Preview
FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------x
DARRYL NOWAK, Index No. 154000/2018
Plaintiff,
VERIFIED ANSWER TO
-against- COMPLAINT WITH
AFFIRMATIVE DEFENSES
SEA WOLF MARINE TRANSPORTATION, LLC
and WITTICH BROTHERS MARINE, INC.,
Defendants.
------------------------------------x
Defendants, SEA WOLF MARINE TRANSPORTATION, LLC and WITTICH
BROS. MARINE, INC. s/h/a WITTICH BROTHERS MARINE, INC.
(collectively "Answering Defendants"), by their attorneys Mahoney &
Keane, LLP, answer the Verified Complaint of plaintiff upon
information and belief as follows:
FIRST: Answering Defendants deny knowledge or information
sufficient to form a belief as to the allegations contained in
paragraphs "1", "9", "10", "11", "12", "13", "14", "15", "16", "17",
"32"
"18", "19", "20", and of plaintiff's Verified Complaint.
SECOND: Answering Defendants deny the allegations contained
"27"
in paragraphs "2", "3", "4", "5", "22", "23", "24", and of
plaintiff's Verified Complaint.
THIRD: Answering Defendants admit that WITTICH BROTHERS
MARINE, INC. was and still is a domestic corporation and otherwise
"6"
denies the allegation contained in paragraph of plaintiff's
Verified Complaint.
FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018
FOURTH: Answering Defendants admit the allegations contained
"31"
in paragraphs "7", "8", "25", "26", "28", "29", "30", and of
plaintiff's Verified Complaint.
FIFTH: Answering Defendants admit that WITTICH BROTHERS
MARINE, INC. was a domestic corporation and otherwise denies the
"21"
allegation contained in paragraph of plaintiff's Verified
Complaint
SIXTH: Answering Defendants repeat and reiterate each and
every response to plaintiff's Verified Complaint contained in
"FIRST" "EIGHTH" Defendants'
paragraphs through of Answering Answer
as if specifically set forth herein at length in answer to the
"33"
allegations contained in paragraph of plaintiff's Verified
Complaint.
SEVENTH: Answering Defendants deny knowledge or information
sufficient to form a belief as to the allegations contained in
"44" plaintiffs'
paragraphs "34", "35", "36", "43", and of Verified
Complaint.
EIGHTH: Answering Defendants deny the allegations contained
"42"
in paragraphs "37", "38", "39", "40", "41", and of plaintiff's
Verified Complaint.
2
FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018
AS AND FOR AN PLAINTIFF'
ANSWER TO S FIRST __CAUSE OF ACTION
NINTH: Answering Defendants repeat and reiterate each and
every response to plaintiff's Verified Complaint contained in
"FIRST" "SIXTH" Defendants'
paragraphs through of Answering Answer
as if specifically set forth herein at length in answer to the
"45"
allegations contained in paragraph of plaintiff's Verified
Complaint.
TENTH: Answering Defendants deny the allegations contained
"51"
in paragraphs "46", "47", "48", "49", "50", and of plaintiff's
Verified Complaint.
AS_AND FOR AN ANSWER TO PLAINTIFF'S SECOND CAUSE OF ACTION
ELEVENTH: Answering Defendants repeat and reiterate each and
every response to plaintiff's Verified Complaint contained in
"FIRST" "TENTH" Defendants'
paragraphs through of Answering Answer
as if specifically set forth herein at length in answer to the
"52"
allegations contained in paragraph of plaintiff's Verified
Complaint.
TWELFTH: Answering Defendants deny the allegations contained
"53" "54"
in paragraphs and of plaintiff's Verified Complaint.
3
FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018
FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018
FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018
AS AND FOR A FIFTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
TWENTY-FIRST: Plaintiff's injuries, if any were proximately
caused in whole or in part by the negligence and breach of warranties
of his employer and its employees. Since plaintiff received from
his employer and his employer's compensation carrier the benefit of
the Longshoremen and Harbor Workers Compensation Act, plaintiff's
recovery, if any, should be reduced or offset by a credit to
defendants in an appropriate percentage or amount.
AS AND FOR A SIXTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
TWENTY-SECOND: Plaintiff's injuries, if any, were proximately
caused in whole or in part by the negligence and breach of warranties
of his employer and its employees; plaintiff received from his
employer and his employer's compensation carrier the benefits of
the Longshoremen and Harbor Workers Compensation Act; plaintiff's
employer and his employer's compensation carrier should, because of
said negligence and breach of warranties, be denied recoupment or
reimbursement of all compensation previously paid and payable in
the future.
AS AND FOR A SEVENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
TWENTY-THIRD: If Answering Defendants and plaintiff's
employer are both found to have been negligent, Answering Defendants
should only be required to pay that proportion of the total damages
which match their proportion of fault.
6
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NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018
AS AND FOR AN EIGHTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
TWENTY-FOURTH: Upon information and belief, payment of
compensation to plaintiff commenced, plaintiff agreed to an award
or awards under the Longshoremen and Harbor Workers Compensation
Act and an award was entered more than six months prior to
commencement of this suit. By virtue of 33 U.S.C.A. § 933(b), "all
right"
of plaintiff against defendants was assigned to plaintiff's
employer, or its insurer, six months after plaintiff agreed to an
award or awards, or six months after an award was entered, and
plaintiff is therefore without standing to maintain this action.
AS AND FOR A NINTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
TWENTY-FIFTH: Upon information and belief, as a result of the
injuries alleged in this suit, plaintiff received compensation
benefits under the Longshoremen and Harbor Workers Compensation Act
from his employer or his employer's insurer and plaintiff is,
therefore, not the real party in interest in respect to that portion
of the total claim of damages which represents compensation already
paid or to be paid to him under any provisions of the said Act to
which his employer or his employer's insurer has thereby become
subrogated.
AS AND FOR A TENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
TWENTY-SIXTH: Plaintiff has failed to make proper service of
process upon defendant ATG.
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AS AND FOR A ELEVENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
TWENTY-SEVENTH: The Court lacks in personam jurisdiction over
Answering Defendants.
AS AND FOR A TWELFTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
TWENTY-EIGHTH: The Court lacks subject matter jurisdiction
over this action.
AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
TWENTY-NINTH: Answering Defendants will demand the benefit of
N.Y. Civ. Prac. L. & R. § 4545(c) with regard to collateral source
payments.
AS AND FOR A FOURTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
Defendants'
THIRTIETH: Answering liability for any
damages, which is specifically denied, amounts to 50% or less of
total liability and answering defendant's exposure for non-economic
loss must be limited to its percentage share pursuant to N.Y. Civ.
Prac. L. & R. § 1601.11
AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
THIRTY-FIRST: Venue before this court is improper, and the
action should be dismissed on forum non conveniens grounds.
AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
THIRTY-SECOND: Plaintiff's action is time barred pursuant to
the applicable statute of limitations.
8
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NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018
AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE
THIRTY-THIRD: This Answer is made without waiver of any
jurisdictional defenses or rights to arbitrate that may exist
between the parties.
WHEREFORE, Answering Defendants demand judgment dismissing the
Verified Complaint herein and awarding to Answering Defendants
attorneys'
costs, fees, including reasonable fees and disbursements
of this action, and granting to Answering Defendants such other and
further relief as the Court may deem just and proper.
Dated: New York, New York
May 21, 2018
Yours, et cetera,
MAHONEY & KEANE, LLP
Attorneys for Defendants
SEA WOLF MARINE TRANSPORTATION,
LLC and WITTICH BROS. MARINE,
INC. s/h/a WITTICH BROTHERS
MARINE,
By:
Edward A. Keane
Garth S. Wolfson
61 Broadway, Suite 905
New York, New York 10005
(212) 385-1422
9
FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018
VERIFICATION
STATE OF NEW YORK :
) SS.:
COUNTY OF NEW YORK :
Garth S. Wolfson, an attorney-at-law duly admitted to practice
before the courts of the State of New York, hereby affirms, upon
information and belief and under penalty of perjury, as follows:
I am a partner with the firm of Mahoney & Keane, LLP, attorneys
for Defendants SEA WOLF MARINE TRANSPORTATION, LLC and WITTICH BROS.
MARINE, INC. s/h/a WITTICH BROTHERS MARINE, INC.
I have read the foregoing Verified Answer and know the contents
thereof to be true except as to matters therein stated to be alleged
upon information and belief, and as to those matters your affirmant
believes them to be true.
The reason this verification is made by your affirmant and not
by Defendants is that Defendants are not within this County.
The source of your affirmant's information and the grounds of
your affirmant's belief are documents and records in your
affrimant's possession and reports and communications obtained by
your affirmant.
Dated: New York, New York
May 21, 2018
Garth S. Wolfson
10
Preview
FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------x DARRYL NOWAK, Index No. 154000/2018 Plaintiff, VERIFIED ANSWER TO -against- COMPLAINT WITH AFFIRMATIVE DEFENSES SEA WOLF MARINE TRANSPORTATION, LLC and WITTICH BROTHERS MARINE, INC., Defendants. ------------------------------------x Defendants, SEA WOLF MARINE TRANSPORTATION, LLC and WITTICH BROS. MARINE, INC. s/h/a WITTICH BROTHERS MARINE, INC. (collectively "Answering Defendants"), by their attorneys Mahoney & Keane, LLP, answer the Verified Complaint of plaintiff upon information and belief as follows: FIRST: Answering Defendants deny knowledge or information sufficient to form a belief as to the allegations contained in paragraphs "1", "9", "10", "11", "12", "13", "14", "15", "16", "17", "32" "18", "19", "20", and of plaintiff's Verified Complaint. SECOND: Answering Defendants deny the allegations contained "27" in paragraphs "2", "3", "4", "5", "22", "23", "24", and of plaintiff's Verified Complaint. THIRD: Answering Defendants admit that WITTICH BROTHERS MARINE, INC. was and still is a domestic corporation and otherwise "6" denies the allegation contained in paragraph of plaintiff's Verified Complaint. FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018 FOURTH: Answering Defendants admit the allegations contained "31" in paragraphs "7", "8", "25", "26", "28", "29", "30", and of plaintiff's Verified Complaint. FIFTH: Answering Defendants admit that WITTICH BROTHERS MARINE, INC. was a domestic corporation and otherwise denies the "21" allegation contained in paragraph of plaintiff's Verified Complaint SIXTH: Answering Defendants repeat and reiterate each and every response to plaintiff's Verified Complaint contained in "FIRST" "EIGHTH" Defendants' paragraphs through of Answering Answer as if specifically set forth herein at length in answer to the "33" allegations contained in paragraph of plaintiff's Verified Complaint. SEVENTH: Answering Defendants deny knowledge or information sufficient to form a belief as to the allegations contained in "44" plaintiffs' paragraphs "34", "35", "36", "43", and of Verified Complaint. EIGHTH: Answering Defendants deny the allegations contained "42" in paragraphs "37", "38", "39", "40", "41", and of plaintiff's Verified Complaint. 2 FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018 AS AND FOR AN PLAINTIFF' ANSWER TO S FIRST __CAUSE OF ACTION NINTH: Answering Defendants repeat and reiterate each and every response to plaintiff's Verified Complaint contained in "FIRST" "SIXTH" Defendants' paragraphs through of Answering Answer as if specifically set forth herein at length in answer to the "45" allegations contained in paragraph of plaintiff's Verified Complaint. TENTH: Answering Defendants deny the allegations contained "51" in paragraphs "46", "47", "48", "49", "50", and of plaintiff's Verified Complaint. AS_AND FOR AN ANSWER TO PLAINTIFF'S SECOND CAUSE OF ACTION ELEVENTH: Answering Defendants repeat and reiterate each and every response to plaintiff's Verified Complaint contained in "FIRST" "TENTH" Defendants' paragraphs through of Answering Answer as if specifically set forth herein at length in answer to the "52" allegations contained in paragraph of plaintiff's Verified Complaint. TWELFTH: Answering Defendants deny the allegations contained "53" "54" in paragraphs and of plaintiff's Verified Complaint. 3 FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018 FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018 FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018 AS AND FOR A FIFTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TWENTY-FIRST: Plaintiff's injuries, if any were proximately caused in whole or in part by the negligence and breach of warranties of his employer and its employees. Since plaintiff received from his employer and his employer's compensation carrier the benefit of the Longshoremen and Harbor Workers Compensation Act, plaintiff's recovery, if any, should be reduced or offset by a credit to defendants in an appropriate percentage or amount. AS AND FOR A SIXTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TWENTY-SECOND: Plaintiff's injuries, if any, were proximately caused in whole or in part by the negligence and breach of warranties of his employer and its employees; plaintiff received from his employer and his employer's compensation carrier the benefits of the Longshoremen and Harbor Workers Compensation Act; plaintiff's employer and his employer's compensation carrier should, because of said negligence and breach of warranties, be denied recoupment or reimbursement of all compensation previously paid and payable in the future. AS AND FOR A SEVENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TWENTY-THIRD: If Answering Defendants and plaintiff's employer are both found to have been negligent, Answering Defendants should only be required to pay that proportion of the total damages which match their proportion of fault. 6 FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018 AS AND FOR AN EIGHTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TWENTY-FOURTH: Upon information and belief, payment of compensation to plaintiff commenced, plaintiff agreed to an award or awards under the Longshoremen and Harbor Workers Compensation Act and an award was entered more than six months prior to commencement of this suit. By virtue of 33 U.S.C.A. § 933(b), "all right" of plaintiff against defendants was assigned to plaintiff's employer, or its insurer, six months after plaintiff agreed to an award or awards, or six months after an award was entered, and plaintiff is therefore without standing to maintain this action. AS AND FOR A NINTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TWENTY-FIFTH: Upon information and belief, as a result of the injuries alleged in this suit, plaintiff received compensation benefits under the Longshoremen and Harbor Workers Compensation Act from his employer or his employer's insurer and plaintiff is, therefore, not the real party in interest in respect to that portion of the total claim of damages which represents compensation already paid or to be paid to him under any provisions of the said Act to which his employer or his employer's insurer has thereby become subrogated. AS AND FOR A TENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TWENTY-SIXTH: Plaintiff has failed to make proper service of process upon defendant ATG. 7 FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018 AS AND FOR A ELEVENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TWENTY-SEVENTH: The Court lacks in personam jurisdiction over Answering Defendants. AS AND FOR A TWELFTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TWENTY-EIGHTH: The Court lacks subject matter jurisdiction over this action. AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TWENTY-NINTH: Answering Defendants will demand the benefit of N.Y. Civ. Prac. L. & R. § 4545(c) with regard to collateral source payments. AS AND FOR A FOURTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE Defendants' THIRTIETH: Answering liability for any damages, which is specifically denied, amounts to 50% or less of total liability and answering defendant's exposure for non-economic loss must be limited to its percentage share pursuant to N.Y. Civ. Prac. L. & R. § 1601.11 AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE THIRTY-FIRST: Venue before this court is improper, and the action should be dismissed on forum non conveniens grounds. AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE THIRTY-SECOND: Plaintiff's action is time barred pursuant to the applicable statute of limitations. 8 FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018 AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE THIRTY-THIRD: This Answer is made without waiver of any jurisdictional defenses or rights to arbitrate that may exist between the parties. WHEREFORE, Answering Defendants demand judgment dismissing the Verified Complaint herein and awarding to Answering Defendants attorneys' costs, fees, including reasonable fees and disbursements of this action, and granting to Answering Defendants such other and further relief as the Court may deem just and proper. Dated: New York, New York May 21, 2018 Yours, et cetera, MAHONEY & KEANE, LLP Attorneys for Defendants SEA WOLF MARINE TRANSPORTATION, LLC and WITTICH BROS. MARINE, INC. s/h/a WITTICH BROTHERS MARINE, By: Edward A. Keane Garth S. Wolfson 61 Broadway, Suite 905 New York, New York 10005 (212) 385-1422 9 FILED: NEW YORK COUNTY CLERK 08/22/2018 02:29 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 08/22/2018 VERIFICATION STATE OF NEW YORK : ) SS.: COUNTY OF NEW YORK : Garth S. Wolfson, an attorney-at-law duly admitted to practice before the courts of the State of New York, hereby affirms, upon information and belief and under penalty of perjury, as follows: I am a partner with the firm of Mahoney & Keane, LLP, attorneys for Defendants SEA WOLF MARINE TRANSPORTATION, LLC and WITTICH BROS. MARINE, INC. s/h/a WITTICH BROTHERS MARINE, INC. I have read the foregoing Verified Answer and know the contents thereof to be true except as to matters therein stated to be alleged upon information and belief, and as to those matters your affirmant believes them to be true. The reason this verification is made by your affirmant and not by Defendants is that Defendants are not within this County. The source of your affirmant's information and the grounds of your affirmant's belief are documents and records in your affrimant's possession and reports and communications obtained by your affirmant. Dated: New York, New York May 21, 2018 Garth S. Wolfson 10