FILED: NEW YORK COUNTY CLERK 12/08/2014 12:36 PM INDEX NO. 155113/2012 NYSCEF DOC. NO. 223 RECEIVED NYSCEF: 12/08/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ILLINOIS UNION INSURANCE COMPANY and GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, Index No. 155113/12 -against- Plaintiffs, ACTION NO. I GRANDVIEW PALACE CONDOMINIUMS ASSOCIATION CORP. a/k/a GRANDVIEW PALACE OF NEW YORK CONDOMINIUM, Defendant. WESTERN HERITAGE INSURANCE COMPANY, ANSWER Plaintiff, ACTION NO. 2 -against- GRANDVIEW PALACE OF NEW YORK CONDO ASSOCIATION, NATIONAL SURETY CORPORATION, -against- Defendant. GRANDVIEW PALACE CONDOMINIUM ASSOCIATION CORP. anda GRANDVIEW PALACE OF NEW YORK CONDO ASSOCATION, Plaintiff, ACTION NO. 3 Defendant. GRANDVIEW PALACE OF NEW YORK CONDOMINIUM, V. OTT INSURANCE AGENCY, Plaintiff, ACTION NO. 4 Defendant.
Defendant, WILLIAM OTT ENTERPRISES, INC. d/b/a OTT AGENCY, sued herein as OTT INSURANCE AGENCY (-Ott"), by its attorneys, SULLIVAN & KLEIN, LLP, as and for its Answer to the Complaint, alleges, upon information and belief as follows: The Parties FIRST: Denies knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph of the Complaint marked "I". SECOND: Denies each and every allegation contained in paragraph of the Complaint marked "2", except admits that William Ott Enterprises, Inc. d/b/a Ott Insurance Agency is a domestic corporation and is licensed to conduct the business of insurance within the State of New York. Jurisdiction and Venue THIRD: Denies each and every allegation contained in paragraph of the Complaint marked "3", to the extent that it contains allegations of fact, and refer all questions of law for determination by the Court, except admits that Ott is a domestic corporation and does business within the State of New York. FOURTH: Denies each and every allegation contained in paragraph of the Complaint marked "4", except admits that Ott has consented to venue of this matter in New York County. General Objections FIFTH: Denies each and every allegation contain in paragraph of the Complaint marked "5", except admits the placement of certain policies of insurance by Grandview through Ott, the terms and conditions of which are neither fully nor accurately set forth in the Complaint. SIXTH: Denies each and every allegation contain in paragraph of the Complaint marked "6", except admits the placement of certain policies of insurance by plaintiff through Ott, the terms and conditions of which are neither fully nor accurately set forth in the Complaint.
SEVENTH: Denies each and every allegation contain in paragraph of the Complaint marked "7", except admits the placement of certain policies of insurance by Grandview through Ott, the terms and conditions of which are neither fully nor accurately set forth in the Complaint. EIGHTH: Denies each and every allegation contain in paragraph of the Complaint marked "8", except admits the placement of certain policies of insurance by Grandview through Ott, the terms and conditions of which are neither fully nor accurately set forth in the Complaint. NINTH: Denies each and every allegation contained in paragraph of the Complaint marked "9", except admits that Ott obtained certain information from plaintiff that was required by various insurers and submitted the information in connection with Grandview's applications for insurance. TENTH: Denies knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph of the Complaint marked "10". ELEVENTH: Denies knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph of the Complaint marked "11". TWELFTH: Denies knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph of the Complaint marked "12". THIRTEENTH: Denies knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph of the Complaint marked "13", except admits the existence of a certain legal action against plaintiff FOURTEENTH: Denies knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph of the Complaint marked "14". FIFTEENTH: Denies each and every allegation contained in paragraph of the Complaint marked "16" to the extent that it contains allegations of fact and refers all questions of law for 3
SIXTEENTH: Denies each and every allegation contained in paragraph of the Complaint marked "17 to the extent that it contains allegations of fact and refers all questions of law for SEVENTEENTH: Denies each and every allegation contained in paragraph of the Complaint marked "18 to the extent that it contains allegations of fact and refers all questions of law for EIGHTEENTH: Denies each and every allegation contained in paragraph of the Complaint marked "19 to the extent that it contains allegations of fact and refers all questions of law for AS AND FOR A SECOND CAUSE OF ACTION NINETEENTH: Denies each and every allegation contained in paragraph of the Complaint marked "21" to the extent that it contains allegations of fact and refers all questions of law for TWENTIETH: Denies each and every allegation contained in paragraph of the Complaint marked "22" to the extent that it contains allegations of fact and refers all questions of law for TWENTY-FIRST: Denies each and every allegation contained in paragraph of the Complaint marked "23" to the extent that it contains allegations of fact and refers all questions of law for TWENTY-SECOND: Denies each and every allegation contained in paragraph of the Complaint marked "24" to the extent that it contains allegations of fact and refers all questions of law for 4
TWENTY-THIRD: Denies each and every allegation contained in paragraph of the Complaint marked "25" to the extent that it contains allegations of fact and refers all questions of law for TWENTY-FOURTH: Denies each and every allegation contained in paragraph of the Complaint marked "26" to the extent that it contains allegations of fact and refers all questions of law for TWENTY-FIFTH: Denies each and every allegation contained in the Complaint not otherwise heretofore admitted or denied. AS A FIRST AFFIRMATIVE DEFENSE TWENTY-SIXTH: If plaintiff has sustained any injuries or damages as a result of the matters as alleged in the Complaint, than such injuries or damages resulted from plaintiffs own culpable conduct, and if recovery is to be had in this matter, such recovery must be reduced in proportion to which plaintiff's own culpable conduct caused or contributed to its damages. AS A SECOND AFFIRMATIVE DEFENSE TWENTY-SEVENTH: That plaintiffs action, to the extent that it seeks recovery based upon a theory of breach of contract is bound by application of the statute of frauds. AS A THIRD AFFIRMATIVE DEFENSE TWENTY-EIGHTH: That plaintiffs action is barred due to the doctrine of impossibility. AS A FOURTH AFFIRMATIVE DEFENSE TWENTY-NINTH: That plaintiffs action is barred on the grounds that plaintiffs lack of insurance coverage was due to its own non-compliance with the required terms and conditions of the policies of insurance that are the subject of this action. 5
AS A FIFTH AFFIRMATIVE DEFENSE THIRTIETH: That plaintiffs Complaint must be dismissed because plaintiff lacks legal capacity to sue. AS A SIXTH AFFIRMATIVE DEFENSE THIRTY-FIRST: That plaintiffs Complaint must be dismissed because plaintiff has failed to join a necessary party, to wit: the Aspen American Insurance Company. AS A SEVENTH AFFIRMATIVE DEFENSE THIRTY-SECOND: That plaintiffs Complaint must be dismissed because any alleged acts or omissions of Ott were not the proximate cause of plaintiffs damages. WHEREFORE, defendant WILLIAM OTT ENTERPRISES, INC. d/b/a OTT AGENCY demands judgment as follows: (a) that the causes of action set forth in the Complaint be dismissed (b) judgment be awarded on all affirmative defenses; (c) plaintiff's recovery, if any, be diminished in proportion to which plaintiff's own culpable conduct contributed to its claimed damages; and (d) such other and further relief as to this Court may deem just and proper, together with costs and disbursements of the action. 6
Dated: New York, New York December 5, 2014 SULLIVAN & KLEIN, LLP Attorneys for Defendant WILLIAM OTT ENTERPRISES, INC. d/b/a OTT AGENCY sued herein as OTT INSURANCE AGENCY By: Robert M. Sullivan 980 Avenue of the Americas, Suite 405 New York, New York 10018 (212) 695-0910 File No. 03-578 TO: REED SMITH LLP Attorneys for defendant Grandview Association Corp., a/k/a Grandview Palace of New York Condominium 599 Lexington Avenue, 22' 1 floor New York, New York 10022 Attention: Paul E. Breene, Esq. FORAN GLENNON PALADECH PONZI & RUDLOFF PC Attorneys for plaintiff Illinois Union Insurance Company 120 Broadway, Suite 1130 New York, New York 10271 Attention: Jonathan M. Zagha, Esq. Charles J. Rocco, Esq. MOUND COTTON WOLLAN & GREENGRASS Attorneys for plaintiff Great American Insurance Company of New York One Battery Park Plaza New York, New York 10004 Attention: Kevin F. Buckley, Esq. Philip C. Silverberg, Esq. Dawn M. Maruna, Esq. CARROLL McNULTY & KULL, LLC Attorneys for plaintiff Western Heritage Insurance Company 570 Lexington Avenue New York, New York 10022 Attention: Denise M. Marra, Esq. 7
THE LAW OFFICES OF BRIAN P. ROURKE, P.C. Attorneys for Defendant Grandview Palace of New York Condo Association Three Maple Street P.O. Box 71 Liberty, New York 12754 Attention: Brian P. Rourke, Esq. John R. Theadore, Esq.