Preview
FILED: NEW YORK INDEX NO. 154952/2017
1COUNTY CLERK 04/27/2018 03:35 PM
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------X
WILLIAM CASTILLO, JR. and JULISSA
CASTILLO,
VERIFIED ANSWER TO
Plaintiffs, THIRD-PARTY COMPLAINT
WITH COUNTERCLAIM
-against-
Index No, 154952/2017
99 CHURCH INVESTORS LLC, TISHMAN IAS Part
CONSTRUCTION CORPORATION and TISHMAN
CONSTRUCTION CORPORATION OF NEW YORK,
Defendants.
--------------------------------------X
99 CHURCH INVESTORS LLC, TISHMAN
CONSTRUCTION CORPORATION and TISHMAN
CONSTRUCTION CORPORATION OF NEW YORK,
Third-Party Plaintiffs,
-against-
PORT MORRIS TILE & MARBLE CORP.,
Third-Party Defendant.
--------------------------------------X
Third-Party Defendant PORT MORRIS TILE & MARBLE CORP., by its
attorneys, PILLINGER MILLER TARALLO, LLP, upon information and
belief, answers the third-party Complaint of third-party plaintiffs
as follows:
1. Denies any knowledge or information sufficient to form a
belief as to the truth of the allegations contained in the
paragraphs of the third-party Complaint herein designated as:
"5" "10"
"1"; "4"; "5"; "6"; "8"; "9"; and refers to the terms and
conditions of any such contract and/or agreement as they speak
"28"
for themselves; "11"; "13"; "24"; and refers to the terms
and conditions of any such contract
contract. and/or agreement as they
they
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speak for themselves.
2. Denies each and every allegations contained in the paragraphs
of the third-party Complaint herein designated as: "12"; "14";
16Ir «19' "25"
"15"; "16"; "17"; "19"; "20"; "21"; "22"; and refers to
the terms and conditions of any such contract and/or agreement
as they speak for themselves; "26"; "29"; "30"; "31".
3. Admits the truth of the allegations contained in the
plaintiffs'
paragraphs of third-party Complaint herein
designed as: "2"; "3".
4. Repeats, reiterates and re-alleges each and every response
heretofore made herein as and for its answer to the
allegations contained in paragraphs of the third-party
«71I II «23u
Complaint; "7"; "18"; "23"; "27".
PLEASE TAKE NOTICE that affirmative defenses are set forth as
follows:
AS AND FOR A FIRST AFFIRMATIVE DEFENSE:
5. That the amount recoverable shall be diminished in the
proportion which the culpable conduct attributable to
plaintiff bears to the culpable conduct which caused the
damage, including plaintiff's contributory negligence and/or
assumption of the risk.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE:
6. That there is no personal jurisdiction over this answering
third-party defendant as service of process has not been
personally made within the state of New York nor pursuant to
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statutory authority.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE:
7. That the within Complaint fails to state a claim and/or cause
of action upon which relief can be granted.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:
8. That the liability of this answering third-party defendant is
limited under the terms of Article Sixteen of the C.P.L.R.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:
9. That the instrumentality which allegedly injured plaintiff was
not being used for its normal purpose and/or was being
misused.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:
10. That plaintiff, through the exercise of reasonable care, could
have discovered the alleged defect, apprehended the danger and
avoided the injury.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE:
11. That plaintiff voluntarily engaged in a dangerous activity
and in doing so, assumed the risks attendant thereto and those
risks were open, obvious and known.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE:
12. That the negligence, fault and culpable conduct of plaintiff
parties over whom third-
herein and/or third this answering
party defendant had no control or right of control, caused the
incident in which plaintiff was injured and/or injuries
resulting therefrom.
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AS AND FOR A NINTH AFFIRMATIVE DEFENSE:
13. That plaintiff failed and refused to use available tools,
instruments and/or safety devices and was therefore a
recalcitrant worker.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE:
14. That plaintiff's action is barred by the Worker's Compensation
Law in that plaintiff's sole remedy is Worker's Compensation.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE:
15. That the injuries, losses, damages and occurrences alleged in
the Complaint were the result of an independent and
or causes over which this third-
intervening cause answering
party defendant had no control or right of control and in no
way participated.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE:
16. That the instrumentality which allegedly injured plaintiff had
been altered or modified by parties other than this answering
third-party defendant.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE:
17. That the injuries, losses or damages alleged in the Complaint
were caused and/or contributed to by the contributory fault,
lack of care, breach of contract, breach of warranty, gross
negligence, culpable conduct and negligence of plaintiff
and/or other individuals or entities for whose conduct this
answering third-party defendant is not responsible.
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AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE:
18. That although this answering third-party defendant
specifically denies liability for the occurrence and damages
complained of, if this answering third-party defendant is
found liable for such occurrence and damages, this answering
defendants'
third-party share of liability is fifty percent
(50%) or less of the total liability assigned to all persons
or entities liable and, pursuant to Section 1601 of the Civil
Practice Law and the of this third-
Rules, liability answering
party defendant to plaintiff for the non-economic loss shall
not exceed this answering third-party defendant's equitable
share determined in accordance with the relative culpability
of each person causing or contributing to the total liability
for non-economic loss.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE:
19. That, upon information and belief, future costs and/or
expenses incurred, or to be incurred by plaintiff for medical
care, dental care, custodial care or rehabilitative services,
loss of earnings and/or other economic loss, has been, or with
reasonable certainty will be, replaced or indemnified in whole
or in part from a collateral source as defined in Section
4545(c) of the New York Civil Practice Law and Rules.
20. If damages are recoverable against this third-
any answering
party defendant, the amount of such damages shall be
diminished by the amount of funds which plaintiff has or shall
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receive from such collateral source.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE:
21. That the within Complaint fails to state a claim or cause of
action pursuant to Section 241 of the Labor Law in that
plaintiff failed to plead and/or allege violations of specific
and applicable Sections of the New York State Industrial Code
and therefore the within Complaint must be dismissed.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE:
22. That plaintiff is not within the class of persons to be
protected under the Labor Law of the State of New York, Rule
23 of the Industrial Code of the State of New York and/or the
rules and regulations of OSHA and therefore the within
Complaint must be dismissed.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE:
23. That any judgment entered in favor of plaintiff should be
reduced pursuant to GOL 15-108 by the amount of any
settlement, release, covenant not to sue or covenant not to
enforce a judgment or the amount of consideration paid by any
person or entity liable to plaintiff for the injuries alleged
in the Complaint.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE:
24. That the sole proximate cause of plaintiff's injuries was
plaintiff's own negligence and/or culpable conduct.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE:
25. That plaintiff failed and/or refused to take reasonable steps
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to avoid, minimize and/or mitigate his injuries and/or
damages.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE:
26. To the extent that plaintiff failed to obtain coverage
available to him as an individual or as a family member, which
he is eligible to obtain, then plaintiff has failed to
mitigate his damages and cannot recover for such failure.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE:
27. To the extent that plaintiff failed to take reasonable steps
to protect himself from medical costs, healthcare or life care
costs or to avail himself of the resources, service benefits
and coverage available to him under the Affordable Care Act,
then plaintiff failed to mitigate his damages and cannot
recover for such failure.
AS AND FOR A COUNTERCLAIM AGAINST THIRD-PARTY
PLAINTIFFS 99 CHURCH INVESTORS LLC, TISHMAN
CONSTRUCTION CORPORATION and TISHMAN
CONSTRUCTION CORPORATION OF NEW YORK,
ANSWERING THIRD-PARTY DEFENDANT PORT MORRIS
TILE & MARBLE CORP. ALLEGES UPON INFORMATION
AND BELIEF:
28. That, upon information and belief (on the authority of Dole v.
Dow Chemi cal, 30 N.Y.2d 143; Rogers v. Dorchester, 32 N.Y.2d
553; Kelly v. Diesel Construction, 35 N.Y.2d 1), if plaintiff
sustained the injuries and damages in the manner and at the
time and place alleged, and if it is found that this answering
third-party defendant is liable to plaintiff herein, then upon
said allegations of the Complaint and/or third-party Complaint
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and upon the pleadings and evidence, said damages were
sustained by reason of the sole, active, and primary
carelessness and/or recklessness and/or negligence and/or
affirmative acts of omissions or commission and/or gross
negligence and/or in causing or creating the conditions
complained of and/or breach of contract, breach of lease,
breach of agreement and/or breach of warranty and/or strict
liability and/or violation of codes, statutes, rules and/or
regulations by third-party plaintiffs 99 CHURCH INVESTORS LLC,
TISHMAN CONSTRUCTION CORPORATION and TISHMAN CONSTRUCTION
CORPORATION OF NEW YORK, and this answering third-party
defendant is entitled to complete indemnification, both
contractual and common law, and/or to be defended and held
harmless from any judgment over against third-party plaintiffs
herein, for all or part of any verdict or judgment that
plaintiff may recover against said answering third-party
defendant, and/or in the event that judgment over is not
recovered on the basis of full indemnification, both
contractual and common law, then this answering third-party
defendant demands judgment over and against third-party
plaintiffs herein on the basis of an apportionment of
responsibility for the alleged occurrence for all or part of
any judgment or verdict that plaintiff may recover against
said answering third-party defendant, and that all of the
provisions of limitation of liability under the Terms of
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Article Fourteen and Article Sixteen of the C.P.L.R. are
pleaded herein by this cross-claiming third-party defendant,
attorneys'
together with costs, disbursements and reasonable
fees.
PLEASE TAKE NOTICE that this answering third-party defendant
hereby demands that third-party plaintiffs serve an answer to this
counterclaim.
WHEREFORE, third-party defendant PORT MORRIS TILE & MARBLE
CORP. demands judgment against plaintiff andthird-partyplaintiffs
dismissing the Complaint and third-party Complaint together with
costs and disbursements and further demands judgment over and
against third-party plaintiffs on the counterclaim for the amount
of any judgment or verdict which may be obtained herein by
plaintiff against this answering third-party defendant, together
with costs and disbursements of this action, plus any and all
attorneys'
fees, costs of investigation and disbursements.
Dated: Westchester, New York
April 19, 2018
Yours, etc. ,
PILLINGER MILLER TARALLO, LLP
Attorneys for Third-Party Defendant
Port Morris Tile & Marble Corp.
5th
555 Taxter Road, F1OOr
Elmsford, New York 10523
(914) 703-6300
Our File No. PORT-00101/JTM
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TO:
GINARTE GALLARDO GONZALEZ WINOGRAD, LLP
Attorney for Plaintiffs
William Castillo, Jr. and Julissa Castillo
132
225 Broadway, Floor
New York, New York 10007-3772
(212) 601-9700
WOOD SMITH HENNING & BERMAN LLP
Attorney for Defendants/Third Party Plaintiffs
99 Church Investors LLC, Tishman Construction Corporation and
Tishman Construction Corporation of New York
183
685 Third Avenue, Floor
New York, New York 10017
(212) 999-7107
File: 05488-0662
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VERIFICATION
JEFFREY T. MILLER , an attorney duly admitted to practice law
in the State of New York, hereby affirms the truth of the following
under penalty of perjury and pursuant to CPLR 2106:
I am member of Pillinger Miller Tarallo, LLP, and I have read
the contents of the foregoing answer and it is true of my own
knowledge, except as to the matters therein stated to be alleged on
information and belief and that as to those matters I believe them
to be true.
( ) I make this verification because third-party
defendant, PORT MORRIS TILE & MARBLE CORP., resides
outside of the county where Pillinger Miller
Tarallo, LLP maintains its office.
( ) I make this verification because third-party
defendant, PORT MORRIS TILE & MARBLE CORP., is a
corporation and Pillinger Miller Tarallo, LLP, is
its attorney in this action and my knowledge is
based upon all facts and corporation records
available and in my possession.
Dated: Syracuse, New York
April 19, 2018
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STATE OF NEW YORK, I COUNTY OF ONONDAGA ss.:~
AFFIDAVIT OF SERVICE BY MAIL
KATHLEEN HANNON, being duly sworn, deposes and says that
deponent is employed by Pillinger Miller Tarallo, LLP, the attorney
for third-party defendant Port Morris Tile & Marble Corp., is over
the age of eighteen, is not a party to this action, and resides at
Employee with.
On April ~
36, , 2018, deponent served the within VERIFIED
ANSWER TO THIRD-PARTY COMPLAINT WITH COUNTERCLAIM upon:
GINARTE GALLARDO GONZALEZ WINOGRAD, LLP
Attorney for Plaintiffs
William Castillo, Jr. and Julissa Castillo
13th
225 Broadway, F1OOr
New York, New York 10007-3772
(212) 601-9700
WOOD SMITH HENNING & BERMAN LLP
Attorney for Defendants/Third Party Plaintiffs
99 Church Investors LLC, Tishman Construction Corporation and
Tishman Construction Corporation of New York
th
685 Third Avenue, 18 Floor
New York, New York 10017
(212) 999-7107
File: 05488-0662
the addresses designated by said attorneys for that purpose by
depositing a true copy of same enclosed in a postpaid properly
wrapper - office - official under
addressed in a post depository
the exclusive care and custody of the United States post office
department within the State of New York.
KATHLEEN HANNON
Sworn to before me
April ~, , 2018.
Debra L . CastigUone
State ofQ'
Notary Publ!c, NY
01CA4CC3725
Q ualifiedinRichmond County
Commission Expires 02/28/
26
2@tet
tt'-t
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INDEX NO. 154952/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
WILLIAM CASTILLO, JR. and JULISSA CASTILLO,
Plaintiff,
-against-
99 CHURCH INVESTORS LLC, TISHMAN CONSTRUCTION CORPORATION and TISHMAN CONSTRUCTION
CORPORATION OF NEW YORK,
Defendants.
VERIFIED ANSWER TO THIRD-PARTY COMPLAINT WITH COUNTERCLAIM
PILLINGER MILLER TARALLO, LLP
Attorneys forThird-Party Defendant
PortMorris Tile& Marble Corp.
55
555 Taxter Road, Floor
Elmsford, New York 13202
(914) 703-6300
PORT-00101/JTM
CERTIFICATION PURSUANT TO 2 'N.Y.C.R.R. §130-1.1a
JEFFREY T. MILLER hereby certifiesthat,pursuant to 2 N.Y.C.R.R. §130-1.1a, he foregoing VERIFIED
'
ANSWER TO THIRD-PARTY COMPLAINT WITH COUNTERCLAI is of ivolous nor o usly pres ted.
Dated: New York, New York JEF RE . ILL
April19, 2018
PLEASE TAKE NOTICE
D that thewithinisa true copy of a entered inthe office of theclerkof thewithin named Court on
D that a of which the within isa true copy willbe presented forsettlement to theHon. one of the
judges of thewithinnamed Court at , onat 9:30 a.m.
PILLINGER MILLER TARALLO, LLP
Attorneys for Third-Party Defendant
Port Morris Tile& Marble Corp.
555 Taxter Road, 5thFloor
Elmsford, New York 13202
(315) 471-6166
Our File No. PORT-00101/JTM
JTM/pat
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Preview
FILED: NEW YORK INDEX NO. 154952/2017 1COUNTY CLERK 04/27/2018 03:35 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------X WILLIAM CASTILLO, JR. and JULISSA CASTILLO, VERIFIED ANSWER TO Plaintiffs, THIRD-PARTY COMPLAINT WITH COUNTERCLAIM -against- Index No, 154952/2017 99 CHURCH INVESTORS LLC, TISHMAN IAS Part CONSTRUCTION CORPORATION and TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, Defendants. --------------------------------------X 99 CHURCH INVESTORS LLC, TISHMAN CONSTRUCTION CORPORATION and TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, Third-Party Plaintiffs, -against- PORT MORRIS TILE & MARBLE CORP., Third-Party Defendant. --------------------------------------X Third-Party Defendant PORT MORRIS TILE & MARBLE CORP., by its attorneys, PILLINGER MILLER TARALLO, LLP, upon information and belief, answers the third-party Complaint of third-party plaintiffs as follows: 1. Denies any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs of the third-party Complaint herein designated as: "5" "10" "1"; "4"; "5"; "6"; "8"; "9"; and refers to the terms and conditions of any such contract and/or agreement as they speak "28" for themselves; "11"; "13"; "24"; and refers to the terms and conditions of any such contract contract. and/or agreement as they they 1 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 speak for themselves. 2. Denies each and every allegations contained in the paragraphs of the third-party Complaint herein designated as: "12"; "14"; 16Ir «19' "25" "15"; "16"; "17"; "19"; "20"; "21"; "22"; and refers to the terms and conditions of any such contract and/or agreement as they speak for themselves; "26"; "29"; "30"; "31". 3. Admits the truth of the allegations contained in the plaintiffs' paragraphs of third-party Complaint herein designed as: "2"; "3". 4. Repeats, reiterates and re-alleges each and every response heretofore made herein as and for its answer to the allegations contained in paragraphs of the third-party «71I II «23u Complaint; "7"; "18"; "23"; "27". PLEASE TAKE NOTICE that affirmative defenses are set forth as follows: AS AND FOR A FIRST AFFIRMATIVE DEFENSE: 5. That the amount recoverable shall be diminished in the proportion which the culpable conduct attributable to plaintiff bears to the culpable conduct which caused the damage, including plaintiff's contributory negligence and/or assumption of the risk. AS AND FOR A SECOND AFFIRMATIVE DEFENSE: 6. That there is no personal jurisdiction over this answering third-party defendant as service of process has not been personally made within the state of New York nor pursuant to 2 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 statutory authority. AS AND FOR A THIRD AFFIRMATIVE DEFENSE: 7. That the within Complaint fails to state a claim and/or cause of action upon which relief can be granted. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: 8. That the liability of this answering third-party defendant is limited under the terms of Article Sixteen of the C.P.L.R. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: 9. That the instrumentality which allegedly injured plaintiff was not being used for its normal purpose and/or was being misused. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE: 10. That plaintiff, through the exercise of reasonable care, could have discovered the alleged defect, apprehended the danger and avoided the injury. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE: 11. That plaintiff voluntarily engaged in a dangerous activity and in doing so, assumed the risks attendant thereto and those risks were open, obvious and known. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE: 12. That the negligence, fault and culpable conduct of plaintiff parties over whom third- herein and/or third this answering party defendant had no control or right of control, caused the incident in which plaintiff was injured and/or injuries resulting therefrom. 3 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 AS AND FOR A NINTH AFFIRMATIVE DEFENSE: 13. That plaintiff failed and refused to use available tools, instruments and/or safety devices and was therefore a recalcitrant worker. AS AND FOR A TENTH AFFIRMATIVE DEFENSE: 14. That plaintiff's action is barred by the Worker's Compensation Law in that plaintiff's sole remedy is Worker's Compensation. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE: 15. That the injuries, losses, damages and occurrences alleged in the Complaint were the result of an independent and or causes over which this third- intervening cause answering party defendant had no control or right of control and in no way participated. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE: 16. That the instrumentality which allegedly injured plaintiff had been altered or modified by parties other than this answering third-party defendant. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE: 17. That the injuries, losses or damages alleged in the Complaint were caused and/or contributed to by the contributory fault, lack of care, breach of contract, breach of warranty, gross negligence, culpable conduct and negligence of plaintiff and/or other individuals or entities for whose conduct this answering third-party defendant is not responsible. 4 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE: 18. That although this answering third-party defendant specifically denies liability for the occurrence and damages complained of, if this answering third-party defendant is found liable for such occurrence and damages, this answering defendants' third-party share of liability is fifty percent (50%) or less of the total liability assigned to all persons or entities liable and, pursuant to Section 1601 of the Civil Practice Law and the of this third- Rules, liability answering party defendant to plaintiff for the non-economic loss shall not exceed this answering third-party defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE: 19. That, upon information and belief, future costs and/or expenses incurred, or to be incurred by plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings and/or other economic loss, has been, or with reasonable certainty will be, replaced or indemnified in whole or in part from a collateral source as defined in Section 4545(c) of the New York Civil Practice Law and Rules. 20. If damages are recoverable against this third- any answering party defendant, the amount of such damages shall be diminished by the amount of funds which plaintiff has or shall 5 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 receive from such collateral source. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE: 21. That the within Complaint fails to state a claim or cause of action pursuant to Section 241 of the Labor Law in that plaintiff failed to plead and/or allege violations of specific and applicable Sections of the New York State Industrial Code and therefore the within Complaint must be dismissed. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE: 22. That plaintiff is not within the class of persons to be protected under the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New York and/or the rules and regulations of OSHA and therefore the within Complaint must be dismissed. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE: 23. That any judgment entered in favor of plaintiff should be reduced pursuant to GOL 15-108 by the amount of any settlement, release, covenant not to sue or covenant not to enforce a judgment or the amount of consideration paid by any person or entity liable to plaintiff for the injuries alleged in the Complaint. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE: 24. That the sole proximate cause of plaintiff's injuries was plaintiff's own negligence and/or culpable conduct. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE: 25. That plaintiff failed and/or refused to take reasonable steps 6 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 to avoid, minimize and/or mitigate his injuries and/or damages. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE: 26. To the extent that plaintiff failed to obtain coverage available to him as an individual or as a family member, which he is eligible to obtain, then plaintiff has failed to mitigate his damages and cannot recover for such failure. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE: 27. To the extent that plaintiff failed to take reasonable steps to protect himself from medical costs, healthcare or life care costs or to avail himself of the resources, service benefits and coverage available to him under the Affordable Care Act, then plaintiff failed to mitigate his damages and cannot recover for such failure. AS AND FOR A COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFFS 99 CHURCH INVESTORS LLC, TISHMAN CONSTRUCTION CORPORATION and TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, ANSWERING THIRD-PARTY DEFENDANT PORT MORRIS TILE & MARBLE CORP. ALLEGES UPON INFORMATION AND BELIEF: 28. That, upon information and belief (on the authority of Dole v. Dow Chemi cal, 30 N.Y.2d 143; Rogers v. Dorchester, 32 N.Y.2d 553; Kelly v. Diesel Construction, 35 N.Y.2d 1), if plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if it is found that this answering third-party defendant is liable to plaintiff herein, then upon said allegations of the Complaint and/or third-party Complaint 7 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 and upon the pleadings and evidence, said damages were sustained by reason of the sole, active, and primary carelessness and/or recklessness and/or negligence and/or affirmative acts of omissions or commission and/or gross negligence and/or in causing or creating the conditions complained of and/or breach of contract, breach of lease, breach of agreement and/or breach of warranty and/or strict liability and/or violation of codes, statutes, rules and/or regulations by third-party plaintiffs 99 CHURCH INVESTORS LLC, TISHMAN CONSTRUCTION CORPORATION and TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, and this answering third-party defendant is entitled to complete indemnification, both contractual and common law, and/or to be defended and held harmless from any judgment over against third-party plaintiffs herein, for all or part of any verdict or judgment that plaintiff may recover against said answering third-party defendant, and/or in the event that judgment over is not recovered on the basis of full indemnification, both contractual and common law, then this answering third-party defendant demands judgment over and against third-party plaintiffs herein on the basis of an apportionment of responsibility for the alleged occurrence for all or part of any judgment or verdict that plaintiff may recover against said answering third-party defendant, and that all of the provisions of limitation of liability under the Terms of 8 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 Article Fourteen and Article Sixteen of the C.P.L.R. are pleaded herein by this cross-claiming third-party defendant, attorneys' together with costs, disbursements and reasonable fees. PLEASE TAKE NOTICE that this answering third-party defendant hereby demands that third-party plaintiffs serve an answer to this counterclaim. WHEREFORE, third-party defendant PORT MORRIS TILE & MARBLE CORP. demands judgment against plaintiff andthird-partyplaintiffs dismissing the Complaint and third-party Complaint together with costs and disbursements and further demands judgment over and against third-party plaintiffs on the counterclaim for the amount of any judgment or verdict which may be obtained herein by plaintiff against this answering third-party defendant, together with costs and disbursements of this action, plus any and all attorneys' fees, costs of investigation and disbursements. Dated: Westchester, New York April 19, 2018 Yours, etc. , PILLINGER MILLER TARALLO, LLP Attorneys for Third-Party Defendant Port Morris Tile & Marble Corp. 5th 555 Taxter Road, F1OOr Elmsford, New York 10523 (914) 703-6300 Our File No. PORT-00101/JTM 9 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 TO: GINARTE GALLARDO GONZALEZ WINOGRAD, LLP Attorney for Plaintiffs William Castillo, Jr. and Julissa Castillo 132 225 Broadway, Floor New York, New York 10007-3772 (212) 601-9700 WOOD SMITH HENNING & BERMAN LLP Attorney for Defendants/Third Party Plaintiffs 99 Church Investors LLC, Tishman Construction Corporation and Tishman Construction Corporation of New York 183 685 Third Avenue, Floor New York, New York 10017 (212) 999-7107 File: 05488-0662 10 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 VERIFICATION JEFFREY T. MILLER , an attorney duly admitted to practice law in the State of New York, hereby affirms the truth of the following under penalty of perjury and pursuant to CPLR 2106: I am member of Pillinger Miller Tarallo, LLP, and I have read the contents of the foregoing answer and it is true of my own knowledge, except as to the matters therein stated to be alleged on information and belief and that as to those matters I believe them to be true. ( ) I make this verification because third-party defendant, PORT MORRIS TILE & MARBLE CORP., resides outside of the county where Pillinger Miller Tarallo, LLP maintains its office. ( ) I make this verification because third-party defendant, PORT MORRIS TILE & MARBLE CORP., is a corporation and Pillinger Miller Tarallo, LLP, is its attorney in this action and my knowledge is based upon all facts and corporation records available and in my possession. Dated: Syracuse, New York April 19, 2018 11 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 STATE OF NEW YORK, I COUNTY OF ONONDAGA ss.:~ AFFIDAVIT OF SERVICE BY MAIL KATHLEEN HANNON, being duly sworn, deposes and says that deponent is employed by Pillinger Miller Tarallo, LLP, the attorney for third-party defendant Port Morris Tile & Marble Corp., is over the age of eighteen, is not a party to this action, and resides at Employee with. On April ~ 36, , 2018, deponent served the within VERIFIED ANSWER TO THIRD-PARTY COMPLAINT WITH COUNTERCLAIM upon: GINARTE GALLARDO GONZALEZ WINOGRAD, LLP Attorney for Plaintiffs William Castillo, Jr. and Julissa Castillo 13th 225 Broadway, F1OOr New York, New York 10007-3772 (212) 601-9700 WOOD SMITH HENNING & BERMAN LLP Attorney for Defendants/Third Party Plaintiffs 99 Church Investors LLC, Tishman Construction Corporation and Tishman Construction Corporation of New York th 685 Third Avenue, 18 Floor New York, New York 10017 (212) 999-7107 File: 05488-0662 the addresses designated by said attorneys for that purpose by depositing a true copy of same enclosed in a postpaid properly wrapper - office - official under addressed in a post depository the exclusive care and custody of the United States post office department within the State of New York. KATHLEEN HANNON Sworn to before me April ~, , 2018. Debra L . CastigUone State ofQ' Notary Publ!c, NY 01CA4CC3725 Q ualifiedinRichmond County Commission Expires 02/28/ 26 2@tet tt'-t 12 of 13 FILED: NEW YORK COUNTY CLERK 04/27/2018 03:35 PM INDEX NO. 154952/2017 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 04/27/2018 INDEX NO. 154952/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK WILLIAM CASTILLO, JR. and JULISSA CASTILLO, Plaintiff, -against- 99 CHURCH INVESTORS LLC, TISHMAN CONSTRUCTION CORPORATION and TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, Defendants. VERIFIED ANSWER TO THIRD-PARTY COMPLAINT WITH COUNTERCLAIM PILLINGER MILLER TARALLO, LLP Attorneys forThird-Party Defendant PortMorris Tile& Marble Corp. 55 555 Taxter Road, Floor Elmsford, New York 13202 (914) 703-6300 PORT-00101/JTM CERTIFICATION PURSUANT TO 2 'N.Y.C.R.R. §130-1.1a JEFFREY T. MILLER hereby certifiesthat,pursuant to 2 N.Y.C.R.R. §130-1.1a, he foregoing VERIFIED ' ANSWER TO THIRD-PARTY COMPLAINT WITH COUNTERCLAI is of ivolous nor o usly pres ted. Dated: New York, New York JEF RE . ILL April19, 2018 PLEASE TAKE NOTICE D that thewithinisa true copy of a entered inthe office of theclerkof thewithin named Court on D that a of which the within isa true copy willbe presented forsettlement to theHon. one of the judges of thewithinnamed Court at , onat 9:30 a.m. PILLINGER MILLER TARALLO, LLP Attorneys for Third-Party Defendant Port Morris Tile& Marble Corp. 555 Taxter Road, 5thFloor Elmsford, New York 13202 (315) 471-6166 Our File No. PORT-00101/JTM JTM/pat 13 of 13