Preview
FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020
EXHIBIT “B”
FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020
OUR FILE: 960.172530
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------ --- -----------------------X Index No.: 514069/2019
21st
326 STREET LLC,
Plaintiff, NOTICE OF
APPEARANCE,
-against- ANSWER WITH
CROSS-CLAIMS,
328 21 ST LLC, NYB BUILDERS INC., and DEMANDS AND
REGAL RECONSTRUCTION CORP. DEMAND FOR A
VERIFIED BILL OF
Defendants. PARTICULARS
------- X
COUNSELORS:
PLEASE TAKE NOTICE, that the above-named defendant, 328 21 ST LLC,
hereby appears in this action and that the uñdersigned have been retained as attorneys
for said defendant and demand that you serve all papers in this proceeding upon them
at the address stated below.
PLEASE TAKE FURTHER NOTICE, that said defendant hereby interposes the
following answer to the plaintiff's complaint:
1. Denies knowledge or information sufficient to form a belief as to the
"4"
allegations contained in paragraphs "1", "3", and "5".
"2''
2. . Admits the allegations contained.in paragraphs and "6".
LLP "7"
nER,BRADY& NAGLER, 3. Denies the allegations contained in paragraph except to admit that
COUNSELORS AND
AWRNEYS
defendant. 328 21 ST LLC, retained NYB BUILDERS INC. and REGAL
ewYoA, New YoA10004
RECONSTRUCTION services 21st
212-248-ssoo CORP., to perform construction related at 328
Street, Brooklyn, New York.
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AS AND FOR A FIRST CAUSE OF ACTION
AGAINST DEFENDANT 328 LLC
(Negligence)
4. Answering the subdivision thereof numbered "8", repeats and reiterates
each and every denial or admission hereinbefore made with the same force and effect
as ifagain set forth at length herein.
"13"
5. Denies the allegations contained in paragraphs "9", "10", "11", "12",
and "14".
AS AND FOR A SECOND CAUSE OF ACTION
AGAINST DEFENDANT NYB BUILDERS
(Negligence)
6. Answering the subdivision thereof numbered "15", repeats and reiterates
each and every denial or admission hereinbefore made with the same force and effect
as ifagain set forth at length herein.
"16"
7. Denies the allegations contained in paragraph except admits that 328
ST LLC retained NYB BUILDERS INC., to perform construction related serves at 328
21st
Street, Brooklyn, New York.
"20"
8. Denies the allegations contained in paragraphs "17", "18", "19", and
"21".
AS AND FOR A THIRD CAUSE OF ACTION
AGAINST DEFENDANT REGAL
(Negligence)
9. Answering the subdivision thereof numbered "22", repeats and reiterates
each and every denial or admission hereinbefore made with the same force and effect
as ifagain set forth at length herein.
2
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"23"
10. Denies the allegations contained in paragraph except admits that 328
ST LLC retained REGAL RECONSTRUCTION CORP., to perform construction related
services at 328 Street, Brooklyn, New York.
"27"
11. Denies the allegations contained in paragraphs "24", "25", "26", and
"28".
AS AND FOR A FOURTH CAUSE OF
ACTION AGAINST DEFENDANTS
328 LLC, NYB BUILDERS and REGAL
(Trespass)
12. Answering the subdivision thereof numbered "29", repeats and reiterates
each and every denial or admission.hereinbefore made with the same force and effect
as ifagain set forth at length herein.
"31"
13. Denies the allegations contained in paragraphs "30", and "32".
AS AND FOR A FIFTH CAUSE OF
ACTION AGAINST DEFENDANTS
328 LLC, NYB BUILDERS and REGAL
(Nuisance)
14. Answering the subdivision thereof numbered "33", repeats and reiterates
each and every denial or admission hereinbefore made with the same force and effect
as ifagain set forth at length herein.
"36"
15. Denies the allegaticils contained in paragraphs "34", "35", and "37".
THE ANSWERING DEFENDANT,
328 21 ST LLC,
UPON INFORMATION AND BELIEF, ALLEGES
AS AND FOR A FIRST AFFIRMATIVE DEFENSE:
That the plaintiff herein is guilty of culpable conduct, including contributory
negligence and comparative negligence, which said conduct bars plaintiffs right of
recovery in proportion to which the said culpable conduct or ñêgilgence attributable to
3
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plaintiff bears the culpable conduct or negligence which caused the damages, ifany, or
the occurrence complained of by plaintiff was caused in whole or in part by the
assumption of risk of the plaintiff.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE:
The defendant reserves the right to claim the limitations of liability pursuant to the
terms of Article 16 of the CPLR.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE:
While the answering defendant denies the plaintiffs allegation of negligence and
liability, any injury and damages, if proven; were the result of intervening and/or
interceding acts of superseding negligence and liability on the part of parties over which
the answering defendant neither has control nor has the right to control, and for which
acts or omissions the answering defendant is not legally responsible.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:
Provisions of C.P.L.R. Article 50-B apply to this action.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:
Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce
the injuries, damages and disabilities a|leged in this complaint.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:
G.O.L5-322.1 renders void and unenforceable any claim of contractual
indemnification.
AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE:
That any insurance procured by this answering defendant pursuant to contract
bars the claims by accord and satisfaction and anti-subrogation principles.
4
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AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE:
The defendant did not have actual or constructive notice of any defect that
allegedly contributed to the accident alleged in the complaint.
AS AND FOR A FIRST CROSS-CLAIM
OVER AND AGAINST THE CO-DEFENDANTS,
NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP.,
THE ANSWERING DEFENDANT,
328 21 ST LLC,
ALLEGES UPON INFORMATION AND BELIEF:
1. That ifthe plaintiff sustained injuries and damages as a!!eged in the
complaint, through any fault other than the plaintiff's own fault, then such injuries and
damages were sustained due to the primary, active and sole fault of the co-defendants,
as aforesaid, NYB BUILDERS INC. and REGAL RECONSTRUCTION CORP., and the
fault, ifany, of the answering defendant was secondary and passive only, and if the
plaintiff should obtain and/or recover judgment against the answering defendant, then
the co-defendâñts, as aforesaid, NYB . BUILDERS INC. and REGAL
RECONSTRUCTION CORP., shall be liable over to the answering defendant for the
full amount of said judgment or for any part hereof obtained and/or recovered on the
basis of apportionment of responsibility for the alleged occurrence as found by the
Court or jury.
2. Further, by reason of this action, said answering defendant has and will in
the future incur costs and expenses, including attorney's fees.
5
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AS AND FOR A SECOND CROSS-CLAIM
OVER AND AGAINST THE CO-DEFENDANTS,
NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP.,
THE ANSWERING DEFENDANT,
328 21 ST LLC,
ALLEGES UPON INFORMATION AND BELIEF:
3. That prior to the date of the occurrence which forms the basis of the
plaintiff's complaint, an agreement was entered into between the answering defendant
and each of the co-defendants, NYB BUILDERS, INC. and REGAL
RECONSTRUCTION CORP., pursuant to which the co-defendants both agreed to
indemnify 328 21 ST LLC and hold itharmless for any loss or damage sustained by it
arising out of the scope of the undertaking of each co-defendant.
4. That by reason thereof, said answering defendant is entitled to judgment
against the defendants for full indemnity, together with those costs incurred by the
answering defendant in the defense of the within action, including, but not limited to,
counsel fees and expenses.
AS AND FOR A THIRD CROSS-CLAIM
OVER AND AGAINST THE CO-DEFENDANTS,
NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP.,
THE ANSWERING DEFENDANT,
328 21 ST LLC,
ALLEGES UPON INFORMATION AND BELIEF:
5. If plaintiff sustained any injuries or damages as alleged in the complaint,
which the answering defendant denies, then such injuries or damages were caused by
reason of the culpable conduct, acts or omissions, negligence, strict products liability,
statutory violation (e.g. General Obligations Law), breach of contract, failure to procure
insurance (e.g. Kinney v. Lisk), obligation or warranty of the co-defendants, NYB
BUILDERS, INC. and REGAL RECONSTRUCTION CORP., above named.
6
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6. By reason of the foregoing, this answering defendant is entitled to common
law indemnification or contribution and to have judgment against the co-
from,
defendants above named, for all or part of any verdict or judgment that plaintiff may
recover against this answering defendant including costs, expenses and attorney's
fees.
AS AND FOR A FOURTH CROSS-CLAIM
OVER AND AGAINST THE CO-DEFENDANTS,
NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP.,
THE ANSWERING DEFENDANT,
328 21 ST LLC,
ALLEGES UPON INFORMATION AND BELIEF:
7. That prior to the date of the occurrence which forms the basis of the
plaintiff's complaint, an aweement was entered into between the answering defendant
and c-defendants, NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP.,
pursuant to which each of the co-defendants agreed to secure liability insurance in
favor of or for the benefit of 328 21 ST LLC, for such liabilities as may be rendered
against it out of the performance of work to be rendered each of the co-
arising by
defendants.
8. That heretofore, the answering defendant has made the demand that the
co-defendants'
liability insurer undertake the defense and indemnity of the answering
defendant with respect to the within action, but no liability insurer has done so.
9. That upon information and belief, each of the co-defendants have
breached its agreement to procure insurance.
10. That by reason thereof, the answering defendant is entitled to full
indemnity from each of the co-defendants, together with the costs and expenses,
including attorney's fees, incurred in the defense of the within action.
7
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AS AND FOR A FIFTH CROSS-CLAIM
OVER AND AGAINST THE CO-DEFENDANTS,
NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP.,
THE ANSWERING DEFENDANT,
328 21 ST LLC,
ALLEGES UPON INFORMATION AND BELIEF: .
11. That ifthe plaintiff sustained damages as alleged in the complaint, through
the negligence, breach of contract, breach of warranty, carelessness and/or strict
liabilityof the defendant, then.such damages were sustained due to the primary, active
and sole fault of the co-defendants, as aforesaid, NYB BUILDERS INC. and REGAL
RECONSTRUCTION CORP., by reason of negligence, breach of contract, breach of
warranty, carelessness and/or strict liability and if the plaintiff should obtain and/or
recover judgment against the answering defendant, then the defendants, as aforesaid,
NYB BUILDERS INC. and REGAL RECONSTRUCTION CORP., shall be liable over to
. the answering defendant for the full amount of said judgment or for any part hereof
obtained and/or recovered on the basis of apportionment of responsibility for the
alleged occurrence as found by the Court or jury.
12. Further, by reason of this action, said answering defendant has and will in
the future incur costs and expenses, including attorney's fees.
AS AND FOR A SIXTH CROSS-CLAIM
OVER AND AGAINST THE CO-DEFENDANTS,
NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP.,
THE ANSWERING DEFENDANT,
328 21 ST LLC,
ALLEGES UPON INFORMATION AND BELIEF:
13. Co-defendants, NYB BUILDERS, INC. and REGAL RECONSTRUCTION
CORP. owed 328 21 ST LLC a duty of care with respect to work they were retained to
21st
perform pursuant to a written agreement at 328 Street, Brooklyn New York.
8
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14. Co-defendants, NYB BUILDERS, INC. and REGAL RECONSTRUCTION
21st
CORP. breached its duty to perform the work they were retained to perform at 328
Street, Brooklyn, New York in a workmanlike and competent professional manner.
15. As a result of NYB BUILDERS, INC. and REGAL RECONSTRUCTION
CORP.'s breach of their duty to perform work in a workmanlike and professional
manner, 328 21 ST LLC has been caused to suffer and incur damages and will continue
to suffer and incur damages , including, but not limited to, attorney's fees, costs, expert
fees, investigation fees, etc. with the precise amount to be determined at trial of this
action.
AS AND FOR A SEVENTH CROSS-CLAIM
OVER AND AGAINST THE CO-DEFENDANTS,
NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP.,
THE ANSWERING DEFENDANT,
328 21 ST LLC,
ALLEGES UPON INFORMATION AND BELIEF:
16. Defendant.328 21 ST LLC entered into agreements with co-defendants
NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP. for the performance
21st
of construction related services in connection with the construction project at 328
Street, Brooklyn, New York.
17. The co-defendants, NYB BUILDERS, INC. and REGAL
RECONSTRUCTION CORP. failed to perform various duties and obligations pursuant
to their respective agreements with 328 21 ST LLC.
18. As a result of the co-defendants NYB BUILDER, INC. and REGAL
RECONSTRUCTION CORP. failing to perform their duties and obligations under the
respective agreements with 328 21 ST LLC, 328 21 ST LLC has incurred damages and
continues to sustain damages, with the precise amount of determined at the trialof this
9
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action including, butnot limited to, attorney's fees, costs, expert fees, investigation fees,
etc.
AS AND FOR AN EIGHTH CROSS-CLAIM
OVER AND AGAINST THE CO-DEFENDANTS,
NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP.,
THE ANSWERING DEFENDANT,
328 21 ST LLC,
ALLEGES UPON INFORMATION AND BELIEF:
19. Defendant 328 21 ST LLC entered into agreements. with co-defendants
NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP. for the performance of
construction related services in connection with the demolition and construction project
21st
at 328 Street, Brooklyn, New York.
20. By way of their actions or inactions, the co-defendants NYB BUILDERS,
21st
INC. and REGAL RECONSTRUCTION CORP. caused damages to 326 Street,
Brooklyn, New York and caused 328 21 ST LLC to incur damages.
21. The co-defendants NYB BUILDERS, INC. and REGAL
RECONSTRUCTION CORP. failed to undertake appropriate efforts to mitigate damages
21st
sustained by 328 21 ST LLC as well as the damages caused to 326 Street, Brooklyn,
New York.
22. As a result of co-defendants NYB BUILDERS, INC. and REGAL
RECONSTRUCTION CORP.'s failure to mitigate damages, 328 21 ST LLC has
sustained damages and continues to sustain damages including, but not limited to,
attorney's fees, costs, expert fees, investigation fees, etc., with the precise amount to be
determined at the trial of this action.
10
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WHEREFORE, the defendant, 328 21 ST LLC, demands judgment dismissing
the complaint against itand further demands judgment over and against the defendants,
as aforesaid, NYB BUILDERS INC. and REGAL RECONSTRUCTION CORP., for the
amount of any sums paid to the plaintiff over and against their proportionate share as
determined by the apportionment of responsibility adjudged herein, together with costs
and disbursements of this action and attorney fees as well as indemnity and hold it
harmless as to any and all.damages and costs.
WHEREFORE, the defendant, 328 21 ST LLC, demands judgment dismissing
the complaint against itand further demands judgment for the amount of any sums paid
to the plaintiff over and against their proportionate share as determined by the
apportionment of responsibility adjudged herein, together with costs and disbursements
of this action and attorney's fees.
Dated: New York, New York
September 24, 2019
Yours, etc.
KOSTE Y & NAGLER, LLP
By A 4. LAŸÉRY
Attorne r Ddfendant
328 21 LLC.
10th
One Whitehall Street, FlOOr
New York, New York 10004
(212) 248-8800
TO: LERNER, ARNOLD & WINSTON, LLP
Jacob L. Levine
Attorneys for Plaintiff
28th
475 Park Avenue South, FlOOr
New York, New York 10016
212-686-4655
11
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NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020
NYB BUILDERS INC.
(No Record of Representation)
1803 Atlantic Avenue
Brooklyn, New York 11233
REGAL RECONSTRUCTION CORP.
(No Record of Representation)
56 Van Street
Staten Island, New York 10310
12
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VERIFICATION
JASON J. LAVERY, an attorney at law duly admitted to practice before the courts
of the State of New York, affirms the following to be true under the penalties of perjury:
1. That I am a partner in the law firm of KOSTER, BRADY & NAGLER, LLP,
attorneys for the answering defendant in the above-entitled action.
2. That I have read the foregoing answer and know the contents thereof, and
that the same is true to my own knowledge except as to the matters therein stated to be
alleged upon information and belief, and that as to those matters, I bê|ieve itto be true.
3. This verification is made by myself and not by the defendant is because
the defendant is not in the county in which your deponent maintains his office.
4. The grounds of my belief as to all matters not stated upon my knowledge
are based upon the books, records and documents in my possession.
27th
AFFIRMED this day of September, 2019
JASON¾. LAVERY, ESQ.
13
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NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020
OUR FILE: 960.172530
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------ -------------------x Index No.: 514069/2019
21st
326 STREET LLC,
Plaintiff, CERTIFICATION
-against-
328 21 ST LLC, NYB BUILDERS INC., and
REGAL RECONSTRUCTION CORP.
Defendants.
---------------------------------------- -------------------x
PLEASE TAKE NOTICE, that the following papers, which are being served
concurrently, are hereby certified pursuant to the rules of the Court:
Notice Regarding Service by Telecopy, Telefax or E-mail
Demand for Witnesses
Demand for Expert Witnesses
Demand for Statements
Demand for Total Damages
Litigation Hold Demand
Demand for a Verified Bill of Particulars
Notice to Take Deposition Upon Oral Examination
By:
J sON J. LAVERY
14
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NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020
OUR FILE: 960.172530
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
- ---------------- ---------------------------------
--X Index No.: 514069/2019
21st
326 STREET LLC,
Plaintiff, NOTICE REGARDING
SERVICE BY
TELECOPY,
-against- TELEFAX OR E-MAIL
328 21 ST LLC, NYB BUILDERS INC., and
REGAL RECONSTRUCTION CORP.
Defendants.
_____________________________ ____ ____.------- -----X
PLEASE TAKE NOTICE, that this office does not consent to service by telecopy,
telefax or E-mail.
Dated: New York, New York
September 24, 2019
Yours, etc.
KOSTER, BRADY & NAGLER, LLP
By: JASON J. LAVERY
Attorneys for Defendant
328 21 ST LLC.
10th
One Whitehall Street, Floor
New York, New York 10004
(212) 248-8800
TO: See Affidavit of Service
15
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NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020
OUR FILE: 960.172530
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--------------- ------------------------- ----------------X
Preview
FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 EXHIBIT “B” FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 OUR FILE: 960.172530 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------ --- -----------------------X Index No.: 514069/2019 21st 326 STREET LLC, Plaintiff, NOTICE OF APPEARANCE, -against- ANSWER WITH CROSS-CLAIMS, 328 21 ST LLC, NYB BUILDERS INC., and DEMANDS AND REGAL RECONSTRUCTION CORP. DEMAND FOR A VERIFIED BILL OF Defendants. PARTICULARS ------- X COUNSELORS: PLEASE TAKE NOTICE, that the above-named defendant, 328 21 ST LLC, hereby appears in this action and that the uñdersigned have been retained as attorneys for said defendant and demand that you serve all papers in this proceeding upon them at the address stated below. PLEASE TAKE FURTHER NOTICE, that said defendant hereby interposes the following answer to the plaintiff's complaint: 1. Denies knowledge or information sufficient to form a belief as to the "4" allegations contained in paragraphs "1", "3", and "5". "2'' 2. . Admits the allegations contained.in paragraphs and "6". LLP "7" nER,BRADY& NAGLER, 3. Denies the allegations contained in paragraph except to admit that COUNSELORS AND AWRNEYS defendant. 328 21 ST LLC, retained NYB BUILDERS INC. and REGAL ewYoA, New YoA10004 RECONSTRUCTION services 21st 212-248-ssoo CORP., to perform construction related at 328 Street, Brooklyn, New York. FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT 328 LLC (Negligence) 4. Answering the subdivision thereof numbered "8", repeats and reiterates each and every denial or admission hereinbefore made with the same force and effect as ifagain set forth at length herein. "13" 5. Denies the allegations contained in paragraphs "9", "10", "11", "12", and "14". AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT NYB BUILDERS (Negligence) 6. Answering the subdivision thereof numbered "15", repeats and reiterates each and every denial or admission hereinbefore made with the same force and effect as ifagain set forth at length herein. "16" 7. Denies the allegations contained in paragraph except admits that 328 ST LLC retained NYB BUILDERS INC., to perform construction related serves at 328 21st Street, Brooklyn, New York. "20" 8. Denies the allegations contained in paragraphs "17", "18", "19", and "21". AS AND FOR A THIRD CAUSE OF ACTION AGAINST DEFENDANT REGAL (Negligence) 9. Answering the subdivision thereof numbered "22", repeats and reiterates each and every denial or admission hereinbefore made with the same force and effect as ifagain set forth at length herein. 2 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 "23" 10. Denies the allegations contained in paragraph except admits that 328 ST LLC retained REGAL RECONSTRUCTION CORP., to perform construction related services at 328 Street, Brooklyn, New York. "27" 11. Denies the allegations contained in paragraphs "24", "25", "26", and "28". AS AND FOR A FOURTH CAUSE OF ACTION AGAINST DEFENDANTS 328 LLC, NYB BUILDERS and REGAL (Trespass) 12. Answering the subdivision thereof numbered "29", repeats and reiterates each and every denial or admission.hereinbefore made with the same force and effect as ifagain set forth at length herein. "31" 13. Denies the allegations contained in paragraphs "30", and "32". AS AND FOR A FIFTH CAUSE OF ACTION AGAINST DEFENDANTS 328 LLC, NYB BUILDERS and REGAL (Nuisance) 14. Answering the subdivision thereof numbered "33", repeats and reiterates each and every denial or admission hereinbefore made with the same force and effect as ifagain set forth at length herein. "36" 15. Denies the allegaticils contained in paragraphs "34", "35", and "37". THE ANSWERING DEFENDANT, 328 21 ST LLC, UPON INFORMATION AND BELIEF, ALLEGES AS AND FOR A FIRST AFFIRMATIVE DEFENSE: That the plaintiff herein is guilty of culpable conduct, including contributory negligence and comparative negligence, which said conduct bars plaintiffs right of recovery in proportion to which the said culpable conduct or ñêgilgence attributable to 3 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 plaintiff bears the culpable conduct or negligence which caused the damages, ifany, or the occurrence complained of by plaintiff was caused in whole or in part by the assumption of risk of the plaintiff. AS AND FOR A SECOND AFFIRMATIVE DEFENSE: The defendant reserves the right to claim the limitations of liability pursuant to the terms of Article 16 of the CPLR. AS AND FOR A THIRD AFFIRMATIVE DEFENSE: While the answering defendant denies the plaintiffs allegation of negligence and liability, any injury and damages, if proven; were the result of intervening and/or interceding acts of superseding negligence and liability on the part of parties over which the answering defendant neither has control nor has the right to control, and for which acts or omissions the answering defendant is not legally responsible. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: Provisions of C.P.L.R. Article 50-B apply to this action. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce the injuries, damages and disabilities a|leged in this complaint. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE: G.O.L5-322.1 renders void and unenforceable any claim of contractual indemnification. AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE: That any insurance procured by this answering defendant pursuant to contract bars the claims by accord and satisfaction and anti-subrogation principles. 4 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE: The defendant did not have actual or constructive notice of any defect that allegedly contributed to the accident alleged in the complaint. AS AND FOR A FIRST CROSS-CLAIM OVER AND AGAINST THE CO-DEFENDANTS, NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP., THE ANSWERING DEFENDANT, 328 21 ST LLC, ALLEGES UPON INFORMATION AND BELIEF: 1. That ifthe plaintiff sustained injuries and damages as a!!eged in the complaint, through any fault other than the plaintiff's own fault, then such injuries and damages were sustained due to the primary, active and sole fault of the co-defendants, as aforesaid, NYB BUILDERS INC. and REGAL RECONSTRUCTION CORP., and the fault, ifany, of the answering defendant was secondary and passive only, and if the plaintiff should obtain and/or recover judgment against the answering defendant, then the co-defendâñts, as aforesaid, NYB . BUILDERS INC. and REGAL RECONSTRUCTION CORP., shall be liable over to the answering defendant for the full amount of said judgment or for any part hereof obtained and/or recovered on the basis of apportionment of responsibility for the alleged occurrence as found by the Court or jury. 2. Further, by reason of this action, said answering defendant has and will in the future incur costs and expenses, including attorney's fees. 5 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 AS AND FOR A SECOND CROSS-CLAIM OVER AND AGAINST THE CO-DEFENDANTS, NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP., THE ANSWERING DEFENDANT, 328 21 ST LLC, ALLEGES UPON INFORMATION AND BELIEF: 3. That prior to the date of the occurrence which forms the basis of the plaintiff's complaint, an agreement was entered into between the answering defendant and each of the co-defendants, NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP., pursuant to which the co-defendants both agreed to indemnify 328 21 ST LLC and hold itharmless for any loss or damage sustained by it arising out of the scope of the undertaking of each co-defendant. 4. That by reason thereof, said answering defendant is entitled to judgment against the defendants for full indemnity, together with those costs incurred by the answering defendant in the defense of the within action, including, but not limited to, counsel fees and expenses. AS AND FOR A THIRD CROSS-CLAIM OVER AND AGAINST THE CO-DEFENDANTS, NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP., THE ANSWERING DEFENDANT, 328 21 ST LLC, ALLEGES UPON INFORMATION AND BELIEF: 5. If plaintiff sustained any injuries or damages as alleged in the complaint, which the answering defendant denies, then such injuries or damages were caused by reason of the culpable conduct, acts or omissions, negligence, strict products liability, statutory violation (e.g. General Obligations Law), breach of contract, failure to procure insurance (e.g. Kinney v. Lisk), obligation or warranty of the co-defendants, NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP., above named. 6 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 6. By reason of the foregoing, this answering defendant is entitled to common law indemnification or contribution and to have judgment against the co- from, defendants above named, for all or part of any verdict or judgment that plaintiff may recover against this answering defendant including costs, expenses and attorney's fees. AS AND FOR A FOURTH CROSS-CLAIM OVER AND AGAINST THE CO-DEFENDANTS, NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP., THE ANSWERING DEFENDANT, 328 21 ST LLC, ALLEGES UPON INFORMATION AND BELIEF: 7. That prior to the date of the occurrence which forms the basis of the plaintiff's complaint, an aweement was entered into between the answering defendant and c-defendants, NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP., pursuant to which each of the co-defendants agreed to secure liability insurance in favor of or for the benefit of 328 21 ST LLC, for such liabilities as may be rendered against it out of the performance of work to be rendered each of the co- arising by defendants. 8. That heretofore, the answering defendant has made the demand that the co-defendants' liability insurer undertake the defense and indemnity of the answering defendant with respect to the within action, but no liability insurer has done so. 9. That upon information and belief, each of the co-defendants have breached its agreement to procure insurance. 10. That by reason thereof, the answering defendant is entitled to full indemnity from each of the co-defendants, together with the costs and expenses, including attorney's fees, incurred in the defense of the within action. 7 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 AS AND FOR A FIFTH CROSS-CLAIM OVER AND AGAINST THE CO-DEFENDANTS, NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP., THE ANSWERING DEFENDANT, 328 21 ST LLC, ALLEGES UPON INFORMATION AND BELIEF: . 11. That ifthe plaintiff sustained damages as alleged in the complaint, through the negligence, breach of contract, breach of warranty, carelessness and/or strict liabilityof the defendant, then.such damages were sustained due to the primary, active and sole fault of the co-defendants, as aforesaid, NYB BUILDERS INC. and REGAL RECONSTRUCTION CORP., by reason of negligence, breach of contract, breach of warranty, carelessness and/or strict liability and if the plaintiff should obtain and/or recover judgment against the answering defendant, then the defendants, as aforesaid, NYB BUILDERS INC. and REGAL RECONSTRUCTION CORP., shall be liable over to . the answering defendant for the full amount of said judgment or for any part hereof obtained and/or recovered on the basis of apportionment of responsibility for the alleged occurrence as found by the Court or jury. 12. Further, by reason of this action, said answering defendant has and will in the future incur costs and expenses, including attorney's fees. AS AND FOR A SIXTH CROSS-CLAIM OVER AND AGAINST THE CO-DEFENDANTS, NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP., THE ANSWERING DEFENDANT, 328 21 ST LLC, ALLEGES UPON INFORMATION AND BELIEF: 13. Co-defendants, NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP. owed 328 21 ST LLC a duty of care with respect to work they were retained to 21st perform pursuant to a written agreement at 328 Street, Brooklyn New York. 8 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 14. Co-defendants, NYB BUILDERS, INC. and REGAL RECONSTRUCTION 21st CORP. breached its duty to perform the work they were retained to perform at 328 Street, Brooklyn, New York in a workmanlike and competent professional manner. 15. As a result of NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP.'s breach of their duty to perform work in a workmanlike and professional manner, 328 21 ST LLC has been caused to suffer and incur damages and will continue to suffer and incur damages , including, but not limited to, attorney's fees, costs, expert fees, investigation fees, etc. with the precise amount to be determined at trial of this action. AS AND FOR A SEVENTH CROSS-CLAIM OVER AND AGAINST THE CO-DEFENDANTS, NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP., THE ANSWERING DEFENDANT, 328 21 ST LLC, ALLEGES UPON INFORMATION AND BELIEF: 16. Defendant.328 21 ST LLC entered into agreements with co-defendants NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP. for the performance 21st of construction related services in connection with the construction project at 328 Street, Brooklyn, New York. 17. The co-defendants, NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP. failed to perform various duties and obligations pursuant to their respective agreements with 328 21 ST LLC. 18. As a result of the co-defendants NYB BUILDER, INC. and REGAL RECONSTRUCTION CORP. failing to perform their duties and obligations under the respective agreements with 328 21 ST LLC, 328 21 ST LLC has incurred damages and continues to sustain damages, with the precise amount of determined at the trialof this 9 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 action including, butnot limited to, attorney's fees, costs, expert fees, investigation fees, etc. AS AND FOR AN EIGHTH CROSS-CLAIM OVER AND AGAINST THE CO-DEFENDANTS, NYB BUILDERS INC., AND REGAL RECONSTRUCTION CORP., THE ANSWERING DEFENDANT, 328 21 ST LLC, ALLEGES UPON INFORMATION AND BELIEF: 19. Defendant 328 21 ST LLC entered into agreements. with co-defendants NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP. for the performance of construction related services in connection with the demolition and construction project 21st at 328 Street, Brooklyn, New York. 20. By way of their actions or inactions, the co-defendants NYB BUILDERS, 21st INC. and REGAL RECONSTRUCTION CORP. caused damages to 326 Street, Brooklyn, New York and caused 328 21 ST LLC to incur damages. 21. The co-defendants NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP. failed to undertake appropriate efforts to mitigate damages 21st sustained by 328 21 ST LLC as well as the damages caused to 326 Street, Brooklyn, New York. 22. As a result of co-defendants NYB BUILDERS, INC. and REGAL RECONSTRUCTION CORP.'s failure to mitigate damages, 328 21 ST LLC has sustained damages and continues to sustain damages including, but not limited to, attorney's fees, costs, expert fees, investigation fees, etc., with the precise amount to be determined at the trial of this action. 10 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 WHEREFORE, the defendant, 328 21 ST LLC, demands judgment dismissing the complaint against itand further demands judgment over and against the defendants, as aforesaid, NYB BUILDERS INC. and REGAL RECONSTRUCTION CORP., for the amount of any sums paid to the plaintiff over and against their proportionate share as determined by the apportionment of responsibility adjudged herein, together with costs and disbursements of this action and attorney fees as well as indemnity and hold it harmless as to any and all.damages and costs. WHEREFORE, the defendant, 328 21 ST LLC, demands judgment dismissing the complaint against itand further demands judgment for the amount of any sums paid to the plaintiff over and against their proportionate share as determined by the apportionment of responsibility adjudged herein, together with costs and disbursements of this action and attorney's fees. Dated: New York, New York September 24, 2019 Yours, etc. KOSTE Y & NAGLER, LLP By A 4. LAŸÉRY Attorne r Ddfendant 328 21 LLC. 10th One Whitehall Street, FlOOr New York, New York 10004 (212) 248-8800 TO: LERNER, ARNOLD & WINSTON, LLP Jacob L. Levine Attorneys for Plaintiff 28th 475 Park Avenue South, FlOOr New York, New York 10016 212-686-4655 11 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 NYB BUILDERS INC. (No Record of Representation) 1803 Atlantic Avenue Brooklyn, New York 11233 REGAL RECONSTRUCTION CORP. (No Record of Representation) 56 Van Street Staten Island, New York 10310 12 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 VERIFICATION JASON J. LAVERY, an attorney at law duly admitted to practice before the courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. That I am a partner in the law firm of KOSTER, BRADY & NAGLER, LLP, attorneys for the answering defendant in the above-entitled action. 2. That I have read the foregoing answer and know the contents thereof, and that the same is true to my own knowledge except as to the matters therein stated to be alleged upon information and belief, and that as to those matters, I bê|ieve itto be true. 3. This verification is made by myself and not by the defendant is because the defendant is not in the county in which your deponent maintains his office. 4. The grounds of my belief as to all matters not stated upon my knowledge are based upon the books, records and documents in my possession. 27th AFFIRMED this day of September, 2019 JASON¾. LAVERY, ESQ. 13 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 OUR FILE: 960.172530 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------ -------------------x Index No.: 514069/2019 21st 326 STREET LLC, Plaintiff, CERTIFICATION -against- 328 21 ST LLC, NYB BUILDERS INC., and REGAL RECONSTRUCTION CORP. Defendants. ---------------------------------------- -------------------x PLEASE TAKE NOTICE, that the following papers, which are being served concurrently, are hereby certified pursuant to the rules of the Court: Notice Regarding Service by Telecopy, Telefax or E-mail Demand for Witnesses Demand for Expert Witnesses Demand for Statements Demand for Total Damages Litigation Hold Demand Demand for a Verified Bill of Particulars Notice to Take Deposition Upon Oral Examination By: J sON J. LAVERY 14 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 OUR FILE: 960.172530 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - ---------------- --------------------------------- --X Index No.: 514069/2019 21st 326 STREET LLC, Plaintiff, NOTICE REGARDING SERVICE BY TELECOPY, -against- TELEFAX OR E-MAIL 328 21 ST LLC, NYB BUILDERS INC., and REGAL RECONSTRUCTION CORP. Defendants. _____________________________ ____ ____.------- -----X PLEASE TAKE NOTICE, that this office does not consent to service by telecopy, telefax or E-mail. Dated: New York, New York September 24, 2019 Yours, etc. KOSTER, BRADY & NAGLER, LLP By: JASON J. LAVERY Attorneys for Defendant 328 21 ST LLC. 10th One Whitehall Street, Floor New York, New York 10004 (212) 248-8800 TO: See Affidavit of Service 15 FILED: KINGS COUNTY CLERK 10/16/2020 12:11 PM INDEX NO. 514069/2019 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 10/16/2020 OUR FILE: 960.172530 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------- ------------------------- ----------------X