Matthew Isabella et al., Plaintiffs, Doris A. Hallock et al., Third-Party Respondents,v.Michael W. Koubek, Third-Party Appellant.

Brief

N.Y.February 18, 2014

To Be Argued By: GLENN A. KAMINSKA Time Requested: 15 Minutes CTQ 2013-00006 United States of Court of Appeals for the Second Circuit Docket Number 12-2905-CV Court of Appeals STATE OF NEW YORK MATTHEW ISABELLA and MARY ISABELLA, HIS WIFE, Plaintiffs, —against— DORIS A. HALLOCK and PETER T. HALLOCK, Defendants/Third-Party Plaintiffs/Respondents, —against— MICHAEL W. KOUBEK, Third-Party Defendant/Appellant. BRIEF FOR DEFENDANTS/THIRD-PARTY PLAINTIFFS/RESPONDENTS d AHMUTY, DEMERS & MCMANUS 200 I.U. Willets Road Albertson, New York 11507 (516) 294-5433 (516) 294-5387 Attorneys for Defendants/Third- Party Plaintiffs/Respondents On the Brief: NICHOLAS M. CARDASCIA GLENN A. KAMINSKA January 17, 2014 i Table of Contents Page Table of Authorities ........................................................................................ ii, iii, iv Preliminary Statement ................................................................................................ 1 Question Presented .................................................................................................... 3 Point I New York Workers’ Compensation Law does not prohibit a third-party Action against the owner of a vehicle who was neither plaintiff’s Employer or co-employee .......................................................................................... 4 Point II The District Court properly relied upon the rationale in the Clamp case in denying Koubek’s motion to dismiss the third-party complaint ............................... 9 A. Rauch and Naso do not require dismissal of third-party action ......................... 10 B. Kenny and other cases involving immunity statutes do not bar the third-party action ................................................................................................. 14 Conclusion ............................................................................................................... 18 ii Table of Authorities Cases Allen v. Blum, 232 A.D.2d 591 (2d Dept. 1996) ......................................... 14 Black v. Consolidated Freightways Corp. of Delaware, 219 F. Supp.2d 243 (E.D.N.Y. 2002) .......................................................... 14 Clamp v. Estate of Hales, 10 Misc.3d 988 (N.Y. Sup. Ct. Greene 2005) ......................................................... 1, 9, 10, 18 Fleming v. Graham, 10 N.Y.3d 296, 300 (2008) ........................................ 4, 7 Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 367 (2005) ...... 4, 5, 8 Harris v. Commissioner of Internal Revenue, 178 F.2d 861, 864 (2d Cir. 1949) .................................................................. 8 Jaglall v. Supreme Petroleum Co. of NJ, Inc., 185 A.D.2d 971 (2d Dept. 1992) ................................................................. 15 Kenny v. Bacolo, 61 N.Y.2d 642 (1983) ...................................................... 15 Majewski v. Broadalbin-Perth Cent. School District, 91 N.Y.2d 577, 583 (1998) ............................................................................ 4 Naso v. Lafata, 4 N.Y.2d 585 (1958) .................................................... passim Nelson v. Garcia, 152 A.D.2d 22 (4th Dept. 1989) ....................................... 15 Orens v. Novello, 99 N.Y.2d 180, 185 (2002) ........................................... 4, 5 Padlo v. Spoor, 90 Misc.2d 1002 (1977), aff’d 72 A.D.2d 665 (4th Dept. 1979) .......................................................... 16 iii Patrolmen's Benev. Ass'n of City of New York v. City of New York, 41 N.Y.2d 205, 208 (1976) ........................................................................ 4, 5 Pennsylvania General Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465 (1986) .................................................................................. 13 Raquet v. Braun, 90 N.Y.2d 177 (1997) ....................................................... 10 Rauch v. Jones, 4 N.Y.2d 592 (1958) .................................................... passim Rodriguez v. Lodato Rental, Inc., 267 A.D.2d 293 (@d Dept. 1999) .......... 14 Rose v. Gelco Corp., 261 A.D.2d 381 (2d Dept. 1999) ............................... 14 Shutter v. Philips Display Components Co., 90 N.Y.2d 703, 707-708, (1997) .................................................................... 4 Sikora v. Keillor, 17 A.D.2d 6 (2d Dept. 1962) ........................................... 15 Szumowski v. PV Holding Corp., 90 A.D.3d 415 (1st Dept. 2011) ............. 14 Tikhonova v. Ford Motor Co., 10 A.D.3d 185 (2004), aff’d 4 N.Y.3d 621 (2005) ........................................................ 16, 17 Other Authorities 11 N.Y.C.R.R. 60-1.1 ............................................................................................. 13 L. 1996, ch. 635, 1996 N.Y. Legis. Ann.................................................................... 6 N.Y. Vehicle and Traffic Law §388 ................................................................. passim New York Workers’ Compensation Law §2(3) ........................................................ 7 New York Workers’ Compensation Law §2(4) ........................................................ 7 iv New York Workers’ Compensation Law §11 ............................................ 5, 6, 7 8, 9 New York Workers’ Compensation Law §29(2) ...................................................... 4 New York Workers’ Compensation Law §29(6) ................................ 3, 5, 6, 7, 9, 16 1 Preliminary Statement Under New York Vehicle and Traffic Law §388, every owner is responsible for injuries resulting from the negligent use of the vehicle by a permissive driver. Here, Isabella sued the Hallocks for injuries sustained in an automobile accident between the Hallocks car and the car in which he was a passenger—driven by his co-worker, Oldenborg, and owned by her husband, Koubek. The United States District Court for the Northern District of New York, Chief Judge Gary L. Sharpe, adopted the rationale and conclusion of Clamp v. Estate of Hales, 10 Misc.3d 988 (N.Y. Sup. Ct. Greene 2005), in denying Koubek’s motion for summary judgment seeking a dismissal of the third-party complaint brought by the Hallocks. The Clamp case is on all fours with the facts of this case. In relying on Clamp, Chief Judge Sharpe held that the Hallocks had the right to assert a contribution claim against Koubek under Vehicle and Traffic Law §388. Koubek’s arguments for dismissal of the third-party complaint are based on erroneous interpretations of cases with different fact patterns and policy concerns. While Workers’ Compensation may be the exclusive remedy for a person injured solely by the negligent actions of a co-worker, in this case Isabella’s injuries were not solely because of Oldenborg’s 2 negligence. Isabella sued the Hallocks and a jury found that the Hallocks were 10% at fault. The jury found Oldenborg 90% at fault. Accordingly, Isabella sought and was awarded a remedy outside the scope of Workers’ Compensation. The Hallocks third-party complaint against Koubek properly sought contribution. Chief Judge Sharpe exercised his judicial discretion and permitted the impleader since the outcome of the impleader was contingent on the outcome of the main claim. There was no employment relationship between the Hallocks and Koubek. As noted by Chief Judge Sharpe, “[t]he purpose of the Workers’ Compensation Law will not be frustrated by allowing this suit to proceed since the parties are unrelated by employment”. Accordingly, the Hallocks are entitled to seek contribution from Koubek pursuant to Vehicle and Traffic Law §388. 3 Question Presented Following an appeal by Koubek , the United States Court of Appeals for the Second Circuit issued a decision whereby they respectfully certified the following question to this honorable court: [w]hether a defendant may pursue a third-party contribution claim under New York Vehicle and Traffic Law §388 against the owner of a vehicle, where the vehicle driver’s negligence was a substantial factor in causing the plaintiff’s injuries, but the driver is protected from suit by the exclusive remedy provisions of New York Workers Compensation Law §29(6). It is submitted that this Honorable Court should allow such a third- party action under the facts and circumstances involved in this matter and answer the certified question in the affirmative. 4 Point I New York Workers’ Compensation Law does not prohibit a third-party action against the owner of a vehicle who was neither plaintiff's employer or co-employee “The workers’ compensation system is the creature of a comprehensive statutory scheme… [t]hus, the terms of its governing statutes…should be strictly construed in light of their legislative purpose.” See Shutter v. Philips Display Components Co., 90 N.Y.2d 703, 707-708, (1997) (interpreting the lean and offset provisions under Workers’ Compensation Law §29(2)). The Court of Appeals consistently recognized that when construing a statute the court must (1) implement the intent of the Legislature and (2) construe the statutory words in light of their plain meaning without resorting to forced or unnatural interpretations. See Fleming v. Graham, 10 N.Y.3d 296, 300 (2008); Orens v. Novello, 99 N.Y.2d 180, 185 (2002); Patrolmen's Benev. Ass'n of City of New York v. City of New York, 41 N.Y.2d 205, 208 (1976). This Court has noted that the clearest indicator of legislative intent is the statutory text. See Flores v. Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 367 (2005); Majewski v. Broadalbin-Perth Cent. School District, 91 N.Y.2d 577, 583 (1998). If the terms are clear and unambiguous, they should be construed based on the plain meaning of the words used. Flores at 367(adhering to the literal terms 5 of the statute when interpreting Workers’ Compensation Law §11). Both principles aid the court to discern and apply the intent of the Legislature and not the court’s own perception. See Orens, 99 N.Y.2d at 185 (cautioning the court to be careful in interpreting statutes based on its views when confronted with an explicit choice of words made by the Legislature). The Court cannot presume that the Legislature meant to impose a restriction that it failed to include in the statute. See Flores, 4 N.Y.3d at 367; Patrolmen's Benev. Ass'n of City of New York, 41 N.Y.2d at 208 (drawing an irrefutable inference that what is omitted or not included was intended to be omitted or excluded from a statute where the statute describes a particular situation in which it applies). The statutory provisions at issue in this matter are Workers’ Compensation Law §§ 11 and 29(6). Section 11 states: The liability of an employer…shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal representatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom, except that if an employer fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section fifty of this chapter, an injured employee, or his or her legal representative in case of death results from the injury, may, at his or her option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action it shall not be necessary to plead or prove freedom 6 from contributory negligence nor may the defendant plead as a defense that the injury was caused by the negligence of a fellow servant nor that the employee assumed the risk of his or her employment, nor that the injury was due to the contributory negligence of the employee. N.Y. Workers' Comp. Law § 11. Moreover, Workers’ Compensation Law § 29(6) states: The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of death his or her dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ, the employer's insurer or any collective bargaining agent of the employer's employees or any employee, of such insurer or such collective bargaining agent (while acting within the scope of his or her employment). The limitation of liability of an employer set forth in section eleven of this article for the injury or death of an employee shall be applicable to another in the same employ, the employer's insurer, any collective bargaining agent of the employer's employees or any employee of the employer's insurer or such collective bargaining agent (while acting within the scope of his or her employment). N.Y. Workers' Comp. Law § 29(6). When the Legislature enacted the Workers’ Compensation Law, it intended to create an agreement between labor and management. See L. 1996, ch. 635, 1996 N.Y. Legis. Ann. It anticipated for the laws to be interpreted and implemented to ensure safer workplace conditions, provide workers with immediate medical care benefits and compensation for 7 workplace injuries, and economically protect employers from devastating lawsuits. Id. When examining the text of the statutes, the Legislature consistently and carefully uses the terms “employer” and “employee” throughout the statutes. The Workers’ Compensation Law defines “employer” as “a person, partnership, association, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation, having one or more persons in employment.” N.Y. Workers' Comp. Law § 2(3). It also defines “employee” as a person engaged in the service of or performing services for an employer. Id. §2(4). Based on a strict reading of the text of §§ 11 and 29(6), the courts determined that the purpose of these provisions is to reduce the cost and liability for employers by limiting third-party actions against an employer while protecting the interests of injured workers. See Fleming, 10 N.Y.3d at 299-300. In this matter, Koubek claims that Workers’ Compensation Law bars a third-party action against the third-party defendant, Michael Koubek, who is not the Plaintiff’s employer or co-employee. However, in view of the Legislature’s intent and the plain meaning of the statutory text there is no indication that the Legislature intended or meant to protect a “non- 8 employee” or “non-employer” in the same manner as an “employee” or “employer.” Otherwise, it would unnecessarily expand the Legislative intent and plain meaning of the words used. By judicially expanding the legislative intent to include a “non-employer,” the Court will implement its own perception based on an omission. See, e.g., Flores, 4 N.Y.3d at 367 (refusing to extend the meaning of “written contract” to include a signature requirement when the term “written agreement” does not under Workers’ Compensation Law §11). The venerable Judge Learned Hand has said: “it is always a dangerous business to fill in the text of a statute from its purposes, and although it is a duty often unavoidable, it is utterly unwarranted unless the omission from, or corruption of, the text is plain.” Harris v. Commissioner of Internal Revenue, 178 F.2d 861, 864 (2d Cir. 1949) To bar the third-party claim in this matter where the text of the statute does not prohibit the claim and the plaintiff has already sought a remedy outside of the Workers Compensation Law would unnecessarily result in judicial legislation and cause undue hardship for the third-party plaintiffs who will be forced to pay greatly more than their equitable share. All where the purpose of the Workers Compensation Law will not be frustrated. 9 Point II The District Court properly relied upon the rationale in the Clamp case in denying Koubek’s motion to dismiss the third-party complaint In Clamp v. Estate of Hales, 10 Misc.3d 988 (N.Y. Sup. Ct., Greene 2005), the court determined that the purpose of the Workers’ Compensation Law would not be controverted by allowing a third-party action against a vehicle owner to proceed where, as here, the third-party defendant was unrelated to the plaintiff by employment. The Clamp case is precisely the fact pattern that exists in the matter of bar. Plaintiff was injured as a result of an automobile accident that occurred during the course of the plaintiff’s employment. Plaintiff brought an action and a third-party claim was brought against the owner of a vehicle involved. The owner was the spouse of the plaintiff’s co-employee. The third-party defendant moved to dismiss the third-party complaint citing Workers’ Compensation Law §§11 and 29(6). In denying the motion the court noted that the issue presented was whether the statute precluded a nonemployee from obtaining contribution and/or indemnification from a third-party (nonemployer) owner based solely on vicarious liability for damages to an employee caused by the driver’s negligence, where recovery by the injured party against the driver is otherwise barred. In determining that the third-party claim was not barred the court cited to the well-established principle that a defendant may seek 10 contribution from a third-party even if the injured plaintiff has no direct right of recovery against that party, either because of a procedural bar or because of a substantive legal rule. Id. at 991 (citing Raquet v. Braun, 90 N.Y.2d 177 (1997)). The court found that the Workers’ Compensation Law was intended to protect employers and co-employees from exposure to liability for injuries to employees beyond that provided by the workers compensation law itself. However, “there is no evidence that the workers compensation law was intended to apply to actions between parties who are not related in any way by employment.” Id. at 992. The court ruled “the purpose of the Workers’ Compensation law will not be controverted by allowing the [defendants] action to proceed…” Accordingly, as the owner of the vehicle the third-party defendant could be held responsible for indemnification and/or contribution pursuant to Vehicle and Traffic Law §388. A. Rauch and Naso do not require dismissal of third-party action The rationale set forth in Clamp set forth a proper understanding of the scope of the Workers’ Compensation Law and its limits where concerns nonemployers. In opposition, Koubek asserts that this Court's decisions in Rauch v. Jones, 4 N.Y.2d 592 (1958), and Naso v. Lafata, 4 N.Y.2d 585 (1958), and their progeny, should result in a dismissal of the third-party 11 action. Koubek’s reliance upon such cases is misplaced and seeks an over expansive application that goes well beyond legislative intent. In Rauch, the plaintiff was injured by the actions of a co-worker during the course of their employment. The plaintiff directly sued the owner of the vehicle in which the accident occurred under the predecessor statute to Vehicle and Traffic Law §388. The owner was neither the plaintiff’s co- worker nor his employer. In dismissing the plaintiff's action against the vehicle owner, this court decided that the Workers’ Compensation Law denied plaintiff the right of recovery against the vehicle owner because the negligence of his co-worker was the “sole proximate cause” of the accident. Id. at 596. In doing so, the court noted that full redress for the losses suffered by the plaintiff was available under the Workers’ Compensation Law. As the only negligence alleged in the complaint consisted of the negligent acts of the co-employee this Court stated “plaintiff clearly seeks to recover for injury caused solely ‘by the negligence or wrong of another in the same employ’ and not because the defendant was a wrongdoer.” Id. Accordingly the plaintiff was denied the claim in accordance with the compensation statute. In Naso, the facts were similar to those set forth in Rauch, as the co- employee was solely responsible for the plaintiff’s injuries. The plaintiff 12 again sought to bring an action directly against the owner of the vehicle which had been driven by the co-employee in order to recover damages outside of the Workers’ Compensation Law. In determining that the plaintiff could not rely upon §388 of the Vehicle and Traffic Law, the court stated that it was the “intention on the part of the Legislature to limit an injured employee's remedy to workmen’s compensation when injured in the course of his employment through to negligence or wrong of another in the same employ.” Id. at 591. At bar, we do not have a situation where the plaintiff's co-employee is solely responsible for the alleged injury, nor is the plaintiff looking to make a claim against the owner of the vehicle directly. Plaintiff has reached outside of the workers compensation scheme to bring in direct action as against the Hallocks. The Hallocks have been found to be 10% at fault, and are willing to pay their equitable share of the judgment. However, Koubek as the owner of the vehicle is liable for the acts of his permissive users. The Hallocks, therefore, seek contribution for the 90% of liability attributed to Koubek. Vehicle and Traffic Law §388 makes Koubek responsible “for death or injuries to persons or property resulting from negligence in the use or operation of such vehicle… by any person using or operating the same with the permission, express or implied, of such owner.” 13 Upon reviewing the clear language employed by the Vehicle and Traffic Law, as well as the language employed in the Workers’ Compensation law, there is no reason under these facts to bar the third-party claim. This is not a case where there is any risk to the employer or the workers compensation carrier. In fact, the dispute is truly between the Hallocks’ automobile carrier and Koubek’s automobile carrier. Koubek asserts that allowing the third-party action to continue could result in a windfall (App. Brief p. 10) as Koubek could not assert a claim against Oldenborg, the co-employee driver. This position is without merit. Oldenborg, as a permissive user of the Koubek vehicle, was also an insured under Koubek’s automobile policy. 11 N.Y.C.R.R. 60-1.1. Accordingly, Koubek’s carrier would not have a right of subrogation against its own insured and the liability for the damages would stay with the carrier for the automobile that cause 90% of the loss. See Pennsylvania General Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465 (1986). Moreover, Koubek fails to acknowledge the windfall he obtains by having the Hallocks pay substantially more than their equitable share where a statute directly on point makes him responsible for a driver to whom he handed over his keys. 14 The rationale of Rauch, Naso, and their progeny1 might be appropriate where Oldenborg were solely responsible. In that situation, Isabella would have no recourse against Koubek, and, likewise, Isabella would be unable to recover against the Hallocks. By applying the position taken by Koubek to the facts of this case, the Hallocks would become 100% liable for Isabella's injuries despite the fact that the jury found that only 10% at fault. This is unfair especially where Vehicle and Traffic Law §388 provides a remedy. Koubek argues that permitting the third-party claim results in a Isabella defeating the “exclusive remedy” provisions of the Workers’ Compensation law and receiving more than allowed under that statute. But, by suing the Halllocks, Isabella is outside of the scope of the Workers’ Compensation Law and able to recover reasonable compensation for his injuries from a jury. The so-called “exclusivity” of workers compensation benefits is already defeated. 1 For example: Rose v. Gelco Corp., 261 A.D.2d 381 (2d Dept. 1999); Rodriguez v. Lodato Rental, Inc., 267 A.D.2d 293 (@d Dept. 1999); Szumowski v. PV Holding Corp., 90 A.D.3d 415 (1st Dept. 2011); Allen v. Blum, 232 A.D.2d 591 (2d Dept. 1996); Black v. Consolidated Freightways Corp. of Delaware, 219 F. Supp.2d 243 (E.D.N.Y. 2002). Each of these cases fail to support Koubeks position for the same reason that Rauch and Naso do not apply to bar this third-party claim. 15 B. Kenny and other cases involving immunity statutes do not bar the third-party action. Koubek points to cases outside of the Workers Compensation Law to claim that there is a bar to the third-party action. In Kenny v. Bacolo, 61 N.Y.2d 642 (1983), this court found that the third-party action against the owner of the leased truck could not go forward as the driver of the vehicle was immune under the Longshoreman's and Harbor Workers’ Compensation Act. In that case, the court looked to Rauch and Naso for support of its position. United States Court of Appeals for the Second Circuit indicated that the fact that the vehicle was leased to the employer was not material. (A. 12). However, in Jaglall v. Supreme Petroleum Co. of NJ, Inc., 185 A.D.2d 971 (2d Dept. 1992), the court made note of the fact that the lease between the defendant and the employer was significant as the employer was responsible for the maintenance and repair of the vehicle. In Sikora v. Keillor, 17 A.D.2d 6 (2d Dept. 1962), the court barred the third-party action brought pursuant to section 388 of the Vehicle Traffic Law by looking at the immunity set forth in section 205-b of the General Municipal Law. However, in doing so the court wanted to encourage volunteerism, thus having public policy reasons for the determination. See also Nelson v. Garcia, 152 A.D.2d 22 (4th Dept. 1989)(citing Sikora in 16 determining the third-party defendant could not be liable where volunteer ambulance driver had statutory immunity). The cases relied upon by Koubek demonstrate the over expansive application of the so-called “exclusive remedy” under the Workers’ Compensation Law. See Tikhonova v. Ford Motor Co., 10 A.D.3d 185 (2004), aff’d 4 N.Y.3d 621 (2005). In Tikhonova, the Appellate Division rejected the efforts of a vehicle owner to dismiss the case based upon the driver’s diplomatic immunity. In doing so the court found that “the broad assertions made in such cases as Nelson v. Garcia and Kenny v Bacolo… are unnecessarily expansive, protecting those who need no protection in circumstances that do not warrant any such protection…” Id. at 190. The court went on to state: [o]ur decision in this respect is prompted by our belief that appellate courts have the responsibility to recognize when case law has evolved in an inappropriate direction or to a point where its statutory interpretation is contrary to the intent of the Legislature. Id. (going further to adopt the rationale in Padlo v. Spoor, 90 Misc.2d 1002 (1977), aff’d 72 A.D.2d 665 (4th Dept. 1979), which allowed liability to be imposed upon a vehicle's owner where driver was immune under the Federal Drivers Act). 17 This court affirmed the decision in Tikhonova, but distinguished Naso and Rauch. In doing so the court cited to the exclusive remedy language contained Workers’ Compensation Law§29(6). However, set forth above, Rauch and Naso differ from the matter of bar as the plaintiff involved in those cases sought to recover where the solely negligent party was a co- employee. So while there is an exclusive remedy in play under the Workers’ Compensation Law it only applies under the limited fact pattern provided in cases like Rauch and Naso, where the intent of the Legislature is fully respected. This court has already determined that it is not the law of the State of New York that derivative liability could never derive from an immune party’s negligence. Tikhonova, 4 N.Y.3d at 625. Accordingly, the Second Circuit correctly determined that the language employed by this court in the Tikhonova decision was not sufficient to demonstrate that the Hallocks could have no third-party claim against Koubek. (A.14). In fact, the rationale of the Appellate Division and the Court of Appeals in Tikhonova demonstrates the limits of when the exclusive remedy provisions should apply. It should only apply where the injured plaintiff is seeking to recover from a party for damages caused by one in the same employ as the plaintiff and not where, as here, plaintiff has taken himself out of the exclusive 18 remedy provision by making a claim of negligence against one not related by employment and a co-employee is not solely negligent. In this way, a plaintiff will not make a recovery in excess of what would be allowed under Workers’ Compensation Law in cases like Rauch and Naso, but at the same time a party like the Hallocks will not be forced to pay more than their equitable share in cases such as this. Such a decision, like that in Clamp, properly considers the language employed in the statute and the intent of the Legislature. Conclusion Based upon the foregoing, it is respectfully requested that the Honorable Court issue a decision that answers the certified question in the affirmative and allows the Hallocks to recover under the third-party action as against Koubek who has been found to be 90% responsible for the damages sustained by Isabella. DATED: Bohemia, New York January 16, 2014 BY: Glenn A. Kaminska, Esq. Ahmuty, Demers & McManus Attorneys for Defendants/Third-party Plaintiffs/Respondents Hallock 640 Johnson Avenue, Suite 103 Bohemia, New York 11716 (631) 244-0219 /s/ Glenn A. Kaminska