FILED: NEW YORK COUNTY CLERK 06/07/ :32 PM INDEX NO /2017 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 06/07/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VERIFIED REPLY TO 89 BOWERY AND HUA YANG'S COUNTERCLAIMS IN VERIFIED AMENDED ANSWER Index No /2017 Plaintiff, 93 BOWERY HOLDINGS LLC ("93 Bowery" ), by its attorneys, Klein Slowik PLLC, as and for its Verified Reply to the Verified Amended Answer with Counterclaims and Cross-Claims (the "Answer" ) of Defendants 89 BOWERY REALTY LLC and HUA YANG INC (collectively referred to as the "89 Defendants" ), responds as follows: l. Admits the allegations contained in paragraph 163 of the Answer. 2. Denies the allegations contained in paragraphs 165, 171, 174, 176, 178, 179, , 187, and of the Answer. 3. With respect to paragraphs 166, 167, 180, 186 and 195 of the Answer, they call for legal conclusions which are respectfully referred to the Court, but to the extent that any factual allegations are alleged, they are denied. 4. Denies knowledge sufficient to form a belief as to the allegations contained in paragraphs 161, 162, , 172, 173 and 184 of the Answer. 1 of 7

2 5. Denies knowledge sufficient to form a belief as to the truth of the allegations contained in paragraphs 164, 177, 188 and 189 of the Answer, but denies the existence of any encroachment. 6. With respect to paragraph 184 of the Answer, state that it calls for legal conclusions which are respectfully referred to the Court, but to the extent that any factual allegations are alleged, Plaintiff denies knowledge sufficient to form a belief. 7. In response to paragraphs 175, 185 and 194 of the Answer, Plaintiff repeats, reiterates and realleges each and every answer to the paragraphs preceding said paragraph as though fully set forth herein. AS AND FOR PLAINTIFF'S FIRST 8. The 89 Defendants' counterclaims are barred for failure to state a cause of action upon which relief can be granted. AS AND FOR PLAINTIFF'S SECOND 9. The 89 Defendants are barred from seeking all or part of their damages sought in this lawsuit as a result of their failure to mitigate the damages allegedly sustained. AS AND FOR PLAINTIFF'S THIRD Defendantts' counterclaims are barred by the doctrines of unclean hands and laches. 2 of 7

3 AS AND FOR PLAINTIFF'S FOURTH 11. The damages allegedly sustained by the 89 Defendants, if any, were caused in whole or in part by the negligence, carelessness, and/or culpable conduct of the 89 Defendants, their servants, agents or employees and others for whom the plaintiffs were legally responsible and that the amount of damages recovered, if any, shall therefore be diminished in proportion to which said negligence, carelessness and/or culpable conduct attributable to the 89 Defendants bear to the culpable conduct which caused the damages alleged. AS AND FOR PLAINTIFF'S FIFTH 12. The damages allegedly sustained by the 89 Defendants were not caused by any negligence, carelessness, culpable conduct or breach of duty on the part of Plaintiff, but were caused in whole or in part by the negligence, carelessness and/or culpable conduct of third parties, their servants, agents or employees over whom Plaintiff had no control and that the amount of damages recovered, if any, shall therefore be diminished in proportion to which said negligence, carelessness and/or culpable conduct attributable to the third parties, their servants, agents or employees bears to the culpable conduct which caused the damages alleged. AS AND FOR PLAINTIFF'S SIXTH Defendants' Defendants damages, if any, were sustained as a result of intervening causes which were out of the control of Plaintiff and not the result of the conduct, acts or omissions of 3 of 7

4 Plaintiff. By virtue of said intervening causes, 89 Defendants' Defendants alleged damages were not proximately caused by Plaintiff and, therefore, the claims against Plaintiff should be dismissed. AS AND FOR PLAINTIFF'S SEVENTH 14. The 89 Defendants may not maintain each of its alleged causes of action since they are barred by the applicable principles of waiver, estoppel and/or ratification. AS AND FOR PLAINTIFF'S EIGHTH 15. If it should be found after trial that Plaintiff is liable to the 89 Defendants in the amount of 50% or less of the total liability assigned to all persons liable, the liability of the Plaintiff to the 89 Defendants for non-economic loss shall not exceed the Plaintiff's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss in accordance with Article 16 of the CPLR. AS AND FOR PLAINTIFF'S NINTH 16. Upon information and belief, any past or future costs or expenses incurred or to be incurred by the 89 Defendants for 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 4545 of the New York Civil Practice Law and Rules. 4 of 7

5 AS AND FOR PLAINTIFF'S TENTH 17. The relief sought by the 89 Defendants is barred by the provisions of the New York City Building Code (the "BC") including, without limitation, BC and AS AND FOR PLAINTIFF'S ELEVENTH 18. The 89 Defendants' claims are barred because the conditions complained of are on public property, as is the work sought to be performed by the 89 Defendants, and therefore, they have no superseding right to use that public property than Plaintiff. AS AND FOR PLAINTIFF'S TWELFTH 19. All risks and dangers connected with the allegations in the Answer were at the time and place mentioned open, obvious and apparent and were known to and assumed by the 89 Defendants. AS AND FOR PLAINTIFF'S THIRTEENTH 20. The 89 Defendants have not adhered to, followed or complied with the laws, rules and regulations which apply to developers and therefore cannot seek to enforce the very rules it has ignored. 5 of 7

6 AS AND FOR PLAINTIFF'S FOURTEENTH 21. The 89 Defendants' counterclaims are barred based upon documentary evidence. AS AND FOR PLAINTIFF'S FIFTEENTH 22. The 89 Defendants have failed to join necessary parties pursuant to CPLR Consequently, this Court must dismiss this action pursuant to CPLR WHEREFORE, Plaintiff respectfully requests that (i) the 89 Defendants' affirmative defenses be stricken; (ii) that the 89 Defendants' counterclaims be denied and dismissed in their entirety; and (iii) that judgment be entered in favor of Plaintiff as set forth in the Summons and Complaint filed January 23, 2017, together with costs and such other and further relief as the Court deems just and proper. Dated: New York, New York June 7, 2018 Yours, etc., KLEIN SLOWIK PLLC By: CHRISTOPHER M. SLOWIK, ESQ. Attorney for Petitioners 90 Broad Street, Suite 602 New York, New York (212) TO. ALL PARTIES VIA THE NYSCEF SYSTEM 6 of 7

7 ATTORNEY'S VERIFICATION I, the undersigned, an attorney admitted to practice in the Courts of the State of New York, affirm pursuant to CPLR 2016 that I am a member of KLEIN SLOWIK PLLC, the attorney of record for Plaintiff 93 BOWERY HOLDINGS LLC in the within action; I have read the foregoing REPLY and know the contents thereof; the same is true to my knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters I believe to be true. The reason this verification is made by me and not by my client is because I maintain my law office in a County other than where my clients maintains their residences. The grounds to my belief as to all matters not stated upon my own knowledge are based upon communications with my client and examination of public records., CHRISTOPHER M. SLOWIK 7 of 7