SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------x Index No.: 655023/2016 DAWN JONES, DDS and EXCLUSIVE DENTAL STUDIOS, PLLC. d/b/a MADION AVENUE DENTAL, Plaintiffs, -against- MADISON PLAZA COMMERCIAL OWNERS, LLC, and 1825 MADISON RETAIL, LLC., VERIFIED ANSWER TO AMENDED COMPLAINT WITH CROSS CLAIMS Defendants. --------------------------------------------------------------x Defendant MADISON PLAZA COMMERICAL OWNERS, LLC, (MADISON) by their attorneys EHRLICH GAYNER, LLP, as and for its answer to plaintiff s amended complaint, respectfully states and alleges as follows: 1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs numbered 1, 2, 3, 1 (second number 1 ), 5, 6, 7, 8, 9 10, 11, 12, 21, of the complaint. 2. Denies each and every allegation contained in paragraphs 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 25, 26, 27, 29, 30, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 50, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 64, 65, 66, 68, 69, 70, 71, 72, 73, 74, 76, 77, 78, 80 and 81 of the complaint. 3. As to paragraphs 24, 28, 31, 36, 48, 51, 59, 67, 75 and 79, repeats, reiterates and realleges each and every denial set forth herein as if fully set forth. FIRST AFFIRMATIVE DEFENSE 1 of 8
4. This answering defendant(s) denies that it was guilty of any negligence, which was the proximate cause of any injuries or damages alleged to have been sustained. SECOND AFFIRMATIVE DEFENSE 5. Any injuries or damages alleged to have been sustained were the result of the negligence of third parties over whom the defendants exercised no control. THIRD AFFIRMATIVE DEFENSE 6. This answering defendant(s) denies notice of any alleged defective or unsafe condition as well as the opportunity to remedy same. FOURTH AFFIRMATIVE DEFENSE 7. The plaintiff assumed the risk and was fully cognizant of any and all circumstance surrounding the alleged incident. FIFTH AFFIRMATIVE DEFENSE 8. That if the plaintiff sustained any injuries/damages alleged, such injuries/damages were caused by the plaintiff s own fault and negligence and/or culpable conduct wholly or partially, and if plaintiff should be successful in securing a judgment against the defendants, the amount of damages recoverable by the plaintiff should be diminished in proportion to which the plaintiff s culpable conduct contributed to the happening of the incident. SIXTH AFFIRMATIVE DEFENSE 9. The court lacks personal jurisdiction over this answering defendant(s) 2 of 8
SEVENTH AFFIRMATIVE DEFENSE 10. Defendant is entitled to a set-of pursuant to CPLR section 4545 EIGHTH AFFIRMATIVE DEFENSE 11. Assuming negligence or other wrongdoing on the part of this defendant, which this defendant expressly denies, it was not the proximate cause of the plaintiff s damages, but the plaintiff s alleged damages were a result of prior and/or subsequent conditions or occurrences for which this defendant was not responsible. NINTH AFFIRMATIVE DEFENSE 12. The complaint fails to state a cause of action upon which relief can be granted. TENTH AFFIRMATIVE DEFENSE 13. The within action was not timely brought. ELEVENTH AFFIRMATIVE DEFENSE 14. The within action is estopped by collateral estoppel and res judicata. TWELFTH AFFIRMATIVE DEFENSE 15. The plaintiff was recalcitrant in its actions and said actions were the sole proximate cause of the accident. THIRTEENTH AFFIRMATIVE DEFENSE 16. Plaintiff does not have standing to sue due bankruptcy proceedings. FOURTEENTH AFFIRMATIVE DEFENSE 17. Plaintiff failed to mitigate damages. FIFTEENTH AFFIRMATIVE DEFENSE 3 of 8
18. Defendant pleads the doctrine of laches. SIXTEENTH AFFIRMATIVE DEFENSE 19. Plaintiff failed to avail themselves of all available remedies. SEVENTEENTH AFFIRMATIVE DEFENSE 20. The plaintiff has no standing to sue as the plaintiffs did not own or possess the subject items at the time of the incident; further the plaintiffs abandoned said items. ANSWER TO ALL CROSS CLAIMS 21. This answering defendant(s) by way of an Answer/Reply to all Cross Claims asserted against it or which shall hereinafter be asserted against it, denies each and every allegation contained therein. CROSS CLAIMS AGAINST ALL CO-DEFENDANTS 22. This answering defendant asserts claims of common law indemnification, common law indemnification, contribution and breach of contract. To the extent that the plaintiff did sustain damages, said damages were caused in whole or in part by the co-defendants herein. 18. This answering defendant asserts that the it had a contract(s) in place with the co-defendants whereby said co-defendants were required to procure liability insurance coverage naming this answering defendant as an additional insured and failed to do so. 23. This answering defendant is entitled to a recovery against all codefendants for legal fees and costs associated with the within litigation. 4 of 8
WHEREFORE, this answering defendant(s) demands judgment dismissing the complaint of the plaintiff(s) herein for judgment against the co-defendants and for such other and further relief as to this Court may seem just and proper. Dated: New York, New York August 11, 2017 EHRLICH GAYNER, LLP By: CHARLES J. GAYNER 150 Broadway, Suite 808 New York, New York 10038 212-827-0555 Attorneys for Defendant MADISON To: Law Offices of Marjory Cajoux 406 Atlantic Avenue Brooklyn, New York 11217 Attorneys for Plaintiff 718-237-0411 Bradley S. Gross, Esq. 45 Rockefeller Plaza, Suite 2000 New York, New York, 10111 Attorney for 1825 5 of 8
VERIFICATION CHARLES J. GAYNER, Esq., an attorney admitted to practice in the Courts of this State, and a partner with Ehrlich Gayner, attorneys for the defendant(s) states: That your affirmant has read the foregoing Answer and knows the contents thereof; that the same is true to your affirmant's own knowledge except as to the matters which are stated therein to be alleged on information and belief, and as to those matters your affirmant believes it to be true. The source of your affirmant's information and belief, is an investigation caused to be made with respect to the facts in this action. That the reason this verification is made by affirmant and not by the defendant is because the defendant does not reside within the county where counsel maintain their office. The undersigned affirms that the foregoing statement is true, under penalties of perjury. Date: New York, New York August 11, 2017 Charles J. Gayner, Esq. 6 of 8
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------x Index No.: 655023/2016 DAWN JONES, DDS and EXCLUSIVE DENTAL STUDIOS, PLLC. d/b/a MADION AVENUE DENTAL, Plaintiffs, -against- MADISON PLAZA COMMERCIAL OWNERS, LLC, and 1825 MADISON RETAIL, LLC., VERIFIED ANSWER TO AMENDED COMPLAINT WITH CROSS CLAIMS Defendants. --------------------------------------------------------------x CERTIFICATION PURSUANT TO SECTION 130-1.1a OF THE RULES OF THE CHIEF ADMINISTRATOR (22NYCRR) The undersigned certifies the following documents pursuant to 22NYCRR Section 130-1.1a: Verified Answer to Amended Verified Complaint with cross claims DATED: New York, New York August 11, 2017 EHRLICH GAYNER, LLP By: CHARLES J. GAYNER 150 Broadway, Suite 808 New York, New York 10038 212-827-0555 ---------------------------------------------------------------------------------------------------------------------- TO: All Counsel On the Service List 7 of 8
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------x Index No.: 655023/2016 DAWN JONES, DDS and EXCLUSIVE DENTAL STUDIOS, PLLC. d/b/a MADION AVENUE DENTAL, Plaintiffs, -against- MADISON PLAZA COMMERCIAL OWNERS, LLC, and 1825 MADISON RETAIL, LLC., VERIFIED ANSWER TO AMENDED COMPLAINT WITH CROSS CLAIMS Defendants. --------------------------------------------------------------x VERIFIED ANSWER TO AMENDED COMPLAINT WITH CROSS CLAIMS EHRLICH GAYNER, LLP By: CHARLES J. GAYNER 150 Broadway Suite 808 New York, New York 10038 212-827-0555 8 of 8