FILED: NEW YORK COUNTY CLERK 01/23/ /09/ :34 PM INDEX NO /2013 NYSCEF DOC. NO RECEIVED NYSCEF: 01/23/2014

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1 FILED: NEW YORK COUNTY CLERK 01/23/ /09/ :34 PM INDEX NO /2013 NYSCEF DOC. NO RECEIVED NYSCEF: 01/23/ /09/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x Index No /13 VALERIE SUSLAK, - against - Plaintiff, THE BOARD OF MANAGERS OF THE PROMENADE CONDOMINIUM, THE PROMENADE CONDOMINIUM, PREMIERE PROPERTIES, INC. and JOSEPH GRIMES, VERIFIED ANSWER Defendants x Defendants, THE BOARD OF MANAGERS OF THE PROMENADE CONDOMINIUM, THE PROMENADE CONDOMINIUM, PREMIERE PROPERTIES, INC. and JOSEPH GRIMES, by their attorneys, BRILL & ASSOCIATES, P.C., as and for their Answer to Plaintiffs Verified Complaint, herein states upon information and belief: AS AND FOR DEFENDANTS RESPONSE TO THE NATURE OF THIS ACTION 1. Denies knowledge and information sufficient to form a belief as to the truth of the allegations set forth in Paragraphs 1, 5, 8, 10, 12, 15, 16 and 17 of the Plaintiff s Verified Complaint. 2. Denies the allegations set forth in Paragraphs 2, 3, 4, 6, 7 8, 9, 11, 13 and 14 of the Plaintiff s Verified Complaint. AS AND FOR DEFENDANTS RESPONSE TO THE PARTIES 3. Deny knowledge and information sufficient to form a belief as to the truth of the allegations set forth in Paragraphs 18, 19, 20, 21, 22, 23, 24, 25, 26, 27 and 28 of Plaintiffs Complaint and refers the Court to the Condominium Declaration for the

2 specific provisions relating to the formation and operation of the Subject Premises and admits that Premiere Properties, Inc. is the Managing Agent of the Condominium and that Mr. Grimes is the Property Manager employed by Premiere Properties, Inc. for the Condominium. AS AND FOR ITS RESPONSE TO THE ALLEGATIONS COMMON TO ALL PARTIES 4. Deny knowledge and information sufficient to form a belief as to the truth of the allegations set forth in Paragraphs 29, 30, 31, 32, 35, 36, 45, 47, 49, 50, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 67, 68 and 69 of Plaintiffs Complaint except admit that Norbert Kocan did provide the Defendants with proposals for repair of the Plaintiff s apartment; that Aiza Suarez did, from time to time, have communications with the Plaintiff on mold testing in her apartment; that the Plaintiff periodically communicated with the Defendants regarding the condition of her apartment since the leak. 5. Denies the allegations set forth in Paragraphs 33, 34, 37, 46, 48, 51 and 66 of the Plaintiff s Verified Complaint. 6. Denies the allegations set forth in Paragraphs 38, 39, 40, 41, 42, 43, 44 of the Plaintiff s Verified Complaint and refers the Court to the By Laws for the specific terms and conditions of the provisions referenced in the Complaint. AS AND FOR THE DEFENDANT S RESPONSE TO THE FIRST CAUSE OF ACTION 7. In response to Paragraph 70 of the Verified Complaint, Defendants repeat, reiterate and re-allege each and every response contained in Paragraphs 1 through 69 with the same force and effect as if more fully set forth at length herein.

3 8. Deny knowledge and information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 71, 72, 73 and 74 of the Plaintiffs Complaint and leaves all questions of law to the determination of the Court. AS AND FOR THE DEFENDANT S RESPONSE TO THE SECOND CAUSE OF ACTION 9. In response to Paragraph 75 of the Verified Complaint, Defendants repeat, reiterate and re-allege each and every response contained in Paragraphs 1 through 74 with the same force and effect as if more fully set forth at length herein. 10. Deny knowledge and information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 76, 78, 79, 80, 81, 82, 83, 84, 85 and 89 of the Plaintiffs Verified Complaint and leaves all questions of law to the determination of the Court. 11. Denies the allegations set forth in Paragraphs 77, 86, 87, 88, 90, 91 and 92 of the Plaintiff s Verified Complaint. AS AND FOR THE DEFENDANT S RESPONSE TO THE THIRD CAUSE OF ACTION 12. In response to Paragraph 93 of the Verified Complaint, Defendants repeat, reiterate and re-allege each and every response contained in Paragraphs 1 through 92 with the same force and effect as if more fully set forth at length herein. 13. Deny knowledge and information sufficient to form a belief as to the truth of the allegations set forth in Paragraphs 95 of the Plaintiffs Verified Complaint. 14. Denies the allegations set forth in Paragraphs 94, 96, 97 and 98 of the Plaintiff s Verified Complaint and leave all questions of law to this Honorable Court.

4 AS AND FOR THE DEFENDANT S RESPONSE TO THE FOURTH CAUSE OF ACTION 15. In response to Paragraph 99 of the Verified Complaint, Defendants repeat, reiterate and re-allege each and every response contained in Paragraphs 1 through 98 with the same force and effect as if more fully set forth at length herein. 16. Deny the truth of the allegations set forth in Paragraphs 100, 101, 102, 103 and 104 of the Plaintiffs Complaint. AS AND FOR THE DEFENDANT S RESPONSE TO THE FIFTH CAUSE OF ACTION 17. In response to Paragraph 105 of the Verified Complaint, Defendants repeat, reiterate and re-allege each and every response contained in Paragraphs 1 through 104 with the same force and effect as if more fully set forth at length herein. 18. Deny knowledge and information sufficient to form a belief as to the truth of the allegations set forth in Paragraphs 106, 107, 110, 111, 114 and 115 of the Plaintiffs Verified Complaint. 19. Deny the truth of the allegations set forth in Paragraphs 108, 109, 112, 113 and 116 of the Plaintiffs Verified Complaint. AS AND FOR THE DEFENDANT S RESPONSE TO THE SIXTH CAUSE OF ACTION 20. In response to Paragraph 117 of the Verified Complaint, Defendants repeat, reiterate and re-allege each and every response contained in Paragraphs 1 through 116 with the same force and effect as if more fully set forth at length herein. 21. Deny the allegations set forth in Paragraph 118 of the Plaintiffs Complaint.

5 AS AND FOR A FIRST AFFIRMATIVE DEFENSE 22. Upon information and belief, any past or future damages, costs or expenses incurred or to be incurred by the Plaintiff for other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from insurance benefits under a Homeowners Insurance Policy and any other similar source, related to or occasioned by the condition for which the Plaintiff(s) seeks damages in this action. If any damages are recoverable against said Defendants, the amount of such damages shall be diminished by the amount of the funds which Plaintiff has or shall receive from such collateral source. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 23. Plaintiff failed to mitigate the injuries and damages allegedly sustained. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 24. The Complaint in this action should be dismissed to the extent that the claims herein, in whole or in part, were not commenced by the Plaintiff within the applicable statute of limitations. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 25. Should it appear that the Defendant or Defendants were not properly served with the Summons and Complaint in the above action, then the Court should dismiss this action based on lack of jurisdiction over this answering Defendant. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 26. Plaintiffs' complaint, in whole or in part, fails to state a cause of action upon which relief can be granted.

6 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 27. The actions alleged to have been taken by the Defendants were taken in good faith and with reasonable diligence, care and skill and if there were any error, and error is denied, it was a mere error of judgment for which the said Defendants are not liable. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 28. The Defendants having not being fully advised as to all the facts and circumstances surrounding the incident complained of, hereby assert and reserve unto themselves the defenses of accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, election of remedies, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense which the further investigation of this matter may prove applicable herein. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 29. Pursuant to CPLR Article 16, the liability of Defendants to the Plaintiff herein for non-economic loss is limited to answering Defendant s equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for noneconomic loss. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 30. Any damages sustained by the Plaintiff were caused by the culpable conduct of the Plaintiff, including comparative negligence, assumption of risk, breach of contract and not by the culpable conduct or negligence of this answering Defendant. But if a verdict of judgment is awarded to the Plaintiff, then and in that event the damages shall be reduced in the proportion

7 which the culpable conduct attributable to the Plaintiff bears to the culpable conduct which caused the damages. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 31. Plaintiff failed to mitigate damages. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 32. Plaintiff s claims should be dismissed to the extent that Plaintiff destroyed evidence necessary for the fair defense of the claims asserted. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 33. Should it appear that the Plaintiff lacks capacity to sue, then the Court should dismiss the Complaint in this action. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 34. The injuries and/or damages sustained by the Plaintiff at the time and place alleged in the Complaint were due to the acts of parties over whom the Defendant was not obligated to exercise any control or supervision. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 35. To the extent any party seeking a recovery against this answering party has recovered or will recover a settlement, verdict or judgment against another tortfeasor, or one claimed to be a tortfeasor, for damages claimed as a result of the event(s) complained of herein, or for other damages suffered by Plaintiffs either prior to or subsequent to the event(s) complained of herein which caused, contributed to, or were exacerbated by, the damages claimed herein, the Defendant in mitigation of damages shall be entitled to a hearing pursuant to CPLR 4533-b for a set off pursuant to General Obligations Law or such other case law or statutes applying to same.

8 AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 36. That the Verified Complaint should be dismissed against the Defendants in that, if, after trial, Plaintiff should prove that Plaintiff sustained injuries and damages as alleged, such injuries and damages resulted from intervening and/or interceding acts of superseding negligence on the part of third parties over whom the Defendants had no control. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 37. Plaintiff has failed to join certain necessary or indispensible parties to this action required the Court to dismiss or stay this action pending proper joinder of the necessary and/or indispensible parties. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 38. This action must be dismissed based upon documentary evidence including, without limitation, the Condominium s declaration, by-laws and rules and regulations, all as amended. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 39. This action must be dismissed as the plaintiff has come to this Court seeking equity with unclean hands. WHEREFORE, Defendants hereby demand that Plaintiffs complaint be dismissed and judgment be entered in favor of these answering Defendants together with the costs and disbursements of this action plus any and all attorney s fees and all other costs and disbursements in this action. Dated: New York, New York January 23, 2014

9 Yours, etc. BRILL & ASSOCIATES, P.C. By: Haydn J. Brill, Esq. Attorneys for Defendants 111 John Street, Suite 1070 New York, New York (212) Our File No To: BELKIN BURDEN WENIG & GOLDMAN, LLP Attorneys for Plaintiff 270 Madison Avenue New York, New York (212)

10 VERIFICATION HAYDN J. BRILL, an attorney of the State of New York, deposes and says: That he is a member of BRILL & ASSOCIATES, P.C, counsel to the Defendants in the within action; that he has read the within VERIFIED ANSWER and knows the contents thereof, and that same is true to his own knowledge, except and to the matters herein stated to be alleged upon information and belief, and that as to those matters he believes it to be true. The reason this verification is made by counsel is because Defendants are not within the county where deponent has his office. Dated: New York, New York January 23, 2014 Haydn J. Brill

11 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) COUNTY OF NEW YORK ) ) Albana Becovic, being duly sworn, deposes and says: That I am not a party to the within action, am over the age of 18 years and reside in Kings County, New York. On January 23, 2014, deponent served the within ANSWER upon the attorneys and parties listed below by electronically filing a true copy of the document with the New York State Electronic Case Filing system and/or by depositing a copy in a postal box located within the State of New York with proper postage affixed thereon: BELKIN BURDEN WENIG & GOLDMAN, LLP Attorneys for Plaintiff 270 Madison Avenue New York, New York (212) Sworn to before me this 23 rd day of January, 2014 Albana Becovic Haydn J. Brill Notary Public, State of New York No. 02BR Qualified in New York County Commission Expires 05/03/16

12 Index No.: Year: 2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VALERIE SUSLAK, Plaintiff, -against- THE BOARD OF MANAGERS OF THE PROMENADE CONDOMINIUM, THE PROMENADE CONDOMINIUM, PREMIERE PROPERTIES, INC. and JOSEPH GRIMES, Defendants. VERIFIED ANSWER BRILL & ASSOCIATES, P.C. Attorneys for Defendants 111 John Street, Suite 1070 New York, New York (212) To: *** Attorney(s) for *** Service of a copy of the within *** Dated: *** PLEASE TAKE NOTICE is hereby admitted.... Attorney(s) for *** that the within is a (certified) true copy of a *** entered in the office of the clerk of the within named Court on *** NOTICE OF ENTRY that an Order of which the within is a true copy will be presented for settlement to the Hon. *** one of the judges of the within named Court, at ***, on ***, at ***. NOTICE OF SETTLEMENT Dated: *** Yours, etc. BRILL & ASSOCIATES, P.C. Attorneys for Defendants 111 John Street, Suite 1070 New York, New York (212)