FILED: KINGS COUNTY CLERK 10/17/ :54 AM INDEX NO /2016 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 10/17/2017

Transcription

1

2 NYSCEF FILED: DOC. KINGS NO. 50 COUNTY CLERK :17 PM RECEIVED INDEX NYSCEF: NO / /17/2017 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 04/13/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS MARIA ORTIZ, -against- Plaintiff, CITY OF NEW YORK, 120 UNION AVENUE LLC, 120 UNION INVESTORS LLC, RUSSO DEVELOPMENT ENTERPRISES, INC., A RUSSO WRECKING INC., CMI SUBSURFACE INVESTIGATION, INC. AND PILLORI ASSOCIATES, P.A., Defendants. E-FILE Index No.: /2016 VERINED ANSWER Defendant, PILLORI ASSOCIATES, P.A., by its attorneys, LEWIS JOHS AVALLONE AVILES, LLP, states upon information and belief as and for its answer to the plaintiff's Verified Complaint: 1. Defendant denies having any knowledge or infonnation sufficient to fomi a belief as to the truth of the allegations contained in paragraphs numbered "I", "2", "4", "5", "6", "7", "8". "9", "10" "II", "12", "13", "14", "15", "16", "17", "18" "19", "20", "21", "22", "27", "28","29","30","31","32","33", "34", "35","36","37","38","39","40","41","42","43", "44", "45", "46", "47", "48", "49", "50", "51", "52", "53", "54", "55", "56", "57" "58", "59", "60","66" and "67" of plaintiff s Verified Complaint. 2. Defendant denies each and every allegation contained in paragraphs numbered "3", "68", "69","70","71","72","73" and "74"ofpIaintifFs Verified Complaint. 3. Defendant denies having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph number "26" of the plaintiffs Verified 1 Of 7

3 Complaint, and refers all questions of law and fact to this Honorable Court and the triers of fact at the trial of this action. 4. Defendant denies, upon information and belief, each and every allegation, in the form alleged, contained in paragraphs numbered "23","61","62","63","64" and "65" of the plaintiff's Verified Complaint herein and refers all questions of law and fact to this Honorable Court and the triers of fact at the trial of this action. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 5. If the plaintiff has been injured and damaged as alleged in plaintiffs Verified Complaint, upon information and belief, such injuries and damages were caused, in whole or in part, or were contributed to by reason of the carelessness, negligence or want of care on the part of the plaintiff and not by any carelessness, negligence or want of care, on the part of the defendant, and if any carelessness, negligence or want of care other than that of the plaintiff 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 of care defendant is not and was not responsible or liable. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 6. Whatever injuries and/or damages were sustained by the plaintiff at the time and place alleged in the Verified Complaint were in whole or in part the result of the plaintiffs own culpable conduct. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 7. That whatever injuries and/or damages were sustained by the plaintiff at the time and place alleged in the Verified Complaint were the result of the plaintiff's assumption of risk, 2 of 7

4 in realizing and knowing the hazards and dangers thereof, and that plaintiff assumed all the risks necessarily incidental to such an undertaking AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 8. That the plaintiffs Verified Complaint fails to state a claim against this answering defendant upon which relief can be granted. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 9. 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 plaintiff 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 of the CPLR. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 10. If the liability of this answering defendant is found to be fifty percent or less of the total liability assigned to all persons liable, the liability of such defendant to the claimant 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 noneconomic loss. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 11. Upon information and belief, any past or future costs and/or expenses incurred or to be incurred by the plaintiff 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(a) ofthecplr. 3 of 7

5 12. If any damages are recoverable against the answering 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. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 13. If plaintiff settles, discontinues and/or ends 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 A NINTH AFFIRMATIVE DEFENSE 14. Plaintiff failed to mitigate damages, if any. AS AND FOR A FIRST CROSS-CLAIM AGAINST THE CO-DEFENDANTS CITY OF NEW YOR 120 UNION AVENUE LLC 120 UNION INVESTORS LLC RUSSO DEVELOPMENT ENTERPRISES INC. A RUSSO WRECKING INC. and CMI SUBSURFACE INVESTIGATION INC. DEFENDANT PILLORI ASSOCIATES P.A. ALLEGES UPON INFORMATION AND BELIEF: 15. If the plaintiff recovers herein, it will be by virtue of the recklessness, carelessness and negligence of the co-defendant above-named, and not of the defendant, SUMMIT SECURITY SERVIES INC., for which answering defendant demands judgment for contribution and/or indemnification according to the respective degrees of negligence to be ascertained, determined and adjudicated at trial. 4 of 7

6 AS AND FOR A SECOND CROSS-CLAIM AGAINST THE CO-DEFENDANTS CITY OF NEW YORK 120 UNION AVENUE LLC 120 UNION INVESTORS LLC RUSSO DEVELOPMENT ENTERPRISES INC. A RUSSO WRECKING INC. and CMI SUBSURFACE INVESTIGATION INC. DEFENDANT PILLOW ASSOCIATES P.A. ALLEGES UPON INFORMATION AND BELIEF: 16. That at the time of the incident alleged, the above-referenced co-defendants, were performing work at the subject premises pursuant to written and enforceable contract That pursuant to the terms of said contract the above-referenced co-defendants were required to defend, indemnify and hold harmless the answering defendants, their agents, subsidiaries and affiliates, from and against any claims, damages, losses and expenses including but not limited to attorneys' fees arising out of or resulting ftom defending this action. 33. That by reason of the foregoing, in the event that the answering defendant is held liable or responsible for the acts of the above. referenced co-defendants, then answering defendant will be entitled to and hereby demands judgment over the above-referenced defendants, on the basis of contractual indemnification, together with all attorneys fees, costs and disbursements. WHEREFORE, defendant, PILLORI ASSOCIATES, P.A., demands judgment dismissing the plaintiffs Verified Complaint herein, and further demands judgment over and against tlie co-defendants, CITY OF NEW YORK, 120 UNION AVENUE LLC, 120 UNION INVESTORS LLC, RUSSO DEVELOPMENT ENTERPRISES, INC., A RUSSO WRECKING INC. and CMI SUBSURFACE INVESTIGATION, INC., for the amount of any judgment obtained against this answering defendant on the basis of apportionment of responsibility in such 5 of 7

7 amounts as a jury or Court may direct, logether with the costs and disbursements ot this actioii. Dated: Ne\\ York, New Y(, rk April TO: GRbENBERG & S1 EJN, P. C. AltOi-iievs for Plai.ntin' 360 I.cxington Avenue, Suite 1501 N3W Yor^, New York Yours, etc., l..i'1'chfield CAVO, LLP Attornevs for Defendant RUSSO DEVEI.OPMRN'r ENTERPRISES, INC. 420 I,exington Avenue, Suite 2104 New ^t'ork, New York LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendant PILI.ORI ASSOCIATES, P.A 61 Broadway, Suite 2000 New York, New York ?t 5 By: _ /-' ^- ^ A I L. 'METZGER LJAA File No. ; NYOO 6 of 7

8 ATTORNEY VERIFICATION DAVID L. METZGER, an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury: Affirmant is associated with the law firm of LEWIS JOIIS AVALLONE AVILES, LLP attorneys of record for the defendant, PIl.LORI ASSOCIATRS. P, A., in tiie wiliiiii action. Affirmant has read the foregoing Answer, knows the contents thereof, and tliat the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged upon inlbnnation and belief, and that those matters aflirmaiit believes to be true. This verification is made by affim-iant and not by the defeiidant because defendant is not located in the county wherein your affirmant maintains an office Tlie grounds of aflirmant's belief as to all matters not stated upon affirmant's knowledge are as follows: Verbal informiation &om defendant, office records, and affirmant's general in\'estigation into the facts ol'this case. Dated: New York, New York April // DAVI L. METZGER, 7 of 7