FILED: NEW YORK COUNTY CLERK 07/27/2016 06:33 PM INDEX NO. 158311/2015 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 07/27/2016 SUPREI4~E COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LAURA GIBS{~N=RIDER, JACQUELYN SUN, and MATT WIMSATT,. -against- Plaintiffs, ANAT~MiCAL TRAVELOGUE, LLC d/b/a T'heVISUALMD, ANATOMICAL TRAVELOGUE, Inc., ALE~TDER TSIA,RAS, JOHN BENIS, ROSS RIVIERE, and NANCY TOWBIN, -Index No. 1583.11/2015 ANSWER BY DEFENDANTS ANATOMICAL TRAVELOGUE, LLC dlb/a TheVisualMA, APVATOMICAL TRAVELOGUE INC. end AItEXANDER. TSI.~AS Defendants. ------------------------------------------------------ --------- -X DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TQ PLAINTIFF'S COMPLAINT Defendants Anatomical Travelogue, LLC, d/b/a TheVisualMD, Anatomical Travelogue, Inc. and ALEXANDER TSIARAS (collectively, "the Anatomical Defendants"), by their ~ttarney, Ruskin Moscau Faltischek, P.C., as and for their Answer to the Complaint, state, upon information and t~lief: AS TO THE PARTIES First: As to paragraphs 1, 4, 6, 8 and 13 of the Complaint, the Anatomical Defendants neither admit nor deny the allegations set forth therein in as such allegations set forth conclusions of law to which no response is necessary and otherwise respectfully refer all such questions of law to the Court. Sind: As to paragraph 2 of the Complaint, the Anatomical Defendants have offices in Brooklyn, Ne~v York and deny the location of ~n office at any other location. Third: As to paragraph 3 of the Complaint that Anatomical Defendants deny knowledge or information s~cietzt to farm a belief as to whether plaintiff Gibson-Rimer held herself out as 1 of 9
Director of Three-D Productions, but otherwise admit that she was employed from approximately 2045 until Apri130, 2015. Fourth: As to paragraph 5 of the Complaint, the Anatomical Defendants deny knowledge or information, as to whether plaintiff's Sun held herself out as the Senior Art Director at A~tomical. Fifth: As to paragraph 7 of the Complaint, the Anatomical Defendants deny knowledge ar information as to whether plaintiff Wirnsatt held himself out as Director of Volumetric Production. Sixth: As to pazagraph 9 of the Complaint, the ~4natomical Defendants admit so much thereof as alleges that defendant Alexander Tsiaras lives in Brooklyn and is Anatomical's Chief Executive Officer and Founder. As to the bafance of the allegations of said- paragxaph, the Anatomical Defendants neither admit nor deny so much of those allegations. that set forth conclusions of law to which no response is necessary and otherwise respectfully refer all such questions of law to the Court. Seventh: As to paragraph 10 of the Complaint, the Anatomical Defendants deny l~r+awledge or infcmnation sufficient to form a belief as to the truth of the allegation that Defendant Benin lives in New York, deny that defendant Benis is a minority shareholder of Anatomical. Travelogue, LLC dib/a The VisualMD or Anatomical Travelogue, Inc. (the "Corporation'). As to the balance of the allegations in said paragraph, the Anatomical defendants neither admit nor demy so much of said allegations as set forth conclusions of law as to which no response is necessary. Eighth: As tc~ paragraph 11 of the Complaint, the Ana~tamical Defendants deny ~ knowledge or in~ormation as to whether defendant Riviere lives in New York. As to the balance of the allegations ~n said paragraph, the Anatomical Defendants neither admit nor deny so much 2 2 of 9
of said allega#ions as set Forth conclusions of law as to which no response is necessary and otherwise respectfully refer all such questions of law to the Court. Ninth: As to paragraph 12 of the Complaint, the Anatomical Defendants denied knowledge or information as to where defendant Towbin lives. The Anatomical Defendants deny that she is a minority shareholder of the Corporation. As to the balance of the allegations in said paragraph, th+e Anatomical Defendants neither admit nor deny so much of said allegations as set faith conclusions of law as to which no response is necessary and otherwise respectfully referall such q~tes#ions of law to the Court. THE NATURE OF THE AC~'IQN Tenth: The Anatomical Defendants neither admit nor deny the allegations set forth in paragraph 14 of the Complaint as it sets forth conclusions of law as to which no response is necessary and otherwise respectfully refer all such questions of law to the Court. 23. AS TU 'SHE STATEMENT OF FACTS Eleventh: The Anatomical Defendants admit pazagraphs 15, 16, 17, 18, 19; 20, 21 and Twelfth: As to paragraphs 22 and 26 of the Complaint, the Anatomical Defendants neither admit nor deny those allegations to the extent that they set forth conclusions of law to which no response is needed and otherwise respectfully refer all such questions of law to the Court. Thirteenth: The Anatomical Defendants deny each end every allegation contained in paragraph 24, 2~ and 27 of the Compl~.int. 3 3 of 9
AS TO TIC FIRST CAUSE OF ACTION Fourteenth: As to pazagraph 2'8 of the Complaint, the Anatomical Defendants repeat and re~lle$e each and every denial heretofore made in answer to the allegations contained therein with the same force and effect as if more fully set forth at length hereat. Fifteenth: As to paragraphs 29, 30, 31 of the Complaint, said alle~axions contain conclusions of law as to which no resp~mse is necessary and otherwise respectfully refer all such questions of law to the Court. Sixteenth: As to paragraph 32 of the Complaint, the Anatomical Defendants deny each and every ~ll~gation contained therein. ~S TO THE SECOND CAUSE OF ACTION Seventeenth: As to paragraph 33 of the Complaint, the Anatomical Defendants repeat and reallege each and every denial heretofore made in answer to the allegations contained therein with the same force and effect as if more-fully set forth at length hereat. Eighteenth: As to paragraph 34, 35 and 36 of the Complaint, to the extent that such allegations ec~nsist of conclusions of law, no response is necessary. AS TO THE THIRD CAUSE O_ FACTION Nineteen#h: ~1s to paragraph 37 of the Complaint, the Anatomical Defendants repeat and reallege each amd every denial heretofore made in answer to the allegations eonta~ned therein with the same force and effect as if more fully set forth at length hereat. Twentieth: As to paragraph 38 of the Complaint, the Anatomical Defendants deny that plaintiff tiwimsatt produced any work product from February 2U15 through Apri12015. Twenty-first: As to paragraph 39 of the Complaint, the Anatomical Defendants decry that they accepted services and work product from plaintiff Wimsatt during that period. of time. 4 4 of 9
Twenty-second: As to paragraph 40, the Anatomical Defendants deny knowledge or infflrmation sufficient to form a belief as to the truth of the allegation contained therein. Twenty-third: As to paragraph 41 and 42 of the Complaint, as to the allegations contained therein, they consist of conclusions of law as to which no response is necessary and otherwise respectfully refer all such questions of law to the Court. AS TO TAE FOURTH CAUSE OF ACTION Twenty-fourth: As to paragraph 43 of the Complaint, the Anatomical Defendants repeat and re~ilege each and every denial heretofore made in answer to the allegatit~ns contained therein, with the same force and effect as if more fully set forth hereat. Twenty-fifth: As to paragraph 44 of the Complaint, the Anatomical Defendants deny each and every allegation contained therein. Twenty-sigh: As to paragraph 45 of the Complaint, the Anatomical Defendants deny ktwwledge or infarmatit~n sufficient to form a belief as to the truth thereof. Twenty-seventh: As to paragraph 46 of the Compliant, the Anatomical Defendants deny each and ever~~ allegation contained therein except admit that plaintiffs had not been cotn~nsated. Twenty-eighth: As to paragraph 47 of the Complaint, the.anatomical Defendants deny each and every allegation contained therein except to the extent that such allegations consist of conclusions of law as to which no response is necessary. A~ TO THE FIF~CAU~E OF ACTION Twenty-Ninth: As to paragraph 48 of the Complaint, the Anatomical Defendants repeat and reallege every de~i~l heretofore made in regard to the allegations contained therein with the same force and effect as if more fully set forth at length her~at. E 5 of 9
Thirtieth: As to paragraph 49, 50 and 51 of the Complaint, said paragraphs consist of conclusions of law as to which no response is necessary and otherwise respectfully refer all such questions of law to the Court. Thirty-first: As to para~raph 52, the Anatomical Defendants deny each and every allegation contained herein. AFFIRMATIVE DEFENSES ~S AN,~D FOR A FIRST AFFIRMATIVE DEFENSE Thirty-second: The plaintiff's Complaint fails in whole or in part to state a cause of action against the Anatomical Defendants. AS ANDS FQR A SECOND AFFIRMATIVE DEFENSE Thirty-third: To the extent that plaintiffs sustained damages as alleged in the Complaint, said damages were in whole or in part the result of the plaintiffs' culpable conduct andlor the culpable conduct of others, over whom the Anatomical Defendants have no control and for whose acts, omissions and breaches the Anatomical Defendants are not liable. AS ANA FOR A THIRD AFFIRMATIVE DEFENSE Thirty-fourth: To the extent any damages were sustained by the plaintiffs as alleged in the Complaint, they were in wh41e or in part the result of the plaintiffs' own unclean hands. AS~AND,FOR A FOURTH AFFIRMATIVE DEFENSE Thirty-fifth: The plaintiffs' recovery is barred by the Doctrine of Laches. A,~ AN 1 FOR A FIFTH AFFIRMATIVE DEFENSE Thirty-sixth: The plaintiffs' claims are barred by the Doctrine of Mitigation. 6 of 9
AS AND F4R A SII~TH AFFIRMATIVE DEFENSE Thirty-seventh: The plaintiffs consented to all actions allegedly causing them injury and thus their claims are barred by the doctrines of consent, acquiescence and ratification. A~ ~ _l~d_~or A SEVENTH AFT,~T~M,~TTVE DEFENSE Thirty-eighth; Plaintiffs are unable to establish any knowing or intentional conduct by the Anatomical Defendants in connection with the matters alleged in the Complaint. AS AND FOR A FIRST CROSS CLAIM FOR COMMON LAW INDEMNITY AGAINST CO-DEFENDANTS J4~t $F~TIS. BOSS RIVIERF AND NANO' TOWBIN Thirty Ninth: To the extent tha# the plaintiff recovers against the Anatomical Defendants, said recovery sha11 be based upon the acts, omissions, breaches and liabili#ies of John B~nis, Ross Riviera and Nancy Towbin and not the Anatomical Defendants. Fortieth: The Anatomical Defendants demand judgment for the amount of any judgment ag st the Anatomical I?efendants in full, based upon common-law indemnity, plus the costs, disbursements end leg~i fees incurred in the action. AS AND FOR A SECOND CROSS CLAIM FQR CONTRIBUTION AGAINST THE CQ-DEFENDANTS JUHN BENTS, ROSS RIVIERE AND NANCY TOWBIN Forty-first: If the plaintiffs recover against the Anatomical Defendants it will be by virtue of the acts, omissions and breaches of the defendants, John Benis, Ross Riviere and Nancy Tt~wbin, and not the Anatomical Defendants for which the Anatomical Defendants demand judgment for coxrtribution according to the resp~cctive degrees of fault and/or liability as det~rrnined and adjudicated at trial. 7 7 of 9
AS AND FOR A COUNTERCLAIM AGAINST PLAINTIFF MATT W~~MSATT, THE ANATOMICAL DEFENDANTS ALLEGE UPQN Il~F~ TION AND BELIEF Forty-second: At all times hereinafter relevant, and at a time when Plaintiff Wimsatt had access to the visual library of the VisualMD, he wrongfully took substantial portions thereof and converted ahem to his own use. Forty-third: Plaintiff Wimsatt misrepresented to third. parties that he was the creator of the VisualA~D library. Forty-fourth: At no time did Plaintiff Wimsatt advise any of the Anatomical I~fendants that he had t~kken said imagery and used it for his own personal benefit without obtaining any required permission to do so. Forty-fifth: Upon information and belief, Plaintiff VVimsatt used the visualization to seek new jobs and positions far himself representing that the visualization was the result of his efforts. Forty-sixth: As a result of the foregoing, the individual Defendants have been damaged in a surn as yet uncertain, bt~t to be determined at trial. Dated: Uniondale, New York July 27, 2016 RUSKIN MOSCOU FALTISCHEK, P.7C. 1425 Plaza East ower, 15th Floor Uniondale, Nevv York 11556 Telephone: (516) 663-6576 Facsimile: (516) 663-6776 Email: dcooper~a rmfpc.com Attorney far Defendants for Anatomical Travelogue, LLC d1b/a TheVisualMD, Anatomical Travelogue, Inc., and Alexander Tsiaras 8 8 of 9
TO: Andrea M. Paparella, Esq. Siobhan Klassen, Esq, At~arneys for Pdainti, f,~s Law Office of Andrea Papazella, PLLC 150 West 28~' Street, Suite 1603 New York, Ne~v York 10001-5304 ShFui Claire Lewis, Esq. Deborah M. Isaacson, Esq. Attorneys far Defendants JOHN BENIS 1ROSS RIYIERE ~111~D NANCY TOWBIN Rivkin Radler LLP 926 RXR Plaza Uniondale, New York 11556-4926 9 of 9