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FILED: FRANKLIN COUNTY CLERK 08/29/2022 03:19 PM INDEX NO. E2022-43
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF FRANKLIN
ALLYN WOODCOCK, III, Index No. E2022-43
Plaintiff,
-vs- SECOND AMENDED
ANSWER TO AMENDED
SALMON RIVER CENTRAL SCHOOL DISTRICT, COMPLAINT WITH
SALMON RIVER CENTRAL SCHOOL DISTRICT CROSS-CLAIMS
BOARD OF EDUCATION, C & S TECHNICAL AGAINST LAKEWOOD
RESOURCES, INC. and BURNS BROS. CONSTRUCTION
CONTRACTORS, LLC, SERVICES
Defendants.
BURNS BROS. CONTRACTORS, LLC,
Defendant/Third-Party Plaintiff,
-vs-
LAKEWOOD CONSTRUCTION SERVICES,
Third-Party Defendant.
..
SALMON RIVER CENTRAL SCHOOL DISTRICT,
Defendant/Fourth-Party Plaintiff,
-vs-
MURNANE BUILDING CONTRACTORS, INC.,
Fourth-Party Defendant.
I Defendant C&S Technical named in place of C&S
Resources, Inc., incorrectly Engineers,
Inc. (collectively "C&S"), by its attorneys Costello, Cooney & Fearon, PLLC, alleges and shows
to the Court as follows:
"5"
1. ADMITS the allegations contained in paragraph of the Amended Complaint.
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"15"
2. ADMITS to the allegations contained in paragraph of the Amended
Complaint to the extent that C&S Engineers, Inc. entered into a contract with Salmon River
Central School District to act as a construction manager, but DENIES knowledge and information
sufficient to form a belief with regard to the remaining allegations and therefore DENIES the
same.
3. DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief with
respect to paragraphs "1", "2", "3", "4", "6", "7", "8", "9", "10", "11", "12", "13", "16", "17",
"37" "38"
"18", "19", "20", "21", "22", "23", "29", and of the Amended Complaint and therefore
DENIES the same.
4. DENIES the allegations contained in paragraphs "14", "15", "24", "25", "26",
"27", "28", "30", "31", "32", "33", "34", "36", "39", "40", "41", "43", "44", "45", "46", "47",
"58" "59"
"48", "49", "51", "52", "56", "57", and of the Amended Complaint.
"50"
5. With respect to paragraphs "35", "42", and "55", the answering Defendant
repeats, reiterates and realleges each and every admission and denial heretofore made with the
same force and effect as if more fully set forth herein.
6. DENIES each and every other allegation not herein specifically admitted, denied
or otherwise controverted.
AS AND FOR A FIRST
AFFIRMATIVE DEFENSE
7. Upon information and belief, some or all of the damages alleged in the Plaintiff's
Amended Complaint are barred and/or subject to the qualifications of the provision of
Section 4545 of the Civil Practice Law and Rules.
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AS AND FOR A SECOND
AFFIRMATIVE DEFENSE
8. In the event of any prior or subsequent settlement entered into between Plaintiff and
another person or persons liable, or claimed to be liable, in tort for the same injury complained of
herein, the answering Defendant asserts all relevant provisions of General Obligations Law §
15-108.
AS AND FOR A THIRD
AFFIRMATIVE DEFENSE
9. Upon information and belief, the Plaintiff's damages, ifany, were brought about
either in whole or in part by the Plaintiff's own culpable conduct without any negligence, fault or
want of care on the part of the answering Defendant.
10. By virtue of the foregoing, in the event any judgment or recovery is made by
Plaintiff, it should be reduced in accordance with Section 1411 of the Civil Practice Law and
Rules.
AS AND FOR A FOURTH
AFFIRMATIVE DEFENSE
11. Upon information and belief, the Plaintiff's damages, ifany, were brought about
either in whole or in part by the culpable conduct of others over whom this answering Defendant
has no authority, control or dominion and without any negligence, fault or want of care on the part
of the answering Defendant.
AS AND FOR A FIFTH
AFFIRMATIVE DEFENSE
12. The liability, if any, of the answering Defendant is limited by operation of Article
16 of the Civil Practice Law and Rules.
AS AND FOR A SIXTH
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AFFIRMATIVE DEFENSE
13. Upon information and belief, Plaintiff failed to properly mitigate and/or minimize
Plaintiff's alleged damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE AND
BY WAY OF A CROSS-CLAIM AGAINST THE CO-DEFENDANTS
SALMON RIVER CENTRAL SCHOOL DISTRICT AND SALMON RIVER
CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION,
DEFENDANT C & S, ALLEGES AS FOLLOWS:
14. Upon information and belief, allor part of Plaintiff's damages, ifany, were brought
about by the culpable conduct of the Co-Defendants, Salmon River Central School District and
Salmon River Central School District Board of Education, and by reason thereof, the answering
Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc., is entitled to judgment
against the Co-Defendants, Salmon River Central School District and Salmon River Central
School District Board of Education, in contribution and/or indemnity, by contract and/or under
common law, for any damages for which the answering Defendant may be liable to the Plaintiff.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE AND
BY WAY OF A CROSS-CLAIM AGAINST THE CO-DEFENDANT BURNS BROS.
CONTRACTORS, LLC, DEFENDANT C&S, ALLEGES AS FOLLOWS:
15. Upon information and belief, all or part of Plaintiff's damages, ifany, were brought
about by the culpable conduct of the Co-Defendant Burns Bros. Contractors, LLC, and by reason
thereof, the answering Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc. is
entitled to judgment against the Co-Defendant Burns Bros. Contractors, LLC, in contribution
and/or indemnity, by contract and/or under common law, for any damages for which the answering
Defendant may be liable to the Plaintiff.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE AND
BY WAY OF A CROSS-CLAIM AGAINST THE CO-DEFENDANTS
SALMON RIVER CENTRAL SCHOOL DISTRICT AND SALMON
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RIVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION,
DEFENDANT C & S, ALLEGES AS FOLLOWS:
16. Upon information and belief, and at all times herein relevant, Co-Defendants
Salmon River Central School District and Salmon River Central School District Board of
Education agreed to provide liability insurance coverage for Defendant C&S Technical Resources,
Inc. and/or C&S Engineers, Inc. relating to the construction project in question.
17. Upon information and belief, Co-Defendants Salmon River Central School District
and Salmon River Central School District Board of Education did not procure said insurance and
has, therefore, breached itsagreement with Defendant C&S Technical Resources, Inc. and/or C&S
Engineers, Inc.
18. Upon information and belief, if Co-Defendants Salmon River Central School
District and Salmon River Central School District Board of Education had procured said insurance
policy for the protection of Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc.,
such policy would have provided coverage to the answering Defendant C&S for the claims of the
Plaintiff in this action.
19. Based upon the foregoing, if Plaintiff obtains judgment against Defendant C&S
Technical Resources, Inc. and/or C & S Engineers, Inc., Defendant C&S Technical Resources,
Inc. and/or C&S Engineers, Inc. will be damaged thereby and Co-Defendants Salmon River
Central School District and Salmon River Central School District Board of Education will be
liable for the amount of judgment against C&S Technical Resources, Inc. and/or C&S Engineers,
Inc.
20. Additionally, notwithstanding whether Plaintiff recovers a judgment,
Co-Defendants Salmon River Central School District and Salmon River Central School District
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Board of Education will be liable to C&S Technical Resources, Inc and/or C&S Engineers, Inc. for
attorneys'
costs, disbursements and fee incurred by C&S Technical Resources, Inc. and/or C&S
Engineers, Inc. in the defense of Plaintiff's action.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE AND
BY WAY OF A CROSS-CLAIM AGAINST THE CO-DEFENDANT
BURNS BROS. CONTRACTORS, LLC, DEFENDANT
C&S, ALLEGES AS FOLLOWS:
21. Upon information and belief, and at all times herein relevant, Co-Defendant Burns
Bros. Contractors, LLC agreed to provide liability insurance coverage for Defendant C&S
Technical Resources, Inc. and/or C&S Engineers, Inc. relating to work Co-Defendant Burns Bros.
Contractors, LLC was conducting on the premises.
22. Upon information and belief, Co-Defendant Burns Bros. Contractors, LLC did not
procure said insurance and has, therefore, breached its agreement with Defendant C&S Technical
Resources, Inc. and/or C&S Engineers, Inc.
23. Upon information and belief, if Co-Defendant Burns Bros. Contractors, LLC had
procured said insurance policy for the protection of Defendant C&S Technical Resources, Inc.
and/or C&S Engineers, Inc., such policy would have provided coverage to Defendant C&S
Technical Resources, Inc. and/or C & S Engineers, Inc. for the claims of the Plaintiff in this action.
24. Based upon the foregoing, if Plaintiff obtains judgment against Defendant C&S
Technical Resources, Inc. and/or C&S Engineers, Inc., Defendant C& Technical Resources, Inc.
and/or C&S Engineers, Inc. will be damaged thereby and Co-Defendant Burns Bros. Contractors,
LLC will be liable for the amount of judgment against C&S Technical Resources, Inc. and/or C&S
Engineers, Inc.
25. Additionally, notwithstanding whether Plaintiff recovers a judgment, Defendant
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Burns Bros. LLC will be liable to C&S Technical Resources, Inc. and/or C&S
Contractors,
attorneys'
Inc. for costs, disbursements and fees incurred by C&S Technical
Engineers,
Resources, Inc. and/or C&S Engineers, Inc. in the defense of Plaintiff's action.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE AND
BY WAY OF A CROSS-CLAIM AGAINST LAKEWOOD CONSTRUCTION
SERVICES, DEFENDANT C & S TECHNICAL RESOURCES,
INC., ALLEGES AS FOLLOWS:
26. Upon information and belief, Third-Party Defendant, Lakewood Construction
Services ("Lakewood"), was obligated to indemnify, Defendant C&S pursuant the contract
between Defendant, Burns Bros. Contractors, Inc. and Lakewood.
27. Upon information and belief, Plaintiff's claims arise out of Lakewood's contract to
perform services and Lakewood is obligated to indemnify C&S for any judgment recovered by
attorneys'
Plaintiff against C&S, together with any fees, costs and expenses.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE AND
BY WAY OF A CROSS-CLAIM AGAINST LAKEWOOD CONSTRUCTION
SERVICES, DEFENDANT C & S TECHNICAL RESOURCES,
INC., ALLEGES AS FOLLOWS:
28. Upon information and belief, pursuant to its contract, Lakewood was required to
name C&S as an additional insured under itspolicies of liability insurance.
29. In the event that Lakewood did not procure insurance for the benefit of C&S, itis in
breach of itscontractual obligations.
30. Accordingly, Lakewood is liableto C&S for any damages resulting from the failure
attorneys'
to procure insurance for the benefit of C&S, including fees.
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AS AND FOR AN THIRTEENTH AFFIRMATIVE DEFENSE AND
BY WAY OF A CROSS-CLAIM AGAINST LAKEWOOD CONSTRUCTION
SERVICES, DEFENDANT C & S TECHNICAL RESOURCES,
INC., ALLEGES AS FOLLOWS:
31. Upon information and belief, Plaintiff's accident resulted in whole or in part from
the negligence of Lakewood.
32. In the event that the Plaintiff recovers any judgment against C&S, and in the event
that the Plaintiff is determined to have a grave injury, C&S is entitled to contribution and/or
common law indemnification against Lakewood for any liability to the Plaintiff in accordance with
CPLR Article 14.
WHEREFORE, Defendant, C&S Technical Resources, Inc., demands judgment
dismissing the Amended Complaint, or in the alternative, reducing any recovery in accordance
attorneys'
with the affirmative defenses and cross-claims raised, including fees, together with the
costs and disbursements of this action and such other and further relief as to this Court may deem
just and proper.
DATED: August 29, 2022
COSTELLO, COONEY & FEARON, PLLC
DONALD S. DiBENEDETTO
Attorneys for the Defendant,
C & S Technical Resources, Inc., incorrectly
named in place of C & S Engineers, Inc.
Office and Post Office Address
211 West Jefferson Street, Suite 1
Syracuse, New York 13202
Telephone: (315) 422-1152
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TO: PETER J. HICKEY, ESQ.
MARTIN, HARDING & MAZZOTTI, LLP
Attorneys for Plaintiff
Office and Post Office Address
1 Wall Street
P.O. Box 15141
Albany, New York 12212
Telephone: (518) 862-1200
THOMAS E. KELLY, ESQ.
KELLY & LEONARD, LLP
Attorneys for Defendants,
Salmon River Central School District
and Salmon River School District Board of Education
Office and Post Office Address
20 Fenwick Street
Ballston Spa, New York 12020
Telephone: (518) 884-0080
JAMES W. CUNNINGHAM, ESQ.
SMITH, SOVIK, KENDRICK & SUGNET, P.C.
Attorneys for Defendant,
Burns Bros. Contractors, LLC
Office and Post Office Address
250 South Clinton Street, Suite 600
Syracuse, New York 13202
Telephone: (315) 474-2911
M. RANDOLPH BELKIN, ESQ.
LAW OFFICE OF M. RANDOLPH BELKIN
Attorneys for Third-Party Defendant
Lakewood Construction Services
Office and Post Office Address
26 Century Hill Drive, Suite 202
Latham, New York 12110
Telephone: (518) 785-5340
UPON APPEARANCE
MURNANE BUILDING CONTRACTORS, INC.
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FILED: FRANKLIN COUNTY CLERK 08/29/2022 03:19 PM INDEX NO. E2022-43 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF FRANKLIN ALLYN WOODCOCK, III, Index No. E2022-43 Plaintiff, -vs- SECOND AMENDED ANSWER TO AMENDED SALMON RIVER CENTRAL SCHOOL DISTRICT, COMPLAINT WITH SALMON RIVER CENTRAL SCHOOL DISTRICT CROSS-CLAIMS BOARD OF EDUCATION, C & S TECHNICAL AGAINST LAKEWOOD RESOURCES, INC. and BURNS BROS. CONSTRUCTION CONTRACTORS, LLC, SERVICES Defendants. BURNS BROS. CONTRACTORS, LLC, Defendant/Third-Party Plaintiff, -vs- LAKEWOOD CONSTRUCTION SERVICES, Third-Party Defendant. .. SALMON RIVER CENTRAL SCHOOL DISTRICT, Defendant/Fourth-Party Plaintiff, -vs- MURNANE BUILDING CONTRACTORS, INC., Fourth-Party Defendant. I Defendant C&S Technical named in place of C&S Resources, Inc., incorrectly Engineers, Inc. (collectively "C&S"), by its attorneys Costello, Cooney & Fearon, PLLC, alleges and shows to the Court as follows: "5" 1. ADMITS the allegations contained in paragraph of the Amended Complaint. 1 of 9 FILED: FRANKLIN COUNTY CLERK 08/29/2022 03:19 PM INDEX NO. E2022-43 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2022 "15" 2. ADMITS to the allegations contained in paragraph of the Amended Complaint to the extent that C&S Engineers, Inc. entered into a contract with Salmon River Central School District to act as a construction manager, but DENIES knowledge and information sufficient to form a belief with regard to the remaining allegations and therefore DENIES the same. 3. DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief with respect to paragraphs "1", "2", "3", "4", "6", "7", "8", "9", "10", "11", "12", "13", "16", "17", "37" "38" "18", "19", "20", "21", "22", "23", "29", and of the Amended Complaint and therefore DENIES the same. 4. DENIES the allegations contained in paragraphs "14", "15", "24", "25", "26", "27", "28", "30", "31", "32", "33", "34", "36", "39", "40", "41", "43", "44", "45", "46", "47", "58" "59" "48", "49", "51", "52", "56", "57", and of the Amended Complaint. "50" 5. With respect to paragraphs "35", "42", and "55", the answering Defendant repeats, reiterates and realleges each and every admission and denial heretofore made with the same force and effect as if more fully set forth herein. 6. DENIES each and every other allegation not herein specifically admitted, denied or otherwise controverted. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 7. Upon information and belief, some or all of the damages alleged in the Plaintiff's Amended Complaint are barred and/or subject to the qualifications of the provision of Section 4545 of the Civil Practice Law and Rules. 2 2 of 9 FILED: FRANKLIN COUNTY CLERK 08/29/2022 03:19 PM INDEX NO. E2022-43 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2022 AS AND FOR A SECOND AFFIRMATIVE DEFENSE 8. In the event of any prior or subsequent settlement entered into between Plaintiff and another person or persons liable, or claimed to be liable, in tort for the same injury complained of herein, the answering Defendant asserts all relevant provisions of General Obligations Law § 15-108. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 9. Upon information and belief, the Plaintiff's damages, ifany, were brought about either in whole or in part by the Plaintiff's own culpable conduct without any negligence, fault or want of care on the part of the answering Defendant. 10. By virtue of the foregoing, in the event any judgment or recovery is made by Plaintiff, it should be reduced in accordance with Section 1411 of the Civil Practice Law and Rules. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 11. Upon information and belief, the Plaintiff's damages, ifany, were brought about either in whole or in part by the culpable conduct of others over whom this answering Defendant has no authority, control or dominion and without any negligence, fault or want of care on the part of the answering Defendant. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 12. The liability, if any, of the answering Defendant is limited by operation of Article 16 of the Civil Practice Law and Rules. AS AND FOR A SIXTH 3 of 9 FILED: FRANKLIN COUNTY CLERK 08/29/2022 03:19 PM INDEX NO. E2022-43 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2022 AFFIRMATIVE DEFENSE 13. Upon information and belief, Plaintiff failed to properly mitigate and/or minimize Plaintiff's alleged damages. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE AND BY WAY OF A CROSS-CLAIM AGAINST THE CO-DEFENDANTS SALMON RIVER CENTRAL SCHOOL DISTRICT AND SALMON RIVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, DEFENDANT C & S, ALLEGES AS FOLLOWS: 14. Upon information and belief, allor part of Plaintiff's damages, ifany, were brought about by the culpable conduct of the Co-Defendants, Salmon River Central School District and Salmon River Central School District Board of Education, and by reason thereof, the answering Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc., is entitled to judgment against the Co-Defendants, Salmon River Central School District and Salmon River Central School District Board of Education, in contribution and/or indemnity, by contract and/or under common law, for any damages for which the answering Defendant may be liable to the Plaintiff. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE AND BY WAY OF A CROSS-CLAIM AGAINST THE CO-DEFENDANT BURNS BROS. CONTRACTORS, LLC, DEFENDANT C&S, ALLEGES AS FOLLOWS: 15. Upon information and belief, all or part of Plaintiff's damages, ifany, were brought about by the culpable conduct of the Co-Defendant Burns Bros. Contractors, LLC, and by reason thereof, the answering Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc. is entitled to judgment against the Co-Defendant Burns Bros. Contractors, LLC, in contribution and/or indemnity, by contract and/or under common law, for any damages for which the answering Defendant may be liable to the Plaintiff. AS AND FOR A NINTH AFFIRMATIVE DEFENSE AND BY WAY OF A CROSS-CLAIM AGAINST THE CO-DEFENDANTS SALMON RIVER CENTRAL SCHOOL DISTRICT AND SALMON 4 4 of 9 FILED: FRANKLIN COUNTY CLERK 08/29/2022 03:19 PM INDEX NO. E2022-43 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2022 RIVER CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION, DEFENDANT C & S, ALLEGES AS FOLLOWS: 16. Upon information and belief, and at all times herein relevant, Co-Defendants Salmon River Central School District and Salmon River Central School District Board of Education agreed to provide liability insurance coverage for Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc. relating to the construction project in question. 17. Upon information and belief, Co-Defendants Salmon River Central School District and Salmon River Central School District Board of Education did not procure said insurance and has, therefore, breached itsagreement with Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc. 18. Upon information and belief, if Co-Defendants Salmon River Central School District and Salmon River Central School District Board of Education had procured said insurance policy for the protection of Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc., such policy would have provided coverage to the answering Defendant C&S for the claims of the Plaintiff in this action. 19. Based upon the foregoing, if Plaintiff obtains judgment against Defendant C&S Technical Resources, Inc. and/or C & S Engineers, Inc., Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc. will be damaged thereby and Co-Defendants Salmon River Central School District and Salmon River Central School District Board of Education will be liable for the amount of judgment against C&S Technical Resources, Inc. and/or C&S Engineers, Inc. 20. Additionally, notwithstanding whether Plaintiff recovers a judgment, Co-Defendants Salmon River Central School District and Salmon River Central School District 5 5 of 9 FILED: FRANKLIN COUNTY CLERK 08/29/2022 03:19 PM INDEX NO. E2022-43 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2022 Board of Education will be liable to C&S Technical Resources, Inc and/or C&S Engineers, Inc. for attorneys' costs, disbursements and fee incurred by C&S Technical Resources, Inc. and/or C&S Engineers, Inc. in the defense of Plaintiff's action. AS AND FOR A TENTH AFFIRMATIVE DEFENSE AND BY WAY OF A CROSS-CLAIM AGAINST THE CO-DEFENDANT BURNS BROS. CONTRACTORS, LLC, DEFENDANT C&S, ALLEGES AS FOLLOWS: 21. Upon information and belief, and at all times herein relevant, Co-Defendant Burns Bros. Contractors, LLC agreed to provide liability insurance coverage for Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc. relating to work Co-Defendant Burns Bros. Contractors, LLC was conducting on the premises. 22. Upon information and belief, Co-Defendant Burns Bros. Contractors, LLC did not procure said insurance and has, therefore, breached its agreement with Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc. 23. Upon information and belief, if Co-Defendant Burns Bros. Contractors, LLC had procured said insurance policy for the protection of Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc., such policy would have provided coverage to Defendant C&S Technical Resources, Inc. and/or C & S Engineers, Inc. for the claims of the Plaintiff in this action. 24. Based upon the foregoing, if Plaintiff obtains judgment against Defendant C&S Technical Resources, Inc. and/or C&S Engineers, Inc., Defendant C& Technical Resources, Inc. and/or C&S Engineers, Inc. will be damaged thereby and Co-Defendant Burns Bros. Contractors, LLC will be liable for the amount of judgment against C&S Technical Resources, Inc. and/or C&S Engineers, Inc. 25. Additionally, notwithstanding whether Plaintiff recovers a judgment, Defendant 6 6 of 9 FILED: FRANKLIN COUNTY CLERK 08/29/2022 03:19 PM INDEX NO. E2022-43 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2022 Burns Bros. LLC will be liable to C&S Technical Resources, Inc. and/or C&S Contractors, attorneys' Inc. for costs, disbursements and fees incurred by C&S Technical Engineers, Resources, Inc. and/or C&S Engineers, Inc. in the defense of Plaintiff's action. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE AND BY WAY OF A CROSS-CLAIM AGAINST LAKEWOOD CONSTRUCTION SERVICES, DEFENDANT C & S TECHNICAL RESOURCES, INC., ALLEGES AS FOLLOWS: 26. Upon information and belief, Third-Party Defendant, Lakewood Construction Services ("Lakewood"), was obligated to indemnify, Defendant C&S pursuant the contract between Defendant, Burns Bros. Contractors, Inc. and Lakewood. 27. Upon information and belief, Plaintiff's claims arise out of Lakewood's contract to perform services and Lakewood is obligated to indemnify C&S for any judgment recovered by attorneys' Plaintiff against C&S, together with any fees, costs and expenses. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE AND BY WAY OF A CROSS-CLAIM AGAINST LAKEWOOD CONSTRUCTION SERVICES, DEFENDANT C & S TECHNICAL RESOURCES, INC., ALLEGES AS FOLLOWS: 28. Upon information and belief, pursuant to its contract, Lakewood was required to name C&S as an additional insured under itspolicies of liability insurance. 29. In the event that Lakewood did not procure insurance for the benefit of C&S, itis in breach of itscontractual obligations. 30. Accordingly, Lakewood is liableto C&S for any damages resulting from the failure attorneys' to procure insurance for the benefit of C&S, including fees. 7 7 of 9 FILED: FRANKLIN COUNTY CLERK 08/29/2022 03:19 PM INDEX NO. E2022-43 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2022 AS AND FOR AN THIRTEENTH AFFIRMATIVE DEFENSE AND BY WAY OF A CROSS-CLAIM AGAINST LAKEWOOD CONSTRUCTION SERVICES, DEFENDANT C & S TECHNICAL RESOURCES, INC., ALLEGES AS FOLLOWS: 31. Upon information and belief, Plaintiff's accident resulted in whole or in part from the negligence of Lakewood. 32. In the event that the Plaintiff recovers any judgment against C&S, and in the event that the Plaintiff is determined to have a grave injury, C&S is entitled to contribution and/or common law indemnification against Lakewood for any liability to the Plaintiff in accordance with CPLR Article 14. WHEREFORE, Defendant, C&S Technical Resources, Inc., demands judgment dismissing the Amended Complaint, or in the alternative, reducing any recovery in accordance attorneys' with the affirmative defenses and cross-claims raised, including fees, together with the costs and disbursements of this action and such other and further relief as to this Court may deem just and proper. DATED: August 29, 2022 COSTELLO, COONEY & FEARON, PLLC DONALD S. DiBENEDETTO Attorneys for the Defendant, C & S Technical Resources, Inc., incorrectly named in place of C & S Engineers, Inc. Office and Post Office Address 211 West Jefferson Street, Suite 1 Syracuse, New York 13202 Telephone: (315) 422-1152 8 8 of 9 FILED: FRANKLIN COUNTY CLERK 08/29/2022 03:19 PM INDEX NO. E2022-43 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/29/2022 TO: PETER J. HICKEY, ESQ. MARTIN, HARDING & MAZZOTTI, LLP Attorneys for Plaintiff Office and Post Office Address 1 Wall Street P.O. Box 15141 Albany, New York 12212 Telephone: (518) 862-1200 THOMAS E. KELLY, ESQ. KELLY & LEONARD, LLP Attorneys for Defendants, Salmon River Central School District and Salmon River School District Board of Education Office and Post Office Address 20 Fenwick Street Ballston Spa, New York 12020 Telephone: (518) 884-0080 JAMES W. CUNNINGHAM, ESQ. SMITH, SOVIK, KENDRICK & SUGNET, P.C. Attorneys for Defendant, Burns Bros. Contractors, LLC Office and Post Office Address 250 South Clinton Street, Suite 600 Syracuse, New York 13202 Telephone: (315) 474-2911 M. RANDOLPH BELKIN, ESQ. LAW OFFICE OF M. RANDOLPH BELKIN Attorneys for Third-Party Defendant Lakewood Construction Services Office and Post Office Address 26 Century Hill Drive, Suite 202 Latham, New York 12110 Telephone: (518) 785-5340 UPON APPEARANCE MURNANE BUILDING CONTRACTORS, INC. 9 9 of 9