FILED: NEW YORK COUNTY CLERK 04/30/ :06 PM INDEX NO /2017 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 04/30/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : LINDA KIRSCH, : : Plaintiff, : : Index No.: / against - : : ANSWER AND : AFFIRMATIVE DEFENSES TO LINCOLN CENTER FOR THE PERFORMING ARTS, : THE AMENDED COMPLAINT INC., AMERICAN BALLET THEATRE, : METROPOLITAN OPERA HOUSE, "JOHN DOE", as : further described in the annexed complaint, : : Defendants. : : (" Defendant" Defendant Bryan McCalister ("Defendant"), by his undersigned attorneys, Duane Morris LLP, as for his Answer and Affirmative Defenses to the Amended Complaint, alleges as follows: 1. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 1 of the Amended Complaint, and on that basis 2. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 2 of the Amended Complaint, and on that basis 3. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 3 of the Amended Complaint, and on that basis 4. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 4 of the Amended Complaint, and on that basis denies said allegations. 1 of 14

2 5. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 5 of the Amended Complaint, and on that basis 6. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 6 of the Amended Complaint, and on that basis 7. Defendant denies the allegations set forth in paragraph 7 of the Amended Complaint. 8. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 8 of the Amended Complaint, and on that basis 9. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 9 of the Amended Complaint, and on that basis 10. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 10 of the Amended Complaint, and on that basis 11. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 11 of the Amended Complaint, and on that basis 12. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 12 of the Amended Complaint, and on that basis 2 of 14

3 13. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 13 of the Amended Complaint, and on that basis 14. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 14 of the Amended Complaint, and on that basis 15. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 15 of the Amended Complaint, and on that basis 16. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 16 of the Amended Complaint, and on that basis 17. Paragraph 17 of the Amended Complaint states a legal conclusion to which no response is required. To the extent a response is required, Defendant denies the allegations therein. AS AND FOR A FIRST CAUSE OF ACTION ON BEHALF OF PLAINTIFF AGAINST DEFENDANTS 18. Defendant repeats and realleges each and every response contained herein to the paragraph 18 of the Amended Complaint. 19. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 19 of the Amended Complaint, and on that basis 3 of 14

4 20. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 20 of the Amended Complaint, and on that basis 21. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 21 of the Amended Complaint. 22. Defendant denies the allegations set forth in paragraph 22 of the Amended Complaint, except admits that he was lawfully within Lincoln Center for the Performing Arts on or about June 15, 2016 for an American Ballet Theater performance of Swan Lake. 23. Defendant denies the allegations set forth in paragraph 23 of the Amended Complaint, and further avers that he did not come into bodily contact with Plaintiff. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in Paragraph 23 of the Amended Complaint, and denies said allegations to the extent directed to Defendant. 24. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 24 of the Amended Complaint, and denies said 25. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 25 of the Amended Complaint, and denies said 26. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 26 of the Amended Complaint, and on that basis denies said 4 of 14

5 AS AND FOR A SECOND CAUSE OF ACTION ON BEHALF OF PLAINTIFF AGAINST THE DEFENDANTS (Battery) 27. Defendant repeats and realleges each and every response contained herein to the paragraph 27 of the Amended Complaint. 28. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 28 of the Amended Complaint, and on that basis 29. Defendant denies the allegations set forth in paragraph 29 of the Amended Complaint. 30. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 30 of the Amended Complaint, and denies said 31. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 31 of the Amended Complaint, and denies said 32. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 32 of the Amended Complaint, and denies said 5 of 14

6 AS AND FOR A THIRD CAUSE OF ACTION ON BEHALF OF THE PLAINTIFF AGAINST ALL DEFENDANTS (Assault) 33. Defendant repeats and realleges each and every response contained herein to the paragraph 33 of the Amended Complaint. 34. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 34 of the Amended Complaint, and denies said 35. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 35 of the Amended Complaint, and denies said AS AND FOR A FOURTH CAUSE OF ACTION ON BEHALF OF THE PLAINTIFF AGAINST ALL DEFENDANTS (Prima Facie Tort) 36. Defendant repeats and realleges each and every response contained herein to the paragraph 36 of the Amended Complaint. 37. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 37 of the Amended Complaint, and denies said 38. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 38 of the Amended Complaint, and denies said 6 of 14

7 39. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 39 of the Amended Complaint, and denies said 40. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 40 of the Amended Complaint, and denies said 41. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 41 of the Amended Complaint, and denies said AS AND FOR A FIFTH CAUSE OF ACTION ON BEHALF OF THE PLAINTIFF AGAINST ALL DEFENDANTS (Intentional Infliction of Emotional Distress) 42. Defendant repeats and realleges each and every response contained herein to the paragraph 42 of the Amended Complaint. 43. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 43 of the Amended Complaint, and denies said 44. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 44 of the Amended Complaint, and denies said 45. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 45 of the Amended Complaint, and denies said 7 of 14

8 46. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 46 of the Amended Complaint, and denies said 47. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 47 of the Amended Complaint, and denies said AS AND FOR A SIXTH CAUSE OF ACTION ON BEHALF OF THE PLAINTIFF AGAINST ALL DEFENDANTS (Negligence) 48. Defendant repeats and realleges each and every response contained herein to the paragraph 48 of the Amended Complaint. 49. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 49 of the Amended Complaint, and denies said 50. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 50 of the Amended Complaint, and denies said 51. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 51 of the Amended Complaint, and denies said 52. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 52 of the Amended Complaint, and denies said 8 of 14

9 AS AND FOR A SEVENTH CAUSE OF ACTION ON BEHALF OF THE PLAINTIFF AGAINST ALL DEFENDANTS (Negligent Infliction of Emotional Distress) 53. Defendant repeats and realleges each and every response contained herein to the paragraph 53 of the Amended Complaint. 54. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 54 of the Amended Complaint, and denies said 55. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 55 of the Amended Complaint, and denies said 56. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 56 of the Amended Complaint, and denies said 57. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 57 of the Amended Complaint, and denies said 58. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 58 of the Amended Complaint, and denies said 9 of 14

10 AS AND FOR AN EIGHTH CAUSE OF ACTION AGAINST DEFENDANTS (Negligent Supervision, security, etc.) 59. Defendant repeats and realleges each and every response contained herein to the paragraph 59 of the Amended Complaint. 60. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 60 of the Amended Complaint, and on that basis 61. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 61 of the Amended Complaint, and on that basis 62. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 62 of the Amended Complaint, and on that basis 63. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 63 of the Amended Complaint, and on that basis 64. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 64 of the Amended Complaint, and on that basis 65. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 65 of the Amended Complaint, and on that basis I 10 of 14

11 AS AND FOR A NINTH CAUSE (Negligent Hiring, retention, security, etc.) 66. Defendant repeats and realleges each and every response contained herein to the paragraph 66 of the Amended Complaint. 67. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 60 of the Amended Complaint, and on that basis 68. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 60 of the Amended Complaint, and on that basis 69. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 69 of the Amended Complaint, and on that basis 70. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 70 of the Amended Complaint, and on that basis 71. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 71 of the Amended Complaint, and on that basis FIRST AFFIRMATIVE DEFENSE The Amended Complaint fails to state a cause of action upon which relief may be granted against Defendant of 14

12 SECOND AFFIRMATIVE DEFENSE Plaintiff's claims are barred by the applicable statute of limitations. THIRD AFFIRMATIVE DEFENSE Plaintiff failed to mitigate her damages. FOURTH AFFIRMATIVE DEFENSE Any damages sustained by Plaintiff were caused in whole or in part by Plaintiff's own negligence, assumption of risk, carelessness or recklessness and any recovery herein must be diminished in proportion to the part of any damages attributable to Plaintiff's own negligence, assumption of risk, carelessness or recklessness or that of others for which Plaintiff bears responsibility. FIFTH AFFIRMATIVE DEFENSE Any damages allegedly sustained by Plaintiff were not caused by any negligence, carelessness, recklessness or culpable conduct on the part of Answering Defendant, but were caused by reason of the negligence, carelessness, recklessness or culpable conduct of other defendants or persons other than Defendant for whom Defendant has no legal responsibility. SIXTH AFFIRMATIVE DEFENSE The injuries or damages complained of were caused in whole or in part by Plaintiff's own culpable conduct or the culpable conduct of others who are not yet named in this action. SEVENTH AFFIRMATIVE DEFENSE Upon information and belief, any past or future costs or expenses incurred or to be incurred by Plaintiff for medical care, dental care, custodial care of rehabilitative services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in Section 4545(a) of the New I 12 of 14

13 York Civil Practice Law and Rules. If any damages are recoverable against Defendant, the amount of such damages shall be diminished by the amount of the funds which Plaintiff has received or shall receive from such collateral source(s). EIGHTH AFFIRMATIVE DEFENSE In the event Defendant is found liable, he shall not be responsible for more than his proportionate share of liability pursuant to Article 16 of the New York Civil Practice Law and Rules. NINTH AFFIRMATIVE DEFENSE Defendant relies on the provisions of Article 14 of the New York Civil Practice Law and Rules for contribution and indemnification among all tortfeasors. TENTH AFFIRMATIVE DEFENSE In the event that any person or entity liable or claimed to be liable for the injury alleged in this action has been given or may hereafter be given a release of covenant not to sue, Defendant will be entitled to protection under General Obligation Law and the corresponding reduction of any damages, which may be determined to be due against Defendant. ELEVENTH AFFIRMATIVE DEFENSE The negligence of those responsible to the occurrences alleged in the Amended Complaint, if any, including Plaintiff, constituted a separate, independent, superseding, intervening act(s), which constitute the proximate cause and/or substantial factor for the occurrences alleged. TWELFTH AFFIRMATIVE DEFENSE Upon information and belief, whatever injuries and/or damages were sustained by Plaintiff at the time and place alleged in the Amended Complaint were due in whole or in part as I 13 of 14

14 a result of Plaintiff's underlying medical condition and/or risks or complications of appropriate care and/or the assumption of risk (primary and/or express and/or implied), comparative negligence, contributory negligence and culpable conduct of Plaintiff that such negligence, conduct and risk assumption reduces, mitigates and/or bars Plaintiff's recovery. ADDITIONAL AFFIRMATIVE DEFENSES Defendant reserves the right to add to, delete or modify its affirmative defenses based on facts and/or legal theories that may be disclosed through clarification of Plaintiff's claims, through discovery, or through further legal analysis of Plaintiff's position in this litigation. PRAYER FOR RELIEF WHEREFORE, Defendant demands that judgment be entered against Plaintiff as follows: a. that the Amended Complaint and all cause of action asserted therein be dismissed with prejudice as to Defendant; and b. that the Court grant Defendant such other and further relief as may be just and proper. Dated: New York, New York April 30, 2018 DUANE MORRIS LLP By: s/ Ralph Carter Justin Ralph D'Elia Carter 1540 Broadway New York, New York Phone: (212) Attorneys for Defendant Bryan McCalister I 14 of 14