Preview
FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/29/2020
EXHIBIT B
FILED: NEW YORK COUNTY CLERK 01/28/2019
06/29/2020 04:47
06:30 PM INDEX NO. 160513/2018
NYSCEF DOC. NO. 5
49 RECEIVED NYSCEF: 01/28/2019
06/29/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LANGE CAMPBELL, individually and on behalf of all
other persons similarly situated, Index No.: 160513/2018
Plaintiffs, ANSWER
-against-
NEW YORK BOILER, INC., RICHARD BERGER and
DONALD BERGER,
Defendants.
Defendants New York Boiler, Inc. (“NY Boiler”), Richard Berger and Donald Berger
(collectively “Defendants”), by and through their attorneys, Lazare Potter Giacovas & Moyle
LLP, hereby answer Plaintiff Lange Campbell’s (“Plaintiff”) Complaint as follows:
1. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 1 of the Complaint.
2. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 2 of the Complaint.
3. Deny knowledge or information sufficient to form a belief as to Plaintiff’s
residence, admit that Plaintiff was employed by New York Boiler for a period of time and deny
the remaining allegations contained in paragraph 3 of the Complaint.
4. Admit that Defendant NY Boiler is a New York corporation with its principal
place of business at 5885 Preston Court, Brooklyn, New York 11234 and deny the remaining
allegations contained in paragraph 4 of the Complaint.
5. Admit that Defendant Richard Berger is NY Boiler’s president, performs
management functions for NY Boiler and had the authority to hire and terminate NY Boiler
employees, and deny the remaining allegations contained in paragraph 5 of the Complaint.
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6. Admit that Defendant Donald Berger is an officer, director or shareholder of NY
Boiler, performs management functions for NY Boiler, and had the authority to hire and
terminate NY Boiler employees, and deny the remaining allegations contained in paragraph 6 of
the Complaint.
7. Deny the allegations contained in paragraph 7 of the Complaint.
8. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations related to the nature of the action brought on behalf of the Named Plaintiff and the
purported members of a putative class and deny the remaining allegations contained in paragraph
8 of the Complaint.
9. Deny the allegations contained in paragraph 9 of the Complaint.
10. Deny the allegations contained in paragraph 10 of the Complaint.
11. Deny the allegations contained in paragraph 11 of the Complaint.
12. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations related to the experience of retained Counsel and deny the remaining allegations
contained in paragraph 12 of the Complaint.
13. Deny the allegations contained in paragraph 13 of the Complaint.
14. Admit that Defendant NY Boiler has entered into contracts with the NYCHA to
perform work at various public housing locations, deny knowledge or information sufficient to
identify the specific contracts referenced in this paragraph, and deny the remaining allegations
contained in paragraph 14 of the Complaint.
15. Deny knowledge and information sufficient to identify the specific contracts
referenced in the Complaint, respectfully refer the Court to the applicable contracts for the terms
thereof and deny the remaining allegations contained in paragraph 15 of the Complaint.
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16. Deny knowledge and information sufficient to identify the specific contracts
referenced in the Complaint, respectfully refer the Court to the applicable contracts for the terms
thereof and deny the remaining allegations contained in paragraph 16 of the Complaint.
17. Deny the allegations contained in paragraph 17 of the Complaint.
18. Deny the allegations contained in paragraph 18 of the Complaint.
19. Deny the allegations contained in paragraph 19 of the Complaint.
AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION
20. In response to paragraph 20 of the Complaint, Defendants repeat and reiterate
each and every response to paragraphs 1 through 19 of the Complaint as if fully set forth herein.
21. Deny knowledge and information sufficient to identify the specific contracts
referenced in the Complaint, respectfully refer the Court to the applicable contracts for the terms
thereof and deny the remaining allegations contained in paragraph 21 of the Complaint.
22. Deny knowledge and information sufficient to identify the specific contracts
referenced in the Complaint, respectfully refer the Court to the applicable contracts for the terms
thereof and deny the remaining allegations contained in paragraph 22 of the Complaint.
23. Deny knowledge and information sufficient to identify the specific contracts
referenced in the Complaint and deny the remaining allegations contained in paragraph 23 of the
Complaint.
24. Deny knowledge and information sufficient to identify the specific contracts
referenced in the Complaint and deny the remaining allegations contained in paragraph 24 of the
Complaint.
AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION
25. In response to paragraph 25 of the Complaint, Defendants repeat and reiterate
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each and every response to paragraphs 1 through 24 of the Complaint as if fully set forth herein.
26. Deny the allegations contained in paragraph 26 of the Complaint.
27. Denies the allegations contained in paragraph 27 of the Complaint.
AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION
28. In response to paragraph 28 of the Complaint, Defendants repeat and reiterate
each and every response to paragraphs 1 through 27 of the Complaint as if fully set forth herein.
29. Denies the allegations contained in paragraph 29 of the Complaint.
30. Denies the allegations contained in paragraph 30 of the Complaint.
31. Denies the allegations contained in paragraph 31 of the Complaint.
ADDITIONAL AVERMENTS
32. Defendants deny all claims and allegations not unequivocally admitted herein.
33. Defendants assert the following affirmative and other defenses without assuming
the burden of proof where the law does not impose such burden. The following defenses may
also apply to claims of some or all of the allegedly similarly-situated persons.
AS AND FOR A FIRST DEFENSE
34. The Complaint fails to state a cause of action upon which relief may be granted.
AS AND FOR A SECOND DEFENSE
35. No private right of action exists for some or all of the claims asserted within the
Complaint.
AS AND FOR A THIRD DEFENSE
36. Plaintiff has failed to exhaust his administrative remedies under the applicable
statutes.
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AS AND FOR A FOURTH DEFENSE
37. NY Boiler’s wage and hour practices complied with the Davis Bacon and related
acts, New York Labor Law and relevant contracts.
AS AND FOR A FIFTH DEFENSE
38. Plaintiff’s rights are subject to the terms of the contract to which he claims he is a
third-party beneficiary and Plaintiff’s breach of contract claim is limited to the amount
determined by the contracting parties.
AS AND FOR A SIXTH DEFENSE
39. Plaintiff has been properly paid in accordance with the requirements of the Davis
Bacon and related acts, New York State Labor Law and the relevant contracts.
AS AND FOR A SEVENTH DEFENSE
40. Plaintiff is not an intended third-party beneficiary under the applicable NY Boiler
contracts.
AS AND FOR AN EIGHTH DEFENSE
41. Plaintiff lacks standing to assert any claims relating to one or more of the “Public
Works Projects” identified in the Complaint.
AS AND FOR A NINTH DEFENSE
42. Plaintiff’s claims are predicated on erroneous work classifications.
AS AND FOR A TENTH DEFENSE
43. Plaintiff’s claims are barred in whole, or in part, by the doctrines of accord and
satisfaction, unclean hands and laches.
AS AND FOR AN ELEVENTH DEFENSE
44. Plaintiff’s claims are barred to the extent Plaintiff failed to mitigate the damages
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alleged in the Complaint.
AS AND FOR A TWELFTH DEFENSE
45. Plaintiff cannot meet all the requisite elements for a class action under CPLR
901(a).
AS AND FOR A THIRTEENTH DEFENSE
46. The action is not appropriate for class certification because Plaintiff is not able to
fairly and adequately protect the interest of all members of the putative class.
AS AND FOR A FOURTEENTH DEFENSE
47. By proceeding as a class, Plaintiff and members of the purported class waive their
right to recover liquidated damages under New York Labor Law.
AS AND FOR A FIFTEENTH DEFENSE
48. Plaintiff’s causes of action must be dismissed because Plaintiff has failed to
comply with statutory and/or contractual conditions precedent to bring this action
AS AND FOR A SIXTEENTH DEFENSE
49. Defendants acted in good faith with respect to the calculation, reporting and
payment of wages.
AS AND FOR A SEVENTEENTH DEFENSE
50. Plaintiff’s claims are barred or should be reduced, in whole or in part, by
exclusions, exceptions, credits, recoupments, or offsets permissible under New York Labor Law.
AS AND FOR AN EIGHTEENTH DEFENSE
51. To the extent that the period of time alleged in Plaintiff’s Complaint predates the
applicable limitations period, Plaintiff’s claims are barred in whole or in part by the statutes of
limitations and frauds.
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FILED: NEW YORK COUNTY CLERK 01/28/2019
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49 RECEIVED NYSCEF: 01/28/2019
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****
52. Defendants reserve the right to assert additional defenses or claims that may
become known during the course of discovery or otherwise.
Dated: New York, New York
January 28, 2019
LAZARE POTTER GIACOVAS
& MOYLE LLP
By: s/David E. Potter
David E. Potter
747 Third Avenue, 16th Floor
New York, New York 10022
(212) 758-9300
dpotter@lpgmlaw.com
Attorneys for Defendants
To: Lloyd Ambinder, Esq.
Virginia & Ambinder, LLP
40 Broad Street, 7th Fl.
New York, New York 10004
(212) 943-9080
lambinder@vandallp.com
Attorneys for Plaintiff
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Preview
FILED: NEW YORK COUNTY CLERK 06/29/2020 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/29/2020 EXHIBIT B FILED: NEW YORK COUNTY CLERK 01/28/2019 06/29/2020 04:47 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 5 49 RECEIVED NYSCEF: 01/28/2019 06/29/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LANGE CAMPBELL, individually and on behalf of all other persons similarly situated, Index No.: 160513/2018 Plaintiffs, ANSWER -against- NEW YORK BOILER, INC., RICHARD BERGER and DONALD BERGER, Defendants. Defendants New York Boiler, Inc. (“NY Boiler”), Richard Berger and Donald Berger (collectively “Defendants”), by and through their attorneys, Lazare Potter Giacovas & Moyle LLP, hereby answer Plaintiff Lange Campbell’s (“Plaintiff”) Complaint as follows: 1. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 of the Complaint. 2. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the Complaint. 3. Deny knowledge or information sufficient to form a belief as to Plaintiff’s residence, admit that Plaintiff was employed by New York Boiler for a period of time and deny the remaining allegations contained in paragraph 3 of the Complaint. 4. Admit that Defendant NY Boiler is a New York corporation with its principal place of business at 5885 Preston Court, Brooklyn, New York 11234 and deny the remaining allegations contained in paragraph 4 of the Complaint. 5. Admit that Defendant Richard Berger is NY Boiler’s president, performs management functions for NY Boiler and had the authority to hire and terminate NY Boiler employees, and deny the remaining allegations contained in paragraph 5 of the Complaint. 1 1 of 7 FILED: NEW YORK COUNTY CLERK 01/28/2019 06/29/2020 04:47 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 5 49 RECEIVED NYSCEF: 01/28/2019 06/29/2020 6. Admit that Defendant Donald Berger is an officer, director or shareholder of NY Boiler, performs management functions for NY Boiler, and had the authority to hire and terminate NY Boiler employees, and deny the remaining allegations contained in paragraph 6 of the Complaint. 7. Deny the allegations contained in paragraph 7 of the Complaint. 8. Deny knowledge or information sufficient to form a belief as to the truth of the allegations related to the nature of the action brought on behalf of the Named Plaintiff and the purported members of a putative class and deny the remaining allegations contained in paragraph 8 of the Complaint. 9. Deny the allegations contained in paragraph 9 of the Complaint. 10. Deny the allegations contained in paragraph 10 of the Complaint. 11. Deny the allegations contained in paragraph 11 of the Complaint. 12. Deny knowledge or information sufficient to form a belief as to the truth of the allegations related to the experience of retained Counsel and deny the remaining allegations contained in paragraph 12 of the Complaint. 13. Deny the allegations contained in paragraph 13 of the Complaint. 14. Admit that Defendant NY Boiler has entered into contracts with the NYCHA to perform work at various public housing locations, deny knowledge or information sufficient to identify the specific contracts referenced in this paragraph, and deny the remaining allegations contained in paragraph 14 of the Complaint. 15. Deny knowledge and information sufficient to identify the specific contracts referenced in the Complaint, respectfully refer the Court to the applicable contracts for the terms thereof and deny the remaining allegations contained in paragraph 15 of the Complaint. 2 2 of 7 FILED: NEW YORK COUNTY CLERK 01/28/2019 06/29/2020 04:47 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 5 49 RECEIVED NYSCEF: 01/28/2019 06/29/2020 16. Deny knowledge and information sufficient to identify the specific contracts referenced in the Complaint, respectfully refer the Court to the applicable contracts for the terms thereof and deny the remaining allegations contained in paragraph 16 of the Complaint. 17. Deny the allegations contained in paragraph 17 of the Complaint. 18. Deny the allegations contained in paragraph 18 of the Complaint. 19. Deny the allegations contained in paragraph 19 of the Complaint. AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION 20. In response to paragraph 20 of the Complaint, Defendants repeat and reiterate each and every response to paragraphs 1 through 19 of the Complaint as if fully set forth herein. 21. Deny knowledge and information sufficient to identify the specific contracts referenced in the Complaint, respectfully refer the Court to the applicable contracts for the terms thereof and deny the remaining allegations contained in paragraph 21 of the Complaint. 22. Deny knowledge and information sufficient to identify the specific contracts referenced in the Complaint, respectfully refer the Court to the applicable contracts for the terms thereof and deny the remaining allegations contained in paragraph 22 of the Complaint. 23. Deny knowledge and information sufficient to identify the specific contracts referenced in the Complaint and deny the remaining allegations contained in paragraph 23 of the Complaint. 24. Deny knowledge and information sufficient to identify the specific contracts referenced in the Complaint and deny the remaining allegations contained in paragraph 24 of the Complaint. AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION 25. In response to paragraph 25 of the Complaint, Defendants repeat and reiterate 3 3 of 7 FILED: NEW YORK COUNTY CLERK 01/28/2019 06/29/2020 04:47 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 5 49 RECEIVED NYSCEF: 01/28/2019 06/29/2020 each and every response to paragraphs 1 through 24 of the Complaint as if fully set forth herein. 26. Deny the allegations contained in paragraph 26 of the Complaint. 27. Denies the allegations contained in paragraph 27 of the Complaint. AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION 28. In response to paragraph 28 of the Complaint, Defendants repeat and reiterate each and every response to paragraphs 1 through 27 of the Complaint as if fully set forth herein. 29. Denies the allegations contained in paragraph 29 of the Complaint. 30. Denies the allegations contained in paragraph 30 of the Complaint. 31. Denies the allegations contained in paragraph 31 of the Complaint. ADDITIONAL AVERMENTS 32. Defendants deny all claims and allegations not unequivocally admitted herein. 33. Defendants assert the following affirmative and other defenses without assuming the burden of proof where the law does not impose such burden. The following defenses may also apply to claims of some or all of the allegedly similarly-situated persons. AS AND FOR A FIRST DEFENSE 34. The Complaint fails to state a cause of action upon which relief may be granted. AS AND FOR A SECOND DEFENSE 35. No private right of action exists for some or all of the claims asserted within the Complaint. AS AND FOR A THIRD DEFENSE 36. Plaintiff has failed to exhaust his administrative remedies under the applicable statutes. 4 4 of 7 FILED: NEW YORK COUNTY CLERK 01/28/2019 06/29/2020 04:47 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 5 49 RECEIVED NYSCEF: 01/28/2019 06/29/2020 AS AND FOR A FOURTH DEFENSE 37. NY Boiler’s wage and hour practices complied with the Davis Bacon and related acts, New York Labor Law and relevant contracts. AS AND FOR A FIFTH DEFENSE 38. Plaintiff’s rights are subject to the terms of the contract to which he claims he is a third-party beneficiary and Plaintiff’s breach of contract claim is limited to the amount determined by the contracting parties. AS AND FOR A SIXTH DEFENSE 39. Plaintiff has been properly paid in accordance with the requirements of the Davis Bacon and related acts, New York State Labor Law and the relevant contracts. AS AND FOR A SEVENTH DEFENSE 40. Plaintiff is not an intended third-party beneficiary under the applicable NY Boiler contracts. AS AND FOR AN EIGHTH DEFENSE 41. Plaintiff lacks standing to assert any claims relating to one or more of the “Public Works Projects” identified in the Complaint. AS AND FOR A NINTH DEFENSE 42. Plaintiff’s claims are predicated on erroneous work classifications. AS AND FOR A TENTH DEFENSE 43. Plaintiff’s claims are barred in whole, or in part, by the doctrines of accord and satisfaction, unclean hands and laches. AS AND FOR AN ELEVENTH DEFENSE 44. Plaintiff’s claims are barred to the extent Plaintiff failed to mitigate the damages 5 5 of 7 FILED: NEW YORK COUNTY CLERK 01/28/2019 06/29/2020 04:47 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 5 49 RECEIVED NYSCEF: 01/28/2019 06/29/2020 alleged in the Complaint. AS AND FOR A TWELFTH DEFENSE 45. Plaintiff cannot meet all the requisite elements for a class action under CPLR 901(a). AS AND FOR A THIRTEENTH DEFENSE 46. The action is not appropriate for class certification because Plaintiff is not able to fairly and adequately protect the interest of all members of the putative class. AS AND FOR A FOURTEENTH DEFENSE 47. By proceeding as a class, Plaintiff and members of the purported class waive their right to recover liquidated damages under New York Labor Law. AS AND FOR A FIFTEENTH DEFENSE 48. Plaintiff’s causes of action must be dismissed because Plaintiff has failed to comply with statutory and/or contractual conditions precedent to bring this action AS AND FOR A SIXTEENTH DEFENSE 49. Defendants acted in good faith with respect to the calculation, reporting and payment of wages. AS AND FOR A SEVENTEENTH DEFENSE 50. Plaintiff’s claims are barred or should be reduced, in whole or in part, by exclusions, exceptions, credits, recoupments, or offsets permissible under New York Labor Law. AS AND FOR AN EIGHTEENTH DEFENSE 51. To the extent that the period of time alleged in Plaintiff’s Complaint predates the applicable limitations period, Plaintiff’s claims are barred in whole or in part by the statutes of limitations and frauds. 6 6 of 7 FILED: NEW YORK COUNTY CLERK 01/28/2019 06/29/2020 04:47 06:30 PM INDEX NO. 160513/2018 NYSCEF DOC. NO. 5 49 RECEIVED NYSCEF: 01/28/2019 06/29/2020 **** 52. Defendants reserve the right to assert additional defenses or claims that may become known during the course of discovery or otherwise. Dated: New York, New York January 28, 2019 LAZARE POTTER GIACOVAS & MOYLE LLP By: s/David E. Potter David E. Potter 747 Third Avenue, 16th Floor New York, New York 10022 (212) 758-9300 dpotter@lpgmlaw.com Attorneys for Defendants To: Lloyd Ambinder, Esq. Virginia & Ambinder, LLP 40 Broad Street, 7th Fl. New York, New York 10004 (212) 943-9080 lambinder@vandallp.com Attorneys for Plaintiff 7 7 of 7