Preview
FILED: NEW YORK COUNTY CLERK 11/23/2021
03/23/2022 06:55
09:42 PM
AM INDEX NO. 155183/2021
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NYSCEF DOC. NO. 48
109 RECEIVED NYSCEF: 11/23/2021
03/23/2022
CTC/jlb 07-25144 11/22/21
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------X Index No. 155183/2021
ALLSTATE INSURANCE COMPANY, as Subrogee of
ELIZABETH BURKE,
VERIFIED ANSWER TO
Plaintiff(s), THIRD PARTY COMPLAINT
& PLAINTIFF'S COMPLAINT
-against- WITH CROSS CLAIMS
NY FIRETECH INC., NY FIRE SERVICE &
INSTALLATION INC., GLOBAL LUXURY SERVICES
INC., WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW
WOK EXPRESS,
Defendant(s).
_____________________________--------- -----X
GLOBAL LUXURY SERVICES INC. ,
Third Party Plaintiff(s),
-against-
2133 3rd AVENUE CORP.,
Third Party Defendant(s),
----- ---- ------ --------X
The third party defendant, 2133 3rd AVENUE CORP., by its attorneys, MONTFORT, HEALY,
McGUIRE & SALLEY LLP, answering the third party complaint of the third party plaintiff, herein,
respectfully shows to this Court and alleges:
FIRST. Third Party defendant denies thatthey have any knowledge or information thereof sufficient
"1"
to form a belief as to the truth of each and every allegation contained in paragraph designated of the
third party complaint herein.
SECOND. Third Party defendant admits each and every allegation set forth in paragraph designated
"2"
of the third party complaint herein.
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THIRD. Third Party defendant denies that they have any knowledge or informationthereof sufficient
"3" "4"
to form a belief as to the truth of each and every allegation contained in paragraphs designated and
of the third party complaint herein, and respectfully refers allquestions of law to this Court.
ANSWERING THE ALLE GED FIRST CAUSE OF ACTION
"5"
FOURTH. Answering paragraph designated of the third party plaintiffs third party complaint,
third party defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated
"FIRST" "THIRD"
through of the third party defendant's answer.
FIFTH. Upon information and belief, third party defendant denies each and every allegation set forth
"6" "7"
in paragraphs designated and of the third party complaint herein.
ANSWERING THE ALLEGED SECOND CAUSE OF ACTION
"8"
SIXTH. Answering paragraph designated of the third party plaintiff s third party complaint, third
party defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated
"FIRST" "FIFTH"
through of the third party defendant's answer.
SEVENTH. Upon information and belief, third party defendant denies each and every allegation set
"9"
forth in paragraph designated of the third party complaint herein.
AS AND FOR A FIRST AFFIRMATIVE
DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES:
EIGHTH. Plaintiff has failed to join an indispensable party to this action.
AS AND FOR A SECOND AFFIRMATIVE
DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES:
Plaintiff'
NINTH. s damages, if any, were caused by the culpable conduct of parties other than the
answering defendant and over whom defendant has no control.
AS AND FOR A THIRD AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
TENTH. This action is dismissible in that the third party defendant does not have notice of the
alleged defective conditions prior to the happening of the accident.
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AS AND FOR A FOURTH AFFIRMATIVE
DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES :
ELEVENTH. That in entering upon the activity upon which plaintiff was engaged at thetime ofthe
occurrence, the plaintiff assumed the risk thereof.
AS AND FOR A FIFTH AFFIRMATIVE
DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES:
TWELFTH. The plaintiffs claim must fail as the answering third party defendant does not owe a
legal duty to the plaintiff.
AS AND FOR A SIXTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
THIRTEENTH. Third party defendant did not cause the claimed fire damage.
AS AND FOR A SEVENTH AFFIRMATIVE
DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES:
FOURTEENTH. Plaintiff has not been damaged to the extent alleged.
AS AND FOR A EIGHTH AFFIRMATIVE
DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES_;_
FIFTEENTH. Upon information and belief, third party defendant is not the cause of plaintiffs
alleged damages and any harm allegedly suffered by the plaintiff isthe resultofevents outside ofthe control
of third party defendant, or caused by plaintiff.
AS AND FOR A NINTH AFFIRMATIVE
DEFENSE. THE THIRD_PARTY DEFENDANT ALLEGES:
SIXTEENTH. Plaintiff lacks standing to bring the action within.
AS AND FOR A TENTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
SEVENTEENTH. A defense exists based upon documentary evidence.
AS AND FOR A ELEVENTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
EIGHTEENTH. Plaintiff's subrogor failed to undertake routine upkeep and maintenance of subject
premises at 2133 3rd Avenue, New York, New York, 10035.
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AS AND FOR A TWELFTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
NINETEENTH. The de iiings alleged in the complaint were caused in whole or in part by the
plaintiffs failure to exercise reasonable care and in failing to mitigate claimed property damage through the
exercise of reasonable care.
AS AND FOR A THIRTEENTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
TWENTIETH. Pre-existing damage to the premises caused or contributed to the alleged damaged
fire damage.
AS AND FOR A FOURTEENTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
TWENTY-FIRST. Upon information and belief, that allor apart ofplaintiffs special damages have
been paid or will be paid by collateral sources and no award should, in any event, be made for same.
AS AND FOR A FIFTEENTH AFFIRMATIVE
DEFENSE, T_HE THIRD PARTY DEFENDANT ALLEGES:
TWENTY-SECOND. These answering third party defendant did not cause any damage to the
subject premises at 2133 3rd Avenue, New York, New York, 10035.
AS AND FOR A SIXTEENTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
TWENTY-THIRD. This answering third party defendant did not cause the fire at the subject
premises on September 28, 2019, as alleged.
AS AND FOR A SEVENTEENTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
TWENTY-FOURTH. Plaintiff is not entitled to seek contractual indemnification for its own
negligent acts, or seek recovery from defendant for damages for acts or omission not arising out of or not
resulting from work performed by third party defendant, 2133 3rd AVENUE CORP.
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AS AND FOR A EIGHTEENTH AFFIRMATIVE
DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES1
TWENTY-FIFTH. Plaintiff's claim for negligent workmansMp is barred by the applicable three
year Statute of Limitations.
__ . ____...._____ - ______- . .. ___ -
The third party defendant, 2133 3rd AVENUE CORP., by its attorneys, MONTFORT, HEALY,
McGUIRE & SALLEY LLP, answering the comphint of the plaintiff, herein, respectfully shows to this
Court and alleges:
TWENTY-SIXTH. Third Party defendant denies that they have any knowledge or information
themof sufficient to form a belief as to the truth of each and every allegation contained in paragraphs
"6" "7"
designated "1", "2", "3", "4", "5", and of the complaint herein.
ANSWERING THE ALLEGED FIRST CAUSE OF ACTION
"8"
TWENTY-SEVENTH. Answering paragraph designated ofthe plaintiff s complaint, third party
defendant repeats, reiterates and realleges each and every denial set forth in paragraph designated
"TWENTY-SIXTH"
of the third party defendant's answer.
TWENTY-EIGHTH. Third Party defendant denies that they have any knowledge or information
thereof sufficient to form a belief as to the truth of each and every allegation contained in paragraphs
"12" "13"
designated "9", "10", "11", and of the complaint herein.
ANSWERING THE ALLEGED SECOND CAUSE OF ACTION
"14"
TWENTY-NINTH. Answering paragraph designated of the plaintiffs complaint, third party
defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated
"TWENTY-SIXTH" "TWENTY-EIGHTH"
through of the third party defendant's answer.
THIRTIETH. Third Party defendant denies that they have any knowledge or information thereof
sufficient to form a belief as to the truth of each and every allegation contained in paragraphs designated
"18" "19"
"15", "16", "17", and of the complaint herein.
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ANSWERING THE ALLEGED THIRD CAUSE OF ACTION
"20"
THIRTY-FIRST. Answering paragraph designated of the plaintiffs complaint, third party
defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated
"TWENTY-SIXTH" "THIRTIETH"
through of the third party defendant's answer.
THIRTY-SECOND. Third Party defendant denies that they have any knowledge or infonnation
thereof sufficient to form a belief as to the truth of each and allegation contained in paragraphsl
every
"24" "25"
designated "21", "22", "23", and of the complaint herein.
ANSWERING THE ALLEGED FOJLRTH CAUSE OF ACTION
"26"
THIRTY-THIRD. Answering paragraph designated of the plaintiffs complaint, third party
defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated
"TWENTY-SIXTH" "THIRTY-SECOND"
through ofthe third party defendant's answer.
THIRTY-FOURTH. Third Party defendant denies that they have any knowledge or information
thereof sufficient to form a belief as to the truth of each and every allegation contained in paragraphs
"31" "32"
designated "27", "28", "29", "30", and ofthe complaint herein.
ANSWERING THE ALLEGED FIFTH CAUSE OF ACTION
"33"
THIRTY-FIFTH. Answering paragraph designated of the plaintiffs complaint, third party
defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated
"TWENTY-SIXTH" "THIRTY-FOURTH"
through of the third party defendant's answer.
THIRTY-SIXTH. ThirdParty defendantdeniesthattheyhaveanyknowledgeorinformationthereof
sufficient to form a belief as to the truth of each and every allegation contained in paragraphs designated
"38" "39"
"34", "35", "36", "37", and of the complaint herein.
AS AND FOR A FIRST AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
THIRTY-SEVENTH. Plaintiff has failed to join an indispensable party to this action.
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AS AND FOR A SECOND AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
THIRTY-EIGHTH. Plaintiff's damages, ifany, were caused by the culpable condüet ofparties other
than the answering defendant and over whom defendant has no control.
AS AND FOR A THIRD AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGR
THIRTY-NINTH. This action is dismissible in that the third party defendant does not have notice
of the alleged defective conditions prior to the happening of the accident.
AS AND FOR A FOURTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES :
FORTIETH. That in entering upon the activity upon which plaintiff was cñgaged at the time of the
occurrence, the plaintiff assumed the risk thereof.
AS AND FOR A FIFTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
FORTY-FIRST. The plaintiffs claim must fail as the answering third party defendant does not owe
a legal duty to the plaintiff.
AS AND FOR A SIXTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
FORTY-FIRST. Third party defendant did not cause the claimed fire damage.
AS AND FOR A SEVENTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
FORTY-SECOND. Plaintiff has not been damaged to the extent alleged.
AS AND FOR A EIGHTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
FORTY-THIRD. Upon information and belief, third party defendant is not the cause of plaintiffs
alleged damages and any harm allegedly suffered by the plaintiff isthe result of events outside of the control
of third party defendant, or caused by plaintiff.
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AS AND FOR A NINTH AFFIRMATIVE
DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES:
F ORTY-FOURTH. Plaintiff lacks standing to bring the action within.
AS AND FOR A TENTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
FORTY-FIFTH. A defense exists based upon documentary evidence.
AS AND FOR A ELEVENTH AFFIRMATIVE
_DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES:
FORTY-SIXTH. Plaintiff's subrogor failed to undertake routine upkeep and maintenance of subject
premises at 2133 3rd Avenue, New York, New York, 10035.
AS AND FOR A TWELFTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
FORTY-SEVENTH. The damages alleged in the complaiñt were caused in whole or in part by the
plaintiff s failure to exercise reasoñãble care and in failing to mitigate claimed property damage through the
exercise of reasonable care.
AS AND FOR A THIRTEENTH AFFIRMATIVE
DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES:
FORTY-EIGHTH. Pre-existing damage to the premises caused or contributed to the alleged
damaged firedamage.
AS AND FOR A FOURTEENTH AFFIRMATIVE
DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES:
FORTY-NINTH. Upon information and belief, that all or a part of plaintiffs special damages have
been paid or will be paid by collateral sources and no award should, in any event, be made for same.
AS AND FOR A FIFTEENTH AFFIRMATIVE
DEFENS_E, THE THIRD PARTY DEFENDANT ALLEGES:
FIFTIETH. These answering third party defendant did not cause any damage to the subject premises
at 2133 3rd Avenue, New York, New York, 10035.
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AS AND FOR A SIXTEENTH AFFIRMATIVE
DEFENSE, THE THI_RD PARTY DEFENDANT ALLEGES:
FIFTY-FIRST. This answering third party defendant did not cause the fire at the subject premises
on September 28, 2019, as alleged.
AS AND FOR A SEVENTEENTH AFFIRMATIVE
DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES:
FIFTY-SECOND. Plaintiff isnot entitled to seek contractual indemnification for itsown negligent
acts, or seek recovery from defendant for damages for acts or omission not arising out of or not resulting
from work performed by third party defendant, 2133 3rd AVENUE CORP.
AS AND FOR A EIGHTEENTH AFFIRMATIVE
DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES:
FIFTY-THIRD. Plaintiff's claim for negligent worlananship is barred by the applicable three year
Statute of Limitations.
AS AND FOR A FIRST CROSS-CLAIM AGAINST THE
DEFENDANTS, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC.,
GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and
DE JIN d/b/a NEW WOK EXPRESS, THE THIRD PARTY DEFENDANT,
2133 3rd AVENUE CORP., RESPECTFULLY ALLEGES:
FIFTY-FOURTH. Upon information and belief, that if the plaintiff, ALLSTATE INSURANCE
COMPANY, as Subrogee of ELIZABETH BURKE, was caused to sustain injury and damages as alleged
in the plaintiffs complaint and third party plaintiffs third party complaint, and recover thereon, the third
party defendant, 2133 3rd AVENUE CORP., is entitled to judgment over and against the defendants, NY
FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC.,
WOK EXPRESS 2133 INC. and DE J1N d/b/a NEW WOK EXPRESS, for the full amount ofthat recovery,
or a partthereof, in accordance with the relative responsibility ofthe defendants, NY FIRETECHINC., NY
FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133
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INC. and DE J1N d/b/a NEW WOK EXPRESS, by reason of the negligence, carelessness and recldessness
of the defendants, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION 1NC., GLOBAL
LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE J1N d/b/a NEW WOK EXPRESS.
AS AND FOR A SECOND CROSS-CLAIM AGAINST THE
DEFENDANTS, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC.,
GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and
DE JIN d/b/a NEW WOK EXPRESS, THE THIRD PARTY DEFENDANT,
2133 3rd AVENUE CORP., RESPECTFULLY ALLEGES:
FIFTY-FIFTH. Upon information and belief, that ifthe plaintiff suffered any injuries or damages,
through negligence other than their own and ifthe plaintiff should thereby recover any judgment against this
third party defendant, 2133 3rd AVENUE CORP., such recovery will have been brought about and caused
by the active, affirmative and primary negligence of the defendants, NY FIRETECH INC., NY FIRE
SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC.
and DE J1N d/b/a NEW WOK EXPRESS, his/her/its agents, servants and/or employees without any active
or affirmative negligence on the part of the third party defendant, 2133 3rd AVENUE CORP., contributing
thereto, and defendants, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION1NC., GLOBAL
LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW WOK EXPRESS, will
thereby be obligated to indemnify this third party defendants, 2133 3rd AVENUE CORP., for any judgment
that may be recovered against itby reason of the occurrence mentioned and desedbed in the plaintiff s
complaint and third party plaintiff s complaint.
AS AND FOR A THIRD CROSS-CLAIM AGAINST THE
DEFENDANTS, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC.,
GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and
DE JIN d/b/a NEW WOK EXPRESS, THE THIRD PARTY DEFENDANT,
2133 3rd AVENUE CORP., RESPECTFULLY ALLE GES:
FIFTY-SIXTH. That the defendants, NY FIRETECH INC., NY FIRE SERVICE &
INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE J1N
d/b/a NEW WOK EXPRESS, are liable to 2133 3rd AVENUE CORP. by virtue of NY FIRETECH 1NC.,
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NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS
2133 INC. and DE JIN d/b/a NEW WOK EXPRESS's breach of contract in failing, among other things, to
procure general liability insurance naming third party defendant, 2133 3rd AVENUE CORP., as an
additional insured herein.
AS AND FOR A FOURTH CROSS-CLAIM AGAINST THE
DEFENDANTS, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC.,
GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and
DE JIN d/b/a NEW WOK EXPRESS, THE THIRD PARTY DEFENDANT,
2133 3rd AVENUE CORP., RESPECTFULLY ALLEGES:
FIFTY-SEVENTH. That the third party defendant, 2133 3rd AVENUE CORP., is entitled to seek
full indemnification from the defendant, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION
INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JlN d/b/a NEW WOK
EXPRESS.
FIFTY-EIGHTH. That the defendants, NY FIRETECH INC., NY FIRE SERVICE &
INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE J1N
d/b/aNEW WOK EXPRESS, shall be contractually obligated to defend and indemnify third party defendant,
2133 3rd AVENUE CORP., for any recovery had herein to the full extent from the defendants, NY
FIRETECHINC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC.,
WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW WOK EXPRESS, including attorneys fees, cost and
disbursements.
WHEREFORE, thethirdparty defendant, 2133 3rd AVENUE CORP., demandsjudgment dismissing
thethird party plaintiffs third party complaint and plaintiff s complaint herein, with costs and disburserñênts;
and further demands judgment over and against the defendant, NY FIRETECH INC., NY FIRE SERVICE
& INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JIN
d/b/a NEW WOK EXPRESS, for all or part of any recovery by plaintiff in accordance with the relative
responsibility of the defendant, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC.,
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GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 1NC. and DE JIN d/b/a NEW WOK
EXPRESS, with costs and disbursemeñts, plus all attorneys fees and other costs herein.
Dated: Garden City, New York
November 22, 2021
Yours, etc.,
MONTFORT, HEALY, McGUIRE & SALLEY LLP
BY:
CHRISTOPH T. CAFARO
Attorneys for Third Party Defendant(s), 2133 3rd AVENUE
CORP.
840 Franklin Avenue
P.O. Box 7677
Garden City, New York 11530-7677
(516) 747-4082
TO: LAW OFFICE OF JAMES J. TOOMEY
Attorney(s) for Defendant/Third Party Plaintiff(s)
GLOBAL LUXURY SERVICES INC.
P.O. Box 2903
Hartford, CT 06104-2903
(917)778-6600
ToomLawl@Travelers.com
NICOLINI, PARADISE, FERRETTI & SABELLA
Attorney(s) for Plaintiff(s)
114 Old Road - Suite 500
Preview
FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 CTC/jlb 07-25144 11/22/21 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------X Index No. 155183/2021 ALLSTATE INSURANCE COMPANY, as Subrogee of ELIZABETH BURKE, VERIFIED ANSWER TO Plaintiff(s), THIRD PARTY COMPLAINT & PLAINTIFF'S COMPLAINT -against- WITH CROSS CLAIMS NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW WOK EXPRESS, Defendant(s). _____________________________--------- -----X GLOBAL LUXURY SERVICES INC. , Third Party Plaintiff(s), -against- 2133 3rd AVENUE CORP., Third Party Defendant(s), ----- ---- ------ --------X The third party defendant, 2133 3rd AVENUE CORP., by its attorneys, MONTFORT, HEALY, McGUIRE & SALLEY LLP, answering the third party complaint of the third party plaintiff, herein, respectfully shows to this Court and alleges: FIRST. Third Party defendant denies thatthey have any knowledge or information thereof sufficient "1" to form a belief as to the truth of each and every allegation contained in paragraph designated of the third party complaint herein. SECOND. Third Party defendant admits each and every allegation set forth in paragraph designated "2" of the third party complaint herein. 1 of 32 FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 THIRD. Third Party defendant denies that they have any knowledge or informationthereof sufficient "3" "4" to form a belief as to the truth of each and every allegation contained in paragraphs designated and of the third party complaint herein, and respectfully refers allquestions of law to this Court. ANSWERING THE ALLE GED FIRST CAUSE OF ACTION "5" FOURTH. Answering paragraph designated of the third party plaintiffs third party complaint, third party defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated "FIRST" "THIRD" through of the third party defendant's answer. FIFTH. Upon information and belief, third party defendant denies each and every allegation set forth "6" "7" in paragraphs designated and of the third party complaint herein. ANSWERING THE ALLEGED SECOND CAUSE OF ACTION "8" SIXTH. Answering paragraph designated of the third party plaintiff s third party complaint, third party defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated "FIRST" "FIFTH" through of the third party defendant's answer. SEVENTH. Upon information and belief, third party defendant denies each and every allegation set "9" forth in paragraph designated of the third party complaint herein. AS AND FOR A FIRST AFFIRMATIVE DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES: EIGHTH. Plaintiff has failed to join an indispensable party to this action. AS AND FOR A SECOND AFFIRMATIVE DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES: Plaintiff' NINTH. s damages, if any, were caused by the culpable conduct of parties other than the answering defendant and over whom defendant has no control. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: TENTH. This action is dismissible in that the third party defendant does not have notice of the alleged defective conditions prior to the happening of the accident. 2 of 32 FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES : ELEVENTH. That in entering upon the activity upon which plaintiff was engaged at thetime ofthe occurrence, the plaintiff assumed the risk thereof. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES: TWELFTH. The plaintiffs claim must fail as the answering third party defendant does not owe a legal duty to the plaintiff. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: THIRTEENTH. Third party defendant did not cause the claimed fire damage. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES: FOURTEENTH. Plaintiff has not been damaged to the extent alleged. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES_;_ FIFTEENTH. Upon information and belief, third party defendant is not the cause of plaintiffs alleged damages and any harm allegedly suffered by the plaintiff isthe resultofevents outside ofthe control of third party defendant, or caused by plaintiff. AS AND FOR A NINTH AFFIRMATIVE DEFENSE. THE THIRD_PARTY DEFENDANT ALLEGES: SIXTEENTH. Plaintiff lacks standing to bring the action within. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: SEVENTEENTH. A defense exists based upon documentary evidence. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: EIGHTEENTH. Plaintiff's subrogor failed to undertake routine upkeep and maintenance of subject premises at 2133 3rd Avenue, New York, New York, 10035. 3 of 32 FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: NINETEENTH. The de iiings alleged in the complaint were caused in whole or in part by the plaintiffs failure to exercise reasonable care and in failing to mitigate claimed property damage through the exercise of reasonable care. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: TWENTIETH. Pre-existing damage to the premises caused or contributed to the alleged damaged fire damage. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: TWENTY-FIRST. Upon information and belief, that allor apart ofplaintiffs special damages have been paid or will be paid by collateral sources and no award should, in any event, be made for same. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE, T_HE THIRD PARTY DEFENDANT ALLEGES: TWENTY-SECOND. These answering third party defendant did not cause any damage to the subject premises at 2133 3rd Avenue, New York, New York, 10035. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: TWENTY-THIRD. This answering third party defendant did not cause the fire at the subject premises on September 28, 2019, as alleged. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: TWENTY-FOURTH. Plaintiff is not entitled to seek contractual indemnification for its own negligent acts, or seek recovery from defendant for damages for acts or omission not arising out of or not resulting from work performed by third party defendant, 2133 3rd AVENUE CORP. 4 of 32 FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES1 TWENTY-FIFTH. Plaintiff's claim for negligent workmansMp is barred by the applicable three year Statute of Limitations. __ . ____...._____ - ______- . .. ___ - The third party defendant, 2133 3rd AVENUE CORP., by its attorneys, MONTFORT, HEALY, McGUIRE & SALLEY LLP, answering the comphint of the plaintiff, herein, respectfully shows to this Court and alleges: TWENTY-SIXTH. Third Party defendant denies that they have any knowledge or information themof sufficient to form a belief as to the truth of each and every allegation contained in paragraphs "6" "7" designated "1", "2", "3", "4", "5", and of the complaint herein. ANSWERING THE ALLEGED FIRST CAUSE OF ACTION "8" TWENTY-SEVENTH. Answering paragraph designated ofthe plaintiff s complaint, third party defendant repeats, reiterates and realleges each and every denial set forth in paragraph designated "TWENTY-SIXTH" of the third party defendant's answer. TWENTY-EIGHTH. Third Party defendant denies that they have any knowledge or information thereof sufficient to form a belief as to the truth of each and every allegation contained in paragraphs "12" "13" designated "9", "10", "11", and of the complaint herein. ANSWERING THE ALLEGED SECOND CAUSE OF ACTION "14" TWENTY-NINTH. Answering paragraph designated of the plaintiffs complaint, third party defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated "TWENTY-SIXTH" "TWENTY-EIGHTH" through of the third party defendant's answer. THIRTIETH. Third Party defendant denies that they have any knowledge or information thereof sufficient to form a belief as to the truth of each and every allegation contained in paragraphs designated "18" "19" "15", "16", "17", and of the complaint herein. 5 of 32 FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 ANSWERING THE ALLEGED THIRD CAUSE OF ACTION "20" THIRTY-FIRST. Answering paragraph designated of the plaintiffs complaint, third party defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated "TWENTY-SIXTH" "THIRTIETH" through of the third party defendant's answer. THIRTY-SECOND. Third Party defendant denies that they have any knowledge or infonnation thereof sufficient to form a belief as to the truth of each and allegation contained in paragraphsl every "24" "25" designated "21", "22", "23", and of the complaint herein. ANSWERING THE ALLEGED FOJLRTH CAUSE OF ACTION "26" THIRTY-THIRD. Answering paragraph designated of the plaintiffs complaint, third party defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated "TWENTY-SIXTH" "THIRTY-SECOND" through ofthe third party defendant's answer. THIRTY-FOURTH. Third Party defendant denies that they have any knowledge or information thereof sufficient to form a belief as to the truth of each and every allegation contained in paragraphs "31" "32" designated "27", "28", "29", "30", and ofthe complaint herein. ANSWERING THE ALLEGED FIFTH CAUSE OF ACTION "33" THIRTY-FIFTH. Answering paragraph designated of the plaintiffs complaint, third party defendant repeats, reiterates and realleges each and every denial set forth in paragraphs designated "TWENTY-SIXTH" "THIRTY-FOURTH" through of the third party defendant's answer. THIRTY-SIXTH. ThirdParty defendantdeniesthattheyhaveanyknowledgeorinformationthereof sufficient to form a belief as to the truth of each and every allegation contained in paragraphs designated "38" "39" "34", "35", "36", "37", and of the complaint herein. AS AND FOR A FIRST AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: THIRTY-SEVENTH. Plaintiff has failed to join an indispensable party to this action. 6 of 32 FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 AS AND FOR A SECOND AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: THIRTY-EIGHTH. Plaintiff's damages, ifany, were caused by the culpable condüet ofparties other than the answering defendant and over whom defendant has no control. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGR THIRTY-NINTH. This action is dismissible in that the third party defendant does not have notice of the alleged defective conditions prior to the happening of the accident. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES : FORTIETH. That in entering upon the activity upon which plaintiff was cñgaged at the time of the occurrence, the plaintiff assumed the risk thereof. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: FORTY-FIRST. The plaintiffs claim must fail as the answering third party defendant does not owe a legal duty to the plaintiff. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: FORTY-FIRST. Third party defendant did not cause the claimed fire damage. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: FORTY-SECOND. Plaintiff has not been damaged to the extent alleged. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: FORTY-THIRD. Upon information and belief, third party defendant is not the cause of plaintiffs alleged damages and any harm allegedly suffered by the plaintiff isthe result of events outside of the control of third party defendant, or caused by plaintiff. 7 of 32 FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 AS AND FOR A NINTH AFFIRMATIVE DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES: F ORTY-FOURTH. Plaintiff lacks standing to bring the action within. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: FORTY-FIFTH. A defense exists based upon documentary evidence. AS AND FOR A ELEVENTH AFFIRMATIVE _DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES: FORTY-SIXTH. Plaintiff's subrogor failed to undertake routine upkeep and maintenance of subject premises at 2133 3rd Avenue, New York, New York, 10035. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: FORTY-SEVENTH. The damages alleged in the complaiñt were caused in whole or in part by the plaintiff s failure to exercise reasoñãble care and in failing to mitigate claimed property damage through the exercise of reasonable care. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, THE THIRD PARTY DEFENDANT ALLEGES: FORTY-EIGHTH. Pre-existing damage to the premises caused or contributed to the alleged damaged firedamage. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES: FORTY-NINTH. Upon information and belief, that all or a part of plaintiffs special damages have been paid or will be paid by collateral sources and no award should, in any event, be made for same. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENS_E, THE THIRD PARTY DEFENDANT ALLEGES: FIFTIETH. These answering third party defendant did not cause any damage to the subject premises at 2133 3rd Avenue, New York, New York, 10035. 8 of 32 FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE, THE THI_RD PARTY DEFENDANT ALLEGES: FIFTY-FIRST. This answering third party defendant did not cause the fire at the subject premises on September 28, 2019, as alleged. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES: FIFTY-SECOND. Plaintiff isnot entitled to seek contractual indemnification for itsown negligent acts, or seek recovery from defendant for damages for acts or omission not arising out of or not resulting from work performed by third party defendant, 2133 3rd AVENUE CORP. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE. THE THIRD PARTY DEFENDANT ALLEGES: FIFTY-THIRD. Plaintiff's claim for negligent worlananship is barred by the applicable three year Statute of Limitations. AS AND FOR A FIRST CROSS-CLAIM AGAINST THE DEFENDANTS, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW WOK EXPRESS, THE THIRD PARTY DEFENDANT, 2133 3rd AVENUE CORP., RESPECTFULLY ALLEGES: FIFTY-FOURTH. Upon information and belief, that if the plaintiff, ALLSTATE INSURANCE COMPANY, as Subrogee of ELIZABETH BURKE, was caused to sustain injury and damages as alleged in the plaintiffs complaint and third party plaintiffs third party complaint, and recover thereon, the third party defendant, 2133 3rd AVENUE CORP., is entitled to judgment over and against the defendants, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE J1N d/b/a NEW WOK EXPRESS, for the full amount ofthat recovery, or a partthereof, in accordance with the relative responsibility ofthe defendants, NY FIRETECHINC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 9 of 32 FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 INC. and DE J1N d/b/a NEW WOK EXPRESS, by reason of the negligence, carelessness and recldessness of the defendants, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION 1NC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE J1N d/b/a NEW WOK EXPRESS. AS AND FOR A SECOND CROSS-CLAIM AGAINST THE DEFENDANTS, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW WOK EXPRESS, THE THIRD PARTY DEFENDANT, 2133 3rd AVENUE CORP., RESPECTFULLY ALLEGES: FIFTY-FIFTH. Upon information and belief, that ifthe plaintiff suffered any injuries or damages, through negligence other than their own and ifthe plaintiff should thereby recover any judgment against this third party defendant, 2133 3rd AVENUE CORP., such recovery will have been brought about and caused by the active, affirmative and primary negligence of the defendants, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE J1N d/b/a NEW WOK EXPRESS, his/her/its agents, servants and/or employees without any active or affirmative negligence on the part of the third party defendant, 2133 3rd AVENUE CORP., contributing thereto, and defendants, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION1NC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW WOK EXPRESS, will thereby be obligated to indemnify this third party defendants, 2133 3rd AVENUE CORP., for any judgment that may be recovered against itby reason of the occurrence mentioned and desedbed in the plaintiff s complaint and third party plaintiff s complaint. AS AND FOR A THIRD CROSS-CLAIM AGAINST THE DEFENDANTS, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW WOK EXPRESS, THE THIRD PARTY DEFENDANT, 2133 3rd AVENUE CORP., RESPECTFULLY ALLE GES: FIFTY-SIXTH. That the defendants, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE J1N d/b/a NEW WOK EXPRESS, are liable to 2133 3rd AVENUE CORP. by virtue of NY FIRETECH 1NC., 10 of 32 FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW WOK EXPRESS's breach of contract in failing, among other things, to procure general liability insurance naming third party defendant, 2133 3rd AVENUE CORP., as an additional insured herein. AS AND FOR A FOURTH CROSS-CLAIM AGAINST THE DEFENDANTS, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW WOK EXPRESS, THE THIRD PARTY DEFENDANT, 2133 3rd AVENUE CORP., RESPECTFULLY ALLEGES: FIFTY-SEVENTH. That the third party defendant, 2133 3rd AVENUE CORP., is entitled to seek full indemnification from the defendant, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JlN d/b/a NEW WOK EXPRESS. FIFTY-EIGHTH. That the defendants, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE J1N d/b/aNEW WOK EXPRESS, shall be contractually obligated to defend and indemnify third party defendant, 2133 3rd AVENUE CORP., for any recovery had herein to the full extent from the defendants, NY FIRETECHINC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW WOK EXPRESS, including attorneys fees, cost and disbursements. WHEREFORE, thethirdparty defendant, 2133 3rd AVENUE CORP., demandsjudgment dismissing thethird party plaintiffs third party complaint and plaintiff s complaint herein, with costs and disburserñênts; and further demands judgment over and against the defendant, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 INC. and DE JIN d/b/a NEW WOK EXPRESS, for all or part of any recovery by plaintiff in accordance with the relative responsibility of the defendant, NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC., 11 of 32 FILED: NEW YORK COUNTY CLERK 11/23/2021 03/23/2022 06:55 09:42 PM AM INDEX NO. 155183/2021 151657/2020 NYSCEF DOC. NO. 48 109 RECEIVED NYSCEF: 11/23/2021 03/23/2022 GLOBAL LUXURY SERVICES INC., WOK EXPRESS 2133 1NC. and DE JIN d/b/a NEW WOK EXPRESS, with costs and disbursemeñts, plus all attorneys fees and other costs herein. Dated: Garden City, New York November 22, 2021 Yours, etc., MONTFORT, HEALY, McGUIRE & SALLEY LLP BY: CHRISTOPH T. CAFARO Attorneys for Third Party Defendant(s), 2133 3rd AVENUE CORP. 840 Franklin Avenue P.O. Box 7677 Garden City, New York 11530-7677 (516) 747-4082 TO: LAW OFFICE OF JAMES J. TOOMEY Attorney(s) for Defendant/Third Party Plaintiff(s) GLOBAL LUXURY SERVICES INC. P.O. Box 2903 Hartford, CT 06104-2903 (917)778-6600 ToomLawl@Travelers.com NICOLINI, PARADISE, FERRETTI & SABELLA Attorney(s) for Plaintiff(s) 114 Old Road - Suite 500