FILED: NEW YORK COUNTY CLERK 08/24/ :09 PM INDEX NO /2014 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 08/24/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 08/24/ :09 PM INDEX NO /2014 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 08/24/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X THOMAS STORRS and ELIZABETH STORRS, IndexNo /2014(e) Plaintiffs, VERIFIED ANSWER TO PLAINTIFFS' AMENDED VERIFIED COMPLAINT ALTEC INDUSTRIES, INC., ORANGE AND ROCKLAND UTILITIES, INC., and SISTERS OF LIFE, Defendants. ORANGE AND ROCKLAND UTILITIES, INC., -X Third-Party Plaintiff, -against- -against- ALTEC INDUSTRIES, INC., Third-Party Defendant. Defendant/Third-Party Plaintiff, ORANGE AND ROCKLAND UTILITIES, INC., by their attorneys, LEWIS JOHS AVALLONE AVILES, LLP, as and for its answer to plaintiffs' amended verified complaint, state upon information and belief: 1. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs numbered "FIRST", "THIRD", "FOURTH," and "FIFTH", " ofthe plaintiffs' amended verified complaint. 2. Defendant denies each and every allegation contained in paragraph numbered "SECOND" of the plaintiffs' amended verified complaint except admit that on June 29, 2013, defendant ORANGE AND ROCKLAND UTILITIES, INC. (hereinafter "O & R') was a domestic corporation duly organized and existing under and by virtue of the laws of the State of -X 1 of 16

2 New York having its principal office for the transaction of business at 1 Blue Hill Plaza, 4^'^ Floor, Pearl River, New York and its address for service ofprocess. ANSWERING FIRST CAUSE OF ACTION AGAINST DEFENDANT O & R FOR NEGLIGENCE 3. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph numbered "SIXTH," "SEVENTH," and "TENTH," ofthe plaintiffs' amended verified complaint. 4. Defendant denies each and every allegation contained in paragraphs numbered "EIGHTH" and "ELEVENTH," "TWELFTH," "THIRTEENTH," and "FOURTEENTH," of the plaintiffs' amended verified complaint. 5. Defendant denies each and every allegation contained in paragraph numbered "NINTH" ofthe plaintiffs' amended verified complaint except admit that O & R entered into an agreement with SPE Utility Contractors, LLC for certain work to be performed at the premises of Sisters oflife located at 38 Montebello Road, Suffern, New York. 6. Defendant denies each and every allegation contained in paragraph numbered "FIFTEENTH" of the plaintiffs' amended verified complaint and refers all questions of law to this Honorable Court. ANSWERING THE SECOND CAUSE OF ACTION AGAINST DEFENDANT O & R PURSUANT TO SECTION 200 OF THE NEW YORK STATE LABOR LAW 7. Answering paragraph numbered "SIXTEENTH" of the plaintiffs' amended verified complaint, defendant repeats and reiterates each and every denial heretofore made in regard to each and every paragraph of plaintiffs' amended verified complaint, designated as paragraphs "FIRST" through "FIFTEENTH" inclusive with the same force and effect as though more fully set forth at length herein. 2 of 16

3 8. Defendant denies each and every allegation contained in paragraphs numbered "SEVENTEENTH", "EIGHTEENTH", "NINETEENTH" and TWENTIETH" ofthe plaintiffs' amended verified complaint. 9. Defendant denies each and every allegation contained in paragraph numbered "TWENTY-FIRST" ofthe plaintiffs' amended verified complaint and refer all questions of law to this Honorable Court. ANSWERING THE THIRD CAUSE OF ACTION AGAINST DEFENDANT O & R PURSUANT TO SECTION 240(1) OF THE NEW YORK STATE LABOR LAW 10. Answering paragraph numbered "TWENTY-SECOND" of the plaintiffs' amended verified complaint, defendant repeats and reiterates each and every denial heretofore made in regard to each and every paragraph of plaintiffs' amended verified complaint, designated as paragraphs "FIRST" through "TWENTY-FIRST" inclusive with the same force and effect as though more fully set forth at length herein. 11. Defendant denies each and every allegation contained in paragraphs numbered "TWENTY-THIRD", "TWENTY-FIFTH", "TWENTY-SIXTH", TWENTY-SEVENTH" and "THIRTIETH" ofthe plaintiffs' amended verified complaint. 12. Defendant denies each and every allegation contained in paragraphs numbered "TWENTY-EIGHTH" of the plaintiffs' amended verified complaint and refer all questions of law to this Honorable Court. 13. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph numbered "TWENTY-FOURTH," of the plaintiffs' amended verified complaint. 3 of 16

4 ANSWERING THE FOURTH CAUSE OF ACTION AGAINST DEFENDANT O & R PURSUANT TO SECTION 241(61 OF THE NEW YORK STATE LABOR LAW 14. Answering paragraph numbered "TWENTY-NrNTH" of the plaintiffs' amended verified complaint, defendant repeats and reiterates each and every denial heretofore made in regard to each and every paragraph of plaintiffs' amended verified complaint, designated as paragraphs "FIRST" through "TWENTY-EIGHTH" inclusive with the same force and effect as though more fully set forth at length herein. 15. Defendant denies each and every allegation contained in paragraphs numbered "THIRTIETH," "THIRTY-FIRST", "THIRTY-SECOND", and "THIRTY-THIRD" of the plaintiffs' amended verified complaint. 16. Defendant denies each and every allegation contained in paragraphs numbered "THIRTY-FOURTH" ofthe plaintiffs' amended verified complaint and refer all questions oflaw to this Honorable Court. ANSWERING THE FIFTH CAUSE OF ACTION AGAINST DEFENDANT ALTEC FOR NEGLIGENCE 17. Answering paragraph numbered "THIRTY-FIFTH" of the plaintiffs' amended verified complaint, defendant repeats and reiterates each and every denial heretofore made in regard to each and every paragraph of plaintiffs' amended verified complaint, designated as paragraphs "FIRST" through "THIRTY-FOURTH" inclusive with the same force and effect as though more fully set forth at length herein. 18. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs numbered "THIRTY-SIXTH", "THIRTY- SEVENTH", "THIRTY-EIGHTH", "THIRTY-NINTH", "FORTIETH", "FORTY-SECOND," "FORTY-THIRD," "FORTY-FIFTH," ofthe plaintiffs' amended verified complaint. 4 of 16

5 19. Defendant denies each and every allegation contained in paragraphs numbered 'TORTY-FOURTH", "FORTY-SIXTH", "FORTY-EIGHTH" and "FORTY-NINTH" of the plaintiffs' amended verified complaint. 20. Defendant denies each and every allegation contained in paragraphs numbered "FORTY-EIGHTH" of the plaintiffs' amended verified complaint and refer all questions of law to this Honorable Court. 21. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs numbered "FORTY-SEVENTH," of the plaintiffs' amended verified complaint and refer all questions oflaw to this Honorable Court. 22. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs numbered "FORTY-FIRST," of the plaintiffs' amended verified complaint as to Altec Industries, Inc. 23. Defendant denies each and every allegation contained in paragraphs numbered "FORTY-FIRST" ofthe plaintiffs' amended verified complaint as to O & R. ANSWERING THE SIXTH CAUSE OF ACTION AGAINST THE DEFENDANTS FOR BREACH OF IMPLIED WARRANTY 24. Answering paragraph numbered "FORTY-NINTH" of the plaintiffs' amended verified complaint, defendant repeats and reiterates each and every denial heretofore made in regard to each and every paragraph of plaintiffs' amended verified complaint, designated as paragraphs "FIRST" through "FORTY-EIGHTH," inclusive with the same force and effect as though more fully set forth at length herein. 25. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs numbered "FIFTIETH", "FIFTY-FIRST", 5 of 16

6 "FIFTY-SECOND", "FIFTY-THIRD" and "FIFTY-FOURTH" of the plaintiffs' amended verified complaint. 26. Defendant denies each and every allegation contained in paragraph numbered "FIFTY-FIFTH" of the plaintiffs' amended verified complaint and refer all questions of law to this Honorable Court. ANSWERING THE SEVENTH CAUSE OF ACTION AGAINST THE DEFENDANT ALTEC FOR STRICT PRODUCT LIABILITY 27. Answering paragraph numbered "FIFTY-SIXTH" of the plaintiffs' amended verified complaint, defendant repeats and reiterates each and every denial heretofore made in regard to each and every paragraph of plaintiffs' amended verified complaint, designated as paragraphs "FIRST" through "FIFTY-FIFTH" inclusive with the same force and effect as though more fully set forth at length herein. 28. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs numbered "FIFTY-SEVENTH" of the plaintiffs' amended verified complaint and refer all questions oflaw to this Honorable Court. 29. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph numbered "FIFTY-EIGHTH," and "FIFTY- NINTH," ofthe plaintiffs' amended verified complaint. 30. Defendant denies each and every allegation contained in paragraph numbered "SIXTIETH" ofthe plaintiffs' amended verified complaint and refer all questions of law to this Honorable Court. 6 of 16

7 ANSWERING THE EIGHTH CAUSE OF ACTION AGAINST THE DEFENDANT. ALTEC FOR BREACH OF EXPRESS WARRANTY 31. Answering paragraph numbered "SIXTY-FIRST" of the plaintiffs' amended verified complaint, defendant repeats and reiterates each and every denial heretofore made in regard to each and every paragraph of plaintiffs' amended verified complaint, designated as paragraphs "FIRST" through "SIXTY," inclusive with the same force and effect as though more fully set forth at length herein. 32. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph numbered "SIXTY-SECOND," and "SIXTY-THIRD," ofthe plaintiffs' amended verified complaint. 33. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph numbered "SIXTY-FOURTH" of the plaintiffs' amended verified complaint and refer all questions oflaw to this Honorable Court. 34. Defendant denies each and every allegation contained in paragraph numbered "SIXTY-FIFTH" ofthe plaintiffs' amended verified complaint and refer all questions of law to this Honorable Court. ANSWERING THE NINTH CAUSE OF ACTION ON BEHALF OF THE PLAINTIFF, ELIZABETH STORRS 35. Answering paragraph numbered "SIXTY-SIXTH" of the plaintiffs' amended verified complaint, defendant repeats and reiterates each and every denial heretofore made in regard to each and every paragraph of plaintiffs' amended verified complaint, designated as paragraphs "FIRST" through "SIXTY-FIFTH" inclusive with the same force and effect as though more fully set forth at length herein. 7 of 16

8 36. Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph numbered "SIXTY-SEVENTH" of the plaintiffs' amended verified complaint. 37. Defendant denies each and every allegation contained in paragraphs numbered "SIXTY-EIGHTH" and "SIXTY-NINTH" ofthe plaintiffs' amended verified complaint. 38. Defendant denies each and every allegation contained in paragraph numbered "SEVENTIETH" ofthe plaintiffs' amended verified complaint and refer all questions of law to this Honorable Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 39. If the plaintiffs have been injured and damaged as alleged in plaintiffs' amended verified complaint, upon information and belief, such injuries and damages were caused, in whole or in part, or were contributed to by reason ofthe carelessness, negligence or want ofcare on the part of the plaintiffs and not by any carelessness, negligence or want of care, on the part of this answering defendant, and if any carelessness, negligence or want of care other than that of the plaintiffs caused or contributed to said alleged injuries and damages, it was the carelessness, negligence or want of care on the part of some other party or persons, firm or corporation, his, its or their agents, servants or employees over whom defendant had no control and for whose carelessness, negligence or want ofcare this answering defendant is not, and was not, responsible or liable. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 40. That whatever injuries and/or damages were sustained by the plaintiffs at the time and place alleged in the amended verified complaint were the result of the plaintiffs' assumption of risk, in realizing and knowing the hazards and dangers thereof, which were open 8 of 16

9 and obvious, and that plaintiffs assumed all the risks necessarily incidental to such an undertaking. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 41. The plaintiffs' amended verified complaint fails to state a cause of action as against this answering defendant. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 42. That the rights of action and/or the causes of action as set forth in the plaintiffs' amended verified complaint as against this answering defendant are barred by the applicable statutes of limitations. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 43. That the plaintiffs claim against this answering defendant is barred by the applicable Rules of Workers' Compensation. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 44. That whatever injuries and/or damages were sustained by the plaintiffs at the time and place alleged in the amended verified complaint were in whole or in part a result ofthe plaintiffs misuse ofthe product machine, and/or equipment at issue. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 45. If the liability of the answering defendant is found to be fifty (50%) percent or less of the total liability assigned to all persons liable, the liability of such defendant to the plaintiffs for non-economic loss shall not exceed the defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss, pursuant to Article 16 ofthe C.P.L.R. 9 of 16

10 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 46. Ifthe liability of this answering defendant is found to be fifty percent or less of the total liability assigned to all persons liable, the liability ofsuch defendant to the claimant for non-economic loss shall not exceed the defendant's equitable share, determined in accordance with the relative culpability ofeach person causing or contributing to the total liability for noneconomic loss. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 47. Upon information and belief, any past or future costs and/or expenses incurred or to be incurred by the plaintiffs for medical care, dental care, custodial care or rehabilitation 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) ofthe CPLR. 48. If any damages are recoverable against the answering defendant, the amount of such damages shall be diminished by the amount ofthe funds which plaintiffs have received or shall receive from such collateral source. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 49. If plaintiffs settle, discontinue and/or end this lawsuit and/or any other lawsuit arising out of the same incident to which the within action pertains, and/or does so in the future as against one or more of the defendants herein and/or any other alleged tortfeasor, this answering defendant asserts its right to any and all set-offs in accordance with General Obligations Law Section AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 50. Plaintifffailed to mitigate damages, if any. 10 of 16

11 AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 51. Any losses, damages and/or injuries alleged by the Plaintiff were caused by the acts and/or omissions ofpersons and/or entities outside the control of defendant. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 52. The answering defendant did not breach any duties owed to the plaintiff neither contractually nor by common law duty, and/or any alleged breach ofduties were not the proximate cause of plaintiffs' alleged damages. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 53. That the answering defendant had no actual or constructive notice of the alleged danger and did not create the alleged condition AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 54. Plaintiffs injuries, if any, were caused by intervening and/or superseding factors and/or causes which relieve the answering defendant from any liability in this action. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 55. Plaintiff failed to abide by directions/warning given to him such that he is recalcitrant worker. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 56. The Plaintifffailed to utilize available safety equipment. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 57. Plaintiffwas the sole proximate cause ofhis accident and/or injuries. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 58. Plaintiffs injuries, if any, were caused by the plaintiffs' misuse of the equipment and/or tools in contradiction to warnings and/or instructions issued by the manufacturer. 11 of 16

12 distributor and/or retailer, and such misuse was the sole proximate cause and substantial cause to plaintiffs damages. AS AND FOR A TWIENTH AFFIRMATIVE DEFENSE 59. Plaintiffs claims are barred based upon the doctrine of spoliation ofevidence. AS AND FOR A CROSSCLAIM AGAINST THE CODEFENDANT, ALTEC INDUSTRIES, INC., DEFENDANT, ORANGE AND ROCKLAND UTILITIES, INC., ALLEGE UPON INFORMATION AND BELIEF; 60. If the plaintiffs recover herein, it will be by virtue of the recklessness, carelessness and negligence of the codefendants above-named, and not of the defendant. Orange and Rockland Utilities, Inc., for which this answering defendant demands judgment for contribution and/or indemnification according to the respective degrees of negligence to be ascertained, determined and adjudicated at trial. WHEREFORE, defendant demands judgment dismissing the plaintiffs' amended verified complaint herein, and further demands judgment over and against the codefendants, for the amount of any judgment obtained against this answering defendant on the basis of apportionment of responsibility in such amounts as a jury or Court may direct, together with the costs and disbursements ofthis action. Dated: Islandia, New York August 24, 2016 LEWIS JOHS AVALLONE AVILES, LLP Attorneysfor Defendant/Third-Party Plaintiff Orange and Rockland Utilities, Inc. One CA Plaza, Suite 225 Islandia, New York Teresa M.u. iviyers File No of 16

13 TO: DUPEE & MONROE, P.O. Attorneysfor Plaintiffs 211 Main Street P.O. Box 470 Goshen, New York CARL J. SCHAERF, ESQ. SCHNADER, HARRISON, SEGAL & LEWIS, LLP Attorneyfor Defendant - Altec Industries, Inc. 140 Broadway, Suite 310 New York, New York of 16

14 STATE OF NEW YORK: COUNTY OF SUFFOLK TERESA M.C. MYERS, ESQ., an attorney admitted to practice in the Courts ofthe State ofnew York, affirms that the following statements are true under penalties ofperjury. Affirmant is the attorney of record for the answering defendant ORANGE AND ROCKLAND UTILITIES, INC., in the within action. Affirmant has read the foregoing answer, knows the contents thereof, and the same is true to affirmant's own knowledge, except as to those matters therein stated to be alleged upon information and belief, and that those matters affirmant believes to be true. This verification is made by affirmant, and not by the answering defendant, because the answering defendant is not located in the county wherein your affirmant maintains an office. The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are as follows: statements of the answering defendant; office records; and affirmant's general investigation into the facts ofthis case. Dated: Islandia, New York August 24, 2016 TERE C. MYE 14 of 16

15 AFFIDAVIT OF SERVICE VIA EOF STATE OF NEW YORK ) COUNTY OF SUFFOLK ) ss. MARIE SAGGINARIO, being duly sworn, deposes and says: That deponent is not a party to this action, is over 18 years of age and resides in Douglaston, New York. That on the 24^^ day of August, 2016, deponent served one (1) by electronic filing the within VERIFIED ANSWER TO PLAINTIFF'S AMENDED VERIFIED COMPLAINT upon all parties as appearing on the Supreme Court, State of New York Electronic Filing Website at the addresses designated by said parties: DUPEE & MONROE, P.O. Attorneysfor Plaintiffs 211 Main Street P.O. Box 470 Goshen, New York CARL J. SCHAERF, ESQ. SCHNADER, HARRISON, SEGAL & LEWIS, LLP Attorneyfor Defendant - Altec Industries, Inc. 140 Broadway, Suite 310 New York, New York Sworn to before me this day ofaugust, 2016 Mane NOTARY PUBLl JO ANNE F, PETTY NOTARY PUBLIC-STATE OF NEW YORIC No in "Suffolk Goun-'ty Wy.polrtmissiori Expires FeStua 28, 2IS 15 of 16

16 IndexNo, LEWIS m JOHS LewisJohs AvalloneAviles, LLP Year 2014 CounMlkm xt l«w SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK THOMAS STORRS and ELIZABETH STORRS, Plaintiffs, ALTEC INDUSTRIES, INC., ORANGE AND ROCKLAND UTILITIES, INC., and SISTERS OF LIFE, Defendants. ORANGE ANDROCKLAND UTILITIES, INC., ALTEC INDUSTRIES, INC., -against- -against- Third-Party Plaintiff Third-Party Defendant. VERIFIEDANSWER TO PLAINTIFF'SAMENDED VERIFIED COMPLAINT CERTIFICATION PURSUANT TO 22N.Y.C.R.R.S130-l.la LEWIS ^ JOHS LewisJohs AvalloneAviles, LLP CoaracClan at Lnr Attorneys for Defendant/Third-Paitv Plaintiff ORANGE AND ROCKLAND UTILITIES, INC. Lewis Johs Avallone Aviles, LLP One CA Plaza, Suite 225 IsIandia,N.Y Tel: Fax: File No.: wvw.leuasiohs.com The undersigned hereby certifies that, pursuant to 22 N.Y.C.R.R. 130-l.la, thgxmtentiorw^^ntainelj in the aijnexed document(s) is not frivolousnor frivolouslypresented ^ Service ofa copy ofthe within is hereby admitted. Dated, Attomey(s) for 16 of 16