SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ADMIRAL INDEMNITY COMPANY, -against- Plaintiff, CITY OF NEW YORK and CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Index No.: 160397/2014 ANSWER WITH COUNTERCLAIMS & CROSS CLAIMS Defendants. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Third Party Plaintiff, -against- MANETTA ENTERPRISES, INC. Third Party Defendant. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Second Third Party Plaintiff, -against- VALI INDUSTRIES, INC., Second Third Party Defendant. Second Third Party Defendant VALI INDUSTRIES, INC., ( Vali ), by its attorneys, The Law Offices of Leon R. Kowalski, as and for an answer to the second third party complaint filed December 8, 2016 and January 12, 2017, respectfully alleges upon information and belief: FIRST: SECOND: It admits paragraphs 2 and 3 of the complaint. It denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1, 6 and 9 of the complaint. 1 of 7
THIRD: It denies paragraphs 4, 5, 7, 8, 11, 12, 13, 14, 15, 16, 18, 19, 20, 22 and 23 of the complaint, but to the extent Vali performed work for Con Edison at any point in time, Vali does not allege that its work did not accord with contractual provisions, if any. FOURTH: It repeats the admissions and denials to the paragraph(s) of the third party complaint repeated and realleged in paragraphs 10, 17 and 21 of the complaint. FIFTH: SIXTH: Any questions of law are respectfully referred to the Court. Vali has affirmative defenses and other kinds of defenses; any defenses which should be pled are set forth below. AS AND FOR A FIRST DEFENSE Any damages that the plaintiff or another party has sustained were caused in whole or in part or were contributed to by the culpable conduct and want of care on the part of them or their subrogor or assignor, and any such alleged damages should be fully or partially diminished by said culpable conduct and want of care pursuant to CPLR Article 14-A. AS AND FOR A SECOND DEFENSE If and to the extent that the plaintiff has received remuneration and/or compensation for some or all of the claimed economic loss, this answering defendant is entitled to have any award reduced by the amount of that remuneration and/or compensation, pursuant to Section 4545(c) of the Civil Practice Law and Rules and common law principles that prohibit a double recovery or the like. AS AND FOR A THIRD DEFENSE Any applicable contract requirements were performed properly, and any requested services were performed properly and inspected and approved by Con Edison; accordingly, Vali is not liable to the second third party plaintiff or anyone else. 2 of 7
AS AND FOR A FOURTH DEFENSE If the plaintiff or a sued party has any damages, it is because of failure to mitigate damages. AS AND FOR A FIFTH DEFENSE In the event any person or entity liable or claimed to be liable for injuries or damages in this action has been given or is hereafter given a release or covenant not to sue by the plaintiff, this answering defendant is entitled to protection under General Obligations Law 15-108, including a reduction of any damages to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of any damages under article fourteen of the civil practice law and rules, whichever is the greatest. AS AND FOR A SIXTH DEFENSE If the plaintiff or a sued party has sustained any injury or incurred any loss or damages as alleged in the complaint, the same were caused in whole or in part by actions or omissions of another or others, possibly including one or more independent contractors, for whom Vali is not responsible, and whose conduct Vali had no duty or reason to anticipate or control. AS AND FOR A SEVENTH DEFENSE The alleged damages of the plaintiff and sued parties, if any, were proximately caused by an unforeseeable, unanticipated, independent, intervening and/or superseding event beyond the control and unrelated to any conduct of Vali. AS AND FOR AN EIGHTH DEFENSE Any claims against Vali for contribution, indemnification or breach of contract are barred due to failure to timely notify Vali of the alleged occurrence and the claims of the plaintiff and 3 of 7
others. AS AND FOR A NINTH DEFENSE All claims against Vali should be dismissed on grounds of laches, and/or if the claims were not interposed in compliance a court-ordered deadline regarding the same. AS AND FOR A TENTH DEFENSE As defenses to the second third party complaint and any present or future cross-claims, Vali adopts any defenses that Con Edison or the sued other parties have vis-à-vis the claims against them. COUNTER CLAIMS AGAINST SECOND THIRD PARTY PLAINTIFF AND CROSS-CLAIMS AGAINST ALL OTHER PRESENTAND FUTURE SUED PARTIES First paragraph regarding counter claims and cross-claims: If the plaintiff and/or second third party plaintiff were caused to sustain damages in the manner and at the time and place as set forth in their complaints through any carelessness, recklessness or negligence, other than carelessness, recklessness or negligence of non-parties, then that was caused not by Vali, but solely by reason of the carelessness, recklessness, negligence, breach of duty, breach of contract, and/or acts or omissions or commissions of the other parties in this action and/or their agents, servants, employees, and/or predecessors in interest, including the plaintiff and second third party plaintiff; and if any judgment is recovered by the plaintiff, second third party plaintiff and/or other parties against Vali, then Vali will be damaged thereby, and the other parties will be liable to Vali by way of contribution or indemnification for the full extent of any recovery by the plaintiff, second third party plaintiff and/or other parties against Vali, or alternatively for a portion thereof, and for attorney fees, costs, disbursements, and other damages. 4 of 7
FIRST COUNTER / CROSS-CLAIM, FOR COMMON-LAW INDEMNIFICATION Vali repeats and realleges the aforementioned First paragraph regarding counter claims and cross-claims. By reason of the foregoing, the other parties are obligated to indemnify Vali under common law principles, in the event of and in the full amount of any recovery by the plaintiff, second third-party plaintiff and/or other parties against Vali, and to pay attorney fees, costs and disbursements incurred by Vali. SECOND COUNTER / CROSS-CLAIM, FOR CONTRIBUTION Vali repeats and realleges the aforementioned First paragraph regarding counter claims and cross-claims. Pursuant to CPLR Article 14 and common law principles, in the event a judgment is recovered by the plaintiff, second third party plaintiff and/or other parties, and in the event two or more persons have culpability with respect to any claim of theirs, such persons equitable shares of the judgment are to be determined in accordance with their relative culpability. By reason of the foregoing, the other parties are obligated to make contribution to Vali, to the extent Vali is made to pay plaintiff, second third party plaintiff and/or other parties monies that are excess over and above Vali s equitable share, if any, and the other parties are obliged to pay attorney fees, costs and disbursements incurred by Vali. WHEREFORE, Vali demands judgment dismissing all claims of the plaintiff and the second third party plaintiff and any other adverse parties herein, with costs, and further demands judgment pursuant to NY CPLR Article 14 and CPLR 3019 that the ultimate rights of the present and future non-plaintiff parties be determined as among themselves, and that Vali have judgment over and against said opposing parties for indemnification or contribution in whole or in part, for the amount of any sum which may be recovered herein against Vali, together with attorney fees, 5 of 7
costs and disbursements in this action. Dated: Brooklyn, New York March 18, 2017 Very truly yours, THE LAW OFFICES OF LEON R. KOWALSKI Attorneys for Second Third Party Defendant VALI INDUSTRIES, Inc. By: Bradley J. Corsair 12 Metrotech Center, 28 th Floor Brooklyn, New York 11201-3837 (718) 250-1100 File # NYNY-32533 Pursuant to 22 NYCRR 130-1.1, Bradley J. Corsair, an attorney duly admitted to practice law in the State of New York, certifies by his signature here that, upon information and belief based upon reasonable inquiry, any contentions contained in this and/or any annexed document are not frivolous. TO: WENIG & WENIG, PLLC Attorneys for Plaintiff 150 Broadway, Suite 911 New York, New York 10038 (212) 374-9840 File # FF2162 ZACHARY CARTER Corporation Counsel, City of New York 100 Church Street New York, New York 10007 DOUGLAS J. McKAY Attorneys for Defendant CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. 4 Irving Place, Room 1800 New York, New York 10003-3598 (212) 460-3355 File # S-0517 FN 0380686 6 of 7
LAW OFFICE OF GIALLEONARDO, McDONALD & TURCHETTI Attorneys for Third Party Defendant MANETTA ENTERPRISES One Whitehall Street, 13 th Floor New York, New York 10004-2109 (212) 248-9100 porrej1@nationwide.com File # 16-005230 7 of 7