Preview
FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020
EXHIBIT B
FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------- ---------------------x
Index No.: 521818/2018
JULIE AYALA,
VERIFIED ANSWER
Plaintiff,
TO AMENDED
- - VERIFIED COMPLAINT
against
94TH AVENUE JAMAICA, LLC,
ART1MUS CONSTRUCTION INC.,
HP JAMAICA 94TH AVENUE HOUSING
DEVELOPMENT FUND COMPANY, INC.
and 94TH AVENUE JAMAICA LI LLC,
Defendants.
________________________________------·---------x
AVENUE ARTIMUS CONSTRUCTION INC., HP
Defendants 94TH JAMAICA, LLC,
HOUSING DEVELOPMENT FUND COMPANY, INC. and 94TH
JAMAICA 94TH AVENUE
AVENUE JAMAICA LI and through their attorneys, GALLO VITUCCI KLAR LLP,
LLC, by
Complaint of state and allege upon
answering the Amended Verified Plaintiff, respectfully
infonnation and belief as follows:
knowledge or information sufficient to form a belief as to the allegations
1. Deny any
"70" "71" Complaint.
contaiñed in paragraphs and of the Amended Verified
"1", "66", "67",
2. each and allegation contained in paragraphs "4", "5", "6", "7", "8",
Deny every
"12", "13", "14", "15", "16", "17", "20", "21", "22", "23", "24", "25", "26",
"9", "10", "11",
"32", "33", "34", "35", "36", "37", "38", "39", "40", "41", "42", "43", "44",
"27", "28", "29",
"47", "48", "50", "51", "52", "53", "54", "55", "56", "57", "58", "59", "60", "61",
"45", "46",
"79" "80"
"76", "77", "78", and of the
"62", "63", "64", "65", "68", "69", "72", "73", "74", "75",
Amended Verified Complaint.
FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020
RESPONSE TO THE SECOND CAUSE OF ACTION
AS AND FOR A
ON BEHALF OF PLAINTIFF
"81" Amended Verified Defendants
3. In response to Paragraph of the Complaint,
herekbefore made with the same force and effect as
repeat and reiterate each and every denial
"1" "80"
length in answer to paragraphs through of the Amended
though the same were set forth at
Verified Complaint.
each and allegation contained in paragraphs "82", "83", "84", "85",
4. Deny every
"91" "92" Complaint.
and of the Amended Verified
"86", "87", "88", "89", "90",
AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION
ON BEHALF OF PLAINTIFF
PURSUANT TO NEW YORK STATE LABOR LAW SECTION 200
"93" Defendants
5. In response to Paragraph of the Amended Verified Complaint,
denial herebbefore made with the same force and effect as
repeat and reiterate each and every
"1" "92"
in answer to paragraphs through of the Amended
though the same were set forth at length
Verified Complaint.
"95" "96"
allegation contained in paragraphs "94", and of the
6. Deny each and every
Amended Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
sustained the Plaintiff as alleged in the Amended Verified
7. That any damages by
whole or in part the negligence and/or culpable
Complaint herein were caused in by contributory
negligence and/or culpable conduct on
conduct of Plaintiff and not as a result of any contributory
the part of the answering Defendants.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
into the in which the Plaintiff was engaged at the time of
8. That by entering activity
Amended Verified said Plaintiff knew the hazards
the occurrence set forth in the Complaint,
FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020
incideñt thereto and had full knowledge of the dangers thereof; that
thereof and the inherent risks
darnages were sustained the Plaintiff herein as alleged in the Amended
whatever injuries and by
Complaint arose fTom and were caused reason of such risks voluntarily undertaken by
Verified by
Plaintiff such risks were assumed and accepted her in performing and
the in her activities and by
engaging in said activities.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
CPLR if itbe determined or established that Plaintiff has
9. Pursuant to 4545(c),
shall receive the cost of medical care, dental care, custodial
received or with reasonable certainty
earnings or other economic loss, and that the same shall be
care or rehabilitation services, loss of
part from collateral source such as insurance (except
replaced or indemnified, in whole or in any
(except for those benefits provided under titleXVIII ofthe Social
for lifeinsurance), social security
workers' benefit programs (except such collateral
wompeention or employee
Security ACT),
against of the Plaintiff), then and in that event
source entitled by law to liens any recovery
plead in mitigation of damages the assessment of such cost or
answering Defendants hereby any
uch replacement or
minus an amount equal to the premiums paid the Plaintiff for such benefits for
indemnification, by
the accrual of this action and minus an amount equal
the two year period immediãtely preceding
fùture cost to the Plaintiff of such benefits and as otherwise provided
to the projected mir±ining
in CPLR 4545(c).
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
Defendants are entitled to limitation of liability pursuant to Article 16
10. Añswering
of the CPLR.
FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
Complaint fail to state a cause of action, cognizable in
11. The Amended Verified
against these Defendañts and must therefore be dismissed.
equity or law answering
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
Defendants cannot be prosecuted due to the
12. That the action against the answering
and likewise prosecute an indispensablc party to this litigation.
Plaintiff's failure to name
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
place trial for this action is stated for an improper county pursuant to CPLR
13. The of
505(b).
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
condition was open and obvious and therefore should have
14. Any alleged defective
been avoided by Plaintiff.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
specific provisions of the relevant statutes,rules and/or
15. The Plaintiff failed to allege
regula sufficist in sustain n claim over Section of the Labor Law of the State of New
ns 240(1)
York.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
allege specific provisions of the relevant stablteS, rules and/or
16. The Plaintiff failed to
sufficient to sustain a claim over Section of the Labor Law of the State of New
regulations 241(6)
York.
FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
specific provisions of the relevant statutes, rules and/or
17, The Plaintiff failed to allege
sustain a claim over Section 200 of the Labor Law of the State of New
regulations sufficient to
York.
Defendants 94TH AVENUE JAMAICA, LLC, ARTIMUS
WHEREFORE,
JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND
CONSTRUCTION INC., HP
AVENUE JAMAICA LI LLC demand judgment dismianing the
COMPANY, INC. and 94TH
attorneys' disbursements ofthis action.
Amended Verified together with fees, costs and
Complaint,
Dated: New York, New York
May 16, 2019
Yours etc.,
GALLO VITUCCI KLAR LLP
By: Brandon Weinstein, Esq.
Attorneys for Defendants
94TH Avenue Jamaica, LLC,
Artimus Construction Inc.,
HP Jamaica 94TH Avenue Housing Development
Fund Company, Inc,
and 94TH Avenue Jamaica LI LLC
90 Broad Street, 12th Floor
New York, New York 10004
(212) 683-7100
Fax: (212) 683-5555
File No.: PRO-2019-23
TO:
HALLOCK & MALERBA, P.C.
Attorney for Plaintiff
Julie Ayala
1955 Deer Park Avenue
Deer Park, New York 11729
(631) 482-8888
FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020
ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned affirms the statement to be true under penalties of perjury
following
pursuant to Rule 2106 of the Civil Practice Law and Rules.
associate of the fum of GALLO VITUCCI KLAR LLP, attorneys for
That he is an
94TH AVENUE LLC, ARTIMUS CONSTRUCTION INC., HP
Defendants, JAMAICA,
AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. and 94TH
JAMAICA 94TH
AVENUE JAMAICA LI LLC.
he read the answer to Ameñded Verified Complaint and knows the
That has foregoing
that the same istrue to the knowledge of the üñdersigned based upon the file
contents thereof, and,
except as to those matters therein alleged on information and belief, and
maintained by my office,
that as to those matters he believes them to be true.
That the reason thisVerificatioñ ismade the undersigned and not by the Defcñdañts
why by
that party's office is outside the in which the undernigned maintains his office.
is said county
That the source of the undersigñcd's information and the grounds of his belief as to all
therein alleged upon information and belief is reports from and communications had with
matters
said party.
Dated: New York, New York
May 16, 2019
13RANDON WEINSTEIN
FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020
SUPREME COURT OF THE STATE OF NEW YORK
INDEX NO.: 521818/2018
COUNTY OF KINGS
JULIE AYALA,
Plaintiff,
- against -
94TH AVENUE JAMAICA, LLC,
ARTIMUS CONSTRUCTION INC.,
AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC.
HP JAMAICA 94TH
and 94TH AVENUE JAMAICA LI LLC,
Defendants.
VERIFIED ANSWER TO AMENDED VERIFIED COMPLAINT
GALLO VITUCCI KLAR LLP
Attorneys for Defendants
94TH Avenue Jamaica, LLC, Artimus Coñstruction Inc.,
Avenue Development Fund Con:pa;:y, Inc.
HP Jamaica 94TH Housing
and 94TH Avenue Jamaica LI LLC
90 Broad Street, 12th Floor
New York, New York 10004
(212) 683-7100
Fax: (212) 683-5555
File No.: PRO-2019-23
Preview
FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020 EXHIBIT B FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------- ---------------------x Index No.: 521818/2018 JULIE AYALA, VERIFIED ANSWER Plaintiff, TO AMENDED - - VERIFIED COMPLAINT against 94TH AVENUE JAMAICA, LLC, ART1MUS CONSTRUCTION INC., HP JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. and 94TH AVENUE JAMAICA LI LLC, Defendants. ________________________________------·---------x AVENUE ARTIMUS CONSTRUCTION INC., HP Defendants 94TH JAMAICA, LLC, HOUSING DEVELOPMENT FUND COMPANY, INC. and 94TH JAMAICA 94TH AVENUE AVENUE JAMAICA LI and through their attorneys, GALLO VITUCCI KLAR LLP, LLC, by Complaint of state and allege upon answering the Amended Verified Plaintiff, respectfully infonnation and belief as follows: knowledge or information sufficient to form a belief as to the allegations 1. Deny any "70" "71" Complaint. contaiñed in paragraphs and of the Amended Verified "1", "66", "67", 2. each and allegation contained in paragraphs "4", "5", "6", "7", "8", Deny every "12", "13", "14", "15", "16", "17", "20", "21", "22", "23", "24", "25", "26", "9", "10", "11", "32", "33", "34", "35", "36", "37", "38", "39", "40", "41", "42", "43", "44", "27", "28", "29", "47", "48", "50", "51", "52", "53", "54", "55", "56", "57", "58", "59", "60", "61", "45", "46", "79" "80" "76", "77", "78", and of the "62", "63", "64", "65", "68", "69", "72", "73", "74", "75", Amended Verified Complaint. FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020 RESPONSE TO THE SECOND CAUSE OF ACTION AS AND FOR A ON BEHALF OF PLAINTIFF "81" Amended Verified Defendants 3. In response to Paragraph of the Complaint, herekbefore made with the same force and effect as repeat and reiterate each and every denial "1" "80" length in answer to paragraphs through of the Amended though the same were set forth at Verified Complaint. each and allegation contained in paragraphs "82", "83", "84", "85", 4. Deny every "91" "92" Complaint. and of the Amended Verified "86", "87", "88", "89", "90", AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION ON BEHALF OF PLAINTIFF PURSUANT TO NEW YORK STATE LABOR LAW SECTION 200 "93" Defendants 5. In response to Paragraph of the Amended Verified Complaint, denial herebbefore made with the same force and effect as repeat and reiterate each and every "1" "92" in answer to paragraphs through of the Amended though the same were set forth at length Verified Complaint. "95" "96" allegation contained in paragraphs "94", and of the 6. Deny each and every Amended Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE sustained the Plaintiff as alleged in the Amended Verified 7. That any damages by whole or in part the negligence and/or culpable Complaint herein were caused in by contributory negligence and/or culpable conduct on conduct of Plaintiff and not as a result of any contributory the part of the answering Defendants. AS AND FOR A SECOND AFFIRMATIVE DEFENSE into the in which the Plaintiff was engaged at the time of 8. That by entering activity Amended Verified said Plaintiff knew the hazards the occurrence set forth in the Complaint, FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020 incideñt thereto and had full knowledge of the dangers thereof; that thereof and the inherent risks darnages were sustained the Plaintiff herein as alleged in the Amended whatever injuries and by Complaint arose fTom and were caused reason of such risks voluntarily undertaken by Verified by Plaintiff such risks were assumed and accepted her in performing and the in her activities and by engaging in said activities. AS AND FOR A THIRD AFFIRMATIVE DEFENSE CPLR if itbe determined or established that Plaintiff has 9. Pursuant to 4545(c), shall receive the cost of medical care, dental care, custodial received or with reasonable certainty earnings or other economic loss, and that the same shall be care or rehabilitation services, loss of part from collateral source such as insurance (except replaced or indemnified, in whole or in any (except for those benefits provided under titleXVIII ofthe Social for lifeinsurance), social security workers' benefit programs (except such collateral wompeention or employee Security ACT), against of the Plaintiff), then and in that event source entitled by law to liens any recovery plead in mitigation of damages the assessment of such cost or answering Defendants hereby any uch replacement or minus an amount equal to the premiums paid the Plaintiff for such benefits for indemnification, by the accrual of this action and minus an amount equal the two year period immediãtely preceding fùture cost to the Plaintiff of such benefits and as otherwise provided to the projected mir±ining in CPLR 4545(c). AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Defendants are entitled to limitation of liability pursuant to Article 16 10. Añswering of the CPLR. FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE Complaint fail to state a cause of action, cognizable in 11. The Amended Verified against these Defendañts and must therefore be dismissed. equity or law answering AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Defendants cannot be prosecuted due to the 12. That the action against the answering and likewise prosecute an indispensablc party to this litigation. Plaintiff's failure to name AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE place trial for this action is stated for an improper county pursuant to CPLR 13. The of 505(b). AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE condition was open and obvious and therefore should have 14. Any alleged defective been avoided by Plaintiff. AS AND FOR A NINTH AFFIRMATIVE DEFENSE specific provisions of the relevant statutes,rules and/or 15. The Plaintiff failed to allege regula sufficist in sustain n claim over Section of the Labor Law of the State of New ns 240(1) York. AS AND FOR A TENTH AFFIRMATIVE DEFENSE allege specific provisions of the relevant stablteS, rules and/or 16. The Plaintiff failed to sufficient to sustain a claim over Section of the Labor Law of the State of New regulations 241(6) York. FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020 AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE specific provisions of the relevant statutes, rules and/or 17, The Plaintiff failed to allege sustain a claim over Section 200 of the Labor Law of the State of New regulations sufficient to York. Defendants 94TH AVENUE JAMAICA, LLC, ARTIMUS WHEREFORE, JAMAICA 94TH AVENUE HOUSING DEVELOPMENT FUND CONSTRUCTION INC., HP AVENUE JAMAICA LI LLC demand judgment dismianing the COMPANY, INC. and 94TH attorneys' disbursements ofthis action. Amended Verified together with fees, costs and Complaint, Dated: New York, New York May 16, 2019 Yours etc., GALLO VITUCCI KLAR LLP By: Brandon Weinstein, Esq. Attorneys for Defendants 94TH Avenue Jamaica, LLC, Artimus Construction Inc., HP Jamaica 94TH Avenue Housing Development Fund Company, Inc, and 94TH Avenue Jamaica LI LLC 90 Broad Street, 12th Floor New York, New York 10004 (212) 683-7100 Fax: (212) 683-5555 File No.: PRO-2019-23 TO: HALLOCK & MALERBA, P.C. Attorney for Plaintiff Julie Ayala 1955 Deer Park Avenue Deer Park, New York 11729 (631) 482-8888 FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) The undersigned affirms the statement to be true under penalties of perjury following pursuant to Rule 2106 of the Civil Practice Law and Rules. associate of the fum of GALLO VITUCCI KLAR LLP, attorneys for That he is an 94TH AVENUE LLC, ARTIMUS CONSTRUCTION INC., HP Defendants, JAMAICA, AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. and 94TH JAMAICA 94TH AVENUE JAMAICA LI LLC. he read the answer to Ameñded Verified Complaint and knows the That has foregoing that the same istrue to the knowledge of the üñdersigned based upon the file contents thereof, and, except as to those matters therein alleged on information and belief, and maintained by my office, that as to those matters he believes them to be true. That the reason thisVerificatioñ ismade the undersigned and not by the Defcñdañts why by that party's office is outside the in which the undernigned maintains his office. is said county That the source of the undersigñcd's information and the grounds of his belief as to all therein alleged upon information and belief is reports from and communications had with matters said party. Dated: New York, New York May 16, 2019 13RANDON WEINSTEIN FILED: KINGS COUNTY CLERK 10/02/2020 09:39 AM INDEX NO. 521818/2018 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 10/02/2020 SUPREME COURT OF THE STATE OF NEW YORK INDEX NO.: 521818/2018 COUNTY OF KINGS JULIE AYALA, Plaintiff, - against - 94TH AVENUE JAMAICA, LLC, ARTIMUS CONSTRUCTION INC., AVENUE HOUSING DEVELOPMENT FUND COMPANY, INC. HP JAMAICA 94TH and 94TH AVENUE JAMAICA LI LLC, Defendants. VERIFIED ANSWER TO AMENDED VERIFIED COMPLAINT GALLO VITUCCI KLAR LLP Attorneys for Defendants 94TH Avenue Jamaica, LLC, Artimus Coñstruction Inc., Avenue Development Fund Con:pa;:y, Inc. HP Jamaica 94TH Housing and 94TH Avenue Jamaica LI LLC 90 Broad Street, 12th Floor New York, New York 10004 (212) 683-7100 Fax: (212) 683-5555 File No.: PRO-2019-23