2-11-2013 NYCDCC Benefit Funds v. O'Dwyer & Bernstien: ANSWER

FILED: KINGS COUNTY CLERK 02/11/2013 INDEX NO. 500098/2013

NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 02/11/2013

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KlNGS

~~--~~---------------------------X TRUSTEES OF THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS PENSION FUND, TRUSTEES OF THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS WELFARE FUND, TRUSTEES OF THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS ANNUITY FUND, AND TRUSTEES OF THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS APPRENTICESHIP, JOURNEYMAN RETRAINING, EDUCATIONAL AND INDUSTRY FUND,

Plaintiffs, -against-

O'DWYER & BERNSTIEN, LLP, BRIAN O'DWYER,

Index No.: 500098/13

ANSWER

GARY SILVERMAN,AND __ GARYRQTHMA.N,________________________ ____ _ __

Defendants. ___________________________________ X

Defendants, O'DWYER & BERNSTIEN, LLP ("ODB"), BRIAN O'DWYER,

GARY SILVERMAN, AND GARY ROTHMAN, by their attorneys, WHITE FLEISCHNER

& FINO, LLP, as and for their Answer to the Plaintiffs' Complaint, respectfully allege:

I. Denies each and every allegation set forth in paragraphs numbered "I".

2. Denies knowledge and information sufficient to form a belief as to those

allegations set forth in paragraphs numbered "2".

3. Denies each and every allegation set forth in paragraph numbered "4" except

admits Defendant Brian O'Dwyer ("O'Dwyer") is, and at all relevant time was, an attorney

admitted to the practice oflaw in the State of New York. O'Dwyer is a partner in ODB.


admits Defendant Gary Silverman ("Silverman") is, and at all relevant time was, an attorney

admitted to the practice of law in the State of New York. Silverman is a non-equity partner in

ODB.


admits Defendant Gary Rothman ("Rothman") is, an attorney admitted to the practice oflaw in

the State ofN ew York.




admits that the Funds engaged ODB to perform certain legal services.

8. Denies each and every allegation set forth in paragraphs numbered "9", "1 0,

"11", "12", "13", "14" and ''15".

AS AND FOR A FIRST CLAIM FOR RELIEF

9. Defendants O'DWYER & BERNSTIEN, LLP, BRIAN O'DWYER, GARY

SILVERMAN, AND GARY ROTHMAN repeat and reiterate each and every denial heretofore

made in this answer to the paragraphs of the complaint designated "1" through "15" inclusive,

with the same force and effect as if set forth here more particularly at length, all in response to

the paragraph of the complaint designated "16".

10. Denies each and every allegation set forth in paragraph numbered "17'' except

admits that an arbitration hearing was scheduled for September 2009 and there was discussion

regarding a potential settlement.

11. Denies each and every allegation set forth in paragraphs numbered "18".

12. Denies each and every allegation set forth in paragraphs numbered "19", "20",

"21", "22", "23", "24", "25", "26", and "27" and refer to the documents referenced therein for

the contents thereof.


"31 ", and "32".


admits that the fully executed agreement was sent to Shirin's counsel.

AS AND FOR A SECOND CLAIM FOR RELIEF

15. Defendants O'DWYER & BERNSTlEN, LLP, BRIAN O'DWYER, GARY

SIL YERMAN, AND GARY ROTHMAN repeat and reiterate each and every denial heretofore




16. Denies each and every allegation set forth in paragraphs numbered "34" and

refers to the arbitration award for the contents thereof.


"37", "39", "40", and "41".


leaves all matters oflaw to the Honorable Court.

AS AND FOR A THIRD CLAIM FOR RELIEF









"46", 47", "48", "50", and "51".


leaves all matters of law to the Honorable Court.

AS AND FOR A FOURTH CLAIM FOR RELIEF









"56", "58", and "59".



AS AND FOR A FIFTH CLAIM FOR RELIEF









"64", "66", "67", and "68".



AS AND FOR A SIXTH CLAIM FOR RELIEF



made in this answer to the paragraphs of the complaint designated "I" through "68" inclusive,





33. Denies each and every allegation set forth in paragraphs numbered "71 ", "72",

"73", "74", "76", "77", and "78".

34. Denies each and every allegation set forth in paragraphs numbered "7 5" and


AS AND FOR A SEVENTH CLAIM FOR RELIEF







refers to payment plan agreements for the contents thereof.


refers to payment plan agreements for the contents thereof


"84", "86", "87", and "88".



AS AND FOR AN EIGHTH CLAIM FOR RELIEF







refers to the payment plan agreement for the contents thereof.


admits that the judgment was referred to D&B Receivable Management Services, Inc. for

collection.


"94", and "96".



AS AND FOR A NINTH CLAIM FOR RELIEF







refers to the audit report for the contents thereof.

4 7. Denies each and every allegation set forth in paragraphs numbered "99" and




49. Denies each and every allegation set forth in paragraphs numbered "101",

"102", "103", and "105".


allegations set forth in paragraphs numbered "1 04".

AS AND FOR A TENTH CLAIM FOR RELIEF



made in this answer to the paragraphs of the complaint designated "1" through "1 05" inclusive,


the paragraph of the complaint designated "1 06".




"109", "110", and "112".



AS AND FOR AN ELEVENTH CLAIM FOR RELIEF











Hll7", H118", and "119".

AS AND FOR A TWELFTH CLAIM FOR RELIEF









refers to the audit report for the contents thereof





64. Denies each and every allegation set forth in paragraphs numbered 125", "126",

"127", "128", "129", "130", and "131 ".

AS AND FOR A THIRTEENTH CLAIM FOR RELIEF









"136", "138", and "139".




leaves all matters oflaw to the Honorable Conrt.

AS AND FOR A FOURTEENTH CLAIM FOR RELIEF










73. Denies each and every allegation set forth in paragraphs numbered "143"

except admit that there were discussions regarding the audit with Klepp and its counsel.


"145", and "146" and refers to the audit reports referenced therein for the contents thereof.


"149", "150", "151 ",and "152''.



AS AND FOR A FIFTEENTH CLAIM FOR RELIEF









"157'', "158", "159", and "160".



AS AND FOR A SIXTEENTH CLAIM FOR RELIEF



made in this answer to the paragraphs ofthe complaint designated "1" through "160" inclusive,




refers to the audit report and court documents for the contents thereof.


"164".



AS AND FOR A SEVENTEENTH CLAIM FOR RELIEF







admits that ODB filed on behalf of the Funds an action against Quantum Contracting Corp.

d/b/a Quantum Construction ("Quantum").


refers to the Magistrate's report for the contents thereof.


refers to Judge's Decision for the contents thereof.


refers to the judgment for the contents thereof.

90. Denies each and every allegation set forth in paragraphs numbered "171 ",

"172", "173", "174", and "175".

AS AND FOR AN EIGHTEENTH CLAIM FOR RELIEF







refers to the entered judgment for the contents thereof.


"179", "180", "181", and "182".

AS AND FOR A NINTEENTH CLAIM FOR RELIEF









''186", "187'', "188", "189", "190", ''191", and "192".

AS AND FOR A TWENTIETH CLAIM FOR RELIEF







"195", "196", "197", and "198".

AS AND FOR A TWENTY -FIRST CLAIM FOR RELIEF







"201 ", "202", "203", and "204".

AS AND FOR A TWENTY -SECOND CLAIM FOR RELIEF







"207", "208", "209", and "210".

AS AND FOR A TWENTY-THIRD CLAIM FOR RELIEF



made in this answer to the paragraphs ofthe complaint designated "1" through "210" inclusive,




''213", "214", "215", "216", ''217", and "218".

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

105. Any damages sustained by the Plaintiffs were caused by the culpable conduct of

the Plaintiffs, including contributory negligence, assumption of risks, breach of contract and

not by the culpable conduct or negligence of this answering defendant. But if a verdict of

judgment is awarded to the Plaintiffs, then, and in that event, the damages shall be reduced in

the proportion which the culpable conduct attributable to the Plaintiffs bears to the culpable

conduct which caused the damages.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

106. That by entering into the activity in which the Plaintiffs were engaged at the

time of the occurrence set forth in the complaint, Plaintiffs knew the hazards and inherent risks

and had full knowledge of the dangers of such activity, that whatever injuries and damages

were sustained by the Plaintiffs as alleged in the complaint arose from and were caused by

reason of such risks voluntarily undertaken by the Plaintiffs, and such risks were assumed and

accepted by Plaintiffs in performing and engaging in such activities.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

107. Plaintiffs failed to mitigate damages.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

108. The Complaint fails to state a claim upon which relief can be granted.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

109. A defense is founded upon documentary evidence.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

110. That the lawsuit herein was not commenced by the Plaintiffs within the time

prescribed by law, and the Plaintiffs, therefore, are barred from maintaining this action and

recovery.

AS AND FORA SEVENTH AFFIRMATIVE DEFENSE

111. Any injury sustained by Plaintiffs resulted from the fault of third-parties over

whom Defendants were not obligated to exercise any control or supervision. In the event

Defendants are held liable for any injury sustained by Plaintiffs, Defendants will be entitled

to a reduction in the amount of any verdict against them in proportion to the degree of fault

borne by third-parties.

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE

112. Plaintiffs' claims are barred, either in whole or in part, under the doctrines of

res judicata and/or collateral estoppel.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE

113. Each and every claim alleged herein is barred because there is not sufficient

privity between the Plaintiffs and Defendants and/or due to lack of standing.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE

114. Plaintiffs' claims are barred or limited by the equitable doctrine of waiver,

laches, and/or estoppel.

AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE

115. Plaintiffs have commenced various separate actions against many of the

employers and/or entities referenced in the Complaint and any recovery obtained by Plaintiffs

through these actions serves to mitigate Plaintiffs' alleged damages and also constitutes an

offset in favor of Defendants.

AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE

116. Defendants are not the legal or proximate cause of any losses or damages

sustained or to be incurred by Plaintiffs.

AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE

117. That the Plaintiffs could with due diligence have obtained personal jurisdiction

over tortfeasors not made parties to this lawsuit and thus the culpability of such missing or

absent tortfeasors is to be apportioned into the total culpability allegedly causing the subject

occurrence.

AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE

118. Plaintiffs' claims are barred as Plaintiffs and/or Plaintiffs' successor counsel

maintained sufficient opportunity to take any necessary action to cure the purported

deficiencies alleged in the Complaint.

AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE

119. Plaintiffs' claims are barred due to the intervening and superceding failures of

Plaintiffs and/or Plaintiffs' successor counsel to take any necessary action to cure the

purported deficiencies alleged in the Complaint.

AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE

120. Plaintiffs' claims are barred under the doctrines of absolute immunity, quasi

judicial immunity, and/or qualified immunity.

AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE

121. The Complaint fails to state a claim or allege any facts to support a claim for

individual liability against individual Defendants Brian O'Dwyer, Gary Silverman, or Gary

Rothman.

AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE

122. Plaintiffs' claims are barred due to Plaintiffs' bad faith and unclean hands in

this matter.

AS AND FOR A NINTEENTH AFFIRMATIVE DEFENSE

123. Plaintiffs' claims are barred as the claims allege purported acts or omissions of

the District Council's Anti-Corruption Committee and not the acts or omissions of the

Defendants.

AS AND FORA TWENTIETH AFFIRMATIVE DEFENSE

124. Plaintiffs' claims are barred to the extent that the claims relate to events

occurring after Defendants were no longer performing any legal services for Plaintiffs.

AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE

125. Plaintiffs' claims relating to the purported failure to obtain enforceable

affidavits of confession of judgment are barred as Plaintiffs and Plaintiffs' successor counsel

have both failed to commence an Article 78 proceeding and/or failed to take any other

necessary steps in order to compel the Court Clerk to accept the affidavits of confession of

judgment that Plaintiffs currently maintain in their possession.

AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE

126. Plaintiffs' claims are barred as Defendants were acting at all relevant times

under the authority and capacity of the Court-appointed Independent Review Officer.

AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE

127. Defendants not being fully advised as to all the facts and circumstances

surrounding the incident complained of, hereby assert and reserve unto themselves the defenses

of accord and satisfaction, arbitration and award, assumption of risk, contributory negligence,

discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by

fellow servant, laches, license, payment, release, statute of frauds, waiver, and any other matter

constituting an avoidance or affirmative defense which the further investigation of this matter

may prove applicable herein.

WHEREFORE, Defendants, O'DWYER & BERNSTIEN, LLP, BRIAN O'DWYER,

GARY SILVERMAN, AND GARY ROTHMAN demand judgment dismissing the complaint

herein together with the costs and disbursements of this action.

Dated: New York, New York February 11, 2013

Yours, etc.,

WHITE FLEISCHNER & FINO, LLP

By: C r:ti PAUL A. FINO, JR. EVAN A. RICHMAN

Attorneys for Defendants O'DWYER & BERNSTIEN, LLP, BRIAN O'DWYER, GARY SILVERMAN, AND GARY ROTHMAN 61 Broadway- 18th Floor New York, New York 10006 (212) 487-9700 Our File No.: 352-16089

STATEOFNEWYORK) COUNTY OF NEW YORK) ss:

Fejzije Avdiu, being duly sworn, deposes and says:

That I am not a party to the within action, am over 18 years of age and reside in Staten Island, New York.

That on February 11, 2013, deponent served the within ANSWER upon the attorneys and parties listed below by United States prepaid mail by placing same in a mailbox in the State ofNewYork:

TO:

Raymond G. McGuire Elizabeth O'Leary KAUFF McGUIRE & MARGOLIS LLP (Attorneys for Plaintiffs) 950 Third Avenue, 14'h Floor New York, New York 10022 212-644-1010

and

Charles R. Virginia Marc A. Tenenbaum VIRGINIA & AMBlNDER, LLP (Attorneys for Plaintiffs) 111 Broadway, Suite 1403 New York, New York 10006 212-943-9080

Sworn to before me this 11th day of February, 2013

FADILE MEHMETI NOTARY PUBLIC. STATE Of NEW YOR'

Reg.tslraiJtm No. hiHOWP K . ~lilicd in New York·

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2-11-2013 NYCDCC Benefit Funds v. O'Dwyer & Bernstien: ANSWER

Documents

denial heretofore made

gary sil yerman

gary sil yerman

payment plan agreements

gary rothman repeat

white fleischner

purported deficiencies alleged

gary rothman