Free Declaration - District Court of Federal Claims - federal

Case 1:03-cv-00287-SGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
_________________________________________________ ) ASSET 42302 LLC, ) ) Plaintiff, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) _________________________________________________ )

Civil Action. No. 03-287-C (SGB)

SUPPLEMENTAL DECLARATION OF ROBERT J. HOWARD IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ROBERT J. HOWARD, an attorney admitted to practice before the District Court of the Southern District of New York, declares under penalty of perjury, pursuant to 28 U.S.C. § 1746, as follows: 1. I am an associate of the firm of Rosenberg Calica & Birney LLP, attorneys for

plaintiff Asset 42302, LLC, and I submit this declaration to supplement plaintiff's summary judgment record pursuant to the Order of this Court dated January 12, 2007 (Exhibit A), and to object to a new affirmative defense asserted for the first time in the Government's answer to the third amended complaint dated February 7, 2007. 2. As discussed among the Court and counsel on January 10, 2007, the plaintiff was

granted leave to file a third amended complaint for the sole purpose of mooting any jurisdictional defense arising from the fact that plaintiff seeks to increase the amount of its claim to reflect a change in legal theory under authority of Thermocor, Inc. v. United States, 35 Fed. Cl. 480 (1996).

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3.

To moot the Government's objections, plaintiff served a supplemental claim upon

the Postal Service by letter dated October 19, 2006 (Exhibit B), which was denied by letter dated January 5, 2007 (Exhibit C). The purpose of the third amended complaint for which plaintiff was granted leave, was solely to add the supplemental claim and moot jurisdictional objections based on 41 U.S.C. § 605 and the modified claim amount. Plaintiff served and filed its third amended complaint on January 22, 2007 (Exhibit D), and the Postal Service filed an answer on February 7, 2007 (Exhibit E). 4. We object, however to the Postal Service's answer to the extent it seeks to assert a

new affirmative defense based on "contributory negligence". After 6 years of litigation and prelitigation correspondence, it appears that this is the first time contributory negligence has been raised. This new defense is particularly specious because plaintiff's claim is based in contract, not tort, and the lease put the burden of maintaining and repairing the hot water boiler squarely upon the Postal Service. The Postal Service's answer does not explain how the plaintiff could have been negligent with regard to the Postal Service's failure to maintain the boiler. 5. Therefore, we respectfully request that the pending summary judgment record be

supplemented as noted herein, and if plaintiff's motion is denied for any reason, plaintiff be granted leave to conduct limited discovery with regard to the Postal Service's newly crafted contributory negligence defense. Dated: Garden City, New York February 16, 2007 ________/S/______________________ ROBERT J. HOWARD (RH 5288)

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AFFIDAVIT OF SERVICE BY MAIL

STATE OF NEW YORK COUNTY OF NASSAU

) ) ss.: )

BETTY M. VALENTINE, being duly sworn, deposes and says, that deponent is not a party to this action, is over 18 years of age and resides at Garden City South, New York. That on February 16, 2007 served the within SUPPLEMENTAL DECLARATION OF ROBERT J. HOWARD IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT by mailing the same in a properly addressed, sealed envelope, with postage prepaid thereon, in an official depository of the U.S. Postal Service within the State of New York, addressed to the last known address of the addressee(s): TO: Peter D. Kiesler Assistant Attorney General c/o Michael Francis Keily, Esq. Commercial and Appellate Litigation Law Department 475 L'Enfant Plaza, SW Room 6523 Washington, DC 20260-1127

__________/s/____________________ Betty M. Valentine Sworn to before me this 16th day of February, 2007

_______/s/__________________ NOTARY PUBLIC
Maryellen Boyle Notary Public, State aof New York No. 01BO5043092 Qualified in Queens County Commission Expires May 1, 2007