Preview
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
89 RECEIVED NYSCEF: 11/05/2018
11/04/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
-------------------------------------------------- X
JULIO IRALA-MARTINEZ, Index No.: 703644/2018
Plaintiff, VERIFIED ANSWER
TO THIRD-PARTY
-against- COMPLAINT WITH
COUNTERCLAIMS
SHUMAN 673/16 and COOK&KRUPA, LLC,
Defendants.
____--.............
.. ------------------------X
SHUMAN 673/16 and COOK&KRUPA, LLC,
Third-Party Plaintiffs,
-against-
CCI CONTRACTING, INC.,
Third-Party Defendant.
------------------------ -- ----- ----X
The third-party defendant CCI CONTRACTING, INC. by its attorneys, MORRIS DUFFY
plaintiffs'
ALONSO & FALEY, upon information and belief, answers the defendant/third-party
Complaint herein as follows:
1. Denies any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraphs or subdivisions of the Third-Party Complaint
"8"
designated "1", "2", "7", and "9".
2. Admits each and every allegation contained in the paragraph or subdivision of the
Third-Party Complaint designated "3".
3. Denies any knowledge or infonnation thereof sufficient to fonn a belief as to the
truth of the allegations contained in the paragraphs or subdivisions of the Third-Party Complaint
"5" "6"
designated "4", and and respectfully refers all questions of law to this honorable court.
ANSWERING THE FIRST CAUSE OF ACTIO_N
4. As to the paragraph of the Third-Party Complaint designated "10", answering
defendants repeat, reiterate and reallege each and every denial heretofore made with respect to
"1" "9"
paragraphs through inchmive, with the same force and effect as if fully set forth at length
herein.
1 of 50
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
89 RECEIVED NYSCEF: 11/05/2018
11/04/2022
5. Denies each and every allegation contain the paragraphs or subdivisions of the
"11"
Third-Party Complaint designated and "12".
ANSWERING THE SECOND CAUSE OF ACTION
6. As to the paragraph of the Third-Party Complaint designated "13", answering
defendants repeat, reiterate and reallege each and every denial heretofore made with respect to
"1" "12"
paragraphs through inclusive, with the same force and effect as if fully set forth at length
herein.
7. Denies each and every allegation contain the paragraphs or subdivisions of the
"17"
Third-Party Complaint designated "14", "16", and "18".
ANSWERING THE THIRD CAUSE OF ACTIO_N
8. As to the paragraph of the Third-Party Complaint designated "19", answering
defendants repeat, reiterate and reallege each and every denial heretofore made with respect to
"1" "18"
paragraphs through inclusive, with the same force and effect as if fully set forth at length
herein.
9. Denies any knowledge or information thereof sufficient to form a belief as to the
truth of the allegations contained in the paragraphs or subdivisions of the Third-Party Complaint
"20" "21"
designated and and respectfully refers all questions of law to this honorable court.
10. Denies each and every allegation contain the paragraphs or subdivisions of the
"23"
Third-Party Complaint designated "22", and "24".
ANSWERING THE FOURTH CAUSE OF ACTION
11. As to the paragraph of the Third-Party Complaint designated "25", answering
defendants repeat, reiterate and reallege each and every denial heretofore made with respect to
"1" "24"
paragraphs through in lusive, with the same force and effect as if fully set forth at length
herein.
12. Denies any knowledge or information thereof sufficient to form a belief as to the
truth of the allegations contained in the paragraphs or subdivisions of the Third-Party Complaint
"26" "27"
designated and and respectfully refers all questions of law to this honorable court.
13. Denies each and every allegation contain the paragraphs or subdivisions of the
"28"
Third-Party Complaint designated and "29".
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
14. damages which have been sustained the plaintiff and/or
Any may by third-party
plaintiffs were contributed to in whole or in part by the culpable coñduct of the plaintiff and/or
2 of 50
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
89 RECEIVED NYSCEF: 11/05/2018
11/04/2022
third-party plaintiffs, pursuant to Section 14-A, CPLR.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
15. Any damages which may have been sustained by the plaintiff and/or third-party
plaintiffs were contributed to in whole or in part by the culpable conduct of third parties not under
the control of answering defendants.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
16. Pursuant to CPLR 4545(c), if itbe determined or established that plaintiff has
received or with reasonable certainty shall receive the cost of medical care, dental care, custodial
care or rehabilitation services, loss of earnings or other economic loss, and that the same shall be
replaced or indemnified, in whole or in part from any collateral source such as insurance (except
for life insurance), social security (except for those benefits provided under titleXVIII ofthe Social
workers'
Security Act), compensation or employee benefit programs (except such collateral source
entitled by law to liens against any recovery of the plaintiff), then and in that event answering
defendants hereby plead in mitigation of damages the assessment of any such cost or expense as a
collateral source in reduction of the amount of the award such replacement or indemnification,
by
minus an amount equal to the premiums paid by the plaintiff for such benefits for the two year
period immediately preceding the accrual of this action and minus an amount equal to the projected
future cost to the plaintiff of maintaining such benefits and as otherwise provided in CPLR 4545(c).
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
17. The injuries and damages alleged, all of which are denied by the answering
defendant, were caused .by the intervening, interceding and superseding acts of third parties not
under the control of answering defendant.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
18. The Coui-t lacks jurisdiction over the answering defendant due to improper service
of process.
AS AND FOR A SIXTH AFFIRMATIVE_DEFENSE
19. The plaintiff failed to mitigate his damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
20. That the action against the answering defendant cannot be prosecuted due to the
plaintiffs'
plaintiff and/or third-party failure to name and likewise prosecute an indispensible party
to this litigation.
3 of 50
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
89 RECEIVED NYSCEF: 11/05/2018
11/04/2022
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
21. Answering defendant is entitled to limitation of liability pursuant to Article 16 of
the CPLR.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
22. The Third-Party Complaint fails to state a cause of action upon which relief may
be granted.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
23. Plaintiff is bound by the provisions of Workers Compensation Law of the State of
New York and, by virtue of the statutes therein contained are restricted and limited to recovery
under the provisions of said law.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
24. If the plaintiff sustained damages as alleged, such damages occurred while the
plaintiff was engaged in an activity into which he entered, knowing the hazard, risk and danger of
the activity and he assumed the risks incidental to and attending the activity.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
25... The plaintiff's claim is barred by reason of a previous accord, satisfaction and
release as to the same claim.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
26. Defendant asserts Section 15-108 of the General Obligations Law and will ask the
Court that the defendant be entitled to a set-off for any settlements, releases or discontinuances.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
27. A liability determination has already been judicially deterniined and any further
adjudication of these issues is barred by the doctrines of Res Judicata and collateral estoppel.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
28. There is a prior action pending between the same parties, seeking the same relief.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
29. Any alleged defective condition was open and obvious and therefore should have
been avoided by plaintiff.
4 of 50
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
89 RECEIVED NYSCEF: 11/05/2018
11/04/2022
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
defect"
30. Any alleged defective condition was a "trivial for which plaintiff may not
recover.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
31. Plaintiff's action is barred by recalcitrant worker defense.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
plaintiffs'
32. Third party defendant asserts that third party claim for indemnification
is barred by Section 5.322.1 of the General Obligatioñs Law.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
injury"
33. Upon information and belief the plaintiff did not suffer a "grave as defined
under the Workers Compensation Laws of the State of New York and therefore this third party
action is barred.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
34. The third-party defendant was not negligent because it was faced with an
emergency situation, not of its own making, and acted as a reasonable prudent person would act
in the same emergency.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
35. Answering defendant did not own, lease or control the area where the occurrence
took place, and therefore, cannot be found negligent.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
36. At the time of the alleged occurrence, there was an ongoing storm and as such,
answering defendant had no duty to clear the premises at issue.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
37. Plaintiff was involved in an activity inherently dangerous.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
38. The third-party defendant is not liable to the plaintiff as the plaintiff's actions were
the sole proximate cause of the alleged occurrence.
5 of 50
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
89 RECEIVED NYSCEF: 11/05/2018
11/04/2022
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
39. The answering defendant did not have actual or constructive notice of the alleged
condition.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
40. The answering defendant was totally uninvolved in the accident alleged.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
41. Third-party defendant did not control the alleged work site, had no duty and was
not on actual or constructive notice of circumstances alleged in plaintiff and/or third-party
plaintiffs'
Complaint.
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
42. Plaintiff was not injured as alleged in the Complaint and/or Third-Party Complaint
as a worker in a protected activity as enumerated by the New York State Labor Law.
AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
43. Plaintiff was not employed at the preinises, nor lawfully upon the premises, as
required for a finding of liability under Labor Law Section 241(6).
AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
44. Plaintiff was involved in an activity inherently dangerous.
AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
45. That the occurrence alleged was spontaneous, non-avoidable and occurred as a
result of acts of God, and could not have been prevented by the defendant.
AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
46. If the plaintiff was not wearing appropriate foot wear at the time of the alleged
occurrence, defendant pleads the failure to wear same, or to wear same properly, in mitigation of
damages.
AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
47. Upon information and belief, any damages sustained by plaintiff were caused by
plaintiffs having voluntarily and unreasonably assumed a known and dangerous risk, and/or such
damages were caused by or aggravated by plaintiff's conduct.
6 of 50
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
89 RECEIVED NYSCEF: 11/05/2018
11/04/2022
AS AND FOR A THIRTY-FIFTH AFFIRMA_TIVE DEFENSE
48. The answering defendant, its agents, servants and/or employees acted properly
under the circumstances and the acts, activities, etc. attributable to this answering defêñdani were
justifiable under the circumstances.
AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE
49. Whatever injuries and/or damages were allegedly sustained by the plaintiff herein
were caused in whole or in part by the acts, behavior, conduct, etc. of the plaintiff herein.
AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE
50. If the plaintiff was assaulted in the manner alleged, such assault was not caused or
due to the acts of the answering defendant.
AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE
plaintiffs'
51. Plaintiff and/or third-party claims are based under the doctrine of
unclean hands.
AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE
52. The plaintiff has a duty to mitigate all damages with specific reference to future
medical damages and under the Patient Protection and Affordable Care Act has a federally
mandated mechanism in which to do so.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FIRST COUNTERCLAIM AGAINST
THIRD-PARTY PLAINTIFFS ANSWERING THIRD-PARTY
DEFENDANT ALLEGES:
53. If plaintiff sustained injuries as alleged in the Third-Party Complaint through any
fault other than the plaintiffs own fault, then such damages were sustained due to the sole fault of
the defendants, and if plaintiff should obtain and/or recover judgment against the third-
answsing
party defendant, then the defendants shall be liable pursuant to common law for the full
indemnification of the answering third-party defendant.
In view of the foregoing, the answering defendant is entitled to complete common
law indemnification for allloss, damage, cost or expense, including, without limitation, judgments,
attorneys'
fees, Court costs and the cost of appellate proceedings from the defendants.
7 of 50
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
89 RECEIVED NYSCEF: 11/05/2018
11/04/2022
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A SECOND COUNTERCLAIM AGAINST
THIRD-PARTY PLAINTIFFS, ANSWERING THIRD-PARTY
DEFENDANT ALLEGES:
54. If plaintiff was caused to sustain injuries at the time and place set forth in third-
party plaintiff's Third-Party Complaint through any carelessness, recklessñêss and negligence
other than plaintiffs own, those damages arose in whole or in part from the acts of defendants, and
if any judgment is recovered herein by plaintiff against answering third-party defendant, then the
answering defendants will be damaged thereby and will be entitled to apportionment or
indemnification, in whole or in part, on the basis of proportionate responsibility or obligation to
indemnify of defendants.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A THIRD COUNTERCLAIM AGAINST
THIRD-PARTY PLAINTIFFS, ANSWERING THIRD-PARTY
DEFENDANT ALLEGES:
55. If the plaintiff was caused to sustain injuries at the time and in the manner set forth
in the Third-Party Complaint through any carelessness, recklessness or negligence other than that
of his own, which is expressly denied, such injuries and damages will have been caused, brought
about and sustained solely by reason of the active, primary and affirmative negligence,
carelessness and wrongdoing of the defendants, by their agents, servants and/or employees,
without any negligence on the part of the answering third-party defendant contributing thereto, or
if there be any negligence on the part of these third-party defendant, the same was . ..
answering
merely passive and secondary in nature.
56. That by reason of the foregoing, ifthe plaintiff recovers any judgment against the
answering third-party defendant, then third-party defendant is entitled to be fully indemnified by .
the third-party plaintiffs, in a like amount, together with the costs, disbursements, expenses and
attorneys'
fees of the defense of this action by reason of the active and primary negligence of the
third-party plaintiffs.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FOURTH COUNTERCLAIM AGAINST
THIRD-PARTY PLAINTIFFS, ANSWERING THIRD-PARTY
DEFENDANT ALLEGES:
57. That pursuant to the contracts and/or agreements, upon information and belief, the
defendants undertook certain duties and obligations.
58. If theplaintiff sustained injuries as alleged in the Third-Party Complaint, they were
sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms and
conditions emanating therefrom, including warranties contained therein and/or implied therefrom
by operation of law or otherwise.
8 of 50
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
89 RECEIVED NYSCEF: 11/05/2018
11/04/2022
59. If theplaintiff was caused to sustain the injuries as set forth in third-party plaintiffs
Third-Party Complaint, through any carelessness, recklessness and/or negligence or other culpable
conduct other than that of the plaintiff, said injuries were caused by breach of and/or in furtherance
of and as a result of the activities pursuant to the aforesaid contracts and/or agreements and/or the
terms and conditions emanating therefrom, including breach of warranties, stated and/or implied,
by operation of law or otherwise, by the defendants, their agents, servants and/or employees and
if any judgment is recovered herein against the answering third-party defendant, they will be
damaged thereby and the third-party defendant is or will be primarily responsible therefore and
the answering third-party defendant will be entitled to contribution and/or indemnification, in
whole or in part, from the culpable parties named in this claim over for their portion of plaintiff's
damages which were caused by the culpable parties named in this claim over, together with all
attorneys'
fees, costs and disbursements.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FIFTH COUNTERCLAIM AGAINST
THIRD-PARTY PLAINTIFFS, ANSWERING THIRD-PARTY
DEFENDANT ALLEGES:
60. That pursuant to contracts and/or agreements heretofore alleged the defendants
undertook certain duties and obligations in connection with this lawsuit.
61. That the said defendants undertook and agreed to hold harmless, indemnify and
defend the answering third-party defendant in connection with injuries and accidents arising out
of or in the course of itswork pursuant to its aforesaid agreement.
62. That if the plaintiff sustained injuries as alleged in the Third-Party Complaint they
were sustained within the provisions of the aforesaid contracts and/or agreements and/or the tenns
and conditions emanating therefrom, including warranties contained therein and/or implied
therefrom by operation of law, or otherwise.
63. That by virtue of the foregoing the said third-party plaintiffs is obligated to
indemnify the answering defendant in the event of any liability against the answering third-party
defendant in favor of the plaintiff in this matter.
64. That by virtue of the foregoing the defendants are obligated to defend and to
undertake the defense of the answering third-party defendant.
65. That if the plaintiff was caused to sustain any injuries as set forth in his Third-Party
Complaint due to any carelessness, recklessness and/or negligence other than his own, including
any culpable conduct on his part, said injuries and damages were caused by breach of and/or in
furtherance of and as a result of the activities undertaken by the said defendants pursuant to the
aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom
including breach of warranties, stated and/or implied by operation of law or otherwise by the said
defendants, their agents, servants and/or employees.
66. That the defendants will be primarily responsible for the injuries and damages
9 of 50
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
89 RECEIVED NYSCEF: 11/05/2018
11/04/2022
allegedly sustained by the plaintiff herein.
67. That by reason of the foregoing the defendants will be liable to this defendant in
the event and in the full amount of herein the plaintiff against the third-
any recovery by answering
party defendant and they are bound to pay any and all attorneys fees, disbursements, costs of
investigation and costs of defense of this action.
68. That by reason of the foregoing, the answering third-party defendant is entitled to
judgment over and against the defendants for the full amount of any recovery herein by theplaintiff
against the answering third-party defendant for the injuries and sustained by the plaintiff.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A SIXTH CROSS CLAIM AGAINST
THIRD-PARTY PLAINTIFFS, ANSWERING
THIRD-PARTY DEFENDANT ALLEGES·
69. Pursuant to the terms and conditions of the agreement heretofore alleged between
the answering defendant and third-party plaintiffs, they agreed to obtain and maintain certain
insurance coverage which would ensure their contractual indemnification and hold harmless
provisions and which would ensure the answering defendant against any and all liability or
damages established the plaintiff and to further name the defendant as an additional
by answering
insured under the aforesaid insurance agreement and coverage obtained by it.
70. If plaintiff was caused to sustain injuries and damages and if plaintiff establishes
liability agaiñst the answering defendant, and if recovery is had against the answering defendant
by the plaintiff such shall come within the provisions of the aforesaid hold harmless
indemnification and insurance coverage agreements referred to above.
71. That if indeed the third-party plaintiffs is/are in breach of the aforesaid agreement
and/or agreements regarding the obtaining of the aforesaid insurance coverages and ifindeed the
said defendants failed to comply therewith, the pleading defendant will have been damaged
thereby. - -
72. That if the third-party plaintiffs are in breach of the aforesaid agreement and has
failed to obtain such insurance coverage as undertaken by it, then third-party plaintiffs is/are
attorneys'
obligated to reimburse the pleading defendant in the full amount of fees expended by it
or on itsbehalf in defense of the action instituted against itby the plaintiff as well as to indemnify
them in the full amount of any recovery by the plaintiff in this action against the pleading
attorneys'
defendant, together with fees, costs and disbursements.
defendant demands judgment the Third-
WHEREFORE, answering third-party dismissing
with costs and further demand that the ultimate rights of the third-
Party Complaint, answering
party defendant and third-party plaintiffs, as between themselves, be determined in this action, and
that answering third-party defendant have judgment over and against third-party plaintiffs for all
or a part of any verdict or judgment which may be obtained by the plaintiff against answering
third-party defendant together with the costs, interest and disbursements of this action.
10 of 50
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
89 RECEIVED NYSCEF: 11/05/2018
11/04/2022
Dated: New York, New York
November 2, 2018
Yours etc.,
MORRIS DUFFY ALONSO & FALEY
By: _
ELIZABETH A. FILARDI
Attorneys for Third-Party Defendant
CCI CONTRACTING, INC.
Office and Post Office Address
22nd
101 Greenwich Street, FlOOr
New York, New York 10006
T: (212) 766-1888
F: (212) 766-3252
Our File No.: (JR) 68572
. . -
11 of 50
FILED: QUEENS COUNTY CLERK 11/05/2018
11/04/2022 11:28
09:03 AM
PM INDEX NO. 703644/2018
NYSCEF DOC. NO. 19
Preview
FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19 89 RECEIVED NYSCEF: 11/05/2018 11/04/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -------------------------------------------------- X JULIO IRALA-MARTINEZ, Index No.: 703644/2018 Plaintiff, VERIFIED ANSWER TO THIRD-PARTY -against- COMPLAINT WITH COUNTERCLAIMS SHUMAN 673/16 and COOK&KRUPA, LLC, Defendants. ____--............. .. ------------------------X SHUMAN 673/16 and COOK&KRUPA, LLC, Third-Party Plaintiffs, -against- CCI CONTRACTING, INC., Third-Party Defendant. ------------------------ -- ----- ----X The third-party defendant CCI CONTRACTING, INC. by its attorneys, MORRIS DUFFY plaintiffs' ALONSO & FALEY, upon information and belief, answers the defendant/third-party Complaint herein as follows: 1. Denies any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Third-Party Complaint "8" designated "1", "2", "7", and "9". 2. Admits each and every allegation contained in the paragraph or subdivision of the Third-Party Complaint designated "3". 3. Denies any knowledge or infonnation thereof sufficient to fonn a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Third-Party Complaint "5" "6" designated "4", and and respectfully refers all questions of law to this honorable court. ANSWERING THE FIRST CAUSE OF ACTIO_N 4. As to the paragraph of the Third-Party Complaint designated "10", answering defendants repeat, reiterate and reallege each and every denial heretofore made with respect to "1" "9" paragraphs through inchmive, with the same force and effect as if fully set forth at length herein. 1 of 50 FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19 89 RECEIVED NYSCEF: 11/05/2018 11/04/2022 5. Denies each and every allegation contain the paragraphs or subdivisions of the "11" Third-Party Complaint designated and "12". ANSWERING THE SECOND CAUSE OF ACTION 6. As to the paragraph of the Third-Party Complaint designated "13", answering defendants repeat, reiterate and reallege each and every denial heretofore made with respect to "1" "12" paragraphs through inclusive, with the same force and effect as if fully set forth at length herein. 7. Denies each and every allegation contain the paragraphs or subdivisions of the "17" Third-Party Complaint designated "14", "16", and "18". ANSWERING THE THIRD CAUSE OF ACTIO_N 8. As to the paragraph of the Third-Party Complaint designated "19", answering defendants repeat, reiterate and reallege each and every denial heretofore made with respect to "1" "18" paragraphs through inclusive, with the same force and effect as if fully set forth at length herein. 9. Denies any knowledge or information thereof sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Third-Party Complaint "20" "21" designated and and respectfully refers all questions of law to this honorable court. 10. Denies each and every allegation contain the paragraphs or subdivisions of the "23" Third-Party Complaint designated "22", and "24". ANSWERING THE FOURTH CAUSE OF ACTION 11. As to the paragraph of the Third-Party Complaint designated "25", answering defendants repeat, reiterate and reallege each and every denial heretofore made with respect to "1" "24" paragraphs through in lusive, with the same force and effect as if fully set forth at length herein. 12. Denies any knowledge or information thereof sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Third-Party Complaint "26" "27" designated and and respectfully refers all questions of law to this honorable court. 13. Denies each and every allegation contain the paragraphs or subdivisions of the "28" Third-Party Complaint designated and "29". AS AND FOR A FIRST AFFIRMATIVE DEFENSE 14. damages which have been sustained the plaintiff and/or Any may by third-party plaintiffs were contributed to in whole or in part by the culpable coñduct of the plaintiff and/or 2 of 50 FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19 89 RECEIVED NYSCEF: 11/05/2018 11/04/2022 third-party plaintiffs, pursuant to Section 14-A, CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 15. Any damages which may have been sustained by the plaintiff and/or third-party plaintiffs were contributed to in whole or in part by the culpable conduct of third parties not under the control of answering defendants. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 16. Pursuant to CPLR 4545(c), if itbe determined or established that plaintiff has received or with reasonable certainty shall receive the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, and that the same shall be replaced or indemnified, in whole or in part from any collateral source such as insurance (except for life insurance), social security (except for those benefits provided under titleXVIII ofthe Social workers' Security Act), compensation or employee benefit programs (except such collateral source entitled by law to liens against any recovery of the plaintiff), then and in that event answering defendants hereby plead in mitigation of damages the assessment of any such cost or expense as a collateral source in reduction of the amount of the award such replacement or indemnification, by minus an amount equal to the premiums paid by the plaintiff for such benefits for the two year period immediately preceding the accrual of this action and minus an amount equal to the projected future cost to the plaintiff of maintaining such benefits and as otherwise provided in CPLR 4545(c). AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 17. The injuries and damages alleged, all of which are denied by the answering defendant, were caused .by the intervening, interceding and superseding acts of third parties not under the control of answering defendant. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 18. The Coui-t lacks jurisdiction over the answering defendant due to improper service of process. AS AND FOR A SIXTH AFFIRMATIVE_DEFENSE 19. The plaintiff failed to mitigate his damages. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 20. That the action against the answering defendant cannot be prosecuted due to the plaintiffs' plaintiff and/or third-party failure to name and likewise prosecute an indispensible party to this litigation. 3 of 50 FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19 89 RECEIVED NYSCEF: 11/05/2018 11/04/2022 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 21. Answering defendant is entitled to limitation of liability pursuant to Article 16 of the CPLR. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 22. The Third-Party Complaint fails to state a cause of action upon which relief may be granted. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 23. Plaintiff is bound by the provisions of Workers Compensation Law of the State of New York and, by virtue of the statutes therein contained are restricted and limited to recovery under the provisions of said law. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 24. If the plaintiff sustained damages as alleged, such damages occurred while the plaintiff was engaged in an activity into which he entered, knowing the hazard, risk and danger of the activity and he assumed the risks incidental to and attending the activity. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 25... The plaintiff's claim is barred by reason of a previous accord, satisfaction and release as to the same claim. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 26. Defendant asserts Section 15-108 of the General Obligations Law and will ask the Court that the defendant be entitled to a set-off for any settlements, releases or discontinuances. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 27. A liability determination has already been judicially deterniined and any further adjudication of these issues is barred by the doctrines of Res Judicata and collateral estoppel. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 28. There is a prior action pending between the same parties, seeking the same relief. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 29. Any alleged defective condition was open and obvious and therefore should have been avoided by plaintiff. 4 of 50 FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19 89 RECEIVED NYSCEF: 11/05/2018 11/04/2022 AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE defect" 30. Any alleged defective condition was a "trivial for which plaintiff may not recover. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 31. Plaintiff's action is barred by recalcitrant worker defense. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE plaintiffs' 32. Third party defendant asserts that third party claim for indemnification is barred by Section 5.322.1 of the General Obligatioñs Law. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE injury" 33. Upon information and belief the plaintiff did not suffer a "grave as defined under the Workers Compensation Laws of the State of New York and therefore this third party action is barred. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 34. The third-party defendant was not negligent because it was faced with an emergency situation, not of its own making, and acted as a reasonable prudent person would act in the same emergency. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 35. Answering defendant did not own, lease or control the area where the occurrence took place, and therefore, cannot be found negligent. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 36. At the time of the alleged occurrence, there was an ongoing storm and as such, answering defendant had no duty to clear the premises at issue. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 37. Plaintiff was involved in an activity inherently dangerous. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 38. The third-party defendant is not liable to the plaintiff as the plaintiff's actions were the sole proximate cause of the alleged occurrence. 5 of 50 FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19 89 RECEIVED NYSCEF: 11/05/2018 11/04/2022 AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 39. The answering defendant did not have actual or constructive notice of the alleged condition. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 40. The answering defendant was totally uninvolved in the accident alleged. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 41. Third-party defendant did not control the alleged work site, had no duty and was not on actual or constructive notice of circumstances alleged in plaintiff and/or third-party plaintiffs' Complaint. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 42. Plaintiff was not injured as alleged in the Complaint and/or Third-Party Complaint as a worker in a protected activity as enumerated by the New York State Labor Law. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE 43. Plaintiff was not employed at the preinises, nor lawfully upon the premises, as required for a finding of liability under Labor Law Section 241(6). AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 44. Plaintiff was involved in an activity inherently dangerous. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 45. That the occurrence alleged was spontaneous, non-avoidable and occurred as a result of acts of God, and could not have been prevented by the defendant. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 46. If the plaintiff was not wearing appropriate foot wear at the time of the alleged occurrence, defendant pleads the failure to wear same, or to wear same properly, in mitigation of damages. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 47. Upon information and belief, any damages sustained by plaintiff were caused by plaintiffs having voluntarily and unreasonably assumed a known and dangerous risk, and/or such damages were caused by or aggravated by plaintiff's conduct. 6 of 50 FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19 89 RECEIVED NYSCEF: 11/05/2018 11/04/2022 AS AND FOR A THIRTY-FIFTH AFFIRMA_TIVE DEFENSE 48. The answering defendant, its agents, servants and/or employees acted properly under the circumstances and the acts, activities, etc. attributable to this answering defêñdani were justifiable under the circumstances. AS AND FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 49. Whatever injuries and/or damages were allegedly sustained by the plaintiff herein were caused in whole or in part by the acts, behavior, conduct, etc. of the plaintiff herein. AS AND FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 50. If the plaintiff was assaulted in the manner alleged, such assault was not caused or due to the acts of the answering defendant. AS AND FOR A THIRTY-EIGHTH AFFIRMATIVE DEFENSE plaintiffs' 51. Plaintiff and/or third-party claims are based under the doctrine of unclean hands. AS AND FOR A THIRTY-NINTH AFFIRMATIVE DEFENSE 52. The plaintiff has a duty to mitigate all damages with specific reference to future medical damages and under the Patient Protection and Affordable Care Act has a federally mandated mechanism in which to do so. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIRST COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFFS ANSWERING THIRD-PARTY DEFENDANT ALLEGES: 53. If plaintiff sustained injuries as alleged in the Third-Party Complaint through any fault other than the plaintiffs own fault, then such damages were sustained due to the sole fault of the defendants, and if plaintiff should obtain and/or recover judgment against the third- answsing party defendant, then the defendants shall be liable pursuant to common law for the full indemnification of the answering third-party defendant. In view of the foregoing, the answering defendant is entitled to complete common law indemnification for allloss, damage, cost or expense, including, without limitation, judgments, attorneys' fees, Court costs and the cost of appellate proceedings from the defendants. 7 of 50 FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19 89 RECEIVED NYSCEF: 11/05/2018 11/04/2022 AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SECOND COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFFS, ANSWERING THIRD-PARTY DEFENDANT ALLEGES: 54. If plaintiff was caused to sustain injuries at the time and place set forth in third- party plaintiff's Third-Party Complaint through any carelessness, recklessñêss and negligence other than plaintiffs own, those damages arose in whole or in part from the acts of defendants, and if any judgment is recovered herein by plaintiff against answering third-party defendant, then the answering defendants will be damaged thereby and will be entitled to apportionment or indemnification, in whole or in part, on the basis of proportionate responsibility or obligation to indemnify of defendants. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A THIRD COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFFS, ANSWERING THIRD-PARTY DEFENDANT ALLEGES: 55. If the plaintiff was caused to sustain injuries at the time and in the manner set forth in the Third-Party Complaint through any carelessness, recklessness or negligence other than that of his own, which is expressly denied, such injuries and damages will have been caused, brought about and sustained solely by reason of the active, primary and affirmative negligence, carelessness and wrongdoing of the defendants, by their agents, servants and/or employees, without any negligence on the part of the answering third-party defendant contributing thereto, or if there be any negligence on the part of these third-party defendant, the same was . .. answering merely passive and secondary in nature. 56. That by reason of the foregoing, ifthe plaintiff recovers any judgment against the answering third-party defendant, then third-party defendant is entitled to be fully indemnified by . the third-party plaintiffs, in a like amount, together with the costs, disbursements, expenses and attorneys' fees of the defense of this action by reason of the active and primary negligence of the third-party plaintiffs. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FOURTH COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFFS, ANSWERING THIRD-PARTY DEFENDANT ALLEGES: 57. That pursuant to the contracts and/or agreements, upon information and belief, the defendants undertook certain duties and obligations. 58. If theplaintiff sustained injuries as alleged in the Third-Party Complaint, they were sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom, including warranties contained therein and/or implied therefrom by operation of law or otherwise. 8 of 50 FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19 89 RECEIVED NYSCEF: 11/05/2018 11/04/2022 59. If theplaintiff was caused to sustain the injuries as set forth in third-party plaintiffs Third-Party Complaint, through any carelessness, recklessness and/or negligence or other culpable conduct other than that of the plaintiff, said injuries were caused by breach of and/or in furtherance of and as a result of the activities pursuant to the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom, including breach of warranties, stated and/or implied, by operation of law or otherwise, by the defendants, their agents, servants and/or employees and if any judgment is recovered herein against the answering third-party defendant, they will be damaged thereby and the third-party defendant is or will be primarily responsible therefore and the answering third-party defendant will be entitled to contribution and/or indemnification, in whole or in part, from the culpable parties named in this claim over for their portion of plaintiff's damages which were caused by the culpable parties named in this claim over, together with all attorneys' fees, costs and disbursements. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIFTH COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFFS, ANSWERING THIRD-PARTY DEFENDANT ALLEGES: 60. That pursuant to contracts and/or agreements heretofore alleged the defendants undertook certain duties and obligations in connection with this lawsuit. 61. That the said defendants undertook and agreed to hold harmless, indemnify and defend the answering third-party defendant in connection with injuries and accidents arising out of or in the course of itswork pursuant to its aforesaid agreement. 62. That if the plaintiff sustained injuries as alleged in the Third-Party Complaint they were sustained within the provisions of the aforesaid contracts and/or agreements and/or the tenns and conditions emanating therefrom, including warranties contained therein and/or implied therefrom by operation of law, or otherwise. 63. That by virtue of the foregoing the said third-party plaintiffs is obligated to indemnify the answering defendant in the event of any liability against the answering third-party defendant in favor of the plaintiff in this matter. 64. That by virtue of the foregoing the defendants are obligated to defend and to undertake the defense of the answering third-party defendant. 65. That if the plaintiff was caused to sustain any injuries as set forth in his Third-Party Complaint due to any carelessness, recklessness and/or negligence other than his own, including any culpable conduct on his part, said injuries and damages were caused by breach of and/or in furtherance of and as a result of the activities undertaken by the said defendants pursuant to the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom including breach of warranties, stated and/or implied by operation of law or otherwise by the said defendants, their agents, servants and/or employees. 66. That the defendants will be primarily responsible for the injuries and damages 9 of 50 FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19 89 RECEIVED NYSCEF: 11/05/2018 11/04/2022 allegedly sustained by the plaintiff herein. 67. That by reason of the foregoing the defendants will be liable to this defendant in the event and in the full amount of herein the plaintiff against the third- any recovery by answering party defendant and they are bound to pay any and all attorneys fees, disbursements, costs of investigation and costs of defense of this action. 68. That by reason of the foregoing, the answering third-party defendant is entitled to judgment over and against the defendants for the full amount of any recovery herein by theplaintiff against the answering third-party defendant for the injuries and sustained by the plaintiff. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SIXTH CROSS CLAIM AGAINST THIRD-PARTY PLAINTIFFS, ANSWERING THIRD-PARTY DEFENDANT ALLEGES· 69. Pursuant to the terms and conditions of the agreement heretofore alleged between the answering defendant and third-party plaintiffs, they agreed to obtain and maintain certain insurance coverage which would ensure their contractual indemnification and hold harmless provisions and which would ensure the answering defendant against any and all liability or damages established the plaintiff and to further name the defendant as an additional by answering insured under the aforesaid insurance agreement and coverage obtained by it. 70. If plaintiff was caused to sustain injuries and damages and if plaintiff establishes liability agaiñst the answering defendant, and if recovery is had against the answering defendant by the plaintiff such shall come within the provisions of the aforesaid hold harmless indemnification and insurance coverage agreements referred to above. 71. That if indeed the third-party plaintiffs is/are in breach of the aforesaid agreement and/or agreements regarding the obtaining of the aforesaid insurance coverages and ifindeed the said defendants failed to comply therewith, the pleading defendant will have been damaged thereby. - - 72. That if the third-party plaintiffs are in breach of the aforesaid agreement and has failed to obtain such insurance coverage as undertaken by it, then third-party plaintiffs is/are attorneys' obligated to reimburse the pleading defendant in the full amount of fees expended by it or on itsbehalf in defense of the action instituted against itby the plaintiff as well as to indemnify them in the full amount of any recovery by the plaintiff in this action against the pleading attorneys' defendant, together with fees, costs and disbursements. defendant demands judgment the Third- WHEREFORE, answering third-party dismissing with costs and further demand that the ultimate rights of the third- Party Complaint, answering party defendant and third-party plaintiffs, as between themselves, be determined in this action, and that answering third-party defendant have judgment over and against third-party plaintiffs for all or a part of any verdict or judgment which may be obtained by the plaintiff against answering third-party defendant together with the costs, interest and disbursements of this action. 10 of 50 FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19 89 RECEIVED NYSCEF: 11/05/2018 11/04/2022 Dated: New York, New York November 2, 2018 Yours etc., MORRIS DUFFY ALONSO & FALEY By: _ ELIZABETH A. FILARDI Attorneys for Third-Party Defendant CCI CONTRACTING, INC. Office and Post Office Address 22nd 101 Greenwich Street, FlOOr New York, New York 10006 T: (212) 766-1888 F: (212) 766-3252 Our File No.: (JR) 68572 . . - 11 of 50 FILED: QUEENS COUNTY CLERK 11/05/2018 11/04/2022 11:28 09:03 AM PM INDEX NO. 703644/2018 NYSCEF DOC. NO. 19