SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - - - - - - - - - ----- ------- -- ----- - - - --- - - - - - -X THE BOARD OF MANAGERS OF 147 WAVERLY Index No.: 159329/2013 PLACE CONDOMINIUM, REPLY Plaintiff, CROSS-CLAIMS AND - against - COUNTERCLAIMS TO KMG WAVERLY, LLC, KMGW, LLC, MARATHON WAVERLY, LLC, MARATHON REAL ESTATE OPPORTUNITY FUND, LLC, BURT MILLER, ERIC GRANOWSKY, STAN KLEGER, RON BERNSTEIN, BKSK ARCHITECTS, LLP, JOAN KREVLIN, GEORGE J. KULIK, P.E., P.C. and GEORGE J. KULIK, Defendants. - - - - - - - - - - - - -- ---- - -- -- -- - - - -- - - - - - - - - - X --X KMG WAVERLY, LLC, KMGW, LLC, MARATHON Third-Party Index No.: WAVERLY, LLC, MARATHON REAL ESTATE 595725/2015 OPPORTUNITY FUND, LLC, BURT MILLER, ERIC GRANOWSKY, STANLEY KLEGER, and RON BERNSTEIN, Defendants/Third-Party - against - Plaintiffs, WAVERLY CC, LLC, STANISLAW SLUTSKY, P.E., FORUM ENGINEERING, P.C., ROBERT SILMAN ASSOCIATES STRUCTURAL ENGINEERS, D.P.C., KULIK 4 ASSOCIATES, LLC, GEORGE J. KULIK, P.E., P.C., LAWRENCE EXTERIOR RESTORATION CORP., VANGUARD CONSTRUCTION & DEVELOPMENT COMPANY, INC., and BKSK ARCHITECTS, LLP, Third-Party Defendants. -X 1 of 8
--- -- -------------------- --- ------ - - - - - X ----------------X LAWRENCE EXTERIOR RESTORATION CORP., Second Third-Party - against - Third-Party Defendant/ Second Third-Party Plaintiff, Index No.: P.S.T. CONSTRUCTION CORP., XYZ CORPS. 1-10 (fictitious entities), and JOHN DOES 1-10 (fictitious persons), Second Third-Party Defendants. - --- - - -- ----- ----- ----- ----- ----- - - - - - - -X VANGUARD CONSTRUCTION 4 DEVELOPMENT Third Third-Party Index No.: COMPANY, INC., - against - Third Third-Party Plaintiff, ACORN WIRE & IRON WORKS, AMAZING GLAZ1NG, INC., AMERICAN SPRAY-ON CORP., AXXESS A DIVISION OF SYLVESTER & ASSOCIATES, LTD., BIG APPLE CHIMNEY, LLC, CMA MECHANICAL CONSTRUCTION CORP., DISTINCT DRYWALL, INC., EXPERTISE STONE AND TILE INC., FLOORING SOLUTIONS INC., INNOVATIVE AIR SOLUTIONS, INC., KILROY METAL PRODUCTS, INC., KILROY ARCHICTECTURAL WINDOWS INC., JANSONS ASSOCIATES, INC., JEM CONTRACTING CORP., LAWRENCE EXTERIOR RESTORATION CORPORATION, MIDWOOD DOORS 4 MILLWORK INC., NEWCO IRON WORKS LTD., P & H PAINTING INC., PROFESSIONAL PLUMBING OF STATEN ISLAND CORP., QUIMBY EQUIPMENT, CO., INC., RITE-WAY INTERNAL REMOVAL INC., SITECRAFT, INC., SOS ADVANCED SECURITY n/lda SOS LOCKSMITH, SRG CONSTRUCTION CONSULTING CORP., STARR RESTORATION, INC., STATE OF THE ART WOOD FLOORING CORP., T.C. INTERIOR RENOVATION CORP., THEMIS CHIMNEY, INC., WILLIAM J. KENNEDY PLUMBING, INC., Z RESTORATION, INC., and ZEREM ELECTRIC CORP., Third Third-Party Defendants. -X 2 of 8
Third-Party Defendant/Third Third-Party Plaintiff VANGUARD CONSTRUCTION 4 (" VANGUARD" DEVELOPMENT COMPANY, INC. ("VANGUARD"), by and through its attorneys, GARTNER & BLOOM, P.C., states the following as its Reply to the cross-claims and (" THEMIS" counterclaims of Third Third-Party Defendant THEMIS CHIMNEY, INC. ("THEMIS"). 1. VANGUARD denies each and every allegation as set forth in the paragraphs of "AS AND FOR A FIRST CROSS CLAIM" insofar as they are directed against VANGUARD and respectfully refers all questions of law to this Honorable Court. 2. VANGUARD denies each and every allegation as set forth in the paragraphs of "AS AND FOR A SECOND CROSS CLAIM" insofar as they are directed against VANGUARD and respectfully refers all questions of law to this Honorable Court. 3. VANGUARD denies each and every allegation as set forth in the paragraphs of "AS AND FOR A THIRD CROSS CLAIM" insofar as they are directed against VANGUARD and respectfully refers all questions of law to this Honorable Court. 4. VANGUARD denies each and every allegation as set forth in the paragraphs of "AS AND FOR A COUNTERCLAIM AGAINST VANGUARD CONSTRUCTION & DEVELOPMENT COMPANY, INC. ACORN WIRE & IRON WORKS, AMAZIN GLAZING, INC., AMERICAN SPRAY-ON CORP., AXXESS A DIVISION OF SYLVESTER & ASSOCIATES, LTD., BIG APPLE CHIMNEY, LLC, CMA MECHANICAL CONSTRUCTION CORP., DISTINCT DRYWALL, INC., EXPERTISE STONE AND TILE INC., FLOORING SOLUTIONS INC., INNOVATIVE AIR SOLUTIONS, INC., KILROY METAL PRODUCTS, INC., KILROY ARCHICTECTURAL WINDOWS INC., JANSONS ASSOCIATES, INC., JEM CONTRACTING CORP., LAWRENCE EXTERIOR RESTORATION CORPORATION, MIDWOOD DOORS & MILLWORK INC,, NEWCO 3 of 8
IRON WORKS LTD., P & H PAINTING INC., PROFESSIONAL PLUMBING OF STATEN ISLAND CORP., QUIMBY EQUIPMENT, CO., INC., RITE-WAY INTERNAL REMOVAL INC., SITECRAFT, INC., SOS ADVANCED SECURITY n/k/a SOS LOCKSMITH, SRG CONSTRUCTION CONSULTING CORP., STARR RESTORATION, INC., STATE OF THE ART WOOD FLOORING CORP., T.C. INTERIOR RENOVATION CORP., WILLIAM J. KENNEDY PLUMBING, INC., Z RESTORATION, INC., and ZEREM ELECTRIC CORP." insofar as they are directed against VANGUARD and respectfully refers all questions of law to this Honorable Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 5. The claims of plaintiff The Board of Managers of 147 Waverly Place ("Plaintiff") are barred for failure to state a cause of action, and facts in support thereof, upon which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 6. Plaintiff's claim is barred by the applicable statute of limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 7. That the damages to the Plaintiff, if any, occurred as a result of the activities and/or acts of omission and/or commission of other parties over whom Third-Party Defendant/ Third Third-Party Plaintiff had no control. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 8. Plaintiff failed to join necessary and indispensable parties. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 9. Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce the damages alleged in the Complaint. 4 of 8
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 10. Plaintiff could have but failed to perceive alleged defects in the premises based upon its failure to reasonably inspect the premises prior to use and were otherwise contributorily negligent in the use of the premises and the Plaintiff is therefore barred from recovery herein in whole or in part. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 11. To the extent the Plaintiff seeks to enforce any agreement beyond that contained in the written agreements among the parties, the Complaint is barred by the parole evidence rule. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 12. Plaintiff is barred and estopped by its acts, conduct, statements and/or admissions from recovering the relief requested herein. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 13. Plaintiff, by its acts and conduct waived and/or released its claims in this action. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 14. The claims alleged in the Complaint, in whole or in part, are barred by documentary evidence. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 15. Plaintiff's remedies, if any, are limited by the terms of the Purchase Agreement. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 16. Plaintiff's remedies, if any are limited by the terms of the Offering Plan. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 17. If there is any liability as to the Third-Party Defendant/ Third Third-Party of the applies as to and several and the Plaintiff, Section 1601 CPLR joint liability limits liability 5 of 8
of the Third-Party Defendant/ Third Third-Party Plaintiff and the Third-Party Defendant/ Third Third-Party Plaintiff claims entitlement to the benefits set forth. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 18. If the Plaintiff sustained damages as alleged in the Complaint, which the Third- Party Defendant/ Third Third-Party Plaintiff denies, said damages were caused by independent, intervening and/or superseding causes that the Third-Party Defendant/ Third Third-Party Plaintiff could not have foreseen or for which the Third-Party Defendant/ Third Third-Party Plaintiff were not legally responsible or liable. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 19. Pursuant to CPLR Section 4545, any recovery by Plaintiff should be reduced, in whole or in part, by reason of and the amount of Plaintiff's indemnification and/or reimbursement from their insurance company or other collateral sources. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 20. Third-Party Defendant/ Third Third-Party Plaintiff asserts all relevant statutory defenses and immunities. AS AND FOR AN SEVENTEENTH AFFIRMATIVE DEFENSE 21. The claims asserted by Plaintiff are barred in whole or in part by the terms, exclusions, conditions and limitations contained in the written agreements. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 22. Third Third-Party Defendant is not entitled to defense or indemnity for its own negligence. 6 of 8
AS AND FOR AN NINETEENTH AFFIRMATIVE DEFENSE 23. Third-Party Defendant/ Third Third-Party Plaintiff reserves the right to assert additional affirmative defenses based on facts uncovered through the course of continuing discovery and litigation. WHEREFORE, Third-Party Defendant/ Third Third-Party Plaintiff VANGUARD CONSTRUCTION 4 DEVELOPMENT COMPANY, INC., demands judgment in its favor dismissing the Cross claims and Counterclaims of Third Third-Party Defendant, THEMIS CHIMNEY, INC. in its entirety, together with the costs and disbursements of this action. Dated: New York,.New York January 9, 2018 Yours etc., /s/ Narriman Subrati GARTNER + BLOOM, P.C. Attorneys for Third-Party Defendant/ Third Third-Party Plaintiff VANGUARD CONSTRUCTION & DEVELOPMENT COMPANY, INC. 801 Second Avenue, 11th Floor New York, New York 10017 212-759-5800 Our File No.: 62782 To: All Counsel of Record pursuant to NYSCEF 7 of 8
FILED: NEW YORK COUNTY CLERK 01/09/2018 02:57 PM NYSCEF DOC. NO. 599 INDEX NO. 159329/2013 RECEIVED NYSCEF: 01/09/2018 8 of 8