Preview
FILED: KINGS COUNTY CLERK 07/21/2022
08/09/2022 12:15
03:42 PM INDEX NO. 527680/2019
NYSCEF DOC. NO. 97
133 RECEIVED NYSCEF: 07/21/2022
08/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JOSE GOMEZ,
Plaintiffs, Index No.: 527680/2019
-against-
Answer to Third-Party
91-93 FRANKLIN LLC, Complaint
Y.N.H. CONSTRUCTION INC. and
ALPINE READY MIX INC.,
Defendants.
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91-93 FRANKLIN LLC, and Y.N.H. CONSTRUCTION
INC.,
Third-Party Plaintiff,
-against-
CAPITAL CONCRETE NY, INC.
Third-Party Defendant.
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PLEASE TAKE NOTICE that Third-Party Defendant, CAPITAL CONCRETE NY,
INC. by and through its attorneys, Fuchs Rosenzweig, PLLC, as and for its answer to
defendants/third-party plaintiffs’ 91-93 Franklin LLC and Y.N.H. Construction Inc.’s third-party
complaint sets forth as follows:
1. Third-Party Defendant denies knowledge or information sufficient to form a belief
as to the truth of the allegations set forth in paragraphs designated as “1”, “2” and “3” of the Third-
Party Complaint in the form alleged and reserves all matters of law to this Honorable Court at the
time of trial.
2. Third-Party Defendant admits the truth of the allegation set forth in paragraphs
designated as “4” and “8” of the Third-Party Complaint
3. Third-party Defendant denies the allegations set forth within the Third-Party
Complaint within the paragraphs designated as “5”, “6”, “7”, “9” and “10” of the Third-Party
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Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time
of trial.
4. Third-Party Defendant admits the allegations set forth in paragraph “11” of the
Third-Party Complaint only to the extent that according to the Summons & Complaint, plaintiff
alleges that he was injured in the course of his employment with Third-Party Defendant on
September 18, 2019.
AS AND FOR AN ANSWER TO THIRD-PARTY PLAINTIFFS’
FIRST CAUSE OF ACTION
5. In response to the paragraph of the Third-party Complaint designated therein as
“12”, Third-Party Defendant repeats, reiterates and realleges each and every response to each and
every allegation contained in the paragraphs designated “1” through and inclusive of “11” of the
Third-Party Complaint as if same had been more fully and at length.
6. Third-Party Defendant denies the allegations set forth within the Third-Party
Complaint within the paragraphs designated as “13” of the Third-Party Complaint in the form
alleged and reserves all matters of law to this Honorable Court at the time of trial.
AS AND FOR AN ANSWER TO THIRD-PARTY PLAINTIFFS’
SECOND CAUSE OF ACTION
7. In response to the paragraph of the Third-party Complaint designated therein as
“14”, Third-Party Defendant repeats, reiterates and realleges each and every response to each and
every allegation contained in the paragraphs designated “1” through and inclusive of “13” of the
Third-Party Complaint as if same had been more fully and at length.
8. Third-Party Defendant denies the allegations set forth within the Third-Party
Complaint within the paragraphs designated as “15” and “16” of the Third-Party Complaint in the
form alleged and reserves all matters of law to this Honorable Court at the time of trial.
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AS AND FOR AN ANSWER TO THIRD-PARTY PLAINTIFFS’
THIRD CAUSE OF ACTION
9. In response to the paragraph of the Third-party Complaint designated therein as
“17”, Third-Party Defendant repeats, reiterates and realleges each and every response to each and
every allegation contained in the paragraphs designated “1” through and inclusive of “16” of the
Third-Party Complaint as if same had been more fully and at length.
10. Third-Party Defendant denies the allegations set forth within the Third-Party
Complaint within the paragraphs designated as “18” of the Third-Party Complaint in the form
alleged and reserves all matters of law to this Honorable Court at the time of trial, other than to
admit that Third-Party Defendant was performing work and services at the subject location
pursuant to a written agreement.
11. Third-Party Defendant denies the allegations set forth within the Third-Party
Complaint within the paragraphs designated as “19”, “20”, “21” and “22” of the Third-Party
Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time
of trial.
AS AND FOR AN ANSWER TO THIRD-PARTY PLAINTIFFS’
FOURTH CAUSE OF ACTION
12. In response to the paragraph of the Third-party Complaint designated therein as
“23”, Third-Party Defendant repeats, reiterates and realleges each and every response to each and
every allegation contained in the paragraphs designated “1” through and inclusive of “22” of the
Third-Party Complaint as if same had been more fully and at length.
13. Third-Party Defendant denies the allegations set forth within the Third-Party
Complaint within the paragraphs designated as “24” of the Third-Party Complaint in the form
alleged and reserves all matters of law to this Honorable Court at the time of trial, other than to
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admit that Third-Party Defendant was performing work and services at the subject location
pursuant to a written agreement.
14. Third-Party Defendant denies the allegations set forth within the Third-Party
Complaint within the paragraphs designated as “25” and “26” of the Third-Party Complaint in the
form alleged and reserves all matters of law to this Honorable Court at the time of trial.
AS AND FOR AN ANSWER TO THIRD-PARTY PLAINTIFFS’
FIFTH CAUSE OF ACTION
15. In response to the paragraph of the Third-party Complaint designated therein as
“27” Third-Party Defendant repeats, reiterates and realleges each and every response to each and
every allegation contained in the paragraphs designated “1” through and inclusive of “26” of the
Third-Party Complaint as if same had been more fully and at length.
16. Third-Party Defendant denies the allegations set forth within the Third-Party
Complaint within the paragraphs designated as “28” of the Third-Party Complaint in the form
alleged and reserves all matters of law to this Honorable Court at the time of trial, other than to
admit that Third-Party Defendant was performing work and services at the subject location
pursuant to a written agreement.
17. Third-Party Defendant denies the allegations set forth within the Third-Party
Complaint within the paragraphs designated as “29”, “30” and “31” of the Third-Party Complaint
in the form alleged and reserves all matters of law to this Honorable Court at the time of trial.
18. All allegations not hereinbefore specifically addressed are hereby denied.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
19. The Third-Party Defendant not being fully advised as to all the facts and
circumstances surrounding the incident complained of, hereby asserts and reserves unto itself the
defenses of accord and satisfaction, arbitration and award, assumption of risk, contributory
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negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality,
injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of
limitations, waiver, and any other matter constituting an avoidance or affirmative defense which
the further investigation of this matter may prove applicable herein.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
20. The complaint fails to state a claim upon which relief may be granted.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
21. Pursuant to CPLR Article 16, the liability of Third-Party Defendant to the plaintiff
and/or defendant/third-party plaintiff herein for non-economic loss is limited to Third-Party
Defendant’s, equitable share determined in accordance with the relative culpability of each person
causing or contributing to the total liability for non-economic loss.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
22. Plaintiff may have recovered the costs of medical care, dental care, custodial care,
rehabilitation services, loss of earnings and other economic loss and any such future loss or
expense will, with reasonable certainty, be replaced or indemnified in whole or in part from
collateral sources. Any award made to plaintiff shall be reduced in accordance with the provisions
of CPLR 4545(a).
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
23. Any damages sustained by the plaintiff were caused by the culpable conduct of the
plaintiff and/or third-party plaintiff, including comparative negligence, assumption of risks, breach
of contract and not by the culpable conduct or negligence of this answering Third-Party Defendant.
But if a verdict of judgment is awarded to the plaintiff and/or third-party plaintiff, then and in that
event the damages shall be reduced in the proportion which the culpable conduct attributable to
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the plaintiff and/or third-party plaintiff bears to the culpable conduct which caused the damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
24. Plaintiff may have failed to mitigate damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
25. Plaintiff's alleged loss and damage, if any, resulted wholly and solely from the fault,
neglect and want of care of the plaintiff and/or third-party plaintiff or persons or parties other than
Third-Party Defendant, for whose acts said defendant is not liable or responsible and not as a result
of any negligence of this defendant.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
26. This Third-Party Defendant is entitled to a set-off if any tortfeasor has or will settle
with plaintiff pursuant to G.O.L. 15-108.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
27. That by entering into the activity in which the plaintiff was engaged at the time of
the occurrence set forth in the complaint, said plaintiff knew the hazards thereof and the inherent
risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries and
damages were sustained by the plaintiff herein as alleged in the complaint arose from and were
caused by reason of such risks voluntarily undertaken by the plaintiff in his activities and such
risks were assumed and accepted by him in performing and engaging in said activities.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
28. Whatever injuries and/or damages sustained by the plaintiff at the time and place
alleged in the complaint, were due to the acts of parties over whom this Third-Party Defendant
was not obligated to exercise any control or supervision.
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AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
29. The injuries sustained by plaintiff, if any, were not proximately caused by any act
of omission of this Third-Party Defendant.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
30. The complaint must be dismissed, as answering Third-Party Defendant owed no
duty to plaintiff and/or third-party plaintiff.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
31. Plaintiff’s complaint should be dismissed as he was a recalcitrant worker.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
32. Plaintiff’s complaint should be dismissed as he was the sole proximate cause of his
accident.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
33. Plaintiff may have recovered the costs of medical care, dental care, custodial care,
rehabilitation services other economical loss, and any such future loss or expense will, with
reasonable certainty, be replaced, offset, or indemnified in whole or in part pursuant to the
Affordable Care Act. Any award made to plaintiff shall be reduced in accordance with the
provisions of the Affordable Care Act, Article 50b of the CPLR and section 5-335 of the General
Obligations Law.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
34. Whatever injuries and/or damages sustained by the plaintiff at the time and place
alleged in the complaint, were due to the acts of parties over whom the defendant was not obligated
to exercise any control or supervision.
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AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
35. The injuries sustained by plaintiff, if any, were not proximately caused by any act
of omission of answering defendant.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
36. The complaint must be dismissed, as answering Third-Party Defendant owed no
duty to plaintiff.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
37. The third-party plaintiffs’ claim for contractual indemnification is barred by G.O.L.
5-322.1.
DEFENSES RESERVED
38. Third Party Defendant gives notice that it intends to rely upon any other defenses
that may become available or apparent during the discovery proceedings in this matter, and hereby
reserve its right to amend its Third-Party Answer and to assert any such defense.
AS AND FOR A FIRST COUNTER CLAIM AGAINST
91-93 FRANKLIN LLC AND Y.N.H CONSTRUCTION INC.
39. Although Third-Party Defendant has denied the allegations in the Third-Party
Complaint with respect to any wrongdoing on the part of said Third-Party Defendant, nevertheless,
in the event that there is a verdict or judgment in favor of the plaintiff against Third-Party
Defendant then, and in that event, said Third-Party Defendant demands judgment over and against
91-93 Franklin LLC and Y.N.H. Construction, Inc. by reason of its wrongful conduct being
primary and/or active while any wrongdoing of Third-Party Defendant, if any, was secondary
and/or passive, and the indemnity is to be full and complete.
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AS AND FOR A SECOND COUNTER CLAIM AGAINST
91-93 FRANKLIN LLC AND Y.N.H CONSTRUCTION INC.
40. Although Third-Party Defendant has denied allegations in the Third-Party
Complaint with respect to any alleged wrongdoing on the part of Third-Party Defendant,
nevertheless, ifit is found that the Third-Party Defendant is liable to the plaintiff herein, all of
which is denied, said Third-Party Defendant, on the basis of apportionment of responsibility for
the alleged occurrence, is entitled to contribution from and judgment over and against Alpine
Ready Mix Inc.. for all or part of any verdict or judgment plaintiffs may recover against the Third-
Party Defendant.
AS AND FOR A FIRST CROSS-CLAIM AGAINST
ALPINE READY MIX INC.
41. Although Third-Party Defendant has denied the allegations in the Third-Party
Complaint with respect to any wrongdoing on the part of said Third-Party Defendant, nevertheless,
in the event that there is a verdict or judgment in favor of the plaintiff against Third-Party
Defendant then, and in that event, said Third-Party Defendant demands judgment over and against
Alpine Ready Mix Inc. by reason of its wrongful conduct being primary and/or active while any
wrongdoing of Third-Party Defendant, if any, was secondary and/or passive, and the indemnity is
to be full and complete.
AS AND FOR A SECOND CROSS-CLAIM AGAINST
ALPINE READY MIX INC.
42. Although Third-Party Defendant has denied allegations in the Third-Party
Complaint with respect to any alleged wrongdoing on the part of Third-Party Defendant,
nevertheless, ifit is found that the Third-Party Defendant is liable to the plaintiff herein, all of
which is denied, said Third-Party Defendant, on the basis of apportionment of responsibility for
the alleged occurrence, is entitled to contribution from and judgment over and against Alpine
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Ready Mix Inc. for all or part of any verdict or judgment plaintiffs may recover against the Third-
Party Defendant.
AS AND FOR A THIRD CROSS-CLAIM AGAINST
ALPINE READY MIX INC.
43. Although Third-Party Defendant has denied allegations in the Third-Party
Complaint with respect to any alleged wrongdoing on the part of Third-Party Defendant,
nevertheless, if it is found that the answering Third-Party Defendant is liable to the plaintiff herein,
all of which is denied, said Third-Party Defendant, on the basis of contractual indemnification
from and judgment over and against Alpine Ready Mix Inc. for all or part of any verdict or
judgment plaintiffs may recover against the Third-Party Defendant.
AS AND FOR A FOURTH CROSS-CLAIM AGAINST
ALPINE READY MIX INC.
44. Although Third-Party Defendant has denied allegations in the Third-Party
Complaint with respect to any alleged wrongdoing on the part of Third-Party Defendant,
nevertheless, ifit is found that the Third-Party Defendant is liable to the plaintiff herein, all of
which is denied, said Third-Party Defendant, on the basis breach of contract for failure to procure
insurance, is entitled to judgment over and against co-defendants Alpine Ready Mix Inc. for all
or part of any verdict or judgment plaintiffs may recover against the Third-Party Defendant.
45. As a result of Alpine Ready Mix Inc. breach of contract in failing to procure
insurance for the protection of Capital Concrete NY Inc. it has been and will continue to be
damaged and/or incur damages as a result of the claims of the plaintiff, in that Capital Concrete
NY Inc. has been and will be required to expend attorneys’ fees and other expenses for their own
defense in the within action and will or may be subject to liability to the plaintiff, of which costs
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and expenses and liabilities, if any, would have been defrayed and covered by liability insurance
that Alpine Ready Mix Inc.. was contractually obligated to purchase.
46. That as a result of Alpine Ready Mix Inc. breach of contractual obligations
regarding the purchase of insurance, Capital Concrete NY Inc. is entitled to be reimbursed for the
amount of any judgment or damages they are obligated to pay the plaintiff, including the cost of
settlement, if any, and or in addition thereto, are entitled to be reimbursed for the costs of attorneys’
fees and defense costs associated with the defense of this lawsuit.
WHEREFORE, Third-Party Defendant demands judgment dismissing the complaint and
Third-Party Complaint, judgment on its counter claims and cross-claims herein together with the
costs and disbursements of this action, and for such other and just relief.
Dated: New York, New York
July 21, 2022
FUCHS ROSENZWEIG PLLC
/s/ Douglas R. Rosenzweig
By: Douglas R. Rosenzweig
Attorneys for Third-Party Defendant
Capital Concrete NY Inc.
11 Broadway, Suite 570
New York, New York 10004
Our File No.: 7024.11981
(646) 760-5449
To: All Parties via NYSCEF
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FILED: KINGS COUNTY CLERK 07/21/2022 08/09/2022 12:15 03:42 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 97 133 RECEIVED NYSCEF: 07/21/2022 08/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------x JOSE GOMEZ, Plaintiffs, Index No.: 527680/2019 -against- Answer to Third-Party 91-93 FRANKLIN LLC, Complaint Y.N.H. CONSTRUCTION INC. and ALPINE READY MIX INC., Defendants. ---------------------------------------------------------------------x 91-93 FRANKLIN LLC, and Y.N.H. CONSTRUCTION INC., Third-Party Plaintiff, -against- CAPITAL CONCRETE NY, INC. Third-Party Defendant. ---------------------------------------------------------------------x PLEASE TAKE NOTICE that Third-Party Defendant, CAPITAL CONCRETE NY, INC. by and through its attorneys, Fuchs Rosenzweig, PLLC, as and for its answer to defendants/third-party plaintiffs’ 91-93 Franklin LLC and Y.N.H. Construction Inc.’s third-party complaint sets forth as follows: 1. Third-Party Defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs designated as “1”, “2” and “3” of the Third- Party Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time of trial. 2. Third-Party Defendant admits the truth of the allegation set forth in paragraphs designated as “4” and “8” of the Third-Party Complaint 3. Third-party Defendant denies the allegations set forth within the Third-Party Complaint within the paragraphs designated as “5”, “6”, “7”, “9” and “10” of the Third-Party 1 of 11 FILED: KINGS COUNTY CLERK 07/21/2022 08/09/2022 12:15 03:42 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 97 133 RECEIVED NYSCEF: 07/21/2022 08/09/2022 Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time of trial. 4. Third-Party Defendant admits the allegations set forth in paragraph “11” of the Third-Party Complaint only to the extent that according to the Summons & Complaint, plaintiff alleges that he was injured in the course of his employment with Third-Party Defendant on September 18, 2019. AS AND FOR AN ANSWER TO THIRD-PARTY PLAINTIFFS’ FIRST CAUSE OF ACTION 5. In response to the paragraph of the Third-party Complaint designated therein as “12”, Third-Party Defendant repeats, reiterates and realleges each and every response to each and every allegation contained in the paragraphs designated “1” through and inclusive of “11” of the Third-Party Complaint as if same had been more fully and at length. 6. Third-Party Defendant denies the allegations set forth within the Third-Party Complaint within the paragraphs designated as “13” of the Third-Party Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time of trial. AS AND FOR AN ANSWER TO THIRD-PARTY PLAINTIFFS’ SECOND CAUSE OF ACTION 7. In response to the paragraph of the Third-party Complaint designated therein as “14”, Third-Party Defendant repeats, reiterates and realleges each and every response to each and every allegation contained in the paragraphs designated “1” through and inclusive of “13” of the Third-Party Complaint as if same had been more fully and at length. 8. Third-Party Defendant denies the allegations set forth within the Third-Party Complaint within the paragraphs designated as “15” and “16” of the Third-Party Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time of trial. 2 of 11 FILED: KINGS COUNTY CLERK 07/21/2022 08/09/2022 12:15 03:42 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 97 133 RECEIVED NYSCEF: 07/21/2022 08/09/2022 AS AND FOR AN ANSWER TO THIRD-PARTY PLAINTIFFS’ THIRD CAUSE OF ACTION 9. In response to the paragraph of the Third-party Complaint designated therein as “17”, Third-Party Defendant repeats, reiterates and realleges each and every response to each and every allegation contained in the paragraphs designated “1” through and inclusive of “16” of the Third-Party Complaint as if same had been more fully and at length. 10. Third-Party Defendant denies the allegations set forth within the Third-Party Complaint within the paragraphs designated as “18” of the Third-Party Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time of trial, other than to admit that Third-Party Defendant was performing work and services at the subject location pursuant to a written agreement. 11. Third-Party Defendant denies the allegations set forth within the Third-Party Complaint within the paragraphs designated as “19”, “20”, “21” and “22” of the Third-Party Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time of trial. AS AND FOR AN ANSWER TO THIRD-PARTY PLAINTIFFS’ FOURTH CAUSE OF ACTION 12. In response to the paragraph of the Third-party Complaint designated therein as “23”, Third-Party Defendant repeats, reiterates and realleges each and every response to each and every allegation contained in the paragraphs designated “1” through and inclusive of “22” of the Third-Party Complaint as if same had been more fully and at length. 13. Third-Party Defendant denies the allegations set forth within the Third-Party Complaint within the paragraphs designated as “24” of the Third-Party Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time of trial, other than to 3 of 11 FILED: KINGS COUNTY CLERK 07/21/2022 08/09/2022 12:15 03:42 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 97 133 RECEIVED NYSCEF: 07/21/2022 08/09/2022 admit that Third-Party Defendant was performing work and services at the subject location pursuant to a written agreement. 14. Third-Party Defendant denies the allegations set forth within the Third-Party Complaint within the paragraphs designated as “25” and “26” of the Third-Party Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time of trial. AS AND FOR AN ANSWER TO THIRD-PARTY PLAINTIFFS’ FIFTH CAUSE OF ACTION 15. In response to the paragraph of the Third-party Complaint designated therein as “27” Third-Party Defendant repeats, reiterates and realleges each and every response to each and every allegation contained in the paragraphs designated “1” through and inclusive of “26” of the Third-Party Complaint as if same had been more fully and at length. 16. Third-Party Defendant denies the allegations set forth within the Third-Party Complaint within the paragraphs designated as “28” of the Third-Party Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time of trial, other than to admit that Third-Party Defendant was performing work and services at the subject location pursuant to a written agreement. 17. Third-Party Defendant denies the allegations set forth within the Third-Party Complaint within the paragraphs designated as “29”, “30” and “31” of the Third-Party Complaint in the form alleged and reserves all matters of law to this Honorable Court at the time of trial. 18. All allegations not hereinbefore specifically addressed are hereby denied. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 19. The Third-Party Defendant not being fully advised as to all the facts and circumstances surrounding the incident complained of, hereby asserts and reserves unto itself the defenses of accord and satisfaction, arbitration and award, assumption of risk, contributory 4 of 11 FILED: KINGS COUNTY CLERK 07/21/2022 08/09/2022 12:15 03:42 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 97 133 RECEIVED NYSCEF: 07/21/2022 08/09/2022 negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense which the further investigation of this matter may prove applicable herein. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 20. The complaint fails to state a claim upon which relief may be granted. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 21. Pursuant to CPLR Article 16, the liability of Third-Party Defendant to the plaintiff and/or defendant/third-party plaintiff herein for non-economic loss is limited to Third-Party Defendant’s, equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 22. Plaintiff may have recovered the costs of medical care, dental care, custodial care, rehabilitation services, loss of earnings and other economic loss and any such future loss or expense will, with reasonable certainty, be replaced or indemnified in whole or in part from collateral sources. Any award made to plaintiff shall be reduced in accordance with the provisions of CPLR 4545(a). AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 23. Any damages sustained by the plaintiff were caused by the culpable conduct of the plaintiff and/or third-party plaintiff, including comparative negligence, assumption of risks, breach of contract and not by the culpable conduct or negligence of this answering Third-Party Defendant. But if a verdict of judgment is awarded to the plaintiff and/or third-party plaintiff, then and in that event the damages shall be reduced in the proportion which the culpable conduct attributable to 5 of 11 FILED: KINGS COUNTY CLERK 07/21/2022 08/09/2022 12:15 03:42 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 97 133 RECEIVED NYSCEF: 07/21/2022 08/09/2022 the plaintiff and/or third-party plaintiff bears to the culpable conduct which caused the damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 24. Plaintiff may have failed to mitigate damages. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 25. Plaintiff's alleged loss and damage, if any, resulted wholly and solely from the fault, neglect and want of care of the plaintiff and/or third-party plaintiff or persons or parties other than Third-Party Defendant, for whose acts said defendant is not liable or responsible and not as a result of any negligence of this defendant. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 26. This Third-Party Defendant is entitled to a set-off if any tortfeasor has or will settle with plaintiff pursuant to G.O.L. 15-108. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 27. That by entering into the activity in which the plaintiff was engaged at the time of the occurrence set forth in the complaint, said plaintiff knew the hazards thereof and the inherent risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries and damages were sustained by the plaintiff herein as alleged in the complaint arose from and were caused by reason of such risks voluntarily undertaken by the plaintiff in his activities and such risks were assumed and accepted by him in performing and engaging in said activities. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 28. Whatever injuries and/or damages sustained by the plaintiff at the time and place alleged in the complaint, were due to the acts of parties over whom this Third-Party Defendant was not obligated to exercise any control or supervision. 6 of 11 FILED: KINGS COUNTY CLERK 07/21/2022 08/09/2022 12:15 03:42 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 97 133 RECEIVED NYSCEF: 07/21/2022 08/09/2022 AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 29. The injuries sustained by plaintiff, if any, were not proximately caused by any act of omission of this Third-Party Defendant. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 30. The complaint must be dismissed, as answering Third-Party Defendant owed no duty to plaintiff and/or third-party plaintiff. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 31. Plaintiff’s complaint should be dismissed as he was a recalcitrant worker. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 32. Plaintiff’s complaint should be dismissed as he was the sole proximate cause of his accident. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 33. Plaintiff may have recovered the costs of medical care, dental care, custodial care, rehabilitation services other economical loss, and any such future loss or expense will, with reasonable certainty, be replaced, offset, or indemnified in whole or in part pursuant to the Affordable Care Act. Any award made to plaintiff shall be reduced in accordance with the provisions of the Affordable Care Act, Article 50b of the CPLR and section 5-335 of the General Obligations Law. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 34. Whatever injuries and/or damages sustained by the plaintiff at the time and place alleged in the complaint, were due to the acts of parties over whom the defendant was not obligated to exercise any control or supervision. 7 of 11 FILED: KINGS COUNTY CLERK 07/21/2022 08/09/2022 12:15 03:42 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 97 133 RECEIVED NYSCEF: 07/21/2022 08/09/2022 AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 35. The injuries sustained by plaintiff, if any, were not proximately caused by any act of omission of answering defendant. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 36. The complaint must be dismissed, as answering Third-Party Defendant owed no duty to plaintiff. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 37. The third-party plaintiffs’ claim for contractual indemnification is barred by G.O.L. 5-322.1. DEFENSES RESERVED 38. Third Party Defendant gives notice that it intends to rely upon any other defenses that may become available or apparent during the discovery proceedings in this matter, and hereby reserve its right to amend its Third-Party Answer and to assert any such defense. AS AND FOR A FIRST COUNTER CLAIM AGAINST 91-93 FRANKLIN LLC AND Y.N.H CONSTRUCTION INC. 39. Although Third-Party Defendant has denied the allegations in the Third-Party Complaint with respect to any wrongdoing on the part of said Third-Party Defendant, nevertheless, in the event that there is a verdict or judgment in favor of the plaintiff against Third-Party Defendant then, and in that event, said Third-Party Defendant demands judgment over and against 91-93 Franklin LLC and Y.N.H. Construction, Inc. by reason of its wrongful conduct being primary and/or active while any wrongdoing of Third-Party Defendant, if any, was secondary and/or passive, and the indemnity is to be full and complete. 8 of 11 FILED: KINGS COUNTY CLERK 07/21/2022 08/09/2022 12:15 03:42 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 97 133 RECEIVED NYSCEF: 07/21/2022 08/09/2022 AS AND FOR A SECOND COUNTER CLAIM AGAINST 91-93 FRANKLIN LLC AND Y.N.H CONSTRUCTION INC. 40. Although Third-Party Defendant has denied allegations in the Third-Party Complaint with respect to any alleged wrongdoing on the part of Third-Party Defendant, nevertheless, ifit is found that the Third-Party Defendant is liable to the plaintiff herein, all of which is denied, said Third-Party Defendant, on the basis of apportionment of responsibility for the alleged occurrence, is entitled to contribution from and judgment over and against Alpine Ready Mix Inc.. for all or part of any verdict or judgment plaintiffs may recover against the Third- Party Defendant. AS AND FOR A FIRST CROSS-CLAIM AGAINST ALPINE READY MIX INC. 41. Although Third-Party Defendant has denied the allegations in the Third-Party Complaint with respect to any wrongdoing on the part of said Third-Party Defendant, nevertheless, in the event that there is a verdict or judgment in favor of the plaintiff against Third-Party Defendant then, and in that event, said Third-Party Defendant demands judgment over and against Alpine Ready Mix Inc. by reason of its wrongful conduct being primary and/or active while any wrongdoing of Third-Party Defendant, if any, was secondary and/or passive, and the indemnity is to be full and complete. AS AND FOR A SECOND CROSS-CLAIM AGAINST ALPINE READY MIX INC. 42. Although Third-Party Defendant has denied allegations in the Third-Party Complaint with respect to any alleged wrongdoing on the part of Third-Party Defendant, nevertheless, ifit is found that the Third-Party Defendant is liable to the plaintiff herein, all of which is denied, said Third-Party Defendant, on the basis of apportionment of responsibility for the alleged occurrence, is entitled to contribution from and judgment over and against Alpine 9 of 11 FILED: KINGS COUNTY CLERK 07/21/2022 08/09/2022 12:15 03:42 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 97 133 RECEIVED NYSCEF: 07/21/2022 08/09/2022 Ready Mix Inc. for all or part of any verdict or judgment plaintiffs may recover against the Third- Party Defendant. AS AND FOR A THIRD CROSS-CLAIM AGAINST ALPINE READY MIX INC. 43. Although Third-Party Defendant has denied allegations in the Third-Party Complaint with respect to any alleged wrongdoing on the part of Third-Party Defendant, nevertheless, if it is found that the answering Third-Party Defendant is liable to the plaintiff herein, all of which is denied, said Third-Party Defendant, on the basis of contractual indemnification from and judgment over and against Alpine Ready Mix Inc. for all or part of any verdict or judgment plaintiffs may recover against the Third-Party Defendant. AS AND FOR A FOURTH CROSS-CLAIM AGAINST ALPINE READY MIX INC. 44. Although Third-Party Defendant has denied allegations in the Third-Party Complaint with respect to any alleged wrongdoing on the part of Third-Party Defendant, nevertheless, ifit is found that the Third-Party Defendant is liable to the plaintiff herein, all of which is denied, said Third-Party Defendant, on the basis breach of contract for failure to procure insurance, is entitled to judgment over and against co-defendants Alpine Ready Mix Inc. for all or part of any verdict or judgment plaintiffs may recover against the Third-Party Defendant. 45. As a result of Alpine Ready Mix Inc. breach of contract in failing to procure insurance for the protection of Capital Concrete NY Inc. it has been and will continue to be damaged and/or incur damages as a result of the claims of the plaintiff, in that Capital Concrete NY Inc. has been and will be required to expend attorneys’ fees and other expenses for their own defense in the within action and will or may be subject to liability to the plaintiff, of which costs 10 of 11 FILED: KINGS COUNTY CLERK 07/21/2022 08/09/2022 12:15 03:42 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 97 133 RECEIVED NYSCEF: 07/21/2022 08/09/2022 and expenses and liabilities, if any, would have been defrayed and covered by liability insurance that Alpine Ready Mix Inc.. was contractually obligated to purchase. 46. That as a result of Alpine Ready Mix Inc. breach of contractual obligations regarding the purchase of insurance, Capital Concrete NY Inc. is entitled to be reimbursed for the amount of any judgment or damages they are obligated to pay the plaintiff, including the cost of settlement, if any, and or in addition thereto, are entitled to be reimbursed for the costs of attorneys’ fees and defense costs associated with the defense of this lawsuit. WHEREFORE, Third-Party Defendant demands judgment dismissing the complaint and Third-Party Complaint, judgment on its counter claims and cross-claims herein together with the costs and disbursements of this action, and for such other and just relief. Dated: New York, New York July 21, 2022 FUCHS ROSENZWEIG PLLC /s/ Douglas R. Rosenzweig By: Douglas R. Rosenzweig Attorneys for Third-Party Defendant Capital Concrete NY Inc. 11 Broadway, Suite 570 New York, New York 10004 Our File No.: 7024.11981 (646) 760-5449 To: All Parties via NYSCEF 11 of 11