of the allegations set forth in paragraph 6 of the Plaintiff's Complaint. 6. The Defendants DENY the allegations set forth in paragraphs 8, 9, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 68, 70, 71, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116 and 117 of the Plaintiff's Complaint. 7. The Defendants ADMIT that Holy Smoke BBQ and Catering LLC was an LLC and DENY the remainder of the allegations set forth in paragraph 26 of the Plaintiff's Complaint. 8. The Defendants ADMIT that Holy Smoke BBQ and Catering LLC was and is an LLC and DENY the remainder of the allegations set forth in paragraph 27 of the Plaintiff's Complaint. 9. The Defendants A.DMIT that Holy Smoke BBQ and Catering LLC provided catering services and DENY the remainder of the allegations set forth in paragraph 67 of the Plaintiff's Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE (Contributory Negligence) 10. Upon information and belief, whatever damages the Plaintiff may have sustained as alleged in the Complaint were caused in whole or in part or were contributed to by the conduct and/or want of care on part of and without negligence, culpable the the Plaintiff any 2 of 12
negligence, culpable conduct or want of care on the part of the Defendants causing or contributing thereto. In the event that any damages shall be found to be recoverable against the Defendants in this action, such recovery shall be diminished in proportion to the negligence, culpable conduct and/or want of care attributable to the Plaintiff. AS AND FOR A SECOND AFFIRMATIVE DEFENSE (Article 14) 11. The relative culpability, if any, of the Defendants and others who are or may be liable for the damages alleged by the Plaintiff in this action should be determined in accordance with the decisional and statutory law of the State of New York and the equitable share of the Defendants and/or others liable for contributions should be determined and apportioned in accordance with the relative culpability, if any, of the Defendants and/or others pursuant to the provisions of CPLR Article 14. AS AND FOR A THIRD AFFIRMATIVE DEFENSE (Article 16) 12. If the Defendants are held liable at all to the Plaintiff, which liability they deny, and said liability is 50% or less than the total liability for all persons liable, including any unnamed party(ies) pursuant to the provisions of Article 16 of the CPLR, the Defendants' liability shall not exceed its equitable share. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE (Collateral Sources) 13. The amount of any recovery by the Plaintiff for economic loss must be reduced by the amount that the Plaintiff has or will be reimbursed or indemnified for such loss from any and all collateral sources pursuant to )4545 of the Civil Practice Law and Rules. 3 of 12
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE (Third Parties) 14. Some or all of the damages sought by the Plaintiff were caused by the negligence of third parties who brought food, beverages, ice and other items to the wedding, and the Defendants lacked any control over the acts of said third parties. Any determination of fault in this action must include the opportunity for the trier of fact to consider the actions of third parties. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE (No Breach of Duty) 15. At all times, the Defendants performed their food preparation, food handling and food service responsivities in a non-negligent manner, in full compliance with the health laws in the State of New York, in full compliance with industry standards. The investigation into this occurrence by the New York State Health Department as well as the investigation into this occurrence by the Health Departments of three separate counties failed to reveal any violations by the Defendants and as such Plaintiff's action should be dismissed as a matter of law. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE (No Proximate Cause) 16. There was no act or omission of the Defendants which was a proximate cause of the alleged occurrence and as such Plaintiff's action should be dismissed as a matter of law. Under the circumstances, any food borne illness resulted from food and/or beverages prepared and served by third parties outside of the control of the Defendants and as such proof of proximate cause is lacking as a matter of law. 4 of 12
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE (Lack of Notice) 17. The Defendants deny that they created any hazard, and deny actual and/or constructive knowledge and notice of any hazard alleged by the Plaintiff and as such Plaintiff's action must be dismissed as a matter of law. AS AND FOR AN NINTH AFFIRMATIVE DEFENSE (No Standing) 18. Plaintiff lacks standing to sue on behalf of and to seek damages for the guests at her wedding. To the extent that any of Plaintiff's multiple causes for action seek relief on behalf of persons who are not named parties in this action, such claims should be dismissed as a matter of law. AS AND FOR A TENTH AFFIRMATIVE DEFENSE (No Private Right of Action Under the Department of Health Regulations) 19. The regulations of the New York State Health Department and the Public Health Law of the State of New York do not create a private right or action for any alleged Health Code Violation in the present action. The State of New York and various County Departments of Health did not issue any violations to the Defendants as a result of this occurrence and as such any cause of action which alleges it is based upon a statutory and/or regulation violation must be dismissed as a matter of law. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE (Plaintiff Fails to State a Proper Cause of Action for Negligent Infliction of Emotional Distress) 20. The Plaintiff fails to allege a proper cause of action for negligent infliction of emotional distress, fails to allege the requisite elements for such a cause of action and fails to allege the requisite injury and damages for such an action and as such any cause of action 5 of 12
alleging negligent infliction of emotional distress should be dismissed as a matter of law. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE (Statute of Limitations) 21. Any cause of action alleging intentional tort and/or intentional acts and/or intentional infliction of emotional distress expired one year after the alleged occurrence and are therefore barred by the applicable statute of limitations. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE (Fails to State a Cause of Action/Improper Pleading) 22. Plaintiff's first, second, third, fourth, fifth, sixth, seventh (paragraphs 83-94), eighth, ninth, tenth and eleventh causes for action are duplicative, improperly pled where they all allege negligence and fail to set forth the grounds for 11 separate causes for action upon which relief may be granted. As such, Plaintiff's action, except for the negligence cause of action, should be dismissed as a matter of law. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE (No Personal Liability) 23. The Plaintiff's allegations as against Defendant, Douglas Tarpinian, individually, are improper where the Plaintiff alleges that at all times, Mr. Tarpinian was acting solely as a member of Defendant Holy Smoke BBQ and Catering LLC and the Plaintiff has failed to set forth any allegation or facts sufficient to allege the corporate status or veil be pierced and Defendant Douglas Tarpinian cannot be held liable to the Plaintiff, individually, under the facts in this action, requiring that any allegations brought against Defendant, Douglas Tarpinian, individually, be dismissed as a matter of law. 6 of 12
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE AND CROSS-CLAIM AGAINST THE PLAINTIFF 24. The Plaintiff breached her contract or agreement with the Defendant, Holy Smoke BBQ and Catering LLC, concerning the Plaintiff having contracted with Defendant, Holy Smoke BBQ and Catering LLC, to provide catering for her wedding reception on July 31, 2015. A copy of the invoice from the Defendant to the Plaintiff setting forth the amounts agreed to and Plaintiff's July 31, 2015 check to Defendant in the amount of $4,279.84 are attached hereto as Exhibit "A". 25. The Defendant, Holy Smoke BBQ and Catering LLC, performed all of the terms of the contract required of it including providing catering, including all of the menu items selected by the Plaintiff, at Plaintiff's July 31, 2015 wedding. 26. The agreement of the parties is further evidenced by the Plaintiff's check in the amount of $4,279.84 as payment in full for Defendant, Holy Smoke BBQ and Catering LLC's catering services. 27. Upon information and belief, after writing the check attached hereto as part of Exhibit "A", Plaintiff stopped payment on the check and to date the Plaintiff has refused to pay the Defendant, Holy Smoke BBQ and Catering LLC, the amount required under the contract, without cause of justification. 28. The Defendant, Holy Smoke BBQ and Catering LLC, seeks a judgment, plus interest from July 31, 2015, in the amount of $4,279.84 for the catering services rendered. WHEREFORE, Defendants, Douglas Tarpinian DBA Holy Smoke BBQ Catering LLC, demands judgment including the following: l. An Order dismissing the Complaint in its entirety, or in the alternative, an 7 of 12
Order dismissing those causes of action which lack merit and/or fail to state a proper cause of action; 2. An Order apportioning any liability between the Plaintiff, Defendant and others; 3. An Order reducing any damages which may be awarded to the Plaintiff based upon collateral sources; 4. An Order awarding Defendant its defense costs and disbursements in this action; 5. An Order awarding Defendant, Holy Smok.e BBQ and Catering LLC, the amount of $4,279.84, plus interest from July.luly 31, 2015; and 6. Such othªr and further relief as the Court deems just and proper. Date : ay 3 2018 anifer Basic,. Matthew E. Whritenour, Esq. J. Basic & sociates, PLLC Knych Whritenour, LLC Attorn s for Defendant, Defense Attorneys for Defendants, H Smoke BBQ and Catering LLC on the Douglas Tarpinian, DBA Holy Smoke BBQ Cross-Claim and Catering LLC 130 Albany Street One Park Place, Suite 404 P.O. Box 423 300 South State Street Cazenovia, New York 13035 Syracuse, New York 13202 Telephone: (315) 655-0631 Telephone: (315) 472-1175 TO: Thomas J. Cerio, Esq. Scott D. Cerio, Esq., of Counsel Cerio Law Offices Attorneys for Plaintff 407 South Warren Street, 5th Floor Syracuse, New York 13202 'I elephone: (315) 422-8769 8 of 12
STATE OF NEW YORK ) COUNTY OF l½afwsbn ) ss.: Douglas Tarpinian, being duly sworn, deposes and says that he is the Defendant in the above-named action and that he hereby verifies that the foregoing Answer is true to his own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters therein he believes them to be true. Q~ Douglas Tarpmian Sworn to before me this 1_ day of May, 2018. KELLY G. CAPPADONIA Notary Public, State of New York henango County, #010A6068787 c Commission 'VlllIIIIIIOOIVtl Cnmmlsslnn Enpltes Explmrs @dipl(qo E<lelj?' Sgp' Notary *J Publ My IWIJ January 44, 14, Clog 9 of 12
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Holy Smoke BBQ and Catenng LLC 438 County Road 22 Eartviige, NY 13332 ~ /7 L'C~;"-Ci~ l!' IA Date 7/31/2015 Invoice 4 564 iwwi::::i.-::::::-~i!: %Sam:--':-' fib~'::::::-:i::--::--::::::i';:::'-:::::-::::--i::::: Melissa Conarton&Jesse Abbott Melissa Conarton&Jesse Abbott WEDDING WEDDING 315-572-0028 315-5724028 P.O. 4 Ship Date 7/31/2015 l Terms Due Date 7/31/2015 Other Food Adults Pulled B8Q Pork, Herb Marinated Drunken Chicken, 205 16.00 3,280.00T Smoked 88Q Beens, Herb Seasoned Rice, Grilled Vegetables, Colesies, Mac and Cheese, Gertlen h, Rolls Food- Kids Pulled BSQ Pork, Herb Marinated Drunken Chicken, 30 8.00 240.00T Smoked 88Q Beant Herb Seascoed Rice, Grilled Vegetables, Coleslaw, Mac and Cheese, Garden Salad. Hot Dogs, Hamburgers, Rolls Uquor Permit Liquor Permit 1 100,00 100.00T Service charge Service Charge 15% 1 528.00 528.00T Thank you for your continued business. Doug & hssgdsrens Subtotal $4,148.00 No¼ Smoke B8Q and Caterits LLC dougtarp@yahoo.com 315-691-2352 Sales Tax (8.0%) $331.84 Total $4,479.84 Payments /Credits $-200.00 wow.dougsholysrnokebbq.corn 3i5-691-2352 Salance Due $4 279 84 11 of 12
j f ) ME3JSSA A anecumsuounw CONARTON IA FAYET17, ht 130$4 Ols; $7241028 f ) I' 12 of 12