FILED: NEW YORK COUNTY CLERK 12/02/2016 11:13 AM INDEX NO. 157868/2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/02/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------------x FORMAT FURNITURE INC., -against- Plaintiff, TIMOTHY N. HARTZELL, LESLIE B. HARTZELL, THE ANDREWS ORGANIZATION, INC., ROBERT LANDE, KARMA LANDE, and SUSAN B. DAIMLER, as Board President of The Wooster Street Condominium, VERIFIED ANSWER WITH CROSS-CLAIMS Index No.: 157868/2016 Defendants. ------------------------------------------------------------------------------x The Defendant, THE ANDREWS ORGANIZATION, INC. and SUSAN B. DAIMLER, as Board President of The Wooster Street Condominium, by its attorneys, FIXLER & LAGATTUTA, LLP, answering the amended verified complaint of the plaintiff herein, respectfully alleges upon information and belief: NATURE OF ACTION 1. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in the paragraphs of the verified 1 and 2. 2. Denies each and every allegation contained in the paragraphs of the verified 3. PARTIES 3. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in the paragraphs of the verified 4, 5, 6, 8, 9, 10, 11, 12 and 13. 4. Denies each and every allegation contained in the paragraphs of the verified 7. 1 of 12
JURISDICTION AND VENUE 5. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in the paragraphs of the verified 14, 15, and 16 and respectfully refers all questions of law raised therein to the trial court. FACTS 6. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in the paragraphs of the verified 17 and 18 and respectfully refers all questions of law raised therein to the trial court. The First Water Damage Incident 7. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in the paragraph of the verified 20. 8. Denies each and every allegation contained in the paragraphs of the verified 19, 21, 22, and 23. The Second Water Damage Incident 9. Denies each and every allegation contained in the paragraphs of the verified 24, 25, 27 and 28. 10. Denies each and every allegation contained in the paragraph of the verified 26 and respectfully refers all questions of law raised therein to the trial court. 2 of 12
FIRST CAUSE OF ACTION NEGLICENCE AS AGAINST DEFENDANTS T. HARTZELL, L. HARTZELL ANDREWS and DAIMLER 11. In response to paragraph 29, the defendant repeats, reiterates and realleges each and every admission or denial heretofore made in response to paragraphs designated 1 through 28 with the same force and effect as though fully set forth therein. 12. Denies each and every allegation contained in the paragraphs of the verified 30, 33, 34 and 35. 13. Denies each and every allegation contained in the paragraphs of the verified 31 and 32 and respectfully refers all questions of law raised therein to the trial court. SECOND CAUSE OF ACTION NEGLIGENCE AS AGAINST DEFENDANTS R. LANDE, K. LANDE, ANDREWS and DAIMLER 14. In response to paragraph 36, the defendant repeats, reiterates and realleges each and every admission or denial heretofore made in response to paragraphs designated 1 through 35 with the same force and effect as though fully set forth therein. 15. Denies each and every allegation contained in the paragraphs of the verified 37, 44, 45, 46 and 47. 16. Denies each and every allegation contained in the paragraphs of the verified 38, 39, 40, 41, 42 and 43 and respectfully refers all questions of law raised therein to the trial court. 3 of 12
AS AND FOR A FIRST SEPARATE AND COMPLETE 17. That any damages, injury and/or injuries sustained by plaintiff were caused in whole or part by the culpable conduct and fault attributable to the plaintiff, including, but not limited to, contributory negligence and/or want of care, and/or the plaintiff s assumption of the risk, and the amount recovered, if any, should be diminished pursuant to CPLR 1412 by the proportion which the culpable conduct attributed to the plaintiff bear to the culpable conduct which caused the damages, if any. damages. AS AND FOR A SECOND SEPARATE AND COMPLETE 18. If plaintiff suffered damages as alleged, then plaintiff failed to mitigate such 19. Any award made to plaintiff for the alleged injuries must be reduced in such proportion that the alleged injuries were caused, aggravated and contributed to by plaintiff s failure to mitigate damages. 20. That the damages claimed to have been suffered, either in whole or in part, are greater than any damages that may have been actually suffered, and that plaintiff failed to mitigate the same. AS AND FOR A THIRD SEPARATE AND COMPLETE 21. If plaintiff received remuneration and/or compensation for some or all of its claimed economic loss from any collateral source, the answering defendants are entitled to have plaintiff s award, if any, reduced by the amount of that remuneration and/or compensation pursuant to CPLR 4545. AS AND FOR A FOURTH SEPARATE AND COMPLETE 22. If plaintiff was caused to sustain damages at the time and place set forth in the plaintiff s verified complaint it was due to the culpable conduct of person or persons presently unknown. 4 of 12
AS AND FOR A FIFTH SEPARATE AND COMPLETE 23. The liability of the answering defendant is limited by law under the terms of Article Sixteen of the CPLR. AS AND FOR A SIXTH SEPARATE AND COMPLETE 24. That any and all risks, hazards and dangers were open, obvious and apparent, natural and inherent and known or should have been known by the plaintiff and that plaintiff assumed all such risks, hazards and defects. AS AND FOR A SEVENTH SEPARATE AND COMPLETE 25. That if the plaintiff sustained the injuries complained of in the manner alleged, said injuries were caused by the negligence of parties over whom the answering defendant was not obligated to exercise supervision or control. AS AND FOR AN EIGHTH SEPARATE AND COMPLETE 26. Any award recovered by plaintiff from the answering defendant is subject to offset pursuant to General Obligations Law 15-108. AS AND FOR A NINTH SEPARATE AND COMPLETE 27. No acts or omissions of the answering defendants proximately caused any injuries and/or damages sustained by plaintiff. AS AND FOR A TENTH SEPARATE AND COMPLETE 28. The answering defendant did not owe a duty to plaintiff and was not subject to any terms and conditions of a contract creating obligations to either plaintiff on the date of accident. AS AND FOR AN ELEVENTH SEPARATE AND COMPLETE 29. The answering Defendants, pursuant to 1412 of the CPLR, allege upon information and belief that if the Plaintiff sustained any injuries or damages at the time and place 5 of 12
alleged in the Verified Complaint, such injuries or damages were the result of the culpable conduct of the Plaintiff because of the Plaintiff s negligence or assumption of risk. Should it be found, however, that the answering Defendants are liable to the Plaintiff herein, any liability being specifically denied, then the answering Defendants demands that any damages that are found be apportioned among the respective parties according to the degree of responsibility each is found to have in the occurrence, in proportion to the entire measure of responsibility for the occurrence. AS AND FOR A TWELFTH SEPARATE AND COMPLETE 30. Upon information and belief, the allegations in the Plaintiff s Verified Complaint fail to state a cause of action against the answering Defendants. AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE 31. Plaintiff has failed to join a necessary party to the instant action. AS AND FOR A FOURTEENTH SEPARATE AND COMPLETE 32. The present action is time barred by operation of the Statute of Limitations applicable to this action. AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE 33. Plaintiff s complaint and underlying causes of action are limited by contract. AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE 34. The answering defendants are immune from liability based upon the acts of an independent contractor. AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE 35. The answering defendant will rely upon any and all further defenses which 6 of 12
become available or appear during discovery in this action and hereby specifically reserves her right to amend its answer for the purpose of asserting any such additional defenses. AS AND FOR A CROSS-CLAIM AGAINST THE DEFENDANTS, TIMOTHY N. HARTZELL, LESLIE B. HARTZELL ROBERT LANDE, and KARMA LANDE, THE DEFENDANTS, THE ANDREWS ORGANIZATION, INC. and SUSAN B. DAIMLER, ALLEGE: 36. That if the plaintiff was caused to sustain damages at the time and place set forth in the plaintiff s complaint through any carelessness, recklessness, negligence and/or breach of warranty other than the plaintiff s own carelessness, recklessness and negligence, said damages were sustained by reason of the carelessness, recklessness and negligence and/or acts of omission or commission and/or breach of contract by the codefendant, its agents, servants and/or employees; and if any judgment is recovered herein by the plaintiff against the answering defendant, THE ANDREWS ORGANIZATION,INC. and SUSAN B. DAIMLER, it will be damaged thereby, and the codefendant will be responsible therefore in whole or in part. 37. That by reason of the foregoing, the codefendants will be liable to the answering defendant, THE ANDREWS ORGANIZATION,INC. and SUSAN B. DAIMLER, in the event and in the full amount of a recovery herein by the plaintiff or alternatively, for that proportion thereof cause by the relative responsibility of the codefendants, and the codefendants are bound to pay any and all expenses and attorneys fees and the costs and disbursements thereof. AS AND FOR A SECOND CROSS-CLAIM AGAINST THE DEFENDANTS, TIMOTHY N. HARTZELL, LESLIE B.HARTZELL ROBERT LANDE, and KARMA LANDE, THE DEFENDANTS, THE ANDREWS ORGANIZATION,INC. and SUSAN B. DAIMLER, ALLEGE: 38. That if the plaintiff was caused to sustain damages at the time and place set forth in the plaintiff s complaint and in the manner alleged therein through any carelessness, recklessness, acts, omissions, negligence and/or breach of duty, warranty and/or contract and/or strict tort liability other than of the plaintiff, then said injuries and damages arose out of the several and joint carelessness, recklessness, acts, omissions, negligence and/or breaches of duty and/or obligations, and/or statute and/or contract in fact or implied in law, upon the part of the codefendants, with indemnification and save harmless agreement, and/or responsibility by them in fact, and/or implied in law, and without any breaches or any negligence of this pleading defendant contributing thereto, and if this pleading defendant is found negligent as to the plaintiff for injuries and damages as set forth in the plaintiff s Complaint, then and in that event, the relative responsibilities of all said defendants must be apportioned by separate determination, 7 of 12
and the said co-defendants herein will be liable over jointly and severally to the pleading defendant and bound to fully indemnify and hold this pleading defendant harmless for the full amount of any verdict or judgment that the plaintiff herein may recover against the pleading defendant in this action, together with legal fees, costs and disbursements. WHEREFORE, the answering Defendants,THE ANDREWS ORGANIZATION,INC. and SUSAN B. DAIMLER, demands judgment against the plaintiff as follows: this action; a) dismissing plaintiff s complaint, together with the costs and disbursements of b) in the alternative, and in the event that plaintiff prevails, the answering defendants, THE ANDREWS ORGANIZATION,INC. and SUSAN B. DAIMLER, demands judgment on its cross-claims against defendants, TIMOTHY N. HARTZELL, LESLIE B. HARTZELL ROBERT LANDE, and KARMA LANDE. c) in the alternative, and in the event that plaintiff prevails, the answering Defendants, THE ANDREWS ORGANIZATION,INC. and SUSAN B. DAIMLER, demands judgment determining the respective percentages of fault on the part of the defendants; necessary. Dated: d) and for such other and further relief as the Court deems just, proper and New York, New York December 2, 2016 By: LUIGI TOLLIS FIXLER & LAGATTUTA, LLP Attorneys for Defendant THE ANDREWS ORGANIZATION, INC. and SUSAN B. DAIMLER 120 Broadway Suite 1350 New York, New York 10271 (212) 785-9800 File No. 2760.162 8 of 12
TO: GREENBLATT & AGULNICK, P.C. Attorneys for Plaintiff FORMAT FURNITURE INC. 55 Northern Boulevard, Suite 302 Great Neck, New York 11021 (718) 352-4800 BASHIAN & PAPANTONIOU, P.C. Attorneys for Plaintiff FORMAT FURNITURE INC. 500 Old Country Road, Suite 302 Garden City, New York 11530 (516) 279-1555 TIMOTHY N. HARTZELL 42-50 Wooster Street, Unit 6N LESLIE B. HARTZELL 42-50 Wooster Street, Unit 6N ROBERT LANDE 42-50 Wooster Street, Unit 2NF KARMA LANDE 42-50 Wooster Street, Unit 2NF 9 of 12
Attorney Verification The undersigned, under the penalties of perjury, affirms: That he is LUIGI TOLLIS, an associate of the firm of FIXLER & LAGATTUTA, LLP, that he has read the foregoing papers and the same are true to his knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters, he believes them to be true; that the grounds and sources of such belief are matters contained in this firm's file, as well as conferences had between this affirmant and representatives of the defendant; and that the reason this affirmation is not made by the party is that said parties are foreign corporations and are not the county where affirmant has his office. Dated: New York, New York December 2, 2016 LUIGI TOLLIS 10 of 12
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------------------------------------------x FORMAT FURNITURE INC., -against- Plaintiff, TIMOTHY N. HARTZELL, LESLIE B. HARTZELL, THE ANDREWS ORGANIZATION, INC., ROBERT LANDE, KARMA LANDE, and SUSAN B. DAIMLER, as Board President of The Wooster Street Condominium, NOTICE PURSUANT TO CPLR 3017(c) Index No.: 157868/2016 Defendants. ------------------------------------------------------------------------------x PLEASE TAKE NOTICE, that pursuant to CPLR 3017(c), you are hereby required to furnish to the undersigned, within fifteen (15) days from the date hereof, setting forth the total damages to which plaintiff deems himself entitled. PLEASE TAKE FURTHER NOTICE, that this is to be considered a continuing demand and you are required to inform the undersigned in writing of any changes made on behalf of plaintiff. Dated: New York, New York December 2, 2016 By: LUIGI TOLLIS FIXLER & LAGATTUTA, LLP Attorneys for Defendant THE ANDREWS ORGANIZATION, INC. and SUSAN B. DAIMLER 120 Broadway Suite 1350 New York, New York 10271 (212) 785-9800 File No. 2760.162 11 of 12
TO: GREENBLATT & AGULNICK, P.C. Attorneys for Plaintiff FORMAT FURNITURE INC. 55 Northern Boulevard, Suite 302 Great Neck, New York 11021 (718) 352-4800 BASHIAN & PAPANTONIOU, P.C. Attorneys for Plaintiff FORMAT FURNITURE INC. 500 Old Country Road, Suite 302 Garden City, New York 11530 (516) 279-1555 TIMOTHY N. HARTZELL 42-50 Wooster Street, Unit 6N LESLIE B. HARTZELL 42-50 Wooster Street, Unit 6N ROBERT LANDE 42-50 Wooster Street, Unit 2NF KARMA LANDE 42-50 Wooster Street, Unit 2NF 12 of 12