Preview
FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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CAMBRIDGE MUTUAL FIRE INSURANCE :
COMPANY a/s/o HIMALAYAN VISION, INC., :
Plaintiffs, : Index No. 151033/2018
-against- :
: VERIFIED ANSWER
MAH REALTY LLC, KIEV REALTY LLC, :
" MISCHOU"
MARIA HRYNENKO, MICHAEL :
HRYNENKO JR., NEIGHBORHOOD :
CONTRACTING CORP., BETA PLUMBlNG & :
HEATING CORP., S.K. PIPING & HEATING :
CORP., DILBER KUKIC, ATHANASIOS :
"JERRY"
IONNIDIS, ANDREW TROMBETTAS, :
STAVROS KALOGEROPOULOS , :
CONSOLIDATED EDISON COMPANY OF NEW :
YORK, INC., CONSOLIDATED EDISON :
ENERGY INC., :
Defendants. :
__________.--__-___________-----____________.------------------- X
Edison"
Defendants Consolidated Edison Company of New York, Inc. ("Con Edison")
and Consolidated Edison Energy Inc., by their attorneys, Law Offices of Douglas J.
McKay, Clark, Gagliardi & Miller, P.C., and Davis Polk & Wardwell LLP, hereby
answer the Verified Complaint dated January 31, 2018. Because Consolidated Edison
Energy Inc. is not an operating company, all allegations against itare denied unless
specifically admitted herein. Any reference to Con Edison herein is exclusively to
Consolidated Edison Company of New York, Inc.
1. Denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph "1".
2. Denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph "2".
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"3"
3. Denies the allegations contained in paragraph as to Con Edison, and
denies knowledge or information sufficient to form a belief as the balance of the
allegations.
4. Denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph "4".
5. Denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph "5".
6. Denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph "6", and refers all questions of law to the Court.
7. Denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph "7".
"8"
8. Paragraph contains allegations that are directed to another defendant
in this action and therefore no response is required. To the extent the allegations
purport to refer to Con Edison, denies knowledge or information sufficient to form a
belief as to the allegations contained in paragraph "8".
"9"
9. Paragraph contains allegations that are directed to another defendant
in this action and therefore no response is required. To the extent the allegations
purport to refer to Con Edison, denies knowledge or information sufficient to form a
belief as to the allegations contained in paragraph "9".
"10"
10. Paragraph contains allegations that are directed to another
defendant in this action and therefore no response is required. To the extent the
allegations purport to refer to Con Edison, denies knowledge or information sufficient
to form a belief as to the allegations contained in paragraph "10".
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"11"
11. Paragraph contains allegations that are directed to another
defendant in this action and therefore no response is required. To the extent the
allegations purport to refer to Con Edison, denies knowledge or information sufficient
to form a belief as to the allegations contained in paragraph "11".
"12"
12. Paragraph contains allegations that are directed to another
defendant in this action and therefore no response is required. To the extent the
allegations purport to refer to Con Edison, denies knowledge or information sufficient
to form a belief as to the allegations contained in paragraph "12".
"13"
13. Paragraph contains allegations that are directed to another
defendant in this action and therefore no response is required. To the extent the
allegations purport to refer to Con Edison, denies knowledge or information sufficient
to form a belief as to the allegations contained in paragraph "13".
"14"
14. Paragraph contains allegations that are directed to another
defendant in this action and therefore no response is required. To the extent the
allegations purport to refer to Con Edison, denies knowledge or information sufficient
to form a belief as to the allegations contained in in paragraph "14".
"15"
15. Paragraph contains allegations that are directed to another
defendant in this action and therefore no response is required. To the extent the
allegations purport to refer to Con Edison, denies knowledge or information sufficient
to form a belief as to the allegations contained in paragraph "15".
"16"
16. Paragraph contains allegations that are directed to another
defendant in this action and therefore no response is required. To the extent the
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allegations purport to refer to Con Edison, denies knowledge or information sufficient
to form a belief as to the allegations contained in paragraph "16".
"17"
17. Paragraph contains allegations that are directed to another
defendant in this action and therefore no response is required. To the extent the
allegations purport to refer to Con Edison, denies knowledge or information sufficient
to form a belief as to the allegations contained in paragraph "17".
"18"
18. Paragraph contains allegations that are directed to another
defendant in this action and therefore no response is required. To the extent the
allegations purport to refer to Con Edison, denies knowledge or information sufficient
to form a belief as to the allegations contained in paragraph "18".
"19"
19. Paragraph contains allegations that are directed to another
defendant in this action and therefore no response is required. To the extent the
allegations purport to refer to Con Edison, denies knowledge or information sufficient
to form a belief as to the allegations contained in paragraph "19".
20. Admits the allegations contained in paragraph "20".
21. Admits the allegations contained in paragraph "21".
"22"
22. Denies the allegations contained in paragraph as to Con Edison,
except admits that Con Edison owned a gas distribution system in the City of New York
"System"
(the "System"), used the System to distribute gas to its customers, including customers
at 121 Second Avenue, and reasonably maintained, inspected, and monitored the
System to the extent reasonably practicable.
"23"
23. Denies the allegations contained in paragraph as to Con Edison,
except admits that Con Edison as a public utilitypursuant to franchises duly granted to
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it,or acquired by it,supplies gas service to itscustomers of record within its franchise
area pursuant to the Public Service Law of the State of New York, the rules, regulations,
and orders of the Public Service Commission of the State of New York (the "Public
Commission"
Service Commission"), and the tariffs filed by Con Edison with the Public Service
Commission, and refers all questions of law to the Court.
"24"
24. Denies the allegations contained in paragraph as to Con Edison,
except admits that Con Edison as a public utilitypursuant to franchises duly granted to
it,or acquired by it,supplies gas service to itscustomers of record within its franchise
area pursuant to the Public Service Law of the State of New York, the rules, regulations,
and orders of the Public Service Commission of the State of New York (the "Public
Commission"
Service Commission"), and the tariffs filed by Con Edison with the Public Service
Commission, and refers all questions of law to the Court.
"25"
25. Denies the allegations contained in paragraph as to Con Edison.
a. Denies the allegations contained in paragraph "25a", except admits that
Con Edison as a public utility pursuant to franchises duly granted to it,or acquired by it,
supplies gas service to its customers of record within itsfranchise area pursuant to the
Public Service Law of the State of New York, the rules, regulations, and orders of the
Public Service Commission of the State of New York (the "Public Service
Commission"
Commission"), and the tariffs filed by Con Edison with the Public Service Commission,
and refers all questions of law to the Court.
b. Denies the allegations contained in paragraph "25b", except admits that
Con Edison as a public utility pursuant to franchises duly granted to it, or acquired by it,
supplies gas service to its customers of record within itsfranchise area pursuant to the
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Public Service Law of the State of New York, the rules, regulations, and orders of the
Public Service Commission of the State of New York (the "Public Service
Commission"
Commission"), and the tariffs filed by Con Edison with the Public Service Commission
, and refers all questions of law to the Court.
"25c"
c. Denies the allegations contained in paragraph as to Con Edison.
"26"
26. Denies the allegations contained in paragraph as to Con Edison.
"27"
27. Denies the allegations contained in paragraph as to Con Edison.
"28"
28. Denies the allegations contained in paragraph as to Con Edison.
AS A FIRST AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION
ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
29. The Verified Complaint fails to state a cause of action against these
answering defendants.
AS A SECOND AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION
ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
30. To the extent that a third party or third parties caused or contributed to
the cause of the incident on March 26, 2015, or that a third party or third parties
engaged in conduct which may have caused or contributed to plaintiff's claimed
damages, for that limited purpose, defendants assert the defense that a third party or
third parties acted, or failed to act, in a manner that may constitute negligence.
AS A THIRD AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION
ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
31. Defendants affirmatively plead the provisions of CPLR § 4545 insofar as
applicable, to reduce any recovery plaintiff may be awarded.
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AS A FOURTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION
ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
32. Although defendants deny allallegations of plaintiff as to the causes of
the injuries and damages alleged, including, but not limited to negligence, the same, if
any, were caused by the intervening acts of superseding negligence and/or criminal
conduct of persons, parties, or other entities over whom defendants had no control.
AS A FIFTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION
ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
33. In the event defendants are found to be liable to plaintiff, none of the
exceptions of CPLR § 1602 are applicable. Therefore, the limited liability provisions of
CPLR Article 16 apply.
AS A SIXTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION
ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
34. Plaintiff is barred from recovery in whole or in part by the subrogor's
failure to mitigate damages.
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AS A SEVENTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION
ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
35. Any sum or consideration paid to or promised to plaintiff by any
person(s) or corporation(s) claimed to be liable for the injuries or damages alleged in
the Verified Complaint shall reduce judgment rendered in favor of plaintiff as against
answering defendants to the extent of the greater of either the sums or consideration
tortfeasers'
paid or promised to plaintiff or the amount of the released equitable share(s)
of the damages in accordance with General Obligations Law § 15-108.
AS AN EIGHTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION
ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
36. Plaintiff's subrogation claims are subject to any and alldefenses that
plaintiff could have asserted against the subrogor, including any defenses under the
terms and provisions of any insurance contract or agreement between plaintiff and the
subrogor, and Con Edison defendants reserves itsrights to amend this answer should
defendants'
any such available defenses come to knowledge during the course of this
litigation.
AS A NINTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION
ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
37. Con Edison, as a public utilitypursuant to franchises duly granted to it,
or acquired by it,supplies gas service to its customers of record within itsfranchise area
pursuant to the Public Service Law of the State of New York, the rules, regulations, and
orders of the Public Service Commission of the State of New York (the "Public Service
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Commission"
Commission"), and the tariff filed by Con Edison with the Public Service Commission
(the "Tariff").
38. The standard terms and conditions of the Tariff, as were from time to
time effective, are by the operation of law made applicable to Con Edison's supply of
gas service to itscustomers of record.
39. The aforesaid Tariff duly filed with the Public Service Commission and
in effect during, prior, and subsequent to the times mentioned in the Verified
Complaint, contained, among other things, the rules, regulations, terms, and conditions
upon which Con Edison's gas service would be supplied.
40. Among said rules, regulations, terms and conditions is the following:
P.S.C. No. 9 - Gas
Leaf No. 79-80:
11. - Continued
Liability
(B) Customer's Equipment: Neither by inspection or non-rejection, nor in
any other way, does the Company give any warranty, expressed or implied,
as to the adequacy, safety or other characteristics of any structures,
equipment, wires, pipes, appliances or devices owned, installed or
maintained by the Customer or leased by the Customer from third parties.
(C) Company Equipment and Use of Service: The Company will not be
liable for any injury, casualty or damage resulting in any way from the
supply or use of gas or from the presence or operation of the Company's
structures, equipment, wires, pipes, appliances or devices on the
Customer's premises, except injuries or damages resulting from the
negligence of the Company.
AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT
MAH REALTY LLC, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
41. That if plaintiff sustained the injuries and damages in the manner and at
the time and place alleged, and if itis found that the answering defendants are liable to
plaintiff herein, all of which is specifically denied, then said answering defendants
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CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and
CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of
responsibility for the alleged occurrence, are entitled to indemnification and/or
contribution from and judgment over and against the aforementioned co-defendant
MAH REALTY LLC for allor part of any verdict or judgment that said plaintiff may
recover against said answering defendants, and are otherwise entitled to common law
indemnification from MAH REALTY LLC against all claims and/or judgments entered
against the answering defendants herein.
AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT
KIEV REALTY LLC, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
42. That if plaintiff sustained the injuries and damages in the manner and at
the time and place alleged, and if itis found that the answering defendants are liable to
plaintiff herein, all of which is specifically denied, then said answering defendants
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and
CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of
responsibility for the alleged occurrence, are entitled to indemnification and/or
contribution from and judgment over and against the aforementioned co-defendant
KIEV REALTY LLC for allor part of any verdict or judgment that said plaintiff may
recover against said answering defendants, and are otherwise entitled to common law
indemnification from KIEV REALTY LLC against all claims and/or judgments entered
against the answering defendants herein.
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AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT
MARIA HRYNENKO, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
43. That if plaintiff sustained the injuries and damages in the manner and at
the time and place alleged, and if itis found that the answering defendants are liable to
plaintiff herein, all of which is specifically denied, then said answering defendants
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and
CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of
responsibility for the alleged occurrence, are entitled to indemnification and/or
contribution from and judgment over and against the aforementioned co-defendant
MARIA HRYNENKO for all or part of any verdict or judgment that said plaintiff may
recover against said answering defendants, and are otherwise entitled to common law
indemnification from MARIA HRYNENKO against allclaims and/or judgments
entered against the answering defendants herein.
AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT
"MISCHOU"
MICHAEL HRYNENKO JR., DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
44. That if plaintiff sustained the injuries and damages in the manner and at
the time and place alleged, and if itis found that the answering defendants are liable to
plaintiff herein, all of which is specifically denied, then said answering defendants
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and
CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of
responsibility for the alleged occurrence, are entitled to indemnification and/or
contribution from and judgment over and against the aforementioned co-defendant
"MISCHOU"
MICHAEL HRYNENKO JR. for allor part of any verdict or judgment
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that said plaintiff may recover against said answering defendants, and are otherwise
"MISCHOU"
entitled to common law indemnification from MICHAEL HRYNENKO
JR. against all claims and/or judgments entered against the answering defendants
herein.
AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT NEIGHBORHOOD
CONTRACTING CORP., DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
45. That if plaintiff sustained the injuries and damages in the manner and at
the time and place alleged, and if itis found that the answering defendants are liable to
plaintiff herein, all of which is specifically denied, then said answering defendants
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and
CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of
responsibility for the alleged occurrence, are entitled to indemnification and/or
contribution from and judgment over and against the aforementioned co-defendant
NEIGHBORHOOD CONTRACTING CORP. for all or part of any verdict or judgment
that said plaintiff may recover against said answering defendants, and are otherwise
entitled to common law indemnification from NEIGHBORHOOD CONTRACTING
CORP. against all claims and/or judgments entered against the answering defendants
herein.
AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT
BETA PLUMBING & HEATING CORP., DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
46. That if plaintiff sustained the injuries and damages in the manner and at
the time and place alleged, and if itis found that the answering defendants are liable to
plaintiff herein, all of which is specifically denied, then said answering defendants
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CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and
CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of
responsibility for the alleged occurrence, are entitled to indemnification and/or
contribution from and judgment over and against the aforementioned co-defendant
BETA PLUMBING & HEATING CORP. for allor part of any verdict or judgment that
said plaintiff may recover against said answering defendants, and are otherwise entitled
to common law indemnification from BETA PLUMBING & HEATING CORP. against
all claims and/or judgments entered against the answering defendants herein.
AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT
S.K. PIPING & HEATING CORP., DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
47. That if plaintiff sustained the injuries and damages in the manner and at
the time and place alleged, and if itis found that the answering defendants are liable to
plaintiff herein, all of which is specifically denied, then said answering defendants
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and
CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of
responsibility for the alleged occurrence, are entitled to indemnification and/or
contribution from and judgment over and against the aforementioned co-defendant S.K.
PIPING & HEATING CORP. for all or part of any verdict or judgment that said
plaintiff may recover against said answering defendants, and are otherwise entitled to
common law indemnification from S.K. PIPING & HEATING CORP. against all
claims and/or judgments entered against the answering defendants herein.
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AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT
DILBER KUKIC, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
48. That if plaintiff sustained the injuries and damages in the manner and at
the time and place alleged, and if itis found that the answering defendants are liable to
plaintiff herein, all of which is specifically denied, then said answering defendants
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and
CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of
responsibility for the alleged occurrence, are entitled to indemnification and/or
contribution from and judgment over and against the aforementioned co-defendant
DILBER KUKIC for all or part of any verdict or judgment that said plaintiff may
recover against said answering defendants, and are otherwise entitled to common law
indemnification from DILBER KUKIC against all claims and/or judgments entered
against the answering defendants herein.
AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT ATHANASIOS
"JERRY"
IOANNIDIS, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
49. That if plaintiff sustained the injuries and damages in the manner and at
the time and place alleged, and if itis found that the answering defendants are liable to
plaintiff herein, all of which is specifically denied, then said answering defendants
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and
CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of
responsibility for the alleged occurrence, are entitled to indemnification and/or
contribution from and judgment over and against the aforementioned co-defendant
"JERRY"
ATHANASIOS IOANNIDIS for all or part of any verdict or judgment that
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said plaintiff may recover against said answering defendants, and are otherwise entitled
"JERRY"
to common law indemnification from ATHANASIOS IOANNIDIS against
all claims and/or judgments entered against the answering defendants herein.
AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT
ANDREW TROMBETTAS, DEFENDANTS CON EDISON AND
CONSOLIDATED EDISON ENERGY INC. ALLEGE:
50. That ifplaintiff sustained the injuries and damages in the manner and at
the time and place alleged, and if itis found that the answering defendants are liable to
plaintiff herein, all of which is specifically denied, then said answering defendants
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and
CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of
responsibility for the alleged occurrence, are entitled to indemnification and/or
contribution from and judgment over and against the aforementioned co-defendant
ANDREW TROMBETTAS. for all or part of any verdict or judgment that said plaintiff
may recover against
Preview
FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------- x CAMBRIDGE MUTUAL FIRE INSURANCE : COMPANY a/s/o HIMALAYAN VISION, INC., : Plaintiffs, : Index No. 151033/2018 -against- : : VERIFIED ANSWER MAH REALTY LLC, KIEV REALTY LLC, : " MISCHOU" MARIA HRYNENKO, MICHAEL : HRYNENKO JR., NEIGHBORHOOD : CONTRACTING CORP., BETA PLUMBlNG & : HEATING CORP., S.K. PIPING & HEATING : CORP., DILBER KUKIC, ATHANASIOS : "JERRY" IONNIDIS, ANDREW TROMBETTAS, : STAVROS KALOGEROPOULOS , : CONSOLIDATED EDISON COMPANY OF NEW : YORK, INC., CONSOLIDATED EDISON : ENERGY INC., : Defendants. : __________.--__-___________-----____________.------------------- X Edison" Defendants Consolidated Edison Company of New York, Inc. ("Con Edison") and Consolidated Edison Energy Inc., by their attorneys, Law Offices of Douglas J. McKay, Clark, Gagliardi & Miller, P.C., and Davis Polk & Wardwell LLP, hereby answer the Verified Complaint dated January 31, 2018. Because Consolidated Edison Energy Inc. is not an operating company, all allegations against itare denied unless specifically admitted herein. Any reference to Con Edison herein is exclusively to Consolidated Edison Company of New York, Inc. 1. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "1". 2. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "2". 1 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 "3" 3. Denies the allegations contained in paragraph as to Con Edison, and denies knowledge or information sufficient to form a belief as the balance of the allegations. 4. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "4". 5. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "5". 6. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "6", and refers all questions of law to the Court. 7. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "7". "8" 8. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "8". "9" 9. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "9". "10" 10. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "10". 2 2 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 "11" 11. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "11". "12" 12. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "12". "13" 13. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "13". "14" 14. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in in paragraph "14". "15" 15. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "15". "16" 16. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the 3 3 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "16". "17" 17. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "17". "18" 18. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "18". "19" 19. Paragraph contains allegations that are directed to another defendant in this action and therefore no response is required. To the extent the allegations purport to refer to Con Edison, denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph "19". 20. Admits the allegations contained in paragraph "20". 21. Admits the allegations contained in paragraph "21". "22" 22. Denies the allegations contained in paragraph as to Con Edison, except admits that Con Edison owned a gas distribution system in the City of New York "System" (the "System"), used the System to distribute gas to its customers, including customers at 121 Second Avenue, and reasonably maintained, inspected, and monitored the System to the extent reasonably practicable. "23" 23. Denies the allegations contained in paragraph as to Con Edison, except admits that Con Edison as a public utilitypursuant to franchises duly granted to 4 4 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 it,or acquired by it,supplies gas service to itscustomers of record within its franchise area pursuant to the Public Service Law of the State of New York, the rules, regulations, and orders of the Public Service Commission of the State of New York (the "Public Commission" Service Commission"), and the tariffs filed by Con Edison with the Public Service Commission, and refers all questions of law to the Court. "24" 24. Denies the allegations contained in paragraph as to Con Edison, except admits that Con Edison as a public utilitypursuant to franchises duly granted to it,or acquired by it,supplies gas service to itscustomers of record within its franchise area pursuant to the Public Service Law of the State of New York, the rules, regulations, and orders of the Public Service Commission of the State of New York (the "Public Commission" Service Commission"), and the tariffs filed by Con Edison with the Public Service Commission, and refers all questions of law to the Court. "25" 25. Denies the allegations contained in paragraph as to Con Edison. a. Denies the allegations contained in paragraph "25a", except admits that Con Edison as a public utility pursuant to franchises duly granted to it,or acquired by it, supplies gas service to its customers of record within itsfranchise area pursuant to the Public Service Law of the State of New York, the rules, regulations, and orders of the Public Service Commission of the State of New York (the "Public Service Commission" Commission"), and the tariffs filed by Con Edison with the Public Service Commission, and refers all questions of law to the Court. b. Denies the allegations contained in paragraph "25b", except admits that Con Edison as a public utility pursuant to franchises duly granted to it, or acquired by it, supplies gas service to its customers of record within itsfranchise area pursuant to the 5 5 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 Public Service Law of the State of New York, the rules, regulations, and orders of the Public Service Commission of the State of New York (the "Public Service Commission" Commission"), and the tariffs filed by Con Edison with the Public Service Commission , and refers all questions of law to the Court. "25c" c. Denies the allegations contained in paragraph as to Con Edison. "26" 26. Denies the allegations contained in paragraph as to Con Edison. "27" 27. Denies the allegations contained in paragraph as to Con Edison. "28" 28. Denies the allegations contained in paragraph as to Con Edison. AS A FIRST AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 29. The Verified Complaint fails to state a cause of action against these answering defendants. AS A SECOND AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 30. To the extent that a third party or third parties caused or contributed to the cause of the incident on March 26, 2015, or that a third party or third parties engaged in conduct which may have caused or contributed to plaintiff's claimed damages, for that limited purpose, defendants assert the defense that a third party or third parties acted, or failed to act, in a manner that may constitute negligence. AS A THIRD AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 31. Defendants affirmatively plead the provisions of CPLR § 4545 insofar as applicable, to reduce any recovery plaintiff may be awarded. 6 6 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 AS A FOURTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 32. Although defendants deny allallegations of plaintiff as to the causes of the injuries and damages alleged, including, but not limited to negligence, the same, if any, were caused by the intervening acts of superseding negligence and/or criminal conduct of persons, parties, or other entities over whom defendants had no control. AS A FIFTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 33. In the event defendants are found to be liable to plaintiff, none of the exceptions of CPLR § 1602 are applicable. Therefore, the limited liability provisions of CPLR Article 16 apply. AS A SIXTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 34. Plaintiff is barred from recovery in whole or in part by the subrogor's failure to mitigate damages. 7 7 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 AS A SEVENTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 35. Any sum or consideration paid to or promised to plaintiff by any person(s) or corporation(s) claimed to be liable for the injuries or damages alleged in the Verified Complaint shall reduce judgment rendered in favor of plaintiff as against answering defendants to the extent of the greater of either the sums or consideration tortfeasers' paid or promised to plaintiff or the amount of the released equitable share(s) of the damages in accordance with General Obligations Law § 15-108. AS AN EIGHTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 36. Plaintiff's subrogation claims are subject to any and alldefenses that plaintiff could have asserted against the subrogor, including any defenses under the terms and provisions of any insurance contract or agreement between plaintiff and the subrogor, and Con Edison defendants reserves itsrights to amend this answer should defendants' any such available defenses come to knowledge during the course of this litigation. AS A NINTH AFFIRMATIVE DEFENSE TO THE CAUSES OF ACTION ALLEGED BY PLAINTIFF HEREIN, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 37. Con Edison, as a public utilitypursuant to franchises duly granted to it, or acquired by it,supplies gas service to its customers of record within itsfranchise area pursuant to the Public Service Law of the State of New York, the rules, regulations, and orders of the Public Service Commission of the State of New York (the "Public Service 8 8 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 Commission" Commission"), and the tariff filed by Con Edison with the Public Service Commission (the "Tariff"). 38. The standard terms and conditions of the Tariff, as were from time to time effective, are by the operation of law made applicable to Con Edison's supply of gas service to itscustomers of record. 39. The aforesaid Tariff duly filed with the Public Service Commission and in effect during, prior, and subsequent to the times mentioned in the Verified Complaint, contained, among other things, the rules, regulations, terms, and conditions upon which Con Edison's gas service would be supplied. 40. Among said rules, regulations, terms and conditions is the following: P.S.C. No. 9 - Gas Leaf No. 79-80: 11. - Continued Liability (B) Customer's Equipment: Neither by inspection or non-rejection, nor in any other way, does the Company give any warranty, expressed or implied, as to the adequacy, safety or other characteristics of any structures, equipment, wires, pipes, appliances or devices owned, installed or maintained by the Customer or leased by the Customer from third parties. (C) Company Equipment and Use of Service: The Company will not be liable for any injury, casualty or damage resulting in any way from the supply or use of gas or from the presence or operation of the Company's structures, equipment, wires, pipes, appliances or devices on the Customer's premises, except injuries or damages resulting from the negligence of the Company. AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT MAH REALTY LLC, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 41. That if plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if itis found that the answering defendants are liable to plaintiff herein, all of which is specifically denied, then said answering defendants 9 9 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of responsibility for the alleged occurrence, are entitled to indemnification and/or contribution from and judgment over and against the aforementioned co-defendant MAH REALTY LLC for allor part of any verdict or judgment that said plaintiff may recover against said answering defendants, and are otherwise entitled to common law indemnification from MAH REALTY LLC against all claims and/or judgments entered against the answering defendants herein. AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT KIEV REALTY LLC, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 42. That if plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if itis found that the answering defendants are liable to plaintiff herein, all of which is specifically denied, then said answering defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of responsibility for the alleged occurrence, are entitled to indemnification and/or contribution from and judgment over and against the aforementioned co-defendant KIEV REALTY LLC for allor part of any verdict or judgment that said plaintiff may recover against said answering defendants, and are otherwise entitled to common law indemnification from KIEV REALTY LLC against all claims and/or judgments entered against the answering defendants herein. 10 10 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT MARIA HRYNENKO, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 43. That if plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if itis found that the answering defendants are liable to plaintiff herein, all of which is specifically denied, then said answering defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of responsibility for the alleged occurrence, are entitled to indemnification and/or contribution from and judgment over and against the aforementioned co-defendant MARIA HRYNENKO for all or part of any verdict or judgment that said plaintiff may recover against said answering defendants, and are otherwise entitled to common law indemnification from MARIA HRYNENKO against allclaims and/or judgments entered against the answering defendants herein. AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT "MISCHOU" MICHAEL HRYNENKO JR., DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 44. That if plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if itis found that the answering defendants are liable to plaintiff herein, all of which is specifically denied, then said answering defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of responsibility for the alleged occurrence, are entitled to indemnification and/or contribution from and judgment over and against the aforementioned co-defendant "MISCHOU" MICHAEL HRYNENKO JR. for allor part of any verdict or judgment 11 11 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 that said plaintiff may recover against said answering defendants, and are otherwise "MISCHOU" entitled to common law indemnification from MICHAEL HRYNENKO JR. against all claims and/or judgments entered against the answering defendants herein. AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT NEIGHBORHOOD CONTRACTING CORP., DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 45. That if plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if itis found that the answering defendants are liable to plaintiff herein, all of which is specifically denied, then said answering defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of responsibility for the alleged occurrence, are entitled to indemnification and/or contribution from and judgment over and against the aforementioned co-defendant NEIGHBORHOOD CONTRACTING CORP. for all or part of any verdict or judgment that said plaintiff may recover against said answering defendants, and are otherwise entitled to common law indemnification from NEIGHBORHOOD CONTRACTING CORP. against all claims and/or judgments entered against the answering defendants herein. AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT BETA PLUMBING & HEATING CORP., DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 46. That if plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if itis found that the answering defendants are liable to plaintiff herein, all of which is specifically denied, then said answering defendants 12 12 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of responsibility for the alleged occurrence, are entitled to indemnification and/or contribution from and judgment over and against the aforementioned co-defendant BETA PLUMBING & HEATING CORP. for allor part of any verdict or judgment that said plaintiff may recover against said answering defendants, and are otherwise entitled to common law indemnification from BETA PLUMBING & HEATING CORP. against all claims and/or judgments entered against the answering defendants herein. AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT S.K. PIPING & HEATING CORP., DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 47. That if plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if itis found that the answering defendants are liable to plaintiff herein, all of which is specifically denied, then said answering defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of responsibility for the alleged occurrence, are entitled to indemnification and/or contribution from and judgment over and against the aforementioned co-defendant S.K. PIPING & HEATING CORP. for all or part of any verdict or judgment that said plaintiff may recover against said answering defendants, and are otherwise entitled to common law indemnification from S.K. PIPING & HEATING CORP. against all claims and/or judgments entered against the answering defendants herein. 13 13 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT DILBER KUKIC, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 48. That if plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if itis found that the answering defendants are liable to plaintiff herein, all of which is specifically denied, then said answering defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of responsibility for the alleged occurrence, are entitled to indemnification and/or contribution from and judgment over and against the aforementioned co-defendant DILBER KUKIC for all or part of any verdict or judgment that said plaintiff may recover against said answering defendants, and are otherwise entitled to common law indemnification from DILBER KUKIC against all claims and/or judgments entered against the answering defendants herein. AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT ATHANASIOS "JERRY" IOANNIDIS, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 49. That if plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if itis found that the answering defendants are liable to plaintiff herein, all of which is specifically denied, then said answering defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of responsibility for the alleged occurrence, are entitled to indemnification and/or contribution from and judgment over and against the aforementioned co-defendant "JERRY" ATHANASIOS IOANNIDIS for all or part of any verdict or judgment that 14 14 of 18 FILED: NEW YORK COUNTY CLERK 03/15/2018 12:06 PM INDEX NO. 151033/2018 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/15/2018 said plaintiff may recover against said answering defendants, and are otherwise entitled "JERRY" to common law indemnification from ATHANASIOS IOANNIDIS against all claims and/or judgments entered against the answering defendants herein. AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT ANDREW TROMBETTAS, DEFENDANTS CON EDISON AND CONSOLIDATED EDISON ENERGY INC. ALLEGE: 50. That ifplaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if itis found that the answering defendants are liable to plaintiff herein, all of which is specifically denied, then said answering defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. and CONSOLIDATED EDISON ENERGY INC., on the basis of apportionment of responsibility for the alleged occurrence, are entitled to indemnification and/or contribution from and judgment over and against the aforementioned co-defendant ANDREW TROMBETTAS. for all or part of any verdict or judgment that said plaintiff may recover against