FILED: BRONX COUNTY CLERK 11/09/2015 12:43 PM INDEX NO. 24282/2013E NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 11/09/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -X CARL MILES, Index No.: 24282/2013E Plaintiff, AURORA CONTRACTORS INC., ISLAND INTERNATIONAL ENTERPRISES LLC AND MALL 1-BAY PLAZA, LLC CERTIFICATION PURSUANT TO PART 130 MALL 1-BAY PLAZA, LLC, -against- -against- RUTTURA & SONS CO., INC. Defendants. Third-Party Plaintiff, Third-Party Defendant. -X The accompanying papers are served pursuant to Section 130-1.1-a: X Verified Answer to Amended Verified Complaint Demand for Experts Notice for Discovery & Inspection Demand for a Verified Bill of Particulars Demand for Medical Information/Release Demand for Collateral Source Information Demand for Insurance Information Demand for Social Media Notice to take Deposition Upon Oral Examination Demand for Proof of Service Demand for Medicare/Medicaid Benefits Declination of Service Via Facsimile Demand for Attorney Identification Demand for Ad Damnum Declination of Electronic Filing Dated: New York, New York November 5, 2015 BY: /ov KRISTIN L. WEINBERGER, ESQ. AHMUTY, DEMERS & MCMANUS Attorneys for Defendant ISLAND INTERNATIONAL ENTERPRISES LLC 199 Water Street New York, New York 10038 (212) 513-7788 Our File No.: ORCP 0067N14 RAS
TO: Koss & Schonfeld LLP Attorneys for Plaintiff 90 John Street, Suite 408 New York, New York 10038 Tel: (212) 796-8914 Fax: (212) 401-4757 The Law Office of Thomas K. Moore Attorney for Defendant AURORA CONTRACTORS, INC. 701 Westchester Avenue, Suite 101W White Plains, New York 10604 Attn.: Maria Sestito, Esq. Tel. (914) 285-8500 Fabiani Cohen & Hall, LLP Attorneys for the Defendant MALL 1-BAY PLAZA, LLC 570 Lexington Avenue, 4th Floor New York, New York 10022 Tel. (212) 644-4420 Attn.: Bryan F. Tiggs, Esq. Third-Party Action Discontinued- Third-Party Defendant RUTTURA & SONS CO., INC.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX CARL MILES, Index No. : 24282/2013E -against- Plaintiff, VERIFIED ANSWER TO AMENDED VERIFIED COMPLAINT AURORA CONTRACTORS INC., ISLAND INTERNATIONAL ENTERPRISES LLC AND BAY PLAZA MALL, LLC, Defendants. The defendant, ISLAND INTERNATIONAL ENTERPRISES LLC, by its attorneys, AHMUTY, DEMERS & McMANUS, ESQS., as and for its verified answer to the plaintiffs Amended Verified Complaint, alleges upon information and belief: THE PARTIES 1. Denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs designated "1", "2", "3", "4", "5", "6", '7", "8", " 17", " 18", " 19", "20", "21" and "22" of the complaint. 2. Denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph designated "9" of the complaint as to the co-defendant AURORA CONTRACTORS INC. and denies as to this answering defendant. 3. Denies upon information and belief each and every allegation contained in paragraph designated "11" of the complaint in the form alleged as all applicable agreements will speak for themselves at the time of trial and otherwise, refers all questions of law to this Honorable Court. 4. Denies upon information and belief each and every allegation contained in paragraphs designated "12", "13", "14", "15" and "16" of the complaint in the form alleged and otherwise, refers all questions of law to this Honorable Court. 5. Denies upon information and belief each and every allegation contained in paragraphs designated "23", "24", "25", "26", "27", "28" and "29" of the complaint in the
form alleged as to this answering defendant and denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs designated "23", "24", "25", "26", "27", "28" and "29" of the complaint as to the co-defendants and otherwise, refers all questions of law to this Honorable Court. AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION 6. Denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph designated "30" of the complaint. 7. Denies upon information and belief each and every allegation contained in paragraphs designated "31", "33", "38", "40" and "49" of the complaint. 8. Denies upon information and belief each and every allegation contained in paragraphs designated "32", "34", "35", "36", "37" and "39" of the complaint in the form alleged as to this answering defendant and denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs designated "32", "34", "35", "36", "37" and "39" of the complaint as to the co-defendants and otherwise, refers all questions of law to this Honorable Court. 9. Denies upon hiformation and belief each and every allegation contained in paragraphs designated "41", "42", "43", "44", "45", "46", "47" and "48" of the complaint in the form alleged and otherwise, refers all questions of law to this Honorable Court. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION 10. Defendant, ISLAND INTERNATIONAL ENTERPRISES LLC, repeats, reiterates and realleges each and every denial in answer to paragraphs "1" through "49" as if more specifically set forth in answer to paragraph designated "50" of the complaint and each and every part thereof. 11. Denies upon hiformation and belief each and every allegation contained hi paragraphs designated "51", "52", "53" and "54" of the complaint in the form alleged as to this answering defendant and denies having knowledge or information sufficient to form a belief as to each and every allegation contained hi paragraphs designated "51", "52", "53" and "54" of the complaint as to the co-defendants and otherwise, refers all questions of law to this Honorable Court.
12. Denies upon information and belief each and every allegation contained in paragraphs designated "55" of the complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 13. That the personal injuries and/or damages alleged to have been sustained by the plaintiff were caused entirely or in part through the culpable conduct of the plaintiff, without any negligence on the part of the answering defendants and the answering defendants seeks a dismissal or reduction in any recovery that may be had by the plaintiff in the proportion which the culpable conduct, attributable to the plaintiff, bears to the entire measure of responsibility for the occurrence. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 14. Upon information and belief, any past or future costs or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from collateral source as defined in Section 4545(c) of the New York Civil Practice Law and Rules. If any damages are recoverable against said defendants, the amount of such damages shall be diminished by the amount of the funds which plaintiff has or shall receive from such collateral source. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 15. Pursuant to CPLR 1603, these answering defendants assert the limitations contained in CPLR 1601 and 1602 and all rights contained therein. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 16. Plaintiff knowingly assumed the risk inherent in the activity engaged in. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 17. Plaintiff failed to imtigate/minimize alleged damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 18. Plaintiff was injured if at all, through the negligent acts of third parties who were required to provide competent supervision of its employees and a safe place to work. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 19. If plaintiff was injured in the manner alleged same was the result of acts and/or omissions of third parties over whom this answering defendant had no duty or ability to control or supervise. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 20. The Complaint fails to state a viable cause of action against this answering defendant. AS AND FOR A CROSS COMPLAINT OVER AND AGAINST THE CO-DEFENDANTS, AURORA CONTRACTORS INC. and MALL 1-BAY PLAZA, LLC, THIS DEFENDANT, ISLAND INTERNATIONAL ENTERPRISES LLC ALLEGES UPON INFORMATION AND BELIEF; 21. That if the plaintiff(s) was/were caused to sustain personal injuries and resulting damages at the time and place set forth in the plaintiff(s)' complaint and in the manner alleged therein, through any carelessness, recklessness, acts, omissions, negligence and/or breaches of duty and/or warranty and/or contract, other than of the plaintiff(s), then the said injuries and damages arose out of the several and joint carelessness, recklessness, acts, omissions, negligence and breaches of duty and/or obligation and/or Statute and/or Warranty and/or contract in fact or implied in law, upon the part of the co-defendant(s), with contractual and common law indemnification and save harmless agreement and/or duty to procure insurance coverage and/or responsibility by them in fact and/or implied in law and without any breaches or any negligence of the answering defendant(s) contributing thereto; and if the answering defendant(s) is found liable as to the plaintiff(s) for the injuries and damages as set forth in the plaintiff(s)' complaint, then, and in that event, the relative responsibilities of all said defendants in fairness must be apportioned by a separate determination in view of the existing factual disparity, and the said co-defendant(s) herein will be liable over jointly and severally to the answering defendants) and bound to fully indemnify, represent and hold the answering defendant(s) harmless for the full amount of any verdict or judgment that the plaintiff(s) herein may recover against the answering defendants) in
this action, including all costs of investigation, disbursements, expenses and attorney's fees incurred in the defense of this action and in the conduct of this cross complaint. WHEREFORE, the defendant, ISLAND INTERNATIONAL ENTERPRISES LLC, demands judgment dismissing the plaintiffs complaint on the merits; and if the plaintiff, CARL MILES, is found to have contributed to the accident or damages, that any damages be reduced hi proportion to which the plaintiff may be found to have so contributed to the accident or damages and further demands judgment over and against the co-defendants, AURORA CONTRACTORS INC. and MALL 1-BAY PLAZA, LLC, on the cross claim, for the amount of any judgment obtained against the answering defendant by plaintiffs or any other party or on the basis of the apportionment of responsibility in such amounts as a jury or Court may direct together with the costs, disbursements and expenses of this action including attorney's fees. Dated: New York, New York November 5, 2015 BY: KRISTIN L. WEINBERGER, ESQ. AHMUTY, DEMERS & MCMANUS Attorneys for Defendant ISLAND INTERNATIONAL ENTERPRISES LLC 199 Water Street New York, New York 10038 (212) 513-7788 Our File No.: ORCP 0067N14 RAS
TO: Koss & Schonfeld LLP Attorneys for Plaintiff 90 John Street, Suite 408 New York, New York 10038 Tel: (212) 796-8914 Fax: (212) 401-4757 The Law Office of Thomas K. Moore Attorney for Defendant AURORA CONTRACTORS, INC. 701 Westchester Avenue, Suite 101W White Plains, New York 10604 Attn.: Maria Sestito, Esq. Tel. (914) 285-8500 Fabiani Cohen & Hall, LLP Attorneys for the Defendant MALL 1-BAY PLAZA, LLC 570 Lexington Avenue, 4th Floor New York, New York 10022 Tel. (212) 644-4420 Attn.: Bryan F. Tiggs, Esq. Third-Party Action Discontinued- Third-Party Defendant RUTTURA & SONS CO., INC.
STATE OF NEW YORK ) :SS.: COUNTY OF NEW YORK ) ATTORNEY VERIFICATION KRISTIN L. WEINBERGER, being duly sworn, deposes and says: That she is an associate of the law firm of AHMUTY, DEMERS & McMANUS, the attorneys for the defendant(s), ISLAND INTERNATIONAL ENTERPRISES LLC, in the above entitled action; that she has read and knows the contents of the foregoing Verified Answer to the Amended Verified Complaint and that same is true to her own knowledge, except as to those matters therein stated to be alleged on information and belief and that as to those matters she believes it to be true. Deponent further says that the grounds for her belief as to all matters therein stated upon information and belief are statements made to her by the defendant and papers and documents received by deponent from the defendant or their representatives and which are now in her possession. Deponent further says that the reason why this verification is made by deponent and not by the defendant is that defendant is not within the County of New York, where deponent has her office. Sworn To Before Me This day of November, 2015. KRISTIN L. WEINBERGER, ESQ. NOTARY PUBLIC No. 02C06206158 * Qualified In Queens <
[INDEX;NOl:!24282/2013] SUPREME COURTjQFjtTHE STATElORNEWiYORKJ I CARL* MILES'! [Plaintiff^ fand (Third-Party?Action^ (Defendants?! rattqrneys FOR; DEFEND ANT tlsland "INTERNATIONAL'ENTERPWSES-LLCI 99^WATERTSTREET [OUR1FILE NOrORCP.0067N14 RAS] ; Service] ] Service of a copy^pf^the^within is hereby, admitted.1] Dated; November"52015]