Preview
FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--- ------ ---------------X
MARIA BABAYAN, Index No.: 17132/14
Plaintiff, VERIFIED ANSWER
-against-
THE CITY OF NEW YORK, VERIZON NEW YORK
INC. and CONSOLIDATED EDISON, INC.,
Defendant(s).
--- ------------- --------------X
VERIZON NEW YORK INC., Third Party Index No.:
Third-Party Plaintiff(s),
-against-
V.N.A. UTILITY CONTRACTING CO., INC.
Third-Party Defendant(s).
-------------------------------------X
Third-party defendant, V.N.A. UTILITY CONTRACTING CO., INC., by their attorney,
the LAW OFFICES OF JAMES R. PIERET & ASSOCIATES, as and for their Answer to the
third-party plaintiff's Complaint, allege upon information and belief as follows:
ANSWERING THE FIRST CAUSE OF ACTION
1. Denies knowledge or information thereof sufficient to form a belief as to the truth
of the allegations contained in paragraphs numbered "1".
2. Denies each and every allegation of the plaintiff's complaint designated as
paragraphs numbered "3", "18", "19", "21", "23", "25", "29", and "30".
3. Denies each and every allegation of the plaintiff's complaint designated as
paragraphs numbered "4", "6", "7", "8", "9", "10", "11", "12", "13", "14", "15", "16", "17",
"22", "24", "27", "28", and refers all questions of law to the Trial Court.
FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021
4. In response to the paragraph numbered "20", the defendant repeats and reiterates
each and every denial as to each and every allegation contained within the paragraphs of the
"1" "19"
complaint numbered through inclusive, as if same were more fully set forth herein at
length.
5. In response to the paragraph numbered "26", the defendant repeats and reiterates
each and every denial as to each and every allegation contained within the paragraphs of the
"1" "25"
complaint numbered through inclusive, as ifsame were more fully set forth herein at
length.
AS AND FOR A FIRST SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE
DEFENSE, THE ANSWERING DEFENDANTS ALLEGE
3. If injuries and damages were sustained by the plaintiff at the time and place and in
the manner alleged in the Complaint, such injuries and damages are attributable in whole or in
part to the culpable conduct, contributory negligence and/or assüñ1ption of risk of the plaintiff.
4. If any damages are recovered against these answering defendants, the amount of
such damages shall be diminished in the proportion which the culpable conduct attributable to
the plaintiff bears to the total culpable conduct causing the damages.
AS AND FOR A SECOND SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE
DEFENSE, THE ANSWERING DEFENDANTS ALLEGE:
5. Upon information and belief, all of the hazards and risks incident to the
circumstances set forth in the pleading were open, obvious and apparent and were assumed by
the plaintiff.
AS AND FOR A THIRD SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE
DEFENSE, THE ANSWERING DEFENDANTS ALLEGE:
FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021
6. Defendants claim all of the benefits set forth in Section 4545 of the CPLR, for
replacement, or indemnification of costs, medical care, rehabilitation services or loss of income
from any collateral sources. Any recovery on the Complaint of the Plaintiff shall be reduced by
the amount paid or reimbursed by collateral sources in accordance with CPLR 4545(c).
AS AND FOR A FOURTH SEPARATE. COMPLETE AND DISTINCT AFFIRMATIVE
DEFENSE, THE ANSWERING DEFENDANTS ALLEGE:
7. Pursuant to CPLR Article 16, the liability of these Defendants to the Plaintiff for
non-economic loss shall not exceed the share of these Defendants determined in accordance with
the relative culpability of each person or party causing or contributing to the total liability for
non-economic loss.
AS AND FOR A FIFTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE
DEFENSE, THE ANSWERING DEFENDANTS ALLEGE:
8. The damages sustained by the plaintiff, if any, were caused in whole or in part by
the culpable conduct of third parties not under the control of this answering defendant.
AS AND FOR A SIXTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE
DEFENSE, THE ANSWERING DEFENDANTS ALLEGEl
9. Plaintiff failed to exercise ordinary and reasonable care to effect a cure and to
prevent aggravation of the alleged injury and damages, and so failed to use available means to
mitigate her alleged damages.
AS AND FOR A SEVENTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE
DEFENSE, THE ANSWERING DEFENDANTS ALLEGE:
10. That the plaintiffs are barred from maintaining this action by the doctrine of
Collateral Estoppel.
AS AND FOR AN EIGHTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE
DEFENSE, THE ANSWERING DEFENDANTS ALLEGE:
FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021
12. The liability of the defendants, if any, does not exceed fifty percent (50%) of the
liability assigned to all persons, if any.
AS AND FOR A NINTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE
DEFENSE, THE ANSWERING DEFENDANTS ALLEGE:
13. The Court should not proceed in the absence or a person who should be a party, or
in the absence of an indispensable party, and the action should be dismissed for failure to join
such party.
AS AND FOR A TENTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE
DEFENSE. THE ANSWERING DEFENDANTS ALLEGE:
14. Defendant reserves all rights pursuant to Rule 8303(a) of the CPLR.
AS AND FOR A CROSS-COMPLAINT AGAINST DEFENDANTS, THE CITY OF NEW
YORK, VERIZON NEW YORK, and CONSOLIDATED EDISON, INC.,
THE THIRD-PARTY DEFENDANT, V.N.A. UTILITY CONTRACTING CO., INC.,
ALLEGE AS FOLLOWS:
15. That if the plaintiff 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, then the said injuries and damages
arose out of the several and joint carelessness, reciclessness, 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-defendants of these pleading defendants, with
indemnification and save harmless agreement and/or responsibility by them in fact and/or
implied in law and without any breaches or any negligence of these pleading defendants
contributing thereto; and if these pleading defendants are found negligent as to the plaintiff's
complaint, then, and in that event, the relative responsibilities of all said defendants in fairness
must be apportioned a separate determination, in view of the existing factual disparity, and
by
FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021
the said co-defendants herein will be liable over jointly and severally to these pleading
defendants and bound to fully indemnify and hold these pleading defendants harmless for the full
amount of any verdict or judgment that the plaintiff herein may recover against these pleading
defendants in this action, including all costs of investigations, disbursements, expenses and
attorneys'
fees incurred in the defense of this action and in the conduct of this cross-claim.
AS AND FOR A COUNTERCLAIM AGAINST VERIZON NEW YORK INC., THIRD_-
PARTY DEFENDANT, V.N.A. UTILITY CONTRACTING CO., INC., ALLEGES:
16. That if the plaintiffs herein recover a judgment against this answering defendant,
said judgment will have been caused and brought about by the primary negligence and culpable
conduct of the said third-party plaintiff in that the plaintiffs conducted themselves in such a
manner as to cause the accident and the damages complained of and were otherwise negligent
and/or culpable in the premises and were guilty of breaches of duty and/or warranty and/or
contract, which duties were imposed by statute and/or agreement and/or implied in law, and
without any negligence or culpability or breach of any duty by this answering defendant, whose
negligence or culpability, if any, was secondary in nature, so that this answering defenclant
should have a determination of ultimate responsibility and judgment over and against the said
plaintiff, co-defendants, and third-party plaintiff for the same amount or such proportionate
amount of any said judgment and/or damages as the plaintiffs are found to have caused or be
attorneys'
responsible for, together with all costs of investigation expenses, fees, costs and
disbursements incurred in the defense of this action and in the conduct of this counterclaim.
WHEREFORE, the third party defendant, V.N.A. UTILITY CONTRACTING CO.,
INC., demands judgment dismissing the Plaintiff's and third-party Plaintiff's Complaint,
attorneys'
together with the costs, fees, expenses and disbursements of this action, including
fees.
FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021
Dated: Garden City, New York
October 30, 2015
Yours etc.,
LAW OFFICES OF JAMES R. PIERET & ASSOCIATES
By:
SCOTT L. MATHIAS, ESQ.
Attorney for Third-Party Defendant
V.N.A. UTILITY CONTRACTING CO., INC.
400 Garden City Plaza, Suite 404
Garden City, NY 11530
(516) 512-6590
File No.: 15-022675
TO: CULLEN AND DYKMAN LLP
Attorneys for Defendant
VERIZON NEW YORK INC.
44 Wall Street
New York, New York 10005
(212) 732-2000
File No. 10876-520
GOIDEL & SIEGEL, LLP
Attn: Andrew B. Siegel, Esq.
Attomeys for Plaintiff
MARIA BABAYAN
45th 3rd
56 West Street, FlOOr
New York, New York 10036
(212) 840-3737
ZACHARY W. CARTER, ESQ.
Corporation Counsel
Attorney for Defendant
THE CITY OF NEW YORK
8th
350 Jay Street, FlOOT
Brooklyn, New York 11201
(718) 222-2000
DAVID M. SANTORO, ESQ.
Attorney for Defendant
CONSOLIDATED EDISON, INC.
4 Irving Place
New York, New York 10003
FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021
ATTORNEY VERIFICATION
STATE OF NEW YORK )
)ss:
COUNTY OF NASSAU )
The undersigned, an attorney admitted to practice in the Courts of the State of New York,
states that deponent is one of the attorneys of record for defendants in the within action;
deponent has read the foregoing ANSWER TO THIRD-PARTY PLAINTIFF'S
COMPLAINT and knows the contents thereof; the same is true to deponent's own knowledge,
except as to the matters therein stated to be alleged on information and belief, and that as to those
matters deponent believes itto be true. This verification is made by deponent and not by the
third-party defendant because said third-party defendant does not have a principal place of
business within the County where deponent maintains his office. The grounds of deponent's
belief as to all matters not stated upon deponent's own knowledge are as follows: reports of
investigations, conversations with the third-party defendant, writings, memoranda and other data
in deponent's possession.
The undersigned affirms that the foregoing statements are true, under penalties of perjury.
Dated: Garden City, New York
October 30, 2015
,
SCOTT MATHIAS
Preview
FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --- ------ ---------------X MARIA BABAYAN, Index No.: 17132/14 Plaintiff, VERIFIED ANSWER -against- THE CITY OF NEW YORK, VERIZON NEW YORK INC. and CONSOLIDATED EDISON, INC., Defendant(s). --- ------------- --------------X VERIZON NEW YORK INC., Third Party Index No.: Third-Party Plaintiff(s), -against- V.N.A. UTILITY CONTRACTING CO., INC. Third-Party Defendant(s). -------------------------------------X Third-party defendant, V.N.A. UTILITY CONTRACTING CO., INC., by their attorney, the LAW OFFICES OF JAMES R. PIERET & ASSOCIATES, as and for their Answer to the third-party plaintiff's Complaint, allege upon information and belief as follows: ANSWERING THE FIRST CAUSE OF ACTION 1. Denies knowledge or information thereof sufficient to form a belief as to the truth of the allegations contained in paragraphs numbered "1". 2. Denies each and every allegation of the plaintiff's complaint designated as paragraphs numbered "3", "18", "19", "21", "23", "25", "29", and "30". 3. Denies each and every allegation of the plaintiff's complaint designated as paragraphs numbered "4", "6", "7", "8", "9", "10", "11", "12", "13", "14", "15", "16", "17", "22", "24", "27", "28", and refers all questions of law to the Trial Court. FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021 4. In response to the paragraph numbered "20", the defendant repeats and reiterates each and every denial as to each and every allegation contained within the paragraphs of the "1" "19" complaint numbered through inclusive, as if same were more fully set forth herein at length. 5. In response to the paragraph numbered "26", the defendant repeats and reiterates each and every denial as to each and every allegation contained within the paragraphs of the "1" "25" complaint numbered through inclusive, as ifsame were more fully set forth herein at length. AS AND FOR A FIRST SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE 3. If injuries and damages were sustained by the plaintiff at the time and place and in the manner alleged in the Complaint, such injuries and damages are attributable in whole or in part to the culpable conduct, contributory negligence and/or assüñ1ption of risk of the plaintiff. 4. If any damages are recovered against these answering defendants, the amount of such damages shall be diminished in the proportion which the culpable conduct attributable to the plaintiff bears to the total culpable conduct causing the damages. AS AND FOR A SECOND SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE: 5. Upon information and belief, all of the hazards and risks incident to the circumstances set forth in the pleading were open, obvious and apparent and were assumed by the plaintiff. AS AND FOR A THIRD SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE: FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021 6. Defendants claim all of the benefits set forth in Section 4545 of the CPLR, for replacement, or indemnification of costs, medical care, rehabilitation services or loss of income from any collateral sources. Any recovery on the Complaint of the Plaintiff shall be reduced by the amount paid or reimbursed by collateral sources in accordance with CPLR 4545(c). AS AND FOR A FOURTH SEPARATE. COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE: 7. Pursuant to CPLR Article 16, the liability of these Defendants to the Plaintiff for non-economic loss shall not exceed the share of these Defendants determined in accordance with the relative culpability of each person or party causing or contributing to the total liability for non-economic loss. AS AND FOR A FIFTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE: 8. The damages sustained by the plaintiff, if any, were caused in whole or in part by the culpable conduct of third parties not under the control of this answering defendant. AS AND FOR A SIXTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGEl 9. Plaintiff failed to exercise ordinary and reasonable care to effect a cure and to prevent aggravation of the alleged injury and damages, and so failed to use available means to mitigate her alleged damages. AS AND FOR A SEVENTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE: 10. That the plaintiffs are barred from maintaining this action by the doctrine of Collateral Estoppel. AS AND FOR AN EIGHTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE: FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021 12. The liability of the defendants, if any, does not exceed fifty percent (50%) of the liability assigned to all persons, if any. AS AND FOR A NINTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE: 13. The Court should not proceed in the absence or a person who should be a party, or in the absence of an indispensable party, and the action should be dismissed for failure to join such party. AS AND FOR A TENTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE. THE ANSWERING DEFENDANTS ALLEGE: 14. Defendant reserves all rights pursuant to Rule 8303(a) of the CPLR. AS AND FOR A CROSS-COMPLAINT AGAINST DEFENDANTS, THE CITY OF NEW YORK, VERIZON NEW YORK, and CONSOLIDATED EDISON, INC., THE THIRD-PARTY DEFENDANT, V.N.A. UTILITY CONTRACTING CO., INC., ALLEGE AS FOLLOWS: 15. That if the plaintiff 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, then the said injuries and damages arose out of the several and joint carelessness, reciclessness, 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-defendants of these pleading defendants, with indemnification and save harmless agreement and/or responsibility by them in fact and/or implied in law and without any breaches or any negligence of these pleading defendants contributing thereto; and if these pleading defendants are found negligent as to the plaintiff's complaint, then, and in that event, the relative responsibilities of all said defendants in fairness must be apportioned a separate determination, in view of the existing factual disparity, and by FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021 the said co-defendants herein will be liable over jointly and severally to these pleading defendants and bound to fully indemnify and hold these pleading defendants harmless for the full amount of any verdict or judgment that the plaintiff herein may recover against these pleading defendants in this action, including all costs of investigations, disbursements, expenses and attorneys' fees incurred in the defense of this action and in the conduct of this cross-claim. AS AND FOR A COUNTERCLAIM AGAINST VERIZON NEW YORK INC., THIRD_- PARTY DEFENDANT, V.N.A. UTILITY CONTRACTING CO., INC., ALLEGES: 16. That if the plaintiffs herein recover a judgment against this answering defendant, said judgment will have been caused and brought about by the primary negligence and culpable conduct of the said third-party plaintiff in that the plaintiffs conducted themselves in such a manner as to cause the accident and the damages complained of and were otherwise negligent and/or culpable in the premises and were guilty of breaches of duty and/or warranty and/or contract, which duties were imposed by statute and/or agreement and/or implied in law, and without any negligence or culpability or breach of any duty by this answering defendant, whose negligence or culpability, if any, was secondary in nature, so that this answering defenclant should have a determination of ultimate responsibility and judgment over and against the said plaintiff, co-defendants, and third-party plaintiff for the same amount or such proportionate amount of any said judgment and/or damages as the plaintiffs are found to have caused or be attorneys' responsible for, together with all costs of investigation expenses, fees, costs and disbursements incurred in the defense of this action and in the conduct of this counterclaim. WHEREFORE, the third party defendant, V.N.A. UTILITY CONTRACTING CO., INC., demands judgment dismissing the Plaintiff's and third-party Plaintiff's Complaint, attorneys' together with the costs, fees, expenses and disbursements of this action, including fees. FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021 Dated: Garden City, New York October 30, 2015 Yours etc., LAW OFFICES OF JAMES R. PIERET & ASSOCIATES By: SCOTT L. MATHIAS, ESQ. Attorney for Third-Party Defendant V.N.A. UTILITY CONTRACTING CO., INC. 400 Garden City Plaza, Suite 404 Garden City, NY 11530 (516) 512-6590 File No.: 15-022675 TO: CULLEN AND DYKMAN LLP Attorneys for Defendant VERIZON NEW YORK INC. 44 Wall Street New York, New York 10005 (212) 732-2000 File No. 10876-520 GOIDEL & SIEGEL, LLP Attn: Andrew B. Siegel, Esq. Attomeys for Plaintiff MARIA BABAYAN 45th 3rd 56 West Street, FlOOr New York, New York 10036 (212) 840-3737 ZACHARY W. CARTER, ESQ. Corporation Counsel Attorney for Defendant THE CITY OF NEW YORK 8th 350 Jay Street, FlOOT Brooklyn, New York 11201 (718) 222-2000 DAVID M. SANTORO, ESQ. Attorney for Defendant CONSOLIDATED EDISON, INC. 4 Irving Place New York, New York 10003 FILED: KINGS COUNTY CLERK 05/19/2021 07:03 PM INDEX NO. 17132/2014 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 05/19/2021 ATTORNEY VERIFICATION STATE OF NEW YORK ) )ss: COUNTY OF NASSAU ) The undersigned, an attorney admitted to practice in the Courts of the State of New York, states that deponent is one of the attorneys of record for defendants in the within action; deponent has read the foregoing ANSWER TO THIRD-PARTY PLAINTIFF'S COMPLAINT and knows the contents thereof; the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes itto be true. This verification is made by deponent and not by the third-party defendant because said third-party defendant does not have a principal place of business within the County where deponent maintains his office. The grounds of deponent's belief as to all matters not stated upon deponent's own knowledge are as follows: reports of investigations, conversations with the third-party defendant, writings, memoranda and other data in deponent's possession. The undersigned affirms that the foregoing statements are true, under penalties of perjury. Dated: Garden City, New York October 30, 2015 , SCOTT MATHIAS