SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------------X MICHAEL TACCARDI, Index No.: 504173/2015 Plaintiff, -against- CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and THE CITY OF NEW YORK, ANSWER WITH CROSS-CLAIMS Defendants. ---------------------------------------------------------------------------X CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., -against- VALI INDUSTRIES, INC., Third Party Plaintiff, Third Party Defendant. ---------------------------------------------------------------------------X Defendant and Third-Party Defendant VALI INDUSTRIES, INC. (hereafter also Vali ), by its attorneys, The Law Offices of Leon R. Kowalski, as and for an answer to the amended complaint of the plaintiff efiled February 13, 2017, respectfully alleges upon information and belief: FIRST: SECOND: It admits paragraphs 5 and 6 of the complaint. It denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1, 2, 3, 4, 7, 8, 9, 10, 12, 13 and 17 of the complaint. THIRD: It denies paragraphs 11, 14, 15, 16, 18, 19, 20, 21 and 22 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. 1 of 9
FOURTH: FIFTH: 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 injuries and damages to the plaintiff, third party plaintiff and cross-claimants were caused in whole or in part or were contributed to by the culpable conduct and want of care on the part of them, 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 Any plaintiff named here received remuneration and/or compensation for some or all of the claimed economic loss, and this answering third party defendant is entitled to have any award reduced by the amount of that remuneration and/or compensation; consistent with NY CPLR 4545 and common law, there cannot be a double recovery. AS AND FOR A THIRD DEFENSE If the alleged damages of the plaintiff, third party plaintiff and cross-claimants are the result of liability other than their own, any liability of Vali does not exceed fifty percent (50%) of the liability of all culpable and/or liable parties and non-parties, and so any liability of Vali for noneconomic loss is limited pursuant to Article 16 of the CPLR. AS AND FOR A FOURTH DEFENSE To the extent a party claiming contribution and/or indemnification from Vali does not have liability in excess of fifty percent (50%) of the liability of all culpable and/or liable parties and non-parties, then, by virtue of application of Article 16 of the CPLR, any liability of such party is limited to its equitable share, and such party has no need or basis for contribution and/or 2 of 9
indemnification. 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 a plaintiff, third party plaintiff or cross-claimant named here, Vali shall be 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 any other party sustained any injury or incurred any loss or damages as alleged in pleadings, 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 Any alleged damages of the plaintiff, third party plaintiff and any cross-claimant 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 A EIGHTH DEFENSE Any claims for indemnification and breach of contract are barred due to failure to timely notify Vali of the alleged occurrence and of such claims. 3 of 9
AS AND FOR A NINTH DEFENSE Any applicable contract requirements were performed properly, and any requested services were performed properly; accordingly, Vali is not liable to any party. AS AND FOR A TENTH 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 AN ELEVENTH DEFENSE There is no basis for liability of Vali to the extent that the plaintiff expressly or impliedly assumed the risk of injury. AS AND FOR A TWELFTH DEFENSE There is no basis for liability of Vali to the extent that the plaintiff s pled occurrence resulted from a condition that was open and obvious and not inherently dangerous. AS AND FOR A THIRTEENTH DEFENSE If plaintiff s alleged injury was caused in whole or part by an employer and/or co-employee of the plaintiff, the defense of worker s compensation exclusivity may exist in this action. AS AND FOR A FOURTEENTH DEFENSE To the extent that the plaintiff failed to use protective equipment and the like including but not limited to a helmet, pads, eyewear for vision improvement and eye protection, and bicycle tires of sufficient width, tread and suitability for the riding environment, he thus failed to prevent the occurrence and prevent any alleged injuries and damages and/or minimize their extent. AS AND FOR A FIFTEENTH DEFENSE If any plaintiff, third party plaintiff and/or cross-claimant have any damages, it is because 4 of 9
of failure to mitigate damages. AS AND FOR A SIXTEENTH DEFENSE As defenses to the third party complaint and any existing or forthcoming cross-claims, Vali adopts any defense that the third party plaintiff and/or cross-claimants have vis-à-vis the claims against them. CROSS-CLAIMS AGAINST THE PRESENTAND ANY FUTURE OPPOSING PARTIES First paragraph regarding cross-claims: If the plaintiff, third party plaintiff and any other parties were caused to sustain damages in the manner and at the time and place as set forth in their pleadings 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 third party plaintiff; and if any judgment is recovered by the plaintiff, 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, common law indemnification, partial indemnification and/or contractual indemnification for the full extent of any recovery by the plaintiff, third party plaintiff and/or other parties against Vali, or alternatively for a portion thereof, and for attorney fees, costs, disbursements, and other damages. FIRST 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 5 of 9
under common law principles, in the event of and in the full amount of any recovery by the plaintiff, third-party plaintiff and/or other parties against Vali, and to pay attorney fees, costs and disbursements incurred by Vali. SECOND CROSS-CLAIM, FOR CONTRACTUAL INDEMNIFICATION AND OTHER RELIEF 1. Vali repeats and realleges the aforementioned First paragraph regarding counter claims and cross-claims. 2. Prior to the alleged incident described in the complaint, a contractual agreement was executed, and other parties agreed and became obliged to defend and indemnify Vali and/or hold Vali harmless with respect to, among other things, claims such as those asserted by the plaintiff, third party plaintiff and/or other parties herein, including claims arising from work, services and/or occupancy for which other parties had responsibility under the agreement, and/or work, services and/or occupancy actually performed by other parties and/or their agents, servants and/or employees. 3. This agreement and/or obligation were in effect on the date of the alleged incident described in the complaint, and/or apply to the claims asserted by the plaintiff, third party plaintiff and/or other parties herein. 4. If plaintiff, third party plaintiff and/or other parties are damaged for a reason alleged in a pleading, then Vali alleges the other parties are obligated under the terms of the aforesaid agreement to defend and indemnify it and/or hold it harmless with respect to alleged claims and damages of the plaintiff(s), third party plaintiff and/or other parties. 5. To date, the other parties have not fulfilled this obligation, causing continuing harm and expense to Vali. 6 of 9
6. By reason of the foregoing, the other parties are obligated to defend Vali and/or hold it harmless as described above, and to indemnify Vali in the event of and in the full amount of any recovery by the plaintiff, third party plaintiff and/or other parties against Vali, and to pay attorney fees, costs and disbursements incurred by Vali. THIRD CROS 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, 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, 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. FOURTH CROSS-CLAIM, FOR BREACH OF CONTRACT TO PROCURE INSURANCE COVERAGE 1. Vali repeats and realleges the aforementioned First paragraph regarding counter claims and cross-claims. 2. Prior to the alleged incident described in the complaint, a contractual agreement was executed, and other parties agreed to procure and maintain insurance coverage, whereby Vali would be named as an insured and have and receive coverage with respect to, among other things, claims such as those asserted by the plaintiff, third party plaintiff and/or other parties herein, including claims arising from work, services and/or occupancy for which the other parties had responsibility under the agreement, and/or work, services and/or occupancy actually 7 of 9
performed by the other parties and/or their agents, servants and/or employees. 3. This agreement and/or obligation were in effect on the date of the alleged incident described in the complaint, and/or apply to claims asserted by the plaintiff, third party plaintiff and/or other parties herein. 4. The other parties are obligated to ensure that Vali will have and receive the aforementioned coverage, and/or to defend Vali and hold it harmless as described above, and/or to compensate Vali with respect to any damages that it has incurred and/or will incur, to the extent the other parties have failed to procure and/or maintain the aforementioned coverage and caused Vali harm thereby. 5. To date, the other parties have not fulfilled this obligation, causing continuing harm and expense to Vali. 6. By reason of the foregoing, the other parties are obliged to provide redress including relief as demanded above, and/or to pay such other damages as the law allows. WHEREFORE, Vali demands judgment dismissing all claims of the plaintiff, 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 nonplaintiff parties be determined as among themselves, and that Vali have judgment over and against said opposing parties for indemnification and/or contribution in whole or in part, for the amount of any sum which may be recovered herein against Vali, together with attorney fees, costs and disbursements in this action. Dated: Brooklyn, New York February 16, 2017 8 of 9
Very truly yours, THE LAW OFFICES OF LEON R. KOWALSKI Attorneys for VALI INDUSTRIES, INC. By: Bradley J. Corsair 12 Metrotech Center, 28 th Floor Brooklyn, New York 11201-3837 (718) 250-1100 File # NYNY-32251 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: FLANZIG AND FLANZIG, LLP Attorneys for Plaintiff 323 Willis Avenue PO Box 669 Mineola, New York 11501-0669 (516) 741-8222 DOUGLAS J. McKAY Attorneys for Defendant / Third Party Plaintiff CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. 4 Irving Place, Room 1800 New York, New York 10003-2598 (212) 460-3355 File # S-0232-15 FN038211 ZACHARY W. CARTER Attorney for Defendant THE CITY OF NEW YORK 100 Church Street, 4 th Floor New York, New York 10007-2601 (212) 788-0305 ANY OTHER APPEARING ADVERSE PARTIES 9 of 9