Levin et al v. Bank of New York et al

RESPONSE re: 521 Response

S.D.N.Y.December 27, 2011

EAST\47683153.1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------x JEREMY LEVIN and DR. LUCILLE LEVIN, : Plaintiffs, : -against- : BANK OF NEW YORK, JPMORGAN : CHASE, SOCIETE GENERALE and CITIBANK, : Defendants. : --------------------------------------------------------------x Case No. 09 Civ. 5900 (RPP) (MHD) THE BANK OF NEW YORK MELLON, : Third-Party Plaintiff, : -against- : STEVEN M. GREENBAUM, et al., : Third-Party Defendants. : --------------------------------------------------------------x ANSWER OF THE ESTATE OF MICHAEL HEISER, ET AL. TO COUNTERCLAIMS AND CROSSCLAIMS OF AYRA SHIPPING LINES (SINGAPORE) PTE. LTD. The Estate of Michael Heiser, et al. (the “Heisers”)1, by their undersigned counsel, for their answer to the Crossclaims and Counterclaims filed by Arya Shipping Lines (Singapore) Pte. Ltd. (“Ayra Shipping”) (collectively, the “Crossclaims”), allege as follows: 1 The Heisers are (1) the Estate of Michael Heiser, deceased; (2) Gary Heiser; (3) Francis Heiser; (4) the Estate of Leland Timothy Haun, deceased; (5) Ibis S. Haun; (6) Milagritos Perez-Dalis; (7) Senator Haun; (8) the Estate of Justin R. Wood, deceased; (9) Richard W. Wood; (10) Kathleen M. Wood; (11) Shawn M. Wood; (12) the Estate of Earl F. Cartrette, Jr., deceased; (13) Denise M. Eichstaedt; (14) Anthony W. Cartrette; (15) Lewis W. Cartrette; (16) the Estate of Brian McVeigh, deceased; (17) Sandra M. Wetmore; (18) James V. Wetmore; (19) the Estate of Millard D. Campbell, deceased; (20) Marie R. Campbell; (21) Bessie A. Campbell; (22) the Estate of Kevin J. Johnson, deceased; (23) Shyrl L. Johnson; (24) Che G. Colson; (25) Kevin Johnson, a minor, by his legal guardian Shyrl L. Johnson; (26) Nicholas A. Johnson, a minor, by his legal guardian Shyrl L. Johnson; (27) Laura E. Johnson; (28) Bruce Johnson; (29) the Estate of Joseph E. Rimkus, deceased; (30) Bridget Brooks; (31) James R. Rimkus; (32) Anne M. Rimkus; (33) the Estate of Brent E. Marthaler, deceased; (34) Katie L. Marthaler; (35) Sharon Marthaler; (36) Herman C. Marthaler III; (37) Matthew Marthaler; (38) Kirk Marthaler; (39) the Estate of Thanh Van Nguyen, deceased; (40) Christopher R. Nguyen; (41) the Estate of Joshua E. Woody, deceased; (42) Dawn Woody; (43) Bernadine R. Beekman; (44) George M. Beekman; (45) Tracy M. Smith; (46) Jonica L. Woody; (47) Timothy Woody; (48) the Estate of Peter J. Morgera, deceased; (49) Michael Morgera; (50) Thomas Morgera; (51) Case 1:09-cv-05900-RPP-MHD Document 594 Filed 12/27/11 Page 1 of 6 EAST\47683153.1 2 CROSSCLAIMS AND COUNTERCLAIMS 1. Paragraph 1 of the Crossclaims states conclusions of law as to which no response is required. 2. Paragraph 2 of the Crossclaims states conclusions of law as to which no response is required. 3. The Heisers lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 3 of the Crossclaims; accordingly, such allegations are denied. 4. Whether or not Arya Shipping is an agency or instrumentality of Iran is a conclusion of law as to which no response is required. The Heisers further state that they lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 4 of the Crossclaims; accordingly, such allegations are denied. 5. The Heisers admit the allegations contained in paragraph 5 of the Crossclaims. 6. The Heisers admit that they are citizens and residents of the United States. The Heisers lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 6 of the Crossclaims; accordingly, such allegations are denied. 7. The Heisers admit that Ayra Shipping was a party to certain wire transfers that are the subject of this action. The Heisers lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 7 of the Crossclaims; accordingly, such allegations are denied. the Estate of Kendall Kitson, Jr., deceased; (52) Nancy R. Kitson; (53) Kendall K. Kitson; (54) Steve K. Kitson; (55) Nancy A. Kitson; (56) the Estate of Christopher Adams, deceased; (57) Catherine Adams; (58) John E. Adams; (59) Patrick D. Adams; (60) Michael T. Adams; (61) Daniel Adams; (62) Mary Young; (63) Elizabeth Wolf; (64) William Adams; (65) the Estate of Christopher Lester, deceased; (66) Cecil H. Lester; (67) Judy Lester; (68) Cecil H. Lester, Jr.; (69) Jessica F. Lester; (70) the Estate of Jeremy A. Taylor, deceased; (71) Lawrence E. Taylor; (72) Vickie L. Taylor; (73) Starlina D. Taylor; (74) the Estate of Patrick P. Fennig, deceased; (75) Thaddeus C. Fennig; (76) Catherine Fennig; (77) Paul D. Fennig; and (78) Mark Fennig. Case 1:09-cv-05900-RPP-MHD Document 594 Filed 12/27/11 Page 2 of 6 EAST\47683153.1 3 8. The Heisers lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 of the Crossclaims; accordingly, such allegations are denied. 9. To the extent the allegations in paragraph 9 of the Crossclaims concern the Specially Designated National (“SDN”) list, that list speaks for itself and no response is required. The Heisers lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 9 of the Crossclaims; accordingly, such allegations are denied. 10. The Heisers lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 10 of the Crossclaims; accordingly, such allegations are denied. 11. The Heisers lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 11 of the Crossclaims; accordingly, such allegations are denied. 12. The Heisers lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 12 of the Crossclaims; accordingly, such allegations are denied. First Crossclaim and Counterclaim 13. Paragraph 13 of the Crossclaims requires no responsive pleading. To the extent a response is required, the Heisers repeat and reallege their responses to paragraphs 1-12. 14. The Heisers lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 14 of the Crossclaims; accordingly, such allegations are denied. Case 1:09-cv-05900-RPP-MHD Document 594 Filed 12/27/11 Page 3 of 6 EAST\47683153.1 4 15. The Heisers lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 15 of the Crossclaims; accordingly, such allegations are denied. 16. Paragraph 16 of the Crossclaims states conclusions of law as to which no response is required. To the extent a response is required, the Heisers lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 16 of the Crossclaims; accordingly, such allegations are denied. 17. Paragraph 17 of the Crossclaims states conclusions of law as to which no response is required. To the extent a response is required, the Heisers lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 17 of the Crossclaims; accordingly, such allegations are denied. Second Crossclaim and Counterclaim 18. Paragraph 18 of the Crossclaims requires no responsive pleading. 19. Paragraph 19 of the Crossclaims states conclusions of law as to which no response is required. To the extent a response is required, the Heisers lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 19 of the Crossclaims; accordingly, such allegations are denied. 20. Paragraph 20 of the Crossclaims states conclusions of law as to which no response is required. To the extent a response is required, the Heisers lack knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 20 of the Crossclaims; accordingly, such allegations are denied. Case 1:09-cv-05900-RPP-MHD Document 594 Filed 12/27/11 Page 4 of 6 EAST\47683153.1 5 DEFENSES First Defense The Heisers’ claims are superior to Ayra Shipping and any other claimants as a matter of law by virtue of service of their writs of execution and the initiation of a turnover action in accordance with N.Y. C.P.L.R. §§ 5225 and 5227. Second Defense Ayra Shpping’s claims are barred by res judicata and/or collateral estoppel. Third Defense Ayra Shpping’s claims are barred by waiver. Fourth Defense Ayra Shipping’s claims of other parties to this action are barred by unjust enrichment. Fifth Defense Ayra Shipping’s claims are barred by laches. The Heisers reserve the right to assert additional affirmative defenses and/or counterclaims or cross-claims that may become apparent after additional discovery or otherwise. WHEREFORE, the Heisers respectfully demand judgment in their favor and against Ayra Shipping: (i) dismissing the Crossclaims; and (ii) awarding such other and further relief as this Court deems to be necessary and just. Case 1:09-cv-05900-RPP-MHD Document 594 Filed 12/27/11 Page 5 of 6 EAST\47683153.1 6 Dated: New York, New York December 27, 2011 /s/ Barbara L. Seniawski Cary B. Samowitz Barbara L. Seniawski DLA Piper LLP (US) 1251 Avenue of the Americas, 27th Floor New York, New York 10020-1104 Telephone: 212-335-4500 Facsimile: 212-884-4501 cary.samowitz@dlapiper.com barbara.seniawski@dlapiper.com and Richard M. Kremen (Md. Fed. Bar No. 00532) Dale K. Cathell (Md. Fed. Bar No. 26924) David B. Misler (Md. Fed. Bar No. 28828) DLA Piper LLP (US) 6225 Smith Ave. Baltimore, MD 21209 Telephone: 410-580-3000 Facsimile: 410-580-3001 richard.kremen@dlapiper.com dale.cathell@dlapiper.com david.misler@dlapiper.com Attorneys for Third-Party Defendants Estate of Michael Heiser, et al. Case 1:09-cv-05900-RPP-MHD Document 594 Filed 12/27/11 Page 6 of 6