Preview
FILED: ST. LAWRENCE COUNTY CLERK 04/03/2019 01:06 PM INDEX NO. EFCV-19-155031
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/03/2019
STATE OF NEW YORK
SUPREME COURT ST. LAWRENCE COUNTY
Steven Kirby,
Plaintiff,
vs. yERIFIED ANSWER
Ogdensburg Housing Authority, The Board of Directors Index No.: EFCV-19-155031
of the Ogdensburg Housing Authority and William J.
Seymour, Jr. as Executive Director of the Ogdensburg
Housing Authority,
Defendants.
Defendants Ogdensburg Housing Authority, The Board of Directors of the Ogdensburg
Housing Authority and William J. Seymour, Jr. as Executive Director of the Ogdensburg
Housing Authority (collectively "Defendants"), by and through their attorneys, Hancock
Estabrook, LLP (Robert C. Whitaker, Jr. and Whitney M. Kummerow) for their Answer to the
Verified Complaint respond as follows:
1. Defendants admit that Plaintiff is a retired employee of the Ogdensburg Housing
Authority ("OHA"), but lack information and knowledge sufficient to form a belief as to the
"1"
remaining allegations in paragraph of the Verified Complaint, and thus deny the same.
2. Defendants admit that CSEA is a not-for-profit organization organized under the
laws of the State of New York, but lack information and knowledge sufficient to form a belief as
"2"
to the remaining allegations in paragraph of the Verified Complaint, and thus deny the same.
3. Defendants admit that Plaintiff was employed full time by the OHA and that
Plaintiff retired due to a claimed work injury, but deny the remaining allegations in paragraph
"3"
of the Verified Complaint.
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4. Defendants lack information and knowledge sufficient to form a belief as to the
"4"
allegations in paragraph of the Verified Complaint, and thus deny the same.
5. Defendants admit that the OHA is a municipal authority that operates under the
"5"
laws of the State of New York, but the remaining allegations in paragraph of the Complaint
state a legal conclusion to which no response is required. To the extent a response is required,
Defendant's deny the same.
"6"
6. Defendants admit the allegations in paragraph of the Verified Complaint.
"7"
7. Defendants admit the allegations in paragraph of the Verified Complaint.
"8"
8. The allegations in paragraph of the Verified Complaint state a legal
conclusion to which no response is required. To the extent a response is required, Defendant's
deny the same.
9. Defendants admit that the OHA entered into the Collective Bargaining Agreement
("CBA") attached as Exhibit A to the Verified Complaint, but Defendants lack knowledge or
information sufficient to form a belief as to whether CSEA is Plaintiff's exclusive bargaining
representative and agent.
10. Defendants admit that the CBA attached as Exhibit A to the Verified Complaint
"10"
contains the language cited in paragraph of the Verified Complaint, and note that the CBA
was subsequently ameñded, as permitted by the express terms of the CBA, and these benefits
were reduced accordingly.
"11"
11. Defendants deny the allegation in paragraph that the CBA has no ambiguity,
but admit the remaining portions of paragraph 11 of the Verified Complaint to the extent it
accurately quotes the CBA.
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12. Defendants admit that the CBA attached as Exhibit A to the Verified Complaint
was in effect at the time of Plaintiff's retirement.
"13"
13. Defendants admit the allegations in paragraph of the Verified Complaint,
and note that this letter is consistent with the CBA in effect at that time and all subsequent
CBAs.
14. Defendants admit that Plaintiff's insurance policy with Excellus BCBS was
"14"
terminated on or about December 1, 2017, but deny the remaining allegations in paragraph
of the Verified Complaint.
"15"
15. Defendants deny the allegations in paragraph of the Verified Complaint.
"16"
16. Defendants deny the allegations in paragraph of the Verified Complaint, and
note that Plaintiff maintained health insurance coverage after December 1, 2017 through
Medicare and a supplemental Medicare insurance policy.
17. Defendants lack knowledge or information sufficient to form a belief as to the
"17"
allegations in paragraph of the Verified Complaint. To the extent a response is required,
Defendants deny the same.
"18"
18. Defendants admit the allegations in paragraph of the Verified Complaint.
"19"
19. The allegations in paragraph of the Verified Complaint state a legal
conclusion to which no response is required. To the extent a response is required, Defendant's
deny the same.
"20"
20. The allegations in paragraph of the Verified Complaint state a legal
conclusion to which no response is required. To the extent a response is required, Defendant's
deny the same.
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21. Defendants lack knowledge or information sufficient to form a belief as to the
"25"
allegations in paragraph of the Verified Complaint. To the extent a response is required,
Defendants deny the same.
22. Defendants deny any remaining claims or allegations in the Verified Complaint
that are not otherwise denied or controverted above.
FIRST AFFIRMATIVE DEFENSE
23. Plaintiff fails to state a claim upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
24. Plaintiff's claims are barred in whole or in part by the applicable statute of
limitations.
THIRD AFFIRMATIVE DEFENSE
25. To the extent the Court has jurisdiction over this action, it is limited to a
mandamus to compel and/or review under Article 78 of the CPLR, and the Court may only hear
the case if it construes it as such.
FOURTH AFFIRMATIVE DEFENSE
Plaintiffs'
26. claims are time barred by the four month statute of limitation contained
within CPLR § 217, and/or as otherwise provided for in actions pursuant to Article 78 of the
CPLR.
FIFTH AFFIRMATIVE DEFENSE
27. The individually named defendants including the Board of Directors of the
Ogdensburg Housing Authority and William J. Seymour, Jr. are not parties to the contract at
issue and are improperly named as defendants without any legal basis.
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SIXTH AFFIRMATIVE DEFENSE
28. The claims against the individual defeñdañts in their individual capacities are
barred by qualified immunity, official immunity and/or goverñmental immunity.
SEVENTH AFFIRMATIVE DEFENSE
29. Plaintiff's claims and requested relief exceed the scope of the Notice of Claim and
thus this action is barred by applicable law, including, but not limited to New York Public
Housing Law § 157.
EIGHTH AFFIRMATIVE DEFENSE
30. Plaintiff failed to utilize the grievance procedure as required by the Collective
Bargaining Agreement and otherwise failed to exhaust administrative remedies and the Court is
without jurisdiction to hear this matter.
NINTH AFFIRMATIVE DEFENSE
31. Plaintiff's claims are subject to mandatory arbitration under the express terms of
the Collective Bargaiñiñg Agreement, and this action is not properly before this Court.
TENTH AFFIRMATIVE DEFENSE
32. Plaintiff's claims are contradicted by subsequent negotiated Collective Bargaining
Agreements with CSEA and past practices.
ELEVENTH AFFIRMATIVE DEFENSE
33. Plaintiff's claim for costs and attorney's fees is not supported by contract or law
and must be dismissed.
WHEREFORE, Defendants request a judgment dismissing the Verified Complaint in its
entirety, together with the costs and disbursements of this action or for such other and further
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relief as to this Court may seem just, proper and equitable, together with the costs and
disbursements of this action.
Dated: April 3, 2019 HANCOCK ESTABROOK, LLP
By:
Robert C. Whitaker Jr., Esq. and
Whitney A. Kummerow, Esq.
1500 AXA Tower I, 100 Madison Street
Syracuse, New York 13202
Telephone (315) 565-4500
CounselforDefendants
TO: Robert P. Bogdan
Attorney for Plaintiff
214 General Smith Drive
P.O. Box 286
Sackets Harbor, NY 13685
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VERIFICATION
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
ROBERT C. WHITAKER JR, being duly sworn deposes and says that I am an attorney
admitted to practice law in the courts in New York State and a partner in the law firm of
Hancock Estabrook, LLP, attorneys of record for Defendants in this action. I have read the
foregoing Answer that was served on Plaintiff on March 14, 2019, and know the contents
thereof, and that the same is true upon information and belief and as to those matters I reasonably
believe them to be true based upon communications with Defendants. I sign this verification
because Defendants are not located in the same county where I maintain my law office.
Robert C. Whitaker Jr.
Sworn to before me, this
3rd
day of April, 2019
Notary Public
SUSAN L ORCHARD
Notary Public, State of New York
Qnalified in Onon. Co., No.010R4979203
My Commissics. Expires March 25,20d3
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Preview
FILED: ST. LAWRENCE COUNTY CLERK 04/03/2019 01:06 PM INDEX NO. EFCV-19-155031 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/03/2019 STATE OF NEW YORK SUPREME COURT ST. LAWRENCE COUNTY Steven Kirby, Plaintiff, vs. yERIFIED ANSWER Ogdensburg Housing Authority, The Board of Directors Index No.: EFCV-19-155031 of the Ogdensburg Housing Authority and William J. Seymour, Jr. as Executive Director of the Ogdensburg Housing Authority, Defendants. Defendants Ogdensburg Housing Authority, The Board of Directors of the Ogdensburg Housing Authority and William J. Seymour, Jr. as Executive Director of the Ogdensburg Housing Authority (collectively "Defendants"), by and through their attorneys, Hancock Estabrook, LLP (Robert C. Whitaker, Jr. and Whitney M. Kummerow) for their Answer to the Verified Complaint respond as follows: 1. Defendants admit that Plaintiff is a retired employee of the Ogdensburg Housing Authority ("OHA"), but lack information and knowledge sufficient to form a belief as to the "1" remaining allegations in paragraph of the Verified Complaint, and thus deny the same. 2. Defendants admit that CSEA is a not-for-profit organization organized under the laws of the State of New York, but lack information and knowledge sufficient to form a belief as "2" to the remaining allegations in paragraph of the Verified Complaint, and thus deny the same. 3. Defendants admit that Plaintiff was employed full time by the OHA and that Plaintiff retired due to a claimed work injury, but deny the remaining allegations in paragraph "3" of the Verified Complaint. {H3585137.2} 1 of 7 FILED: ST. LAWRENCE COUNTY CLERK 04/03/2019 01:06 PM INDEX NO. EFCV-19-155031 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/03/2019 4. Defendants lack information and knowledge sufficient to form a belief as to the "4" allegations in paragraph of the Verified Complaint, and thus deny the same. 5. Defendants admit that the OHA is a municipal authority that operates under the "5" laws of the State of New York, but the remaining allegations in paragraph of the Complaint state a legal conclusion to which no response is required. To the extent a response is required, Defendant's deny the same. "6" 6. Defendants admit the allegations in paragraph of the Verified Complaint. "7" 7. Defendants admit the allegations in paragraph of the Verified Complaint. "8" 8. The allegations in paragraph of the Verified Complaint state a legal conclusion to which no response is required. To the extent a response is required, Defendant's deny the same. 9. Defendants admit that the OHA entered into the Collective Bargaining Agreement ("CBA") attached as Exhibit A to the Verified Complaint, but Defendants lack knowledge or information sufficient to form a belief as to whether CSEA is Plaintiff's exclusive bargaining representative and agent. 10. Defendants admit that the CBA attached as Exhibit A to the Verified Complaint "10" contains the language cited in paragraph of the Verified Complaint, and note that the CBA was subsequently ameñded, as permitted by the express terms of the CBA, and these benefits were reduced accordingly. "11" 11. Defendants deny the allegation in paragraph that the CBA has no ambiguity, but admit the remaining portions of paragraph 11 of the Verified Complaint to the extent it accurately quotes the CBA. {H3585137.2} 2 of 7 FILED: ST. LAWRENCE COUNTY CLERK 04/03/2019 01:06 PM INDEX NO. EFCV-19-155031 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/03/2019 12. Defendants admit that the CBA attached as Exhibit A to the Verified Complaint was in effect at the time of Plaintiff's retirement. "13" 13. Defendants admit the allegations in paragraph of the Verified Complaint, and note that this letter is consistent with the CBA in effect at that time and all subsequent CBAs. 14. Defendants admit that Plaintiff's insurance policy with Excellus BCBS was "14" terminated on or about December 1, 2017, but deny the remaining allegations in paragraph of the Verified Complaint. "15" 15. Defendants deny the allegations in paragraph of the Verified Complaint. "16" 16. Defendants deny the allegations in paragraph of the Verified Complaint, and note that Plaintiff maintained health insurance coverage after December 1, 2017 through Medicare and a supplemental Medicare insurance policy. 17. Defendants lack knowledge or information sufficient to form a belief as to the "17" allegations in paragraph of the Verified Complaint. To the extent a response is required, Defendants deny the same. "18" 18. Defendants admit the allegations in paragraph of the Verified Complaint. "19" 19. The allegations in paragraph of the Verified Complaint state a legal conclusion to which no response is required. To the extent a response is required, Defendant's deny the same. "20" 20. The allegations in paragraph of the Verified Complaint state a legal conclusion to which no response is required. To the extent a response is required, Defendant's deny the same. {H3585137.2} 3 of 7 FILED: ST. LAWRENCE COUNTY CLERK 04/03/2019 01:06 PM INDEX NO. EFCV-19-155031 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/03/2019 21. Defendants lack knowledge or information sufficient to form a belief as to the "25" allegations in paragraph of the Verified Complaint. To the extent a response is required, Defendants deny the same. 22. Defendants deny any remaining claims or allegations in the Verified Complaint that are not otherwise denied or controverted above. FIRST AFFIRMATIVE DEFENSE 23. Plaintiff fails to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 24. Plaintiff's claims are barred in whole or in part by the applicable statute of limitations. THIRD AFFIRMATIVE DEFENSE 25. To the extent the Court has jurisdiction over this action, it is limited to a mandamus to compel and/or review under Article 78 of the CPLR, and the Court may only hear the case if it construes it as such. FOURTH AFFIRMATIVE DEFENSE Plaintiffs' 26. claims are time barred by the four month statute of limitation contained within CPLR § 217, and/or as otherwise provided for in actions pursuant to Article 78 of the CPLR. FIFTH AFFIRMATIVE DEFENSE 27. The individually named defendants including the Board of Directors of the Ogdensburg Housing Authority and William J. Seymour, Jr. are not parties to the contract at issue and are improperly named as defendants without any legal basis. {H3585137.2} 4 of 7 FILED: ST. LAWRENCE COUNTY CLERK 04/03/2019 01:06 PM INDEX NO. EFCV-19-155031 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/03/2019 SIXTH AFFIRMATIVE DEFENSE 28. The claims against the individual defeñdañts in their individual capacities are barred by qualified immunity, official immunity and/or goverñmental immunity. SEVENTH AFFIRMATIVE DEFENSE 29. Plaintiff's claims and requested relief exceed the scope of the Notice of Claim and thus this action is barred by applicable law, including, but not limited to New York Public Housing Law § 157. EIGHTH AFFIRMATIVE DEFENSE 30. Plaintiff failed to utilize the grievance procedure as required by the Collective Bargaining Agreement and otherwise failed to exhaust administrative remedies and the Court is without jurisdiction to hear this matter. NINTH AFFIRMATIVE DEFENSE 31. Plaintiff's claims are subject to mandatory arbitration under the express terms of the Collective Bargaiñiñg Agreement, and this action is not properly before this Court. TENTH AFFIRMATIVE DEFENSE 32. Plaintiff's claims are contradicted by subsequent negotiated Collective Bargaining Agreements with CSEA and past practices. ELEVENTH AFFIRMATIVE DEFENSE 33. Plaintiff's claim for costs and attorney's fees is not supported by contract or law and must be dismissed. WHEREFORE, Defendants request a judgment dismissing the Verified Complaint in its entirety, together with the costs and disbursements of this action or for such other and further {H3585137.2} 5 of 7 FILED: ST. LAWRENCE COUNTY CLERK 04/03/2019 01:06 PM INDEX NO. EFCV-19-155031 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/03/2019 relief as to this Court may seem just, proper and equitable, together with the costs and disbursements of this action. Dated: April 3, 2019 HANCOCK ESTABROOK, LLP By: Robert C. Whitaker Jr., Esq. and Whitney A. Kummerow, Esq. 1500 AXA Tower I, 100 Madison Street Syracuse, New York 13202 Telephone (315) 565-4500 CounselforDefendants TO: Robert P. Bogdan Attorney for Plaintiff 214 General Smith Drive P.O. Box 286 Sackets Harbor, NY 13685 {H3585137.2} 6 of 7 FILED: ST. LAWRENCE COUNTY CLERK 04/03/2019 01:06 PM INDEX NO. EFCV-19-155031 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 04/03/2019 VERIFICATION STATE OF NEW YORK ) COUNTY OF ONONDAGA ) ss.: ROBERT C. WHITAKER JR, being duly sworn deposes and says that I am an attorney admitted to practice law in the courts in New York State and a partner in the law firm of Hancock Estabrook, LLP, attorneys of record for Defendants in this action. I have read the foregoing Answer that was served on Plaintiff on March 14, 2019, and know the contents thereof, and that the same is true upon information and belief and as to those matters I reasonably believe them to be true based upon communications with Defendants. I sign this verification because Defendants are not located in the same county where I maintain my law office. Robert C. Whitaker Jr. Sworn to before me, this 3rd day of April, 2019 Notary Public SUSAN L ORCHARD Notary Public, State of New York Qnalified in Onon. Co., No.010R4979203 My Commissics. Expires March 25,20d3 {H3585137.2} 7 of 7