FILED: KINGS COUNTY CLERK 03/16/ :12 PM INDEX NO /2014 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/16/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNT OF KINGS X X ALFONSO GARCIA, Index No.: /2014 Plaintiff, -against- WHITE PLAINS ROAD REALTY, LLC, BROOKLYN HOME IMPROVEMENT, INC. and ABC "ABC CORP. CORP." d/b/a MASCO CONSTRUCTION, Defendants X X BROOKLYN HOME IMPROVEMENT, INC., THIRD-PARTY DEFENDANT H&R BLOCK EASTERN ENTERPRISES, INC. S INC.'S AMENDED VERIFEID ANSWER TO VERIFIED THIRD- PARTY COMPLAINT AND CROSS-CLAIMS Third-Party Plaintiff, -against- SS BRIDGING & SCAFFOLDING, INC. and H&R BLOCK EASTERN ENTERPRISES, INC. Third-Party Defendants X X Third-Party Defendant, H & R BLOCK EASTERN ENTERPRISES, INC. ( HRBEE ("HRBEE" or "Responding Responding Third-Party Defendant") Defendant ) by way of Amended Verified Answer to Defendant/Third- Party Plaintiff s Plaintiffs Verified Third-Party Complaint, states as follows: AS TO THE FIRST CAUSE OF ACTION Responding Third-Party Defendant lacks knowledge and/or information sufficient to form a belief as to the truth of the allegations in paragraphs 1, 2, 3, 4, 9, 10, and 11 of Third-Party Plaintiffs Plaintiff s Verified Third-Party Complaint. Responding Third-Party Defendant denies the allegations set forth in paragraphs 5, 7, and 8 of Third-Party Plaintiff s Plaintiffs Verified Third-Party Complaint. 1 of 10

2 Responding Third-Party Defendant admits the allegations set forth in paragraph 6 of Third- Party Plaintiff s Plaintiffs Verified Third-Party Complaint. Responding Third-Party Defendant denies the allegations set forth in paragraphs 12 and 13 of Third-Party Plaintiff's Plaintiff s Verified Third-Party Complaint with respect to HRBEE and lacks knowledge and/or information sufficient to form a belief as to the truth of the allegations with respect to any other third-party defendant(s). AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE If injuries and damages were sustained by the Plaintiff at the time and place and in the manner alleged in the Verified Complaint, such injuries and damages are attributable in whole or in part, to the culpable conduct of the Plaintiff and/or the Third-Party Plaintiff. If any damages are recoverable against said Responding Third-Party Defendant, the amount of such damages shall be diminished in the proportion which the culpable conduct attributable to the Plaintiff bears to the culpable conduct, if any, of Defendant and said Responding Third-Party Defendant. SECOND AFFIRMATIVE DEFENSE Upon information and belief, any past or future costs or expenses incurred or to be incurred by the Plaintiff for medical care, dental care, custodial care or 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(c) of the New York Civil Practice Law and Rules. If any damages are recoverable against this Responding Third- Party Defendant, the amount of such damages shall be diminished by the amount of the funds which Plaintiff has or shall receive from such collateral source. 2 2 of 10

3 THIRD AFFIRMATIVE DEFENSE If the Responding Third-Party Defendant is found liable, such liability is less than or equal to 50% of the total liability of all persons who may be found liable and therefore this Responding Third-Party Defendant s Defendant's liability shall be limited to its equitable share, pursuant to CPLR Article 16. FOURTH AFFIRMATIVE DEFENSE The Verified Third-Party Complaint fails to state a claim against Responding Third-Party Defendant upon which relief can be granted. FIFTH AFFIRMATIVE DEFENSE The injuries or damages complained of were proximately caused by the actions, omissions or negligence of third parties over whom Responding Third-Party Defendant had no direction, control, nor right of control. SIXTH AFFIRMATIVE DEFENSE At the time and place mentioned in the Verified Third Party Complaint, Responding Third- Party Defendant violated no legal duty owing by it to Plaintiff. SEVENTH AFFIRMATIVE DEFENSE The injuries or damages complained of were the result of intervening and/or superseding acts on the part of parties over whom Responding Third-Party Defendant had neither direction, control, nor right of control. EIGHTH AFFIRMATIVE DEFENSE Responding Third-Party Defendant was not guilty of any negligence, wrongdoing, carelessness or breach of duties as contended by Third-Party Plaintiff. 3 3 of 10

4 NINTH AFFIRMATIVE DEFENSE Third-Party Plaintiff s Plaintiffs claims may be barred in whole or in part by the applicable statute of limitations. TENTH AFFIRMATIVE DEFENSE Plaintiff assumed the risk and was fully cognizant of any and all circumstances surrounding the alleged incident or conditions about which Plaintiff complains in the underlying Verified Complaint ELEVENTH AFFIRMATIVE DEFENSE Responding Third-Party Defendant will rely upon any and all further defenses which become available or appear during discovery in this action and hereby specifically reserves its right to amend its answer for the purpose of asserting any such additional defenses. CROSS-CLAIMS AGAINST DEFENDANT/THIRD PARTY DEFENDANT WHITE PLAINS ROAD REALTY, LLC While denying that Third-Party Defendant H&R Block Eastern Enterprises, Inc. ("Responding ( Responding Third-Party Defendant") Defendant ) is in any way obligated under claims for relief asserted by Defendant/Third-Party Plaintiff White Plains Road Realty, LLC ( Defendant ("Defendant WPRR") WPRR ) as against it, Responding Third-Party Defendant alleges and states: CROSS-CLAIM FOR COMMON LAW INDEMNIFICATION 1. Any obligation imposed upon Responding Third-Party Defendant to respond in damages to the Verified Third-Party Complaint could only be as a result of operation of law based upon liability technical, imputed, or implied, whereas the actual fault and negligence is against Defendant WPRR. 4 4 of 10

5 2. Any obligation of Responding Third-Party Defendant to respond in damages is based upon a breach of duty whereas the cause of its act or failure to act was that of Defendant WPRR. 3. Any liability asserted against Responding Third-Party Defendant was passive, whereas the active and primary cause of any injuries, damages or losses which may have been sustained by Plaintiff, as alleged in the Verified Complaint, are the result of Defendant WPRR. 4. By reason of the foregoing, Responding Third-Party Defendant is entitled to be indemnified and to recover the full amount of any judgment that may be awarded against it with costs and attorney s attorney's fees incurred in the defense of this action from Defendant WPRR. CROSS-CLAIM FOR CONTRACTUAL INDEMNIFICATION 5. Responding Third-Party Defendant and Defendant WPRR entered into a lease agreement dated November 1, 2007 for the ground floor store known as 3951 White Plains Road (the "Premises") Premises ) located in the building having a street address of White Plains Road, Bronx, New York (the "Property"), Property ), which lease agreement was thereafter extended by Lease Amendment #1 dated November 4, 2011(hereinafter, the Lease ). "Lease"). 6. The Lease was in effect at the time of the incident that is the subject of Plaintiff s Plaintiffs Verified Complaint and Defendant WPRR s WPRR's Verified Third-Party Complaint. 7. Pursuant to Paragraph 28 of the Lease, Landlord "Landlord shall be responsible for making the Property and the Common Areas (unless required due to the acts or omissions of the Tenant or Tenant Parties) but not the Premises (provided that Landlord shall be responsible for the entranceway to the Premises), comply with all Laws. Laws."1 1 1 Pursuant to the terms of the Lease, the term Landlord "Landlord" is defined in the lease as Defendant/Third- Party Plaintiff WPRR and Tenant "Tenant" is Responding Third-Party Defendant H&R Block Eastern Enterprises, Inc. 5 5 of 10

6 8. Paragraph 38 of the Lease provides in relevant part, Landlord agrees to indemnify and hold Tenant harmless from and against any and all loss, injury or damage of any kind or nature to the Property, its Common Areas, or persons at the Property, its Common Areas, or Premises that results from the negligence of Landlord, except when such injury or or damage is is a result of a malfunction of or damage to items to be maintained, repaired, or provided by Tenant, or when such injury or damage is a result of Tenant s Tenant's or Tenant Parties negligent act and/or willful misconduct. 9. If Plaintiff sustained any damages as alleged in the Verified Complaint, which damages are denied by Responding Third-Party Defendant, such damages were caused by the negligence, culpable conduct and/or wrongful act of Defendant WPRR, its agents, servants and/or employees, and not by any acts of negligence, culpable or wrongful conduct of Responding Third- Party Defendant, its agents, servants and/or employees. 10. By reason of the foregoing, Responding Third-Party Defendant is contractually entitled to be indemnified and to recover the full amount of any judgment that may be entered against it with costs and attorney's attorney s fees incurred in the defense of this action from Defendant WPRR. CROSS-CLAIM FOR CONTRIBUTION 11. By reason of the foregoing and the allegations of the Verified Complaint and Verified Third-Party Complaint, pursuant to CPLR Article 14 and 3019(b) and the rule set forth in Dole v. Dow Chemical Co., 30 N.Y.2d 143 (1972), if any recovery is awarded against this Responding Third-Party Defendant, Responding Third-Party Defendant is entitled to judgment over and against Defendant WPRR for contribution in in the amount of the excess paid by Responding Third-Party Defendant over and above its equitable share of the judgment, verdict and/or recovery, as determined in accordance with the relative culpability of each party liable for contribution. 6 6 of 10

7 WHEREFORE Third-Party Defendant H&R Block Eastern Enterprises, Inc. demands judgment in its favor and against Defendant/Third-Party Plaintiff White Plains Road Realty, LLC, dismissing the Verified Third-Party Complaint as against Third-Party Defendant H&R Block Eastern Enterprises, Inc. with prejudice, together with Third-Party Defendant H&R Block Eastern Enterprises, Inc. s Inc.'s attorney's attorney s fees and costs and for such other relief as the Court deems just and proper. Dated: New York, New York March 16, 2017 GERBER & PARTNERS LLP Attorneys for Third-Party Defendant H&R Block Eastern Enterprises, Inc. By: Steven Gerber, Esq. Christopher McFadden, Esq. 747 Third Avenue Ste New York, New York Tel. No.: (212) sgerber@gerbeipartners.com sgerber@gerberpartners.com cmcfadden@gerbeipartners.com cmcfadden@gerberpartners.com To: Craig A. Lamster Galvano &Xanthakis 150 Broadway Suite 2100 New York, NY Tel. No.: (212) Attorneys for Defendant/Third-Party Plaintiff Brooklyn Home Improvement, Inc. Anthony Iadevaia Law Offices of Anthony Iadevaia 1932 Second Avenue New York, NY Tel. No.: (212) Attorneys for Plaintiff Alfonso Garcia 7 7 of 10

8 Stephanie Gitnik, Esq. Julie Tribble Kaufman Borgeest & Ryan LLP 200 Summit Lake Drive Valhalla, NY Tel. No.: (914) File No Attorneys for White Plains Road Realty LLC 8 8 of 10

9 VERIFICATION STATE OF NEW YORK ) )ss.: COUNTY OF NEW YORK ) Steven Gerber, hereby affirms under penalty of perjury that he is one of the attorneys for third-party defendant H&R Block Eastern Enterprises, Inc. (hereinafter referred to as HRBEE ) "HRBEE") in this action and that the foregoing Amended Verified Answer to the Verified Third-Party Complaint is true to his own knowledge, except as to matters therein stated on information and belief and as to those matters he believes it to be true; that the grounds of his belief as to all matters not stated upon his knowledge are correspondence and other writings furnished to him by HRBEE and interviews with the employees of HRBEE; and that the reason why the verification is not made by HRBEE is that HRBEE is a foreign corporation. Steven Gerber Dated: March 16, of 10

10 CERTIFICATE OF SERVICE Steven Gerber, an attorney duly admitted to practice in the Courts of the State of New York hereby certifies that on March 16, 2017, a true and correct copy of the foregoing Third-Party Defendant H&R Block Eastern Enterprises, Inc. s Inc.'s Amended Verified Answer to Verified Third- Party Complaint and Cross-Claims was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by to all parties by operation of the court's court s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the Court s Court's NYSCEF System. Steven Gerber, Esq of 10