UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

----------------------------------------------------------------------x 

LIBERTY MUTUAL FIRE INSURANCE COMPANY 

as Subrogee of Jeffrey Aveis 

175 Berkeley Street 

Boston, Massachusetts ANSWER

 Plaintiff, 07 Civ. 3352 (CLB) 

 v. 

PB HEAT LLC 

doing business as PEERLESS BOILERS 

9th & Rothermel Drive 

P.O. Box 447 

New Berlinville, PA 19545 

 

 and 

BOTTINI FUEL OIL CORPORATION 

21 Alexander Blvd. 

Poughkeepsie, New York 12603 

 Defendants. 

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 Defendant, PB HEAT LLC d/b/a PEERLESS BOILERS, by its attorneys, LAW 

OFFICE OF THOMAS K. MOORE, answering the complaint, respectfully sets forth upon 

information and belief: 

THE PARTIES

 1. Denies any knowledge or information sufficient to form a belief as to any of the 

allegations contained in paragraphs numbered “1”, “2”, “3”, “6” and “’7” of the complaint. 

 2. Denies each and every allegation contained in paragraph numbered “4” of the 

complaint except admits that defendant PB Heat, LLC d/b/a Peerless Boilers Heat, LLC 

(hereinafter “PB Heat”), has a principal place of business located at 9th and Rothermel Drive, 

P.O. Box 447, New Berlinville, Pennsylvania 19545. 

 3. Admits each and every allegation contained in paragraph numbered “5” of the 

complaint. 

Case 7:07-cv-03352-CLB Document 5 Filed 05/31/2007 Page 1 of 5
JURISDICTION ALLEGATIONS

 4. Denies any knowledge or information sufficient to form a belief as to any of the 

allegations contained in paragraphs numbered “8” and “9” of the complaint, and refers all 

questions of law to this Honorable Court. 

FACTS

 5. Denies each and every allegation contained in paragraph numbered “10” of the 

complaint. 

 6. Denies any knowledge or information sufficient to form a belief as to any of the 

allegations contained in paragraphs numbered “11”, “12”, “13”, “14”, “15” and “16” of the 

complaint. 

COUNT 1 

NEGLIGENCE 

PLAINTIFF V. DEFENDANT PB HEAT, LLC 

 7. Repeats and reiterates all of the admissions and denials contained in the foregoing 

answer with the same force and effect as if herein set forth at length. 

 8. Denies each and every allegation contained in paragraphs numbered “18”, “a”, “b”, 

“c”, “d”, “e”, “f”, “g”, “h”, “i”, “j”, “k”, “l” and “19” of the complaint. 

COUNT II 

BREACH OF WARRANTIES 

PLAINTIFF V. DEFENDANT PB HEAT, LLC

 9. Repeats and reiterates all of the admissions and denials contained in the foregoing 

answer with the same force and effect as if herein set forth at length. 

 10. Denies each and every allegation contained in paragraphs numbered “21”, “22” 

and “23” of the complaint. 

COUNT III 

STRICT PRODUCTS LIABILITY 

PLAINTIFF V. DEFENDANT PB HEAT, LLC

 11. Repeats and reiterates all of the admissions and denials contained in the foregoing 

answer with the same force and effect as if herein set forth at length. 

 12. Denies each and every allegation contained in paragraphs numbered “25”, “a” and 

“26” of the complaint. 

Case 7:07-cv-03352-CLB Document 5 Filed 05/31/2007 Page 2 of 5
COUNT IV 

PLAINTIFF V. DEFENDANT BOTTINI FUEL COMPANY 

RECKLESSNESS, GROSS NEGLIGENCE AND NEGLIGENCE

 13. Repeats and reiterates all of the admissions and denials contained in the foregoing 

answer with the same force and effect as if herein set forth at length. 

 14. Denies any knowledge or information sufficient to form a belief as to any of the 

allegations contained in paragraphs numbered “28”, “a”, “b”, “c”, “d”, “e”, “f”, “g”, “h”, “i”, 

“j”, “k”, “l”, “m”, “n”, “o”, “p”, “q”, “r” and “s” of the complaint. 

 15. Denies each and every allegation contained in paragraph numbered “29” of the 

complaint. 

COUNT V 

PLAINTIFF V. DEFENDANT BOTTINI FUEL COMPANY 

BREACH OF CONTRACT 

 16. Repeats and reiterates all of the admissions and denials contained in the foregoing 

answer with the same force and effect as if herein set forth at length. 

 

 17. Denies any knowledge or information sufficient to form a belief as to any of the 

allegations contained in paragraphs numbered “31” and “32” of the complaint. 

 18. Denies each and every allegation contained in paragraph numbered “33” of the 

complaint. 

COUNT VI 

PLAINTIFF V. DEFENDANT BOTTINI FUEL COMPANY 

BREACH OF EXPRESS AND IMPLIED WARRANTIES

 19. Repeats and reiterates all of the admissions and denials contained in the foregoing 

answer with the same force and effect as if herein set forth at length. 

 20. Denies any knowledge or information sufficient to form a belief as to any of the 

allegations contained in paragraphs numbered “35” and “36” of the complaint. 

AS AND FOR A FIRST SEPARATE, AFFIRMATIVE AND COMPLETE 

DEFENSE TO PLAINTIFF'S ALLEGED CAUSE OF ACTION, THIS 

DEFENDANT RESPECTFULLY SETS FORTH AND ALLEGES UPON 

INFORMATION AND BELIEF: 

 21. That if the plaintiff sustained any injuries as alleged, such injuries were caused by 

(his/her/their) own fault and negligence, and/or culpable conduct, wholly or partially. 

Case 7:07-cv-03352-CLB Document 5 Filed 05/31/2007 Page 3 of 5
AS AND FOR A TWO SEPARATE, AFFIRMATIVE AND COMPLETE 

DEFENSE TO PLAINTIFF’S ALLEGED CAUSE OF ACTION, THIS 

DEFENDANT RESPECTFULLY SETS FORTH AND ALLEGES UPON 

INFORMATION AND BELIEF: 

 22. If plaintiff recovers any damages by reason of the alleged negligence of this 

answering defendant, said damages must be reduced by the total amount of all funds received 

by plaintiff for all collateral sources pursuant to CPLR section 4545(c). 

AS AND FOR A THIRD SEPARATE, AFFIRMATIVE AND 

COMPLETE DEFENSE TO PLAINTIFF'S ALLEGED CAUSE 

OF ACTION, THE DEFENDANTS RESPECTFULLY SET 

FORTH AND ALLEGE UPON INFORMATION AND BELIEF: 

 23. The allegations in the complaint fail to state a cause of action. 

AS AND FOR A FOURTH SEPARATE, AFFIRMATIVE AND 

COMPLETE DEFENSE TO PLAINTIFF'S ALLEGED CAUSE 

OF ACTION, THE DEFENDANTS RESPECTFULLY SET 

FORTH AND ALLEGE UPON INFORMATION AND BELIEF: 

 

 24. Defendants owed no duty to plaintiff's subrogor. 

EACH ANSWERING DEFENDANT ASSERTS A 

CROSS-CLAIM AGAINST CO-DEFENDANT 

BOTTINI FUEL OIL CORPORATION: 

25. If any plaintiff was caused to sustain the damages as alleged in the complaint, said 

damages will have been sustained by reason of the negligence and/or culpable conduct and/or 

breach of contract, lease or agreement, including, but not limited to, any hold harmless 

agreement and/or agreement to procure insurance of each party against whom a claim is being 

asserted, and if any defendant cross-claiming is also found negligent, and/or culpable, then 

such defendant will be entitled to contribution and/or indemnification, by each negligent 

and/or culpable party named in this cross-claim, for the portion of the plaintiff's damages 

which were caused by the negligent and/or culpable party named in this cross-claim, together 

with attorneys' fees, cost of investigation and disbursements. 

WHEREFORE, the defendant demands judgment: 

 (1) dismissing the complaint and all cross-claims, 

(2) for contribution and/or indemnification on the cross-claim 

Case 7:07-cv-03352-CLB Document 5 Filed 05/31/2007 Page 4 of 5
 against co-defendant as named above; and 

 (3) for costs and disbursements against adverse parties 

Dated: White Plains, New York 

 May 31, 2007 

LAW OFFICE OF THOMAS K. MOORE 

By: ____________s/_________________

 BRIAN J. POWERS (BP-1992) 

Attorneys for Defendant 

PB HEAT LLC 

doing business as PEERLESS BOILERS 

Office & P.O. Address 

701 Westchester Avenue - Suite 101W 

White Plains, New York 10604 

(914) 285-8500 

TO: 

COZEN O'CONNOR 

Attorneys for Plaintiff 

45 Broadway Atrium 

New York, New York 10006 

(212) 509-9400 

BOTTINI FUEL OIL CORPORATION 

21 Alexander Blvd. 

Poughkeepsie, New York 12603

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