SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LEXINGTON INSURANCE COMPANY a/s/o Index No.: 152491/2017 ROCKROSE DEVELOPMENT CORP., Plaintiff, VERIFIED ANSWER TO CROSS-CLAIMS OF -against- THIRD-PARTY DEFENDANT AIR CONDITIONING SERVICES INC. WITH CAPITAL COOLING SYSTEMS LLC, AFFIRMATIVE DEFENSES CAPITAL COOLING SYSTEMS LLC, Defendant._ Third-Party Plaintiff, -against- AIR CONDITIONING SERVICES INC. and WEATHER CHAMPIONS, LTD., Third-Party Defendants. Third-Party Defendant, Weather Champions, Ltd. ("Weather" or "Defendant" "Defendant") by and through its attorneys, Riker Danzig Scherer Hyland & Perretti LLP, as and for its Answer to the Cross-Claims of co-third-party defendant Air Conditioning Services Inc. ("ACS"), responds and alleges as follows: AS AND FOR A FIRST CROSS-CLAIM AGAINST WEATHER CHAMPIONS and CAPITAL COOLING SYSTEMS, LLC The allegations contained in the First Cross-Claim call for legal conclusions to which no response is required. To the extent that the allegations in this cross-claim contain factual allegations against Weather they are denied. Weather lacks knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations contained in this cross-claim. 1 1 of 9
AS AND FOR A SECOND CROSS-CLAIM AGAINST WEATHER CHAMPIONS and CAPITAL COOLING SYSTEMS, LLC The allegations contained in the Second Cross-Claim call for legal conclusions to which no response is required. To the extent that the allegations in this cross-claim contain factual allegations against Weather they are denied. Weather lacks knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations contained in this cross-claim. AS AND FOR A THIRD CROSS-CLAIM AGAINST WEATHER CHAMPIONS and CAPITAL COOLING SYSTEMS, LLC The allegations contained in the Third Cross-Claim call for legal conclusions to which no response is required. To the extent that the allegations in this cross-claim contain factual allegations against Weather they are denied. Weather lacks knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations contained in this cross-claim. AS AND FOR A FOURTH CROSS-CLAIM AGAINST WEATHER CHAMPIONS and CAPITAL COOLING SYSTEMS, LLC The allegations contained in the Fourth Cross-Claim call for legal conclusions to which no response is required. To the extent that the allegations in this cross-claim contain factual allegations against Weather they are denied. Weather lacks knowledge or information sufficient to form a belief as to the truth of the remainder of the allegations contained in this cross-claim. WHEREFORE, Weather demands judgment dismissing the Cross-Claims, awarding Weather attorney's fees, litigation expenses and costs of suit and granting such other, further and different relief as the Court deems just and proper. 2 2 of 9
AFFIRMATIVE DEFENSES First Affirmative Defense The cross-claims fail, in whole or in part, to state a claim upon which relief may be granted. Second Affirmative Defense The relief being sought by ACS is barred, in whole or in part, by the doctrines of waiver, laches, estoppel and/or res judicata. Third Affirmative Defense The relief being sought by ACS is barred, in whole or in part, by the doctrine of unclean hands. Fourth Affirmative Defense ACS's claims are barred, in whole or in part, for lack of consideration. Fifth Affirmative Defense ACS does not have standing to assert the claims set forth in the cross-claims. Sixth Affirmative Defense To the extent that Defendant had any contractual or other obligations whatsoever to Plaintiffs, Third-Party Plaintiff, or any other party, including but not limited to ACS, it has complied with them. 3 3 of 9
Seventh Affirmative Defense The alleged damages, if any, have been caused by the acts of Third-Party Plaintiff and/or other third parties over whom Defendant either had or has no control or responsibility, and/or other circumstances for which Defendant is not responsible. Eighth Affirmative Defense The claims are barred, in whole or in part, by the applicable statutes of limitations and/or repose. Ninth Affirmative Defense Defendant's liability, if any, is limited and controlled by the provisions set forth in Article 14-A of the CPLR. Tenth Affirmative Defense The claims are barred, in whole or in part, because Defendant has at all times acted in good faith. Eleventh Affirmative Defense No action, omission or conduct by Defendant has directly or proximately caused any damage to Plaintiff or Third-Party Plaintiff or any other party, including but not limited to ACS. Twelfth Affirmative Defense To the extent that Plaintiff or Third-Party Plaintiff has suffered any damages as a result of the allegations in the cross-claims, the damages are not the fault or responsibility of Weather. 4 4 of 9
Thirteenth Affirmative Defense The claims are barred, in whole or in part, by Plaintiffs, Third-Party Plaintiff's and/or ACS's failure to mitigate damages. Fourteenth Affirmative Defense If any party sustained any damages, which allegations are expressly denied, they were caused, in whole or in part, by the contributory or comparative negligence and/or culpable conduct of that party and not as a result of any negligence and/or culpable conduct on the part of party' Weather and any damages awarded to any other party should be reduced by that party's percentage of fault. Fifteenth Affirmative Defense In the event that any party recovers a verdict or judgment against Weather, then the verdict or judgment must be reduced and set off by those amounts which have been, or will, with reasonable certainty, replace or indemnify Plaintiff or Third-Party Plaintiff or any other claiming party, in whole or in part, for any claims or economic loss, from any collateral source. Sixteenth Affirmative Defense Defendant's liability, if any, is limited and controlled by the provisions set forth in Article 16 of the CPLR. Seventeenth Affirmative Defense In the event that Plaintiff or Third-Party Plaintiff settles any portion of the claims arising from the allegations in the pleadings with any currently named or still to be named defendant(s) or third-party defendant(s), the respective rights of the remaining parties should be 5 5 of 9
determined pursuant to Section 15-108 of the General Obligations Law or any other applicable statute. Eighteenth Affirmative Defense The claims are barred, in whole or in part, by the economic loss rule. Nineteenth Affirmative Defense The cross-claims fail to plead the causes of action with particularity, as required by CPLR 3016. Twentieth Affirmative Defense The claims are barred, in whole or in part, because Weather has at all times acted in good faith. Twenty-First-First Affirmative Defense No action, omission or conduct by Weather has directly or proximately caused any damage to Plaintiffs, Third-Party Plaintiff, and/or any other party, including but not limited to ACS. Twenty-Second -Second Affirmative Defense The claims are barred, in whole or in part, due to their respective breaches of contract with Weather and/or failure to perform condition precedent. Twenty-ThirḏThird Affirmative Defense The claims are barred and/or limited by its spoliation of evidence. Twenty-Fourth -Fourth Affirmative Defense ACS is not entitled to defense or indemnity for its own negligence. 6 6 of 9
Twenty-Fifth-Fifth Affirmative Defense The claims are barred for improper service and/or lack ofjurisdiction. Twenty-Sixth-Sixth Affirmative Defense Defendant reserves the right to assert additional affirmative defenses based on facts uncovered through the course of continuing discovery and investigation. Dated: Morristown, New Jersey February 9, 2018 RIKER, DANZIG, SCHERER, HYLAND & PERRETTI LLP Attorneys for Third-Party Defendant Weather Champions, Ltd. By: s/lance J. Kalik Lance J. Kalik 500 Fifth Avenue, 49" 49 Floor New York, New York 10110 (212) 302 6574 and One Speedwell Avenue Morristown, New Jersey 07962 (973) 538-0800 TO: Allen Wenig, Esq. Wenig & Wenig, LLC Attorneys for Plaintiff Lexington Insurance Company a/s/o Rockrose Development Corp. Susan Miller, Esq. Milber Makris Plousadis & Seiden, LLP 1000 Woodbury Road, Suite 402 Woodbury, NY 11797 Attorneys for Defendant/Third-Party Plaintiff Capital Cooling Systems, LLC Elan Raday, Esq. Gilleonardo, McDonald, Safranek & Turchetti One Whitehall Street - 13th Floor New York, NY 10004-2109 Attorneys for Third-Party Defendant Air Conditioning Services, Inc. 7 7 of 9
VERIFICATION STATE OF NEW YORK ) COUNTY OF NEW YORK ) ) ss: The undersigned affirms the following statements under the penalties of perjury: Deponent is the Owner/President of Weather Champions, Ltd., a third-party defendant in the within action. Deponent has read the foregoing Verified Answer and knows the contents thereof; that same are true to Deponent's own knowledge, except as to matters therein stated to be alleged upon information and belief, and as to those matters, Deponent believes them to be true. The grounds of Deponent's belief as to all matters not stated upon Deponent's knowledge are investigation and information obtained by Deponent. Robert Comba, Owner/President on behalf of Weather Champions, Ltd. Dated: Sworn to before me this 9@ day of February, 2018 otar Pubbc UiiVIS' t4ri~ ' pubic ~ - D. LAVl5 O a~littbgnn 40$U+~ tilifi8d ~ Q ltt co~rttissiatt Ri~ gy 8 8 of 9
CERTIFICATE OF SERVICE I hereby certify that on the date indicated herein I caused the foregoing Verified Answer to Cross-Claims of Third-Party Defendant Air Conditioning Services Inc. with Affirmative Defenses to be served via ECF on the following parties: Allen Wenig, Esq. Wenig & Wenig, LLC Attorneys for Plaintiff Lexington Insurance Company a/s/o Rockrose Development Corp. Susan Miller, Esq. Milber Makris Plousadis & Seiden, LLP 1000 Woodbury Road, Suite 402 Woodbury, NY 11797 Attorneys for Defendant/Third-Party Plaintiff Capital Cooling Systems, LLC Elan Raday, Esq. Gilleonardo, McDonald, Safranek & Turchetti One Whitehall Street - 13th Floor New York, NY 10004-2109 Attorneys for Third-Party Defendant Air Conditioning Services, Inc. Dated: February 9, 2018 a p Lisa M. Jar icki 4920617vl 9 9 of 9