FILED: NEW YORK COUNTY CLERK 09/07/2011 INDEX NO. 104482/2011 ON81112011 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 09/07/2011 V. JOHNSON AVENUE LLC and MGI CONSTRUCTION, INC. : VERIFIED ANSWER TO : VERIFIED COMPLAINT : WITH CROSS CLAIMS Defendants. : Defendant JOHNSON AVENUE CONSTRUCTION (hereinafter JOHNSON ), by their attorneys, Lewis Brisbois Bisgaard & Smith, LLP, as and for its Verified Answer to the plaintiffs Verified Complaint, herein alleges follows: 1. Defendant JOHNSON denies having knowledge or form a belief as to the truth of the allegations contained in b6 7 77, LL 16, 1 S, 1 9, 20, 2 1, 22, 23, 25 and 26 of the Verified Complaint. 2. Defendant JOHNSON admits the allegations contained in paragraphs 2 and 3 of the Verified Complaint. 3. Defendant JOHNSON denies the allegations contained in paragraphs S, L< 999, bb lo, 1 1, 12, 1 3, 14, 1 S, 24 ) 27 and 28 of the Verified Complaint. 4. Defendant JOHNSON denies the allegations as to Defendant Johnson Avenue LLC contained in paragraphs 28, 29, 30, 3 l, 32 and 33 of the Verified Complaint. 5. Defendant JOHNSON denies having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 34 and 35 of 4814-4305-2042.1 Supreme Court Records OnLine Library - page 1 of 9
the Verified Complaint and respectfully refers all questions of law to the Court for its determination. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 6. That the Verified Complaint fails to state a valid cause of action against the defendant. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 7. That the personal injuries and/or damages alleged to have been sustained by the plaintiff were caused entirely or in part through the culpable conduct of the plaintiff without any negligence on the part of the answering defendants and the answering defendants seeks a dismissal or reduction in any recovery that may be had by the plaintiff in the proportion which the culpable conduct, attributable to the plaintiff, bears to the entire measure of responsibility for the occurrence. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 8. That the plaintiff assumed the risk related to activity causing the injuries sustained. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 9. Upon information and belief, any past or future costs or expenses incurred or to be incurred by the plaintiff for medical care and property damage, loss of earnings or other incidental economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from collateral source as defined in Section 4545 of the New York Civil Practice Law and Rules. If any damages are recovered against the defendants, the amount of such damages shall be diminished by the amount of the funds which plaintiff has or shall receive from such collateral source. 48 14-6305-2042.1 Supreme Court Records OnLine Library - page 2 of 9
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 10. To the extent that the injuries and/or illnesses of plaintiff, if any, were caused or contributed to, in whole or in part, by intervening and superseding causative factors, the claims of plaintiff against this defendant is barred. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 11. That any and all damages allegedly sustained by plaintiff were the proximate result of any unforeseen and/or unforeseeable negligent, grossly negligent, wanton, reckless, omission or conduct of intervening third-parties or superseding parties. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 12. The damages allegedly sustained by the plaintiff were caused, in whole or in part, by the negligence or other culpable conduct of one or more persons or instrumentalities over which these answering defendants had no control and with whom it has no legal relationship. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 13. The damages allegedly sustained by the plaintiff were caused in whole or in part, through the operation of nature. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 14. No acts or omission of this defendant proximately caused any damages. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 15. The plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries alleged in the Verified Complaint. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 16. Pursuant to CPLR $1603, this answering defendant asserts the limitations contained in CPLR 61601 and $1602 and all rights contained therein. 4814-6305-2042.1 Supreme Court Records OnLine Library - page 3 of 9
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 17. At all times relevant to this litigation, the answering defendant complied with all applicable laws, rules, regulations and standards. limitations. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 18. Plaintiff is barred in whole or in part by the applicable statute of AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 19. The amount of alleged damages claimed by plaintiff shall be reduced pursuant to 54545 of New York s Civil Practice Law and Rules to the extent of any collateral source benefits, remuneration or compensation received. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 20. This answering defendant reserves the right to amend this answer and to assert additional defenses and/or to supplement, alter or change this answer to assert additional cross-claims upon ascertaining more definite facts during and upon completion of discovery and investigations. AS AND FOR THE FIRST CROSS-CLAIM AGAINST MGI CONSTRUCTION, INC. 2 1. That if the plaintiffs sustained any damages in the manner alleged in the underlying Verified Complaint,, such damages were caused in whole or in part by the negligence, and/or breach of contract of defendant MGI CONSTRUCTION, INC. 22. By reason of the foregoing, the answering Defendant is entitled to contribution and both common law and contractual indemnification, from and to judgment over and against defendant MGI CONSTRUCTION, INC. in the amount of any excess paid by the answering Defendant over and above its equitable share of any 48 14-6305-2042, I Supreme Court Records OnLine Library - page 4 of 9
judgment recovered by the plaintiff as determined in accordance with the relative culpability of the parties, AS AND FOR THE SECOND CROS$-CLAIM AGAINST MGI CONSTRUCTION, INC. 23. If plaintiffs sustained damages in the manner alleged in plaintiffs Verified Complaint, such damages were caused entirely by the act of primary negligence of defendant MGI CONSTRUCTION, INC. with no act of primary negligence of the answering Defendant. 24, By reason of the foregoing, the answering Defendant is entitled to complete indemnity from both common law and contractual and judgment over and against defendant MGI CONSTRUCTION, INC. for all of any verdict or judgment which the plaintiff may recover against the answering Defendant. Dated: New York, New York July 28,2011 Yours, etc. By: Louis F. Eckert, Esq. Attorneys for Defendant JOHNSON AVENUE LLC 77 Water Street, Suite 2100 New York, NY 10005 P: (212) 232-1300 / F: (212) 232-1399 TO: LAW OFFICES OF BETH J. SCHLOSSMAN, ESQ. Beth J. Schlossman, Esq. Attorneys for Plaintiff LUZ CRUZ 26 Court Street, Suite 2305 Brooklyn, New York 1 1242 P: (71 8) 522-5000 48 14-63 05-2042, I Supreme Court Records OnLine Library - page 5 of 9
j MGI CONSTRUCTION INC. De fendant 86 Wilson Street Brooklyn, New York 1 12 1 1 4814-6305-2042.1 Supreme Court Records OnLine Library - page 6 of 9
STATE OF NEW YORK ) ss: COUNTY OF NEW YORK ) ATTOIUYEY VERIFICATION LOUIS F. ECKERT, being duly sworn, deposes and says: That he is a member of the law firm of Lewis Brisbois Bisgaard & Smith LLP, attorneys representing defendant JOHNSON AVENUE LLC that he has read the attached Verified Answer to Verified Complaint with Cross Claims and the same is true to his own belief, except as to the matters alleged on information and belief, and as to those matters, he believes them to be true to the best of his knowledge. That this Verification is made by deponent because his clients do not reside within the county where the deponent maintains their office. Dated: New York, New York July 28,2011 Louis F. Eckert 4814-6305-2042.1 Supreme Court Records OnLine Library - page 7 of 9
I NY County Supreme Court Index No. Luz Cruz v. Johnson Avenue LLC andmgl Cunsrrucrron. Inc. AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK) Mara Mommaas, being duly sworn, deposes and says: I am not a party to this action, I am over eighteen (18) years of age and I reside in the State of New York, County of Queens, That on the 28fh day of July, 2011, I served a true copy of the annexed: VERIFIED ANSWER TO VERIFIED COMPLAINT WITH CROSS CLAIMS UPON: LAW OFFICES OF BETH J. SCHLOSSMAN, ESQ. Beth J. Schlossman, Esq. Attorneys for Plaintiff LUZ CRUZ 26 Court Street, Suite 2305 Brooklyn, New York 1 1242 MGI CONSTRUCTION INC. De fendant 86 Wilson Street Brooklyn, New York 1 12 1 1 the attorney(s) for the respective parties in this action, at the above address(es) designated by said attorney(s) for that purpose by depositing same enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New Sworn to before me this 2Sth day of July, 2011 MAW MOMMAAS \ NOTARY PUBLIC DANIELLE SHAW NOTARY PUBLIC, State of New York NO. oisn615iwi Quallfled in Kin@ Commission Expires 4814-6305-2042.1 Supreme Court Records OnLine Library - page 8 of 9
Indcx No. 104482 Year 201 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LUZ CRUZ, -against- JOHNSON AVENUK LLC and MGI CONSTRUCTION, INC., Plain tiff(s), Dcfcndantls). VERIFIED ANSWER TO VERIFIED COMPLAINT WITH CROSS CLAIMS LEWIS BRISROIS BISGAARD & SMITH LLP /ll/i)rnqfx) for Dclf;.ndartt: JOI INSON AVENIJE LLC OJfice Addrcss & TL~. Nil 77 Water Street, Suite 2 100 New York, New York 10005 (2 12) 232- I300 t'iirsiiun/ to 22 MYC'RR 130-1 I, the undersigned, (in ultorney udrnrtted to practice in the courls qf Mew York Slate, cert(fies that, irpn injbstnalion 1111~1 belief iind rcusonuhlc inquiry, the contenlions contained in lhc annexed document ure not frivolous. Dutcd' JuI~ 28, 201 I Sign at ure.- Print Signer's Nainc: 1,ouis F. Lckert, Esq. Swvic~~ of a cty~~y if the w[/hrn Duted. is herchy udtriittcd, Attornevfs) for PLEASE IAKE NOTICE x 0 NOTICE OF EN'I KY 2 - e, -2 u.- that the within is u (certijied) true LYJ~Y of u enlereu' in the ojficc ofthe clerk of the within named Court on thot un Order (if which thc within i~ a true copy will bc presentedfor settlernenl lo the a NOTICE OF Ifon one qf thejudges of lht. within named C'ourl, at 2 SE'ITI,EMENT on, al AM 5 e, r 0 Iluted. Al/om~y(s) jilt- Office Address & Tcl No.: Supreme Court Records OnLine Library - page 9 of 9