FILED: NEW YORK COUNTY CLERK 10/08/2013 INDEX NO. 151360/2012 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 10/08/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK STEPHEN MOLINARI, Index No.: 151360/12 Plaintiff, -against- VERIFIED ANSWER TO PLAINTIFF S 666 FIFTH RETAIL ASSOCIATES, LLC, THIRD SUPPLEMENTAL 666 FIFTH ASSOCIATES, LLC, SUMMONS AND ABERCROMBIE & FITCH STORES, INC., COMPLAINT HOLLISTER CO., UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., Defendants, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION, REACT INDUSTRIES, INC., Third-Party Plaintiff, Third-Party Defendant, REACT INDUSTRIES, INC., -against- -against- Second Third-Party Plaintiff, F.R.P. SHEET METAL CONTRACTING CORP., Second Third-Party Defendant. C O U N S E L O R S :
PLEASE TAKE NOTICE that the above-named defendants, ABERCROMBIE & FITCH STORES, INC. and HOLLISTER CO., (hereinafter, Defendants and/or answering defendants ), hereby appear in this action and that the undersigned has been retained as attorneys for said answering defendants and demands that you serve all papers in this proceeding upon them at the address stated below: PLEASE TAKE FURTHER NOTICE that said Defendants hereby interpose the following answer to the Third Amended Verified Complaint: 1. Deny the allegations contained in paragraphs numbered THIRD, FOURTH, THIRTEENTH, TWENTIETH, TWENTY-FIRST, THIRTIETH, THIRTY-FIRST, THIRTY-SECOND, THIRTY-NINTH, FOURTIETH, FOURTY-FIRST, FOURTY- SECOND and FOURTY-THIRD. 2. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraphs numbered FIRST, SECOND, FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, TENTH, ELEVENTH, FOURTEENTH, FIFTEENTH, SIXTEENTH, SEVENTEENTH, EIGHTEENTH, NINETEENTH, TWENTY- SECOND, TWENTY-THIRD, TWENTY-FOURTH, TWENTY-FIFTH, TWENTY- SIXTH, TWENTY-SEVENTH, TWENTY-EIGHTH, TWENTY-NINTH, THIRTY- THIRD, THIRTY-FOURTH, THIRTY-FIFTH, THIRTY-SIXTH, THIRTY-SEVENTH and THIRTY-EIGHTH 3. Deny the allegations contained in paragraph numbered TWELFTH, except admits that at all times herein mentioned, defendant, ABERCROMBIE & FITCH STORE, INC., was a tenant/lessee of the aforesaid premises.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE That if the plaintiff sustained any personal injuries or damages, such injuries or damages were caused by his own negligence, wholly or partially, and without any negligence on the part of the answering defendants. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 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 herein and that the plaintiff assumed all such risks and hazards. AS AND FOR A THIRD AFFIRMATIVE DEFENSE While the answering defendants deny the plaintiff's allegations of negligence and liability, any injury and damages, if proven, were the result of intervening and/or interceding acts of superseding negligence and liability on the part of parties over which the answering defendants neither have control nor have the right to control, and for which acts or omissions the answering defendants are not legally responsible AS AND FOR A FOURTH AFFIRMATIVE DEFENSE In the event the plaintiff recovers a verdict or judgment against the answering defendants, then the verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have been, or will, with reasonable certainty, replace or indemnify plaintiff, in whole or in part, for any past or future claimed economic loss, from any collateral source such as Insurance, Social Security, Workers' Compensation or employee benefit programs.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE The provisions of C.P.L.R. Article 50-B apply to this action. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE The answering defendants did not have actual or constructive notice of any defect that allegedly contributed to the accident alleged in the complaint. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE If and in the event the answering defendant is found to be liable to the plaintiff, answering defendants liability is limited by the provisions of Article 16 of the CPLR. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE The plaintiff was not a covered person for purposes of the Labor law. AS AND FOR A NINTH AFFIRMATIVE DEFENSE Plaintiff was a recalcitrant worker and cannot sustain a claim against the defendants as a matter of law. AS AND FOR A TENTH AFFIRMATIVE DEFENSE The defendants did not violate any section of the New York Industrial Code and plaintiff cannot therefore, establish a Labor Law Section 241(6) cause of action. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE The plaintiff s improper and negligent actions were the sole proximate cause of any injuries or damages allegedly sustained herein.
AS AND FOR A FIRST CROSS-CLAIM OVER AND AGAINST THE DEFENDANTS, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., THE ANSWERING DEFENDANTS, ABERCROMBIE AND FITCH STORES, INC. and HOLLISTER CO., ALLEGE UPON INFORMATION AND BELIEF: That if the plaintiff sustained injuries and damages as alleged in the complaint, through any fault other than the plaintiff s own fault, then such injuries and damages were sustained due to the primary, active and sole fault of the defendants, as aforesaid, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL ASSOCIATES, LLC, 666 FIFTH ASSOCIATES, LLC, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., and the fault, if any, of the answering defendants was statutory secondary and passive only, and if the plaintiff should obtain and/or recover judgment against the answering defendants, then the defendants, as aforesaid, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., shall be liable over to the answering defendants for the full amount of said judgment or for any part hereof obtained and/or recovered on the basis of apportionment of responsibility for the alleged occurrence as found by the Court or jury. Further, by reason of this action, said answering defendant has and will in the future incur costs and expenses, including counsel fees. AS AND FOR A SECOND CROSS-CLAIM OVER AND AGAINST THE DEFENDANTS, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., THE ANSWERING DEFENDANTS,
ABERCROMBIE AND FITCH STORES, INC. and HOLLISTER CO., ALLEGE UPON INFORMATION AND BELIEF: That if the plaintiff sustained damages as alleged in the complaint, through the negligence, breach of contract, breach of warranty, carelessness and/or strict liability of the defendants, then such damages were sustained due to the primary, active and sole fault of the defendants, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL ASSOCIATES, LLC, 666 FIFTH ASSOCIATES, LLC, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., by reason of negligence, breach of contract, breach of warranty, carelessness and/or strict liability and if the plaintiff should obtain and/or recover judgment against these answering defendants, then the defendants, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL ASSOCIATES, LLC, 666 FIFTH ASSOCIATES, LLC, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., shall be liable for contribution to the answering defendants for the full amount of said judgment or for any part hereof obtained and/or recovered on the basis of apportionment of responsibility for the alleged occurrence as found by the Court or jury. Further, by reason of this action, said answering defendants have and will in the future incur costs and expenses, including counsel fees. AS AND FOR A THIRD CROSS-CLAIM OVER AND AGAINST THE DEFENDANTS, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., THE ANSWERING DEFENDANTS, ABERCROMBIE AND FITCH STORES, INC. and HOLLISTER CO., ALLEGE UPON INFORMATION AND BELIEF:
That prior to the date of the occurrence which forms the basis of the plaintiff s complaint, an agreement was entered into between the answering defendants and UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL ASSOCIATES, LLC, 666 FIFTH ASSOCIATES, LLC, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., pursuant to which the defendants, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL ASSOCIATES, LLC, 666 FIFTH ASSOCIATES, LLC, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., undertook to indemnify ABERCROMBIE AND FITCH STORES, INC. and HOLLISTER CO., for loss or damage arising out of the scope of the undertaking of UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL ASSOCIATES, LLC, 666 FIFTH ASSOCIATES, LLC, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC. That by reason thereof, said answering defendants are entitled to judgment against the defendants, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL ASSOCIATES, LLC, 666 FIFTH ASSOCIATES, LLC, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., for full indemnity, together with those costs incurred by the answering defendants in the defense of the within action, including, but not limited to counsel fees and expenses. That by reason thereof, the answering defendants are entitled to full and complete indemnity from UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL
SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC. AS AND FOR A FOURTH CROSS-CLAIM OVER AND AGAINST THE DEFENDANTS, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFITH RETAIL SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., THE ANSWERING DEFENDANTS, ABERCROMBIE AND FITCH STORES, INC. and HOLLISTER CO., ALLEGE UPON INFORMATION AND BELIEF: That prior to the date of the occurrence which forms the basis of the plaintiff s complaint, an agreement was entered into between the answering defendants and the defendants, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL ASSOCIATES, LLC, 666 FIFTH ASSOCIATES, LLC, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., pursuant to which said defendants agreed to secure liability insurance in favor of or for the benefit of ABERCROMBIE AND FITCH STORES, INC. and HOLLISTER CO. for such liabilities as may be rendered against it arising out of the performance of work rendered by or on behalf of UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL ASSOCIATES, LLC, 666 FIFTH ASSOCIATES, LLC, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC. That heretofore, the answering defendants made the demand that the liability insurer for UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES,
INC. undertake the defense and indemnity of the answering defendants with respect to the within action, but no liability insurer has done so. That upon information and belief, the defendants, UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., 666 FIFTH RETAIL ASSOCIATES, LLC, 666 FIFTH ASSOCIATES, LLC, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC. have breached its agreement to procure insurance. That by reason thereof, the answering defendants are entitled to full indemnity from each of the defendants, together with the costs and expenses incurred in the defense of the within action. WHEREFORE, the defendants, ABERCROMBIE & FITCH STORES, INC. and HOLLISTER CO., demand judgment dismissing the complaint against them together judgment over and against the co-defendants as aforesaid plus with costs and disbursements of this action and attorney fees. Dated: New York, New York October 8, 2013 Yours, etc. LeClair Ryan, a Professional Corporation By: Scott W. Bermack Scott W. Bermack Attorneys for Defendants, ABERCROMBIE & FITCH STORES, INC. and HOLLISTER CO. 885 Third Avenue, 16 th Floor New York, New York 10022 (212) 430-8037 TO (via ECF):
SACKS & SACKS, LLP Attorneys for Plaintiff 150 Broadway, 4 th Floor New York, New York 10038 FABIANI COHEN & HALL, LLP 570 Lexington Avenue, 4 th Floor New York, New York 10022 By Mail: UNIQLO USA LLC 450 West 14 th Street, 11 th Floor New York, New York 10013 CONWAY, GOREN & BRANDMAN Attorneys for Defendants Shawmut Woodworking 58 South Service Road Suite 350 Melville, New York 11747 UNIQLO DESIGN STUDIO, NEW YORK, INC. 101 Avenue of the Americas New York, New York 10013 WILSON, ELSER Attorneys for Defendants REACT INDUSTRIES 150 East 42nd Street, New York, NY 10017-5639
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK STEPHEN MOLINARI, Index No.: 151360/12 Plaintiff, 666 FIFTH RETAIL ASSOCIATES, LLC, 666 FIFTH ASSOCIATES, LLC, VERIFICATION ABERCROMBIE & FITCH STORES, INC., HOLLISTER CO., UNIQLO USA LLC, UNIQLO DESIGN STUDIO, NEW YORK, INC., SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION and REACT INDUSTRIES, INC., Defendants, SHAWMUT WOODWORKING & SUPPLY, INC. d/b/a SHAWMUT DESIGN AND CONSTRUCTION, REACT INDUSTRIES, INC., Third-Party Plaintiff, Third-Party Defendant, REACT INDUSTRIES, INC., -against- -against- -against- Second Third-Party Plaintiff, F.R.P. SHEET METAL CONTRACTING CORP., Second Third-Party Defendant. SCOTT W. BERMACK, being duly sworn, deposes and states the following:
1. That I am a partner in the law firm of LeCLAIR RYAN, a Professional Corporation, attorneys for the Defendants, ABERCROMBIE & FITCH STORES, INC. and HOLLISTER CO., (hereinafter, Defendants), in the above-entitled action. 2. To the best of my knowledge and upon information and belief, the contents of the foregoing Answer are true. 3. This verification is made by myself and not by the Defendants because my client s corporate officers are not in the county in which your deponent maintains his office. Dated: New York, New York October 8, 2013 Scott W. Bermack Scott W. Bermack
AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) E. Ryan Goodman, being duly sworn, deposes and says that: I am not a party to the action, I am over 18 years of age and I reside in the State of New York within the County of Nassau. On October 8, 2013, I served a true copy of the annexed Verified Answer to Plaintiff s Third Supplemental Amended Verified Complaint, on the following persons by e-mail via E-Filing and by depositing one true copy of the said document, enclosed in a postpaid wrapper properly addressed to the below respondents, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York: By ECF: SACKS & SACKS, LLP Attorneys for Plaintiff 150 Broadway, 4 th Floor New York, New York 10038 FABIANI COHEN & HALL, LLP 570 Lexington Avenue, 4 th Floor New York, New York 10022 By Mail: CONWAY, GOREN & BRANDMAN 58 South Service Road Suite 350 Melville, NY11747 WILSON, ELSER 150 East 42nd Street, New York, NY 10017-5639 UNIQLO USA LLC 450 West 14 th Street, 11 th Floor New York, New York 10013 UNIQLO DESIGN STUDIO, NEW YORK, INC. 101 Avenue of the Americas New York, New York 10013 E. Ryan Goodman E. RYAN GOODMAN Sworn to before me this 8th day of October, 2013. Scott W. Bermack Notary Public - No.: 02BE6215864