Preview
FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
-----------------------------------------------------------------------------X
CAROL JONES, Index No: EF008288-2021
Plaintiff VERIFIED ANSWER
WITH CROSS-CLAIMS
-against-
WAL-MART STORES EAST, LP, MIDDLETOWN
RESOURSE I, and BROSNAN SECURITY, INC.,
Defendants
----------------------------------------------------------------------------X
The defendant BROSNAN SECURITY, INC. by its attorneys, MORRIS DUFFY
ALONSO FALEY & PITCOFF, upon information and belief, answers the plaintiff’s Complaint
herein as follows:
1. Denies any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraphs or subdivisions of the Complaint designated “1”, “2”,
“3”, “4”, “5”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”,
“21”, “22”, “26”, “29” and “33”.
2. Admits each and every allegation contained in the paragraphs or subdivisions of
the Complaint designated “23” and “25”.
3. Denies each and every allegation contained in the paragraphs or subdivisions of the
Complaint designated “24”, “27”, “28”, “30”, “31”, “32”, “34” and “35”.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
4. Any damages which may have been sustained by the plaintiff were contributed to
in whole or in part by the culpable conduct of the plaintiff, pursuant to Section 14-A, CPLR.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
5. Any damages which may have been sustained by the plaintiff were contributed to
in whole or in part by the culpable conduct of third parties not under the control of answering
defendant.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
6. Pursuant to CPLR 4545(c), if it be determined or established that plaintiff has
received or with reasonable certainty shall receive the cost of medical care, dental care, custodial
care or rehabilitation services, loss of earnings or other economic loss, and that the same shall be
1 of 8
FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022
replaced or indemnified, in whole or in part from any collateral source such as insurance (except
for life insurance), social security (except for those benefits provided under title XVIII of the Social
Security Act), workers' compensation or employee benefit programs (except such collateral source
entitled by law to liens against any recovery of the plaintiff), then and in that event answering
defendants hereby plead in mitigation of damages the assessment of any such cost or expense as a
collateral source in reduction of the amount of the award by such replacement or indemnification,
minus an amount equal to the premiums paid by the plaintiff for such benefits for the two year
period immediately preceding the accrual of this action and minus an amount equal to the projected
future cost to the plaintiff of maintaining such benefits and as otherwise provided in CPLR 4545(c).
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
7. The plaintiff failed to mitigate her damages.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
8. Answering defendant is entitled to limitation of liability pursuant to Article 16 of
the CPLR.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
9. Any alleged defective condition was open and obvious and therefore should have
been avoided by plaintiff.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
10. Any alleged defective condition was a “trivial defect” for which plaintiff may not
recover.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
11. Answering defendant did not own, lease or control the area where the occurrence
took place, and therefore, cannot be found negligent.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
12. The defendant is not liable to the plaintiff as the plaintiff’s actions were the sole
proximate cause of the alleged occurrence.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
13. The answering defendant did not have actual or constructive notice of the alleged
condition.
2 of 8
FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
14. That the occurrence alleged was spontaneous, nonavoidable and could not have
been prevented by the defendant.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
15. If plaintiff is entitled to recover damages for loss of earnings or impairment of
earning ability as against defendant by reason of the matters alleged in the Complaint, liability for
which is hereby denied, then pursuant to CPLR 4546 the amount of damages recoverable against
answering defendant, if any, shall be reduced by the amount of federal, state and local income
taxes which the plaintiff would be obligated by law to pay.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FIRST CROSS CLAIM AGAINST
CO-DEFENDANTS, ANSWERING DEFENDANT
ALLEGES:
16. If plaintiff was caused to sustain injuries and damages at the time and place set forth
in plaintiff's Complaint through any carelessness, recklessness and negligence other than plaintiff's
own, those damages arose in whole or in part from the acts of co-defendants, and if any judgment
is recovered herein by plaintiff against answering defendant, then this defendant will be damaged
thereby and will be entitled to apportionment or indemnification, in whole or in part, on the basis
of proportionate responsibility or obligation to indemnify of co-defendants.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A SECOND CROSS CLAIM AGAINST
CO-DEFENDANTS, ANSWERING DEFENDANT
ALLEGES:
17. If the plaintiff was caused to sustain injuries and damages at the time and in the
manner set forth in her Complaint through any carelessness, recklessness or negligence other than
that of plaintiff's own, which is expressly denied, such injuries and damages will have been caused,
brought about and sustained solely by reason of the active, primary and affirmative negligence,
carelessness and wrongdoing of the co-defendants, by their agents, servants and/or employees,
without any negligence on the part of the answering defendant contributing thereto, or if there be
any negligence on the part of the answering defendant, the same was merely passive and secondary
in nature.
That by reason of the foregoing, if the plaintiff recovers any judgment against the
answering defendant, then this defendant is entitled to be fully indemnified by the co-defendants
in a like amount, together with the costs, disbursements, expenses and attorneys' fees of the defense
of this action by reason of the active and primary negligence of the co-defendants.
3 of 8
FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A THIRD CROSS CLAIM AGAINST
CO-DEFENDANTS, ANSWERING DEFENDANT
ALLEGES:
18. If plaintiff sustained damages as alleged in the Complaint through any fault other
than the plaintiff's own fault, then such damages were sustained due to the sole fault of the co-
defendants, and if plaintiff should obtain and/or recover judgment against the answering defendant,
then the co-defendants shall be liable pursuant to common law for the full indemnification of the
answering defendant.
In view of the foregoing, the answering defendant is entitled to complete common law
indemnification for all loss, damage, cost or expense, including, without limitation, judgments,
attorneys' fees, Court costs and the cost of appellate proceedings from the co-defendants.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FOURTH CROSS CLAIM AGAINST
CO-DEFENDANTS, ANSWERING DEFENDANT
ALLEGES:
19. That pursuant to the contracts and/or agreements, upon information and belief, the
co-defendants undertook certain duties and obligations.
20. If the plaintiff sustained injuries and damages as alleged in the Complaint, they
were sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms
and conditions emanating therefrom, including warranties contained therein and/or implied
therefrom by operation of law or otherwise.
21. If the plaintiff was caused to sustain the injuries as set forth in plaintiff's Complaint,
through any carelessness, recklessness and/or negligence or other culpable conduct other than that
of the plaintiff, said injuries and damages were caused by breach of and/or in furtherance of and
as a result of the activities pursuant to the aforesaid contracts and/or agreements and/or the terms
and conditions emanating therefrom, including breach of warranties, stated and/or implied, by
operation of law or otherwise, by the co-defendants, their agents, servants and/or employees and
if any judgment is recovered herein against the answering defendant, they will be damaged thereby
and the co-defendants are or will be primarily responsible therefore and the answering defendant
will be entitled to contribution and/or indemnification, in whole or in part, from the culpable parties
named in this claim over for their portion of plaintiff's damages which were caused by the culpable
parties named in this claim over, together with all attorneys' fees, costs and disbursements.
4 of 8
FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FIFTH CROSS CLAIM AGAINST
CO-DEFENDANTS, ANSWERING DEFENDANT
ALLEGES:
22. That pursuant to contracts and/or agreements heretofore alleged, the co-defendants
undertook certain duties and obligations in connection with this lawsuit.
23. That the said co-defendants undertook and agreed to hold harmless, indemnify and
defend the answering defendant in connection with injuries and accidents arising out of or in the
course of its work pursuant to its aforesaid agreement.
24. That if the plaintiff sustained injuries and damages as alleged in the Complaint they
were sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms
and conditions emanating therefrom, including warranties contained therein and/or implied
therefrom by operation of law, or otherwise.
25. That by virtue of the foregoing the said co-defendants are obligated to indemnify
the answering defendant in the event of any liability against the answering defendant in favor of
the plaintiff in this matter.
26. That by virtue of the foregoing the co-defendants are obligated to defend and to
undertake the defense of the answering defendant.
27. That if the plaintiff was caused to sustain any injuries as set forth in the Complaint
due to any carelessness, recklessness and/or negligence other than plaintiff’s own, including any
culpable conduct on plaintiff’s part, said injuries and damages were caused by breach of and/or in
furtherance of and as a result of the activities undertaken by the said co-defendants pursuant to the
aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom
including breach of warranties, stated and/or implied by operation of law or otherwise by the said
co-defendants, their agents, servants and/or employees.
28. That the co-defendants will be primarily responsible for the injuries and damages
allegedly sustained by the plaintiff herein.
29. That by reason of the foregoing the co-defendants will be liable to this defendant
in the event and in the full amount of any recovery herein by the plaintiff against the answering
defendant and it is bound to pay any and all attorney's fees, disbursements, costs of investigation
and costs of defense of this action.
30. That by reason of the foregoing, the answering defendant is entitled to judgment
over and against the co-defendants for the full amount of any recovery herein by the plaintiff
against the answering defendant for the injuries and damages sustained by the plaintiff.
5 of 8
FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A SIXTH CROSS CLAIM AGAINST
CO-DEFENDANTS, ANSWERING DEFENDANT
ALLEGES:
31. Pursuant to the terms and conditions of the agreement heretofore alleged between
the answering defendant and co-defendants, they agreed to obtain and maintain certain insurance
coverage which would ensure their contractual indemnification and hold harmless provisions and
which would ensure the answering defendant against any and all liability or damages established
by the plaintiff and to further name the answering defendant as an additional insured under the
aforesaid insurance agreement and coverage obtained by it.
32. If plaintiff was caused to sustain injuries and damages and if plaintiff establishes
liability against the answering defendant, and if recovery is had against the answering defendant
by the plaintiff such shall come within the provisions of the aforesaid hold harmless
indemnification and insurance coverage agreements referred to above.
33. That if indeed the co-defendants are in breach of the aforesaid agreement and/or
agreements regarding the obtaining of the aforesaid insurance coverages and ifindeed the said
defendants failed to comply therewith, the pleading defendant will have been damaged thereby.
34. That if the co-defendants are in breach of the aforesaid agreement and has failed to
obtain such insurance coverage as undertaken by it, then co-defendants is/are obligated to
reimburse the pleading defendant in the full amount of attorneys' fees expended by it or on its
behalf in defense of the action instituted against it by the plaintiff as well as to indemnify them in
the full amount of any recovery by the plaintiff in this action against the pleading defendant,
together with attorneys' fees, costs and disbursements.
WHEREFORE, answering defendant demands judgment dismissing the Complaint with
costs and further demands that the ultimate rights of the answering defendant and co-defendants,
as between themselves, be determined in this action, and that answering defendants have judgment
over and against co-defendants for all or a part of any verdict or judgment which may be obtained
by the plaintiff against answering defendant, together with the costs, interest and disbursements of
this action.
Dated: New York, New York
July 21, 2022
Yours etc.,
MORRIS DUFFY ALONSO FALEY & PITCOFF
Robert Whitbeck
By: ___________________________
ROBERT WHITBECK
Attorneys for Defendant
6 of 8
FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022
BROSNAN SECURITY, INC.
Office and Post Office Address
101 Greenwich Street, 22nd Floor
New York, New York 10006
T: (212) 766-1888
F: (212) 766-3252
Our File No.: (PIC) 74159
TO:
SOBO & SOBO, LLP
Attorneys for Plaintiff
One Dolson Avenue
Middletown, NY 10940
845.343.0466
BRODY O'CONNOR & O'CONNOR
Attorneys for Defendants
WAL-MART STORES EAST, LP
and MIDDLETOWN I RESOURCE, LP
7 Bayview Avenue
Northport, NY 11768
(631) 261-7778
7 of 8
FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022
ATTORNEY VERIFICATION
ROBERT WHITBECK, an attorney admitted to practice in the courts of New York State.
That I am a partner of the firm of MORRIS DUFFY ALONSO FALEY & PITCOFF, the
attorneys of record for defendant BROSNAN SECURITY, INC. I have read the foregoing
ANSWER and know the contents thereof; the same is true to my own knowledge, except as to the
matters therein alleged to be on information and belief, and as to those matters I believe it to be
true. The reason this verification is made by me and not by the defendant is that the defendant
does not maintain an office within New York County.
The grounds of my belief as to all matters not stated upon my own knowledge are based
on a review of the contents of the file maintained by this office.
Dated: New York, New York
July 21, 2022
Robert Whitbeck
_____________________________
ROBERT WHITBECK
8 of 8
Preview
FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE -----------------------------------------------------------------------------X CAROL JONES, Index No: EF008288-2021 Plaintiff VERIFIED ANSWER WITH CROSS-CLAIMS -against- WAL-MART STORES EAST, LP, MIDDLETOWN RESOURSE I, and BROSNAN SECURITY, INC., Defendants ----------------------------------------------------------------------------X The defendant BROSNAN SECURITY, INC. by its attorneys, MORRIS DUFFY ALONSO FALEY & PITCOFF, upon information and belief, answers the plaintiff’s Complaint herein as follows: 1. Denies any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Complaint designated “1”, “2”, “3”, “4”, “5”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “26”, “29” and “33”. 2. Admits each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “23” and “25”. 3. Denies each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “24”, “27”, “28”, “30”, “31”, “32”, “34” and “35”. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 4. Any damages which may have been sustained by the plaintiff were contributed to in whole or in part by the culpable conduct of the plaintiff, pursuant to Section 14-A, CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 5. Any damages which may have been sustained by the plaintiff were contributed to in whole or in part by the culpable conduct of third parties not under the control of answering defendant. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 6. Pursuant to CPLR 4545(c), if it be determined or established that plaintiff has received or with reasonable certainty shall receive the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, and that the same shall be 1 of 8 FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022 replaced or indemnified, in whole or in part from any collateral source such as insurance (except for life insurance), social security (except for those benefits provided under title XVIII of the Social Security Act), workers' compensation or employee benefit programs (except such collateral source entitled by law to liens against any recovery of the plaintiff), then and in that event answering defendants hereby plead in mitigation of damages the assessment of any such cost or expense as a collateral source in reduction of the amount of the award by such replacement or indemnification, minus an amount equal to the premiums paid by the plaintiff for such benefits for the two year period immediately preceding the accrual of this action and minus an amount equal to the projected future cost to the plaintiff of maintaining such benefits and as otherwise provided in CPLR 4545(c). AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 7. The plaintiff failed to mitigate her damages. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 8. Answering defendant is entitled to limitation of liability pursuant to Article 16 of the CPLR. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 9. Any alleged defective condition was open and obvious and therefore should have been avoided by plaintiff. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 10. Any alleged defective condition was a “trivial defect” for which plaintiff may not recover. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 11. Answering defendant did not own, lease or control the area where the occurrence took place, and therefore, cannot be found negligent. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 12. The defendant is not liable to the plaintiff as the plaintiff’s actions were the sole proximate cause of the alleged occurrence. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 13. The answering defendant did not have actual or constructive notice of the alleged condition. 2 of 8 FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022 AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 14. That the occurrence alleged was spontaneous, nonavoidable and could not have been prevented by the defendant. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 15. If plaintiff is entitled to recover damages for loss of earnings or impairment of earning ability as against defendant by reason of the matters alleged in the Complaint, liability for which is hereby denied, then pursuant to CPLR 4546 the amount of damages recoverable against answering defendant, if any, shall be reduced by the amount of federal, state and local income taxes which the plaintiff would be obligated by law to pay. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIRST CROSS CLAIM AGAINST CO-DEFENDANTS, ANSWERING DEFENDANT ALLEGES: 16. If plaintiff was caused to sustain injuries and damages at the time and place set forth in plaintiff's Complaint through any carelessness, recklessness and negligence other than plaintiff's own, those damages arose in whole or in part from the acts of co-defendants, and if any judgment is recovered herein by plaintiff against answering defendant, then this defendant will be damaged thereby and will be entitled to apportionment or indemnification, in whole or in part, on the basis of proportionate responsibility or obligation to indemnify of co-defendants. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SECOND CROSS CLAIM AGAINST CO-DEFENDANTS, ANSWERING DEFENDANT ALLEGES: 17. If the plaintiff was caused to sustain injuries and damages at the time and in the manner set forth in her Complaint through any carelessness, recklessness or negligence other than that of plaintiff's own, which is expressly denied, such injuries and damages will have been caused, brought about and sustained solely by reason of the active, primary and affirmative negligence, carelessness and wrongdoing of the co-defendants, by their agents, servants and/or employees, without any negligence on the part of the answering defendant contributing thereto, or if there be any negligence on the part of the answering defendant, the same was merely passive and secondary in nature. That by reason of the foregoing, if the plaintiff recovers any judgment against the answering defendant, then this defendant is entitled to be fully indemnified by the co-defendants in a like amount, together with the costs, disbursements, expenses and attorneys' fees of the defense of this action by reason of the active and primary negligence of the co-defendants. 3 of 8 FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022 AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A THIRD CROSS CLAIM AGAINST CO-DEFENDANTS, ANSWERING DEFENDANT ALLEGES: 18. If plaintiff sustained damages as alleged in the Complaint through any fault other than the plaintiff's own fault, then such damages were sustained due to the sole fault of the co- defendants, and if plaintiff should obtain and/or recover judgment against the answering defendant, then the co-defendants shall be liable pursuant to common law for the full indemnification of the answering defendant. In view of the foregoing, the answering defendant is entitled to complete common law indemnification for all loss, damage, cost or expense, including, without limitation, judgments, attorneys' fees, Court costs and the cost of appellate proceedings from the co-defendants. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FOURTH CROSS CLAIM AGAINST CO-DEFENDANTS, ANSWERING DEFENDANT ALLEGES: 19. That pursuant to the contracts and/or agreements, upon information and belief, the co-defendants undertook certain duties and obligations. 20. If the plaintiff sustained injuries and damages as alleged in the Complaint, they were sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom, including warranties contained therein and/or implied therefrom by operation of law or otherwise. 21. If the plaintiff was caused to sustain the injuries as set forth in plaintiff's Complaint, through any carelessness, recklessness and/or negligence or other culpable conduct other than that of the plaintiff, said injuries and damages were caused by breach of and/or in furtherance of and as a result of the activities pursuant to the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom, including breach of warranties, stated and/or implied, by operation of law or otherwise, by the co-defendants, their agents, servants and/or employees and if any judgment is recovered herein against the answering defendant, they will be damaged thereby and the co-defendants are or will be primarily responsible therefore and the answering defendant will be entitled to contribution and/or indemnification, in whole or in part, from the culpable parties named in this claim over for their portion of plaintiff's damages which were caused by the culpable parties named in this claim over, together with all attorneys' fees, costs and disbursements. 4 of 8 FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022 AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIFTH CROSS CLAIM AGAINST CO-DEFENDANTS, ANSWERING DEFENDANT ALLEGES: 22. That pursuant to contracts and/or agreements heretofore alleged, the co-defendants undertook certain duties and obligations in connection with this lawsuit. 23. That the said co-defendants undertook and agreed to hold harmless, indemnify and defend the answering defendant in connection with injuries and accidents arising out of or in the course of its work pursuant to its aforesaid agreement. 24. That if the plaintiff sustained injuries and damages as alleged in the Complaint they were sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom, including warranties contained therein and/or implied therefrom by operation of law, or otherwise. 25. That by virtue of the foregoing the said co-defendants are obligated to indemnify the answering defendant in the event of any liability against the answering defendant in favor of the plaintiff in this matter. 26. That by virtue of the foregoing the co-defendants are obligated to defend and to undertake the defense of the answering defendant. 27. That if the plaintiff was caused to sustain any injuries as set forth in the Complaint due to any carelessness, recklessness and/or negligence other than plaintiff’s own, including any culpable conduct on plaintiff’s part, said injuries and damages were caused by breach of and/or in furtherance of and as a result of the activities undertaken by the said co-defendants pursuant to the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom including breach of warranties, stated and/or implied by operation of law or otherwise by the said co-defendants, their agents, servants and/or employees. 28. That the co-defendants will be primarily responsible for the injuries and damages allegedly sustained by the plaintiff herein. 29. That by reason of the foregoing the co-defendants will be liable to this defendant in the event and in the full amount of any recovery herein by the plaintiff against the answering defendant and it is bound to pay any and all attorney's fees, disbursements, costs of investigation and costs of defense of this action. 30. That by reason of the foregoing, the answering defendant is entitled to judgment over and against the co-defendants for the full amount of any recovery herein by the plaintiff against the answering defendant for the injuries and damages sustained by the plaintiff. 5 of 8 FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022 AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SIXTH CROSS CLAIM AGAINST CO-DEFENDANTS, ANSWERING DEFENDANT ALLEGES: 31. Pursuant to the terms and conditions of the agreement heretofore alleged between the answering defendant and co-defendants, they agreed to obtain and maintain certain insurance coverage which would ensure their contractual indemnification and hold harmless provisions and which would ensure the answering defendant against any and all liability or damages established by the plaintiff and to further name the answering defendant as an additional insured under the aforesaid insurance agreement and coverage obtained by it. 32. If plaintiff was caused to sustain injuries and damages and if plaintiff establishes liability against the answering defendant, and if recovery is had against the answering defendant by the plaintiff such shall come within the provisions of the aforesaid hold harmless indemnification and insurance coverage agreements referred to above. 33. That if indeed the co-defendants are in breach of the aforesaid agreement and/or agreements regarding the obtaining of the aforesaid insurance coverages and ifindeed the said defendants failed to comply therewith, the pleading defendant will have been damaged thereby. 34. That if the co-defendants are in breach of the aforesaid agreement and has failed to obtain such insurance coverage as undertaken by it, then co-defendants is/are obligated to reimburse the pleading defendant in the full amount of attorneys' fees expended by it or on its behalf in defense of the action instituted against it by the plaintiff as well as to indemnify them in the full amount of any recovery by the plaintiff in this action against the pleading defendant, together with attorneys' fees, costs and disbursements. WHEREFORE, answering defendant demands judgment dismissing the Complaint with costs and further demands that the ultimate rights of the answering defendant and co-defendants, as between themselves, be determined in this action, and that answering defendants have judgment over and against co-defendants for all or a part of any verdict or judgment which may be obtained by the plaintiff against answering defendant, together with the costs, interest and disbursements of this action. Dated: New York, New York July 21, 2022 Yours etc., MORRIS DUFFY ALONSO FALEY & PITCOFF Robert Whitbeck By: ___________________________ ROBERT WHITBECK Attorneys for Defendant 6 of 8 FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022 BROSNAN SECURITY, INC. Office and Post Office Address 101 Greenwich Street, 22nd Floor New York, New York 10006 T: (212) 766-1888 F: (212) 766-3252 Our File No.: (PIC) 74159 TO: SOBO & SOBO, LLP Attorneys for Plaintiff One Dolson Avenue Middletown, NY 10940 845.343.0466 BRODY O'CONNOR & O'CONNOR Attorneys for Defendants WAL-MART STORES EAST, LP and MIDDLETOWN I RESOURCE, LP 7 Bayview Avenue Northport, NY 11768 (631) 261-7778 7 of 8 FILED: ORANGE COUNTY CLERK 07/21/2022 02:04 PM INDEX NO. EF008288-2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 07/21/2022 ATTORNEY VERIFICATION ROBERT WHITBECK, an attorney admitted to practice in the courts of New York State. That I am a partner of the firm of MORRIS DUFFY ALONSO FALEY & PITCOFF, the attorneys of record for defendant BROSNAN SECURITY, INC. I have read the foregoing ANSWER and know the contents thereof; the same is true to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matters I believe it to be true. The reason this verification is made by me and not by the defendant is that the defendant does not maintain an office within New York County. The grounds of my belief as to all matters not stated upon my own knowledge are based on a review of the contents of the file maintained by this office. Dated: New York, New York July 21, 2022 Robert Whitbeck _____________________________ ROBERT WHITBECK 8 of 8