FILED: NEW YORK COUNTY CLERK 12/18/ :36 PM INDEX NO /2017 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 12/18/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK TYREL HEMPSTEAD, Index No /2017 Plaintif, -against- HAMMER & STEEL, INC., STS-SCHELTZKE GMBH & CO. KG., 9501 DITMARS BOULEVARD, LLC, ICS BUILDERS, INC., and ENTERPRISE HOLDINGS, INC., Defendants. ICS BUILDERS, INC., Third-Party Plaintif, Index No /2017 -against- VERIFIED ANSWER TO THIRD-PARTY COMPLAINT PETERSON GEOTECHNICAL CONSTRUCTION LLC, Third-Party Defendant. (" Peterson" Third-Party Defendant Peterson Geotechnical Construction LLC ("Peterson"), by its attorneys, Barclay Damon LLP, as and for its answer to Third-Party Plaintiff's Verified Third-Party Complaint Complaint" dated August 30, 2017 (the "Third-Party Complaint"), respectfully alleges as follows: 1. Admits the allegations contained in paragraph 1 of the Third-Party Complaint. 2. Denies the allegations contained in paragraph 2 of the Third-Party Complaint. 3. Admits the allegations contained in paragraph 3 of the Third-Party Complaint. 4. Admits the allegations contained in paragraph 4 of the Third-Party Complaint. 1 of 11

2 5. Denies knowledge or information sufficient to form a belief with respect to the truth or falsity of the allegations contained in paragraph 5 of the Third-Party Complaint, and respectfully refers the document referenced therein, which speaks for itself, to this Court for its terms. 6. Denies knowledge or information sufficient to form a belief with respect to the truth or falsity of the allegations contained in paragraph 6 of the Third-Party Complaint, and respectfully refers the document referenced therein, which speaks for itself, to this Court for its terms. 7. Repeats and realleges its above responses to the allegations contained in paragraphs 1-6, inclusive, of the Third-Party Complaint as if set forth more fully herein. 8. Denies the allegations contained in paragraph 8 of the Third-Party Complaint, except admits that a written agreement exists between it and Third-Party Plaintiff, and respectfully refers said document, which speaks for itself, to this Court for its terms. 9. Denies the allegations contained in paragraph 9 of the Third-Party Complaint. 10. Repeats and realleges its above responses to the allegations contained in paragraphs 1-9, inclusive, of the Third-Party Complaint as if set forth more fully herein. 11. Denies the allegations contained in paragraph 11 of the Third-Party Complaint. 12. Denies the allegations contained in paragraph 12 of the Third-Party Complaint. 13. Denies the allegations contained in paragraph 13 of the Third-Party Complaint. 14. Denies the allegations contained in paragraph 14 of the Third-Party Complaint. 15. Repeats and realleges its above responses to the allegations contained in paragraphs 1-14, inclusive, of the Third-Party Complaint as if set forth more fully herein of 11

3 16. Denies the allegations contained in paragraph 16 of the Third-Party Complaint, except admits that a written agreement exists between it and Third-Party Plaintiff, and respectfully refers said document, which speaks for itself, to this Court for its terms. 17. Denies the allegations contained in paragraph 17 of the Third-Party Complaint. 18. Denies the allegations contained in paragraph 18 of the Third-Party Complaint. 19. Denies the allegations contained in paragraph 19 of the Third-Party Complaint. 20. Repeats and realleges its above responses to the allegations contained in paragraphs 1-19, inclusive, of the Third-Party Complaint as if set forth more fully herein. 21. Denies the allegations contained in paragraph 21 of the Third-Party Complaint, except admits that a written agreement exists between it and Third-Party Plaintiff, and respectfully refers said document, which speaks for itself, to this Court for its terms. 22. Admits the allegations contained in paragraph 22 of the Third-Party Complaint. 23. Denies the allegations contained in paragraph 23 of the Third-Party Complaint. 24. Denies the allegations contained in paragraph 24 of the Third-Party Complaint. 25. Denies the allegations contained in paragraph 25 of the Third-Party Complaint. 26. Denies the allegations contained in paragraph 26 of the Third-Party Complaint. 27. Denies the allegations contained in paragraph 27 of the Third-Party Complaint. 28. Denies the allegations contained in paragraph 28 of the Third-Party Complaint. 29. Denies the allegations contained in paragraph 29 of the Third-Party Complaint. 30. Denies the allegations contained in paragraph 30 of the Third-Party Complaint. 31. Denies the allegations contained in paragraph 31 of the Third-Party Complaint of 11

4 32. Repeats and realleges its above responses to the allegations contained in paragraphs 1-31, inclusive, of the Third-Party Complaint as if set forth more fully herein. 33. Denies the allegations contained in paragraph 33 of the Third-Party Complaint, except admits that a written agreement exists between it and Third-Party Plaintiff, and respectfully refers said document, which speaks for itself, to this Court for its terms. 34. Denies the allegations contained in paragraph 34 of the Third-Party Complaint. 35. Denies the allegations contained in paragraph 35 of the Third-Party Complaint. 36. Denies the allegations contained in paragraph 36 of the Third-Party Complaint. 37. Denies each and every allegation of the Third-Party Complaint not hereinbefore specifically admitted, controverted or denied. AS AND FOR A FIRST, SEPARATE 38. The Third-Party Complaint fails to state any legally cognizable cause of action as against Peterson. AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 39. That culpable conduct on the part of Plaintiff Tyrel Hempstead caused or contributed to the happening of the accident. 40. Plaintiff should be barred from recovery by reason of the fact that the accident was entirely the result of culpable conduct on the part of Plaintiff, or in the event that Plaintiff is entitled to recover, the amount of damages otherwise recoverable should be diminished in the proportion that the culpable conduct attributable to Plaintiff bears to the culpable conduct that caused the damages of 11

5 AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 41. Plaintiff's conduct constituted the sole proximate cause of the accident and/or injuries. AS AND FOR A FOURTH, SEPARATE 42. Upon information and belief, whatever damages and injuries, if any, which were sustained by Plaintiff, were proximately caused by superseding and/or intervening causes and not by any action or omission of Peterson. AS AND FOR A FIFI'H, SEPARATE Upon information and belief, to the extent Plaintiff may be able to prove he sustained injuries as a result of the accident, such injuries, if any, were the result of conduct on the part of persons or entities over which Peterson had neither control nor right of control. AS AND FOR AN SIXTH, SEPARATE 44. Plaintiff failed to mitigate, minimize, or otherwise act to lessen or reduce the injury and damage, if any, allegedly resulting from the accident. AS AND FOR A SEVENTH, SEPARATE 45. Upon information and belief, some or all of Plaintiff's damages will be replaced or indemnified, in whole or in part, from collateral sources, and Peterson is therefore entitled to a collateral source offset under CPLR Section of 11

6 AS AND FOR AN EIGHTH, SEPARATE 46. Peterson specifically denies liability for the damages alleged by Plaintiff, but if liability is assessed against Peterson, and the percentage of liability is 50% or less of the total liability assigned to all persons or entities liable, then pursuant to Article 16 of the Civil Practice Law and Rules, Peterson's liability for non-economic loss shall not exceed its equitable share determined in accordance with the relative culpability of each person or entity causing or contributing to the total liability for non-economic loss. AS AND FOR A NINTH, SEPARATE 47. In the event that Plaintiff or Third-Party Plaintiff proves a hazardous condition, substance, or defect existed at the premises which is specifically denied, the Third-Party Complaint and all causes of action on behalf of Third-Party Plaintiff are barred as Peterson had no prior actual or constructive notice of the alleged condition, substance or defect. AS AND FOR A TENTH, SEPARATE 48. That in entering into the activity upon which Plaintiff was engaged at the time of the happening of the accident as set forth in the Third-Party Complaint, Plaintiff knew the hazards thereof, and the inherent risk incident to such activity and had full knowledge of the methods to be used in the performance of such activity and the danger thereof, and that as a consequence, whatever damages, if any, sustained by Plaintiff as alleged in the Third-Party Complaint, arose from and were caused by the risks of said activity and such risks were accepted and assumed by Plaintiff upon entering into and continuing in such activity of 11

7 AS AND FOR AN ELEVENTH, SEPARATE 49. Third-Party Plaintiff's action under the New York State Labor Law is barred by the "recalcitrant worker" doctrine as it applies to Plaintiff, and/or Plaintiff's failure and/or refusal to use available and appropriate safety devices. AS AND FOR A TWELFIII, SEPARATE 50. Third-Party Plaintiff has failed to join all necessary parties. AS AND FOR A THIRTEENTH, SEPARATE Upon information and belief, some or all of Third-Party Plaintiff's claims are barred under the doctrines of waiver, laches, equitable estoppel and/or ratification. AS AND FOR A FOURTEENTH, SEPARATE 52. Some or all of the claims asserted by Third-Party Plaintiff are barred by the New York State Workers' Compensation Law. AS AND FOR A FIFI'EENTH, SEPARATE 53. Upon information and belief, Peterson is entitled to a setoff pursuant to N.Y. General Obligations Law based on any settlement or discontinuance between Plaintiff and any other alleged tortfeasor of 11

8 AS AND FOR A SIXTEENTH, SEPARATE 54. Upon information and belief, whatever injuries and/or damages were sustained by the Plaintiff, if any, were caused in whole or in part by Plaintiff's own misuse and/or modification of any labor, tools, and/or equipment. AS AND FOR A SEVENTEENTH, SEPARATE 55. In the event that Plaintiff proves a hazardous condition or any alleged defect existed, which is specifically denied, then, upon information and belief, that alleged condition or alleged defect was open and obvious and not inherently dangerous. RESERVATION OF RIGHTS 56. Discovery in this action has not yet been conducted, and therefore, Peterson reserves its right to amend and/or supplement this Answer with any additional affirmative defenses and/or crossclaims it may have or to which it may be entitled of 11

9 DEMAND FOR RELIEF WHEREFORE, Third-Party Defendant Peterson demands judgment as follows: A. Dismissing the Third-Party Complaint herein with prejudice as against Peterson; B. That Plaintiff's damages, in the event that Plaintiff is entitled to recover, be diminished in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the damages; and C. For such other, further and different relief which to this Court may seem just, proper and equitable. Dated: New York, New York December 18, 2017 a BARCLAY DAMON LLP By: /s/ John C. Canoni John C. Canoni Attorneys for Third-Party Defendant Peterson Geotechnical Construction LLC 1270 Avenue of the Americas, Suite 600 New York, New York Telephone: (212) of 11

10 TO: TORINO & BERNSTEIN, P.C. Attorneys for Defendant/Third-Party Plaintif 200 Old Country Road, Suite 220 Mineola, New York KAHN GORDON TIMKO & RODRIQUES, P.C. Attorneys for Plaintly 20 Vesey Street, Suite 300 New York, New York HARRIS, KING, FODERA & CORREIA Attorneys for Defendant 9501 Ditmars Boulevard 29* One Battery Park Plaza, 29 Floor New York, New York LAW OFFICES OF MICHAEL C. PRESSMAN 0 Attorneys for Defendant Hammer & Steel, Inc. 17* 125 Maiden Lane, 17 Floor New York, New York AHMUTY, DEMERS & MCMANUS Attorneys for Defendant STS Scheltzke GmbH & Co. KG 199 Water Street New York, New York CARMAN, CALLAHAN & INGHAM, LLP Attorneys for Defendant Enterprise Holdings, LLC 266 Main Street Farmingdale, New York of 11

11 VERIFICATION JOHN C. CANONI, hereby affirms as follows under penalty of perjury: I am an attorney duly licensed to practice law before the courts of the State of New York and partner to the law firm of Barclay Damon LLP, counsel for Third-Party Defendant Peterson Geotechnical Construction LLC in this action. I have read the foregoing Verified Answer to Third-Party Complaint and the same is true of my own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. The reason this verification is not made by Peterson Geotechnical Construction LLC is that it is not within the County of New York, which is the county where the deponent has his office. The grounds for my belief as to matters not based on my a knowledge are derived from my review of documents contained in my firm's file in this matter. I affirm the foregoing to be true this 18th day of December, 2017 under the penalties of perjury pursuant to CPLR is/ John C. Canoni of 11