FILED NEW YORK COUNTY CLERK 07/19/2012 INDEX NO. 100061/2011 NYSCEF DOC. NO. 135 RECEIVED NYSCEF 07/19/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - THE BOARD OF MANAGERS OF THE A BUILDING CONDOMINIUM, et al, -v.- Plaintiffs, 13 th & 14 th STREET REALTY, LLC, et al, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x x Index No. 100061/2011 Justice Feinman ANSWER Defendant, Advanced Building Systems Inc. ( ABS ) by its attorneys Hinckley & Heisenberg LLP, as and for its Answer to plaintiff s Amended Consolidated Complaint, dated February 23, 2012 [Docket No. 53] alleges as follows 1. ABS denies knowledge or information sufficient to form a belief as to the truth of any and all allegations of the Amended Consolidated Complaint, except as set forth below in paragraphs 2-4. 2. Answering paragraph 96, ABS admits that Tingwall Inc. is a Pennsylvania corporation authorized to do business in New York and has an office located at 505A McKnight Park Drive, Pittsburgh, PA 15237. 3. ABS denies the allegations of paragraph 97, 185, 186, 187, 188 of the Amended Consolidated Complaint. 4. Answering paragraph 98, admits that ABS is a Delaware corporation authorized to do business in New York and has an office located at 505A McKnight Park Drive, Pittsburgh, PA 15237.
contract. AS AND FOR A FIRST DEFENSE, 5. The claims against ABS must be dismissed because there is no privity of AS AND FOR A SECOND DEFENSE, 6. Plaintiffs assumed the risk for damage and/or loss of the property alleged in the Consolidated Complaint. AS AND FOR A THIRD DEFENSE, 7. In the event plaintiff s recover a verdict or judgment against ABS, then said verdict or judgment must be reduced pursuant to CPLR 4545(a) by those amount which have been or will, with reasonable certainty, replace or indemnify plaintiffs in whole or in part, for any past future claimed economic loss, from any collateral source. AS AND FOR A FOURTH DEFENSE, 8. The negligent acts set forth in plaintiffs Consolidated Complaint were committed by third parties over with ABS had no control or right of control. AS AND FOR A FIFTH DEFENSE, 9. Plaintiffs failed to mitigate and/or reduce their damages and loss as alleged in the Consolidated Complaint.
AS AND FOR A SIXTH DEFENSE, 10. Plaintiffs damages, if any, were caused by a superseding and/or intervening acts by the plaintiffs or other parties, or other entities over whom ABS had no administration, supervision or control, nor the right of control and for whose actions ABS is not and cannot be liable. AS AND FOR A SEVENTH DEFENSE, 11. That plaintiffs failed to state a cause of action for which relief can be granted. AS AND FOR A EIGTH DEFENSE, 12. That any damages sustained by plaintiffs were not caused by any negligence on the part of ABS, its servants, agents or employees, but were solely caused by the negligence and carelessness of the plaintiffs and that such conduct requires diminution of any award, verdict or judgment that plaintiffs may recover against this answering defendant. AS AND FOR A NINTH DEFENSE, 13. That upon information and belief, the cause or cause of action set forth in the plaintiffs Consolidated Complaint did not accrue, nor did any part thereof accrue, within the appropriate statutory period and this action is, therefore barred by the Statute of Limitations.
AS AND FOR A TENTH DEFENSE, 14. That the plaintiffs failed to join all necessary parties in this action. AS AND FOR A ELEVENTH DEFENSE, 15. That no jurisdiction was ever obtained over ABS or over the person of this answering defendant in the State of New York, and therefore, and action taken against the defendant is void and has no effect. AS AND FOR A TWELFTH DEFENSE, 16. That the plaintiffs failed to comply with the requirements under CPLR 305, 306, 306-1, and/or 306-b. AS AND FOR A THIRTEENTH DEFENSE, 17. The alleged acts or omission of ABS, were not the proximate cause of any damages incurred by the plaintiffs. AS AND FOR A FOURTEENTH DEFENSE, 18. The plaintiffs may not maintain each of the causes of action under the equitable principles of release, lack of consideration, laches, privity, waiver, unclean hands and/or estoppel. AS AND FOR A FIFTEENTH DEFENSE, 19. That if any sums or consideration was paid or promised to plaintiffs by any person(s) or corporation(s) claimed to be liable for the injuries or damages alleged in the
Consolidated Complaint, whose sums shall reduce any judgment rendered in favor of plaintiffs as against ABS to the extent of the greater or either the sums or consideration paid or promised to plaintiffs or the amount of the released tortfeasor s equitable share of the damages in accordance with the General Obligation Law 15-108. AS AND FOR A SIXTEENTH DEFENSE, 20. The claims against ABS are barred by virtue of a waiver of subrogation. AS AND FOR A SEVENTEETH DEFENSE, 21. The claims against ABS must be dismissed because the plaintiffs lack standing to sue ABS. AS AND FOR A EIGHTEENTH DEFENSE, 22. The loss or losses claimed in the Consolidated Complaint, if any, was due to the fault and/or lack of care of plaintiffs, and the plaintiffs recovery must be reduced by the percentage of its culpable conduct as set forth in Articles 14 and 14-A of the CPLR. Frauds AS AND FOR A NINETEENTH DEFENSE, 23. The claims against ABS must be dismissed by operation of the Statue of AS AND FOR A TWENTIETH DEFENSE, 24. The claims against ABS must be dismissed due to the doctrine of impossibility of performance.
AS AND FOR A TWENTY-FIRST DEFENSE, 25. Upon information and belief, plaintiffs have abandoned any rights they have had against ABS. AS AND FOR A TWENTY-SECOND DEFENSE, 26. The claims against ABS must be dismissed because there is a prior action pending in which the relief sought it duplicative. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE, 27. ABS will rely upon any and all other further defenses which become available to appear during discovery in this action, or upon discovery of specific facts upon which plaintiffs base their claims for relief, and hereby specifically reserves the right to amend its answer for the purpose of asserting any such additional defenses. Dated July 19, 2012 HINCKLEY & HEISENBERG LLP By George R. Hinckley, Jr. 271 Madison Ave, Suite 905 New York, NY 10016 Telephone (212) 759-4933 Facsimile (212) 656-1531 and Stephen J. Del Sole DEL SOLE CAVANAUGH STROYD LLC
The Waterfront Building 200 First Avenue, Suite 300 Pittsburgh, PA 15222 Telephone (412) 261-2393 Facsimile (412) 261-2110 Counsel for Defendants