EXHIBIT 4
FILED: KINGS COUNTY CLERK 05/08/2018 04;47 PM WATER STREET REALTY GROUP LLC and YARON HERSHCO, Defendants,....----X -- â â ----- â WATER STREET REALTY GROUP LLC and YARON HERSHCO, Third-Party Plaintiffs, SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS. -----------------X THE BOARD OF MANAGERS OF THE ONE Index No. 514527/2015 THREE THREE THREE CONDOMINIUM, VERIFIED ANSWER TO Plaintiff, AMENDED THIRD PARTY COMPLAINT -against- -against- ISLAND EXTERIOR FABRICATOR LLC, ----------------.. ---------. ----X Third-Party Defendant Third-party defendant, ISLAND EXTERIOR FABRICATORS, LLC s/h/a ISLAND EXTERIOR FABRICATOR LLC, by its attorneys, Kaufman Dolowich & Voluck, LLP, as and for its answer to amended complaint, alleges as follows upon information and belief: 1. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs "1", "2", "3", "4", "5", "7", "8", "9" and "10" of plaintiff's amended complaint. 2. Denies the allegations contained in the paragraph designated "6" of amended complaint, except to admit that ISLAND EXTERIOR FABRICATORS, 1 1 of 6
FILED: KINGS COUNTY CLERK 05/08/2018 04:47 PM) LLC is a domestic limited liability company authorized to do business in the State of New York. 3. Denies the allegations contained in the paragraphs designated "11" and "12" of amended complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 4. Any damages sustained by the plaintiffs and plaintiff were caused by the culpable conduct of said plaintiffs and plaintiff, including contributory negligence, assumption of risk, and violations of any and all applicable statutes, rules, codes, ordinances and Industrial Code provisions, and not by the culpable conduct or negligence of the answering third-party defendant. Thus, plaintiffs and plaintiff should be barred from recovery. Pursuant to CPLR 1412, any damages otherwise recoverable by plaintiffs and plaintiff shall be diminished in the proportion which the culpable conduct attributable to the and plaintiff bear to the culpable conduct which caused the damages. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 5. Defendants/third-party plaintiff's amended complaint should be dismissed for failure to state a cause of action as against the answering third-party defendant. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 6. Defendants/third-party plaintiffs and plaintiff were under an obligation to mitigate their damages but failed to do so. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 7. In the event plaintiffs and/or plaintiff have received an arbitration award and/or settlement and have executed a release or releases for the same or similar 2 2 of 6
FILED: KINGS COUNTY CLERK 05/08/2018 04:47 PM) NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/08/2018 damages to those alleged in the instant action, third-party defendant is entitled to the claim reduction benefits of 15-108 of the General Obligations Law. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 8. Any verdict in the within action, for past, present and future economic loss should be reduced by the amount that any such expense has or will with reasonable certainty be replaced or indemnified in whole or in part by any collateral source, in accordance with the provisions and limitations of 4545(c) of the CPLR. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 9. Upon information and belief, in the event that a judgment is rendered against the answering third-party defendant, it shall not be responsible for more than its proportionate share of liability pursuant to 1601 of the CPLR. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 10. Upon information and belief, third-party defendant never received actual or constructive notice of any defective or dangerous condition, and therefore, they cannot be liable for any alleged injuries sustained by plaintiffs and/or plaintiff. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 11. The alleged cause of action in contract asserted by plaintiffs is barred in that plaintiffs failed to bring this action within the six (6) years. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 12. The alleged cause of action in negligence asserted by the plaintiffs is barred in that the plaintiffs failed to bring this action within three (3) years, set forth in 214(5) ofthe CPLR. 3 3 of 6
FILED : KINGS COUNTY CLERK 05/08/2018 0 4 : 47 PM AS AND FOR A TENTH AFFIRMATIVE DEFENSE 13. Any damages sustained by the plaintiffs and/or plaintiff are as a result of the plaintiffs and/or plaintiff's own negligence. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 14. Any damages sustained by the plaintiffs and/or plaintiff are the result of a subsequent substantial alteration or modification of the building by persons or entities over which the answering third-party defendant had no control. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 15. Defendants/third-party plaintiffs have failed to join a necessary and indispensable party and therefore, this action should be dismissed. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 16. Third-party defendant owes no duty to any party herein, and as such, is absolved of any responsibility for any damages sustained by any party herein. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFEN8E 17. Without admitting any liability herein, the third-party defendant alleges that if found responsible for the damages complained of, the third-party defendant is absolved from a judgment of liability by virtue of one or more superseding intervening causes and/or actions of others. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 18. Defendants/third-party claims are barred, in whole or in part, by the doctrine of waiver of subrogation. 4 of 6
(FILED : KINGS COUNTY CLERK 05/08/2018 0 4 : 47 PM AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 19. Defendants/third-party claims are barred, in whole or in part, by contractual provisions within any contracts between the third-party defendant and any other party to which plaintiffs were a third-party beneficiary. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 20. Third-party defendant hereby incorporates and alleges any additional affirmative defenses alleged by any other party appearing in this action. WHEREFORE, the third-party defendant, ISLAND EXTERIOR FABRICATORS, LLC demands judgment dismissing the amended third-party complaint, together with the costs and disbursement of this action, including attorneys' fees. Dated: New York, New York April 16, 2018 Kaufman Do ich & Voluck, LLP Se6tt E. M1 ler Attorneys for third-party defendant ISLAND EXTERIOR FABRICATORS, LLC 20"' 40 Exchange Place, 20 Floor New York, New York 10005 Tel: (212) 485-9600 TO: DAVIDOFF HUTCHER & CITRON LLP Attorneys for plaintiffs WATER STREET REALTY GROUP LLC and YARON HERSHCO 605 Third Avenue New York, New York 10158 Tel: (212) 557-7200 COZEN O' O'CONNOR Attorneys for plaintiff 277 Park Avenue New York, New York 10172 Tel: (212) 883-490 5 5 of 6
INDEX No. 514527/2015 FILED: KINGS COUNTY CLERK 05 /08/2018 04 : 47 PM ATTORNEY'S VERIFICATION SCOTT E. MILLER, affirms under the penalties of perjury that he is a partner of the firm of KAUFMAN DOLOWICH 4 VOLUCK, LLP, attorneys for ISLAND EXTERIOR FABRICATORS, LLC in the captioned action; that he has read the foregoing VERIFIED ANSWER and knows the contents thereof; that the same is true to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. The reason this verification is made by your affirmant and not by the third-party defendant herein is that the third-party defendant is not in the County of New York, where the undersigned has his office. The sources of your affirmant's information and belief are from conversations had with the third-party defendant herein and from the documents contained in your affinnant's file. Dated: New York, New York April 16, 2018 SC OTT E. MILLER 4814-8071-6130,v.1 6 6 of 6