Preview
FILED: NEW YORK COUNTY CLERK 06/24/2021 03:20 PM INDEX NO. 153982/2021
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/24/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
STEVEN JIMENEZ,
VERIFIED ANSWER
Plaintiff,
Index No. 153982/2021
-against-
MAXWELL KATES, INC., 315 SEVENTH RESIDENTIAL
L.L.C., THE 315 SEVENTH AVENUE CONDOMINIUM
and T-MOBILE USA, INC.,
Defendants.
----------------------------------------------------------------------X
Defendant T-Mobile USA, Inc., by SMITH MAZURE, P.C., upon information and
belief, answers the complaint of Plaintiff 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 complaint herein designated as: 1, 2, 3, 4, 5, 6,
7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 34, 35, 36, 37, 38, 39, 40, 41,
42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67,
68, 69, 77, 78, 82 and 90.
2. Denies each and every allegation contained in all paragraphs of the complaint
herein designated as: 26, 27, 29, 70, 71, 72, 73, 74, 75, 76, 79, 80, 81, 83, 84, 85, 86, 87, 88, 89,
91, 92 and 93.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE:
That the amount recoverable shall be diminished in the proportion which the culpable
conduct attributable to the plaintiff bears to the culpable conduct which caused the damages
including but not limited to plaintiff's contributory negligence and/or assumption of the risk.
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AS AND FOR A SECOND AFFIRMATIVE DEFENSE:
The liability of these answering defendants is limited under the terms of Article
Sixteen of the CPLR.
WHEREFORE, Defendant demands judgment dismissing the complaint of Plaintiff
together with the costs and disbursements of this action.
Dated: New York, New York
June 23, 2021
Yours, etc.,
SMITH MAZURE, P.C.
Attorneys for Defendant
T-Mobile USA, Inc.
111 John Street
New York, NY 10038
(212) 964-7400
TMO-00204
TO:
Liakas Law, P.C.
Attorney for Plaintiff
Steven Jimenez
65 Broadway, 13th Floor
New York, NY 10006
(212) 937-7765/(877) 380-9432 (F)
315 Seventh Residential L.L.C.
c/o National Registered Agents, Inc.
28 Liberty Street
New York, NY 10005
Maxwell Kates, Inc.
98 East 38th Street, Suite 6
New York, NY 10016
The 315 Seventh Avenue Condominium
315 7th Avenue
New York, NY 10001
15
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/24/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
STEVEN JIMENEZ, CROSS-CLAIM
Plaintiff, Index No. 153982/2021
-against-
MAXWELL KATES, INC., 315 SEVENTH RESIDENTIAL
L.L.C., THE 315 SEVENTH AVENUE CONDOMINIUM
and T-MOBILE USA, INC.,
Defendants.
----------------------------------------------------------------------X
Defendant T-Mobile USA, Inc., by Smith Mazure, P.C., as and for a cross-claim
against defendants 315 Seventh Residential L.L.C., Maxwell Kates, Inc. and The 315 Seventh
Avenue Condominium, alleges upon information and belief, as follows:
1. On the authority of Dole v. Dow Chemical, 30 N.Y.2d 143; Rogers v.
Dorchester, 32 N.Y.2d 553; and 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 cross-claiming defendant is liable to Plaintiff herein, then, upon said allegations of the
complaint 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 omission or commission and/or breach of contract and/or breach of warranty and/or strict
liability by the co-defendants and this cross-claiming defendant is entitled to complete
indemnification from any judgment over against co-defendants herein for all or part of any
verdict or judgment that Plaintiff may recover against said cross-claiming defendant and/or, in
the event that judgment over is not recovered on the basis of full indemnification, then this cross-
claiming defendant demands judgment over and against all the co-defendants herein on the basis
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of an apportionment of responsibility for the alleged occurrence for all or part of any judgment or
verdict that Plaintiff may recover against said cross-claiming defendant, and that all of the
provisions of limitation of liability under the Terms of Article Sixteen of the C.P.L.R. are
pleaded herein by this cross-claiming defendant, together with costs, disbursements and
reasonable attorneys’ fees.
WHEREFORE, defendant T-Mobile USA, Inc. demands judgment dismissing
the complaint of Plaintiff against it, together with the costs and disbursements incurred in the
defense of this action, and further demands that, in the event this defendant is found liable to
Plaintiff herein, then said defendant, on the basis of apportionment of responsibility, has
judgment over against the aforementioned co-defendants for all or part of the verdict or judgment
that Plaintiff may recover against this cross-claiming defendant, together with the costs and
disbursements of this action incurred by it in the prosecution of this cross-claim, including
attorneys’ fees.
Dated: New York, New York
June 23, 2021
Yours, etc.,
SMITH MAZURE, P.C.
Attorneys for Defendant
T-Mobile USA, Inc.
111 John Street
New York, NY 10038
(212) 964-7400
TMO-00204
TO:
315 Seventh Residential L.L.C.
c/o National Registered Agents, Inc.
28 Liberty Street
New York, NY 10005
4
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Maxwell Kates, Inc.
98 East 38th Street, Suite 6
New York, NY 10016
The 315 Seventh Avenue Condominium
315 7th Avenue
New York, NY 10001
Liakas Law, P.C.
Attorney for Plaintiff
Steven Jimenez
65 Broadway, 13th Floor
New York, NY 10006
(212) 937-7765/(877) 380-9432 (F)
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VERIFICATION
J. Jay Young, 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 a member of Smith Mazure, P.C., 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 Defendant, T-Mobile USA,
Inc., resides outside of the county where Smith Mazure, P.C.
maintains its office.
(X ) I make this verification because Defendant, T-Mobile USA,
Inc., is a corporation and Smith Mazure, P.C., is its attorney in
this action and my knowledge is based upon all facts and
corporation records available and in my possession.
Dated: New York, New York
June 23, 2021
J. Jay Young
TMO-00204/15
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STATE OF NEW YORK, COUNTY OF NEW YORK ss.:
AFFIDAVIT OF SERVICE
Karen H. Scallo, being duly sworn, deposes and says that deponent employed by
Smith Mazure, P.C., the attorney for Defendant T-Mobile USA, Inc., is over the age of eighteen,
is not a party to this action, and resides at Staten Island, NY.
On June 24, 2021, deponent served the within Verified Answer and Cross-Claim
upon:
ALL PARTIES AS APPEARING ON THE SUPREME COURT, STATE OF NEW YORK
ELECTRONIC FILING WEBSITE
Liakas Law, P.C.
65 Broadway, 13th Floor
New York, NY 10006
(212) 937-7765/(877) 380-9432 (F)
at the addresses designated by said attorneys for that purpose by depositing a true copy of same
enclosed in a postpaid properly addressed wrapper in - a post office - official depository under
the exclusive care and custody of the United States post office department within the State of
New York.
315 Seventh Residential L.L.C.
c/o National Registered Agents, Inc.
28 Liberty Street
New York, NY 10005
Maxwell Kates, Inc.
98 East 38th Street, Suite 6
New York, NY 10016
The 315 Seventh Avenue Condominium
315 7th Avenue
New York, NY 10001
Karen H. Scallo
Sworn to before me
June 24, 2021
TMO-00204/15
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/24/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X INDEX NO. 153982/2021
STEVEN JIMENEZ,
Plaintiff,
-against-
MAXWELL KATES, INC., 315 SEVENTH RESIDENTIAL L.L.C., THE 315 SEVENTH AVENUE
CONDOMINIUM and T-MOBILE USA, INC.,
Defendants.
----------------------------------------------------------------------X
VERIFIED ANSWER AND CROSS-CLAIM
SMITH MAZURE, P.C.
Attorneys for Defendant
T-Mobile USA, Inc.
111 John Street
New York, NY 10038
(212) 964-7400
TMO-00204
CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a
J. Jay Young hereby certifies
to the best of the undersigned’s knowledge and information and belief and after an inquiry reasonable
under the circumstances, that, pursuant to 22 N.Y.C.R.R. §130-1.1a-b, (1) the contentions contained in the annexed document are not frivolous
as defined in section 130-1.1(c) of this Subpart, and (2) where the paper is an initiating pleading, (i) the matter was not obtained through illegal
conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee
earned there from, and (ii) the matter was not obtained in violation of 22 NYCRR 1200.41-a [DR 7-111].
Dated: New York, New York J. Jay Young
June 23, 2021
JJY/khs
15
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Preview
FILED: NEW YORK COUNTY CLERK 06/24/2021 03:20 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/24/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X STEVEN JIMENEZ, VERIFIED ANSWER Plaintiff, Index No. 153982/2021 -against- MAXWELL KATES, INC., 315 SEVENTH RESIDENTIAL L.L.C., THE 315 SEVENTH AVENUE CONDOMINIUM and T-MOBILE USA, INC., Defendants. ----------------------------------------------------------------------X Defendant T-Mobile USA, Inc., by SMITH MAZURE, P.C., upon information and belief, answers the complaint of Plaintiff 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 complaint herein designated as: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 77, 78, 82 and 90. 2. Denies each and every allegation contained in all paragraphs of the complaint herein designated as: 26, 27, 29, 70, 71, 72, 73, 74, 75, 76, 79, 80, 81, 83, 84, 85, 86, 87, 88, 89, 91, 92 and 93. AS AND FOR A FIRST AFFIRMATIVE DEFENSE: That the amount recoverable shall be diminished in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the damages including but not limited to plaintiff's contributory negligence and/or assumption of the risk. 1 of 8 FILED: NEW YORK COUNTY CLERK 06/24/2021 03:20 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/24/2021 AS AND FOR A SECOND AFFIRMATIVE DEFENSE: The liability of these answering defendants is limited under the terms of Article Sixteen of the CPLR. WHEREFORE, Defendant demands judgment dismissing the complaint of Plaintiff together with the costs and disbursements of this action. Dated: New York, New York June 23, 2021 Yours, etc., SMITH MAZURE, P.C. Attorneys for Defendant T-Mobile USA, Inc. 111 John Street New York, NY 10038 (212) 964-7400 TMO-00204 TO: Liakas Law, P.C. Attorney for Plaintiff Steven Jimenez 65 Broadway, 13th Floor New York, NY 10006 (212) 937-7765/(877) 380-9432 (F) 315 Seventh Residential L.L.C. c/o National Registered Agents, Inc. 28 Liberty Street New York, NY 10005 Maxwell Kates, Inc. 98 East 38th Street, Suite 6 New York, NY 10016 The 315 Seventh Avenue Condominium 315 7th Avenue New York, NY 10001 15 2 2 of 8 FILED: NEW YORK COUNTY CLERK 06/24/2021 03:20 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/24/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X STEVEN JIMENEZ, CROSS-CLAIM Plaintiff, Index No. 153982/2021 -against- MAXWELL KATES, INC., 315 SEVENTH RESIDENTIAL L.L.C., THE 315 SEVENTH AVENUE CONDOMINIUM and T-MOBILE USA, INC., Defendants. ----------------------------------------------------------------------X Defendant T-Mobile USA, Inc., by Smith Mazure, P.C., as and for a cross-claim against defendants 315 Seventh Residential L.L.C., Maxwell Kates, Inc. and The 315 Seventh Avenue Condominium, alleges upon information and belief, as follows: 1. On the authority of Dole v. Dow Chemical, 30 N.Y.2d 143; Rogers v. Dorchester, 32 N.Y.2d 553; and 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 cross-claiming defendant is liable to Plaintiff herein, then, upon said allegations of the complaint 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 omission or commission and/or breach of contract and/or breach of warranty and/or strict liability by the co-defendants and this cross-claiming defendant is entitled to complete indemnification from any judgment over against co-defendants herein for all or part of any verdict or judgment that Plaintiff may recover against said cross-claiming defendant and/or, in the event that judgment over is not recovered on the basis of full indemnification, then this cross- claiming defendant demands judgment over and against all the co-defendants herein on the basis 3 3 of 8 FILED: NEW YORK COUNTY CLERK 06/24/2021 03:20 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/24/2021 of an apportionment of responsibility for the alleged occurrence for all or part of any judgment or verdict that Plaintiff may recover against said cross-claiming defendant, and that all of the provisions of limitation of liability under the Terms of Article Sixteen of the C.P.L.R. are pleaded herein by this cross-claiming defendant, together with costs, disbursements and reasonable attorneys’ fees. WHEREFORE, defendant T-Mobile USA, Inc. demands judgment dismissing the complaint of Plaintiff against it, together with the costs and disbursements incurred in the defense of this action, and further demands that, in the event this defendant is found liable to Plaintiff herein, then said defendant, on the basis of apportionment of responsibility, has judgment over against the aforementioned co-defendants for all or part of the verdict or judgment that Plaintiff may recover against this cross-claiming defendant, together with the costs and disbursements of this action incurred by it in the prosecution of this cross-claim, including attorneys’ fees. Dated: New York, New York June 23, 2021 Yours, etc., SMITH MAZURE, P.C. Attorneys for Defendant T-Mobile USA, Inc. 111 John Street New York, NY 10038 (212) 964-7400 TMO-00204 TO: 315 Seventh Residential L.L.C. c/o National Registered Agents, Inc. 28 Liberty Street New York, NY 10005 4 4 of 8 FILED: NEW YORK COUNTY CLERK 06/24/2021 03:20 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/24/2021 Maxwell Kates, Inc. 98 East 38th Street, Suite 6 New York, NY 10016 The 315 Seventh Avenue Condominium 315 7th Avenue New York, NY 10001 Liakas Law, P.C. Attorney for Plaintiff Steven Jimenez 65 Broadway, 13th Floor New York, NY 10006 (212) 937-7765/(877) 380-9432 (F) 5 5 of 8 FILED: NEW YORK COUNTY CLERK 06/24/2021 03:20 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/24/2021 VERIFICATION J. Jay Young, 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 a member of Smith Mazure, P.C., 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 Defendant, T-Mobile USA, Inc., resides outside of the county where Smith Mazure, P.C. maintains its office. (X ) I make this verification because Defendant, T-Mobile USA, Inc., is a corporation and Smith Mazure, P.C., is its attorney in this action and my knowledge is based upon all facts and corporation records available and in my possession. Dated: New York, New York June 23, 2021 J. Jay Young TMO-00204/15 6 of 8 FILED: NEW YORK COUNTY CLERK 06/24/2021 03:20 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/24/2021 STATE OF NEW YORK, COUNTY OF NEW YORK ss.: AFFIDAVIT OF SERVICE Karen H. Scallo, being duly sworn, deposes and says that deponent employed by Smith Mazure, P.C., the attorney for Defendant T-Mobile USA, Inc., is over the age of eighteen, is not a party to this action, and resides at Staten Island, NY. On June 24, 2021, deponent served the within Verified Answer and Cross-Claim upon: ALL PARTIES AS APPEARING ON THE SUPREME COURT, STATE OF NEW YORK ELECTRONIC FILING WEBSITE Liakas Law, P.C. 65 Broadway, 13th Floor New York, NY 10006 (212) 937-7765/(877) 380-9432 (F) at the addresses designated by said attorneys for that purpose by depositing a true copy of same enclosed in a postpaid properly addressed wrapper in - a post office - official depository under the exclusive care and custody of the United States post office department within the State of New York. 315 Seventh Residential L.L.C. c/o National Registered Agents, Inc. 28 Liberty Street New York, NY 10005 Maxwell Kates, Inc. 98 East 38th Street, Suite 6 New York, NY 10016 The 315 Seventh Avenue Condominium 315 7th Avenue New York, NY 10001 Karen H. Scallo Sworn to before me June 24, 2021 TMO-00204/15 7 of 8 FILED: NEW YORK COUNTY CLERK 06/24/2021 03:20 PM INDEX NO. 153982/2021 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 06/24/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X INDEX NO. 153982/2021 STEVEN JIMENEZ, Plaintiff, -against- MAXWELL KATES, INC., 315 SEVENTH RESIDENTIAL L.L.C., THE 315 SEVENTH AVENUE CONDOMINIUM and T-MOBILE USA, INC., Defendants. ----------------------------------------------------------------------X VERIFIED ANSWER AND CROSS-CLAIM SMITH MAZURE, P.C. Attorneys for Defendant T-Mobile USA, Inc. 111 John Street New York, NY 10038 (212) 964-7400 TMO-00204 CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. §130-1.1a J. Jay Young hereby certifies to the best of the undersigned’s knowledge and information and belief and after an inquiry reasonable under the circumstances, that, pursuant to 22 N.Y.C.R.R. §130-1.1a-b, (1) the contentions contained in the annexed document are not frivolous as defined in section 130-1.1(c) of this Subpart, and (2) where the paper is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned there from, and (ii) the matter was not obtained in violation of 22 NYCRR 1200.41-a [DR 7-111]. Dated: New York, New York J. Jay Young June 23, 2021 JJY/khs 15 8 of 8