UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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JOSEPH COSENTINO, ANSWER

Plaintiff, Index No. 07-cv-3410

- against Hon. Charles L. Brieant

VILLAGE/TOWN OF MT. KISCO,

New York,

Defendants.

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Defendant, VILLAGE/TOWN OF MT. KISCO, New York, by and through its attorney,

Bond, Schoeneck & King, PLLC, answers the Complaint, pursuant to Rule 12 of the Federal

Rules of Civil Procedure, as follows:

1. NEITHER ADMITS NOR DENIES the content of Paragraph 1 of the Complaint as it

does not contain any factual allegations, only preliminary language and legal conclusions.

2. DENIES knowledge or information suffcient to form a belief as to the truth of the

allegations contained in Paragraph 2 of the Complaint, except ADMITS that Plaintiff

filed a Charge of Discrimination with the United States Equal Employment Opportunity

Commission ("EEOC") and that the EEOC issued a Notice of Right to Sue.

3. DENIES the truth of the allegations contained in Paragraph 3 of the Complaint, and

further DENIES knowledge or information sufficient to form a belief as to the truth of the

allegations regarding Plaintiffs citizenry, residency, and employment status.

4. ADMITS the truth of the allegations contained in Paragraph 4 of the Complaint.

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5. DENIES knowledge or information sufficient to foim a belief as to the truth of the

allegations contained in Paragraph 5 of the Complaint.

6. DENIES the truth of the allegations contained in Paragraph 6 of the Complaint.

7. DENIES the truth of the allegations contained in Paragraph 7 of the Complaint.

8. DENIES the truth of the allegations contained in Paragraph 8 of the Complaint, and

affirmatively asserts that Plaintiff never requested an accommodation.

9. DENIES the truth of the allegations contained in Paragraph 9 of the Complaint.

10. DENIES the truth of the allegations contained in Paragraph 10 of the Complaint.

11. ADMITS the truth of the allegations contained in Paragraph 11 of the Complaint.

12. ADMITS the truth of the allegations contained in Paragraph 12 of the Complaint.

13. DENIES the truth of the allegations contained in Paragraph 13 of the Complaint.

14. DENIES the truth of the allegations contained in Paragraph 14 of the Complaint.

15. DENIES the truth of the allegations contained in Paragraph 15 of the Complaint.

16. DENIES the truth ofthe allegations contained in Paragraph 16 of the Complaint.

17. Repeats and realleges each and every response contained in Paragraphs 1 to 16 above as

if fully set forth herein.

18. DENIES the truth of the allegations contained in Paragraph 18 ofthe Complaint.

19. Repeats and realleges each and every response contained in Paragraphs 1 to 16 above as

if fully set forth herein.

20. DENIES the truth of the allegations contained in Paragraph 20 ofthe Complaint.

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AS AND FOR A FIRST AFFIRMATIVE DEFENSE

21. Plaintiff neither requested, nor was denied, nor did he require a reasonable

accommodation upon his return to work from back surgery in August 2004.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

22. Defendant notified Plaintiff of his impending termination pursuant to Section 71 of New

York State Law by letter dated April 12, 2006, prior to the Plaintiff s filing of a Charge

of Discrimination with the EEOC.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE

23. Plaintiffs disability-related federal (Americans with Disabilities Act) and state (New

Yark State Executive Law, Section 296, et seq.) claims should be judicially estopped by

virtue of his filing for and receiving a disability retirement with the New York State and

Local Retirement System.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

24. Plaintiff failed to satisfy the 1,250 work hours requirement to be eligible for the

protections of the Family Medical Leave Act.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

25. Even if Plaintiff was deemed eligible for the protections of the Family Medical Leave

Act, Plaintiff received all statutory benefits afforded by the Family Medical Leave Act

from the Defendant.

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WHEREFORE, the Defendant respectfully requests that the Complaint be dismissed

in its entirety, and that the Court grant such further relief as it deems necessary and proper.

Dated: Garden City, New York

June 18,2007

Respectfully submitted,

BOND, SCHOENECK & KING, PLLC

By: /s/ Christopher T. Kurtz

Christopher T. Kurtz (CK 9187)

Attorneys for the Defendant

1399 Franklin Avenue, Suite 200

Garden City, New York 11530

(516) 267-6300

Of Counsel:

Mark N. Reinharz, Esq.

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CERTIFICATE OF SERVICE

I hereby certify that on June 18,2007, the foregoing document was filed with the Clerk of

the Court and served in accordance with the Federal Rules of Civil Procedure, and/or the

Southern District's Local Rules, and/or the Southern District's Rules on Electronic Service upon

the following parties and participants:

Jonathan Lovett, Esq.

Lovett & Gould, LLP

222 Bloomingdale Road

White Plains, New York 10605

Attorney for Plaintiffs

/s/ Christopher T. Kurtz

Christopher T. Kurtz (CK 9187)

Bond, Schoeneck & King, PLLC

Attorneys for Defendants

1399 Franklin Avenue, Suite 200

Garden City, New York 11530

(516) 267-6300

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