Preview
FILED: KINGS COUNTY CLERK 12/02/2022 12:46 PM INDEX NO. 512147/2020
NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 12/02/2022
EXHIBIT “C”
FILED: KINGS COUNTY CLERK 11/19/2020
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------------x Index No.: 512147/2020(ECF)
LUIS ALBERTO HERRERA,
Plaintiff, THIRD-PARTY SUMMONS
v.
THE CITY OF NEW YORK, BELMONT RE, LLC AND
SUTTER AVENUE REALTY CO., LLC.,
Defendants.
---------------------------------------------------------------------x
---------------------------------------------------------------------x Index No.:
SUTTER AVENUE REALTY CO., LLC
Third-Party Plaintiff,
v.
TRINCHESE IRON WORKS & CONSTRUCTION INC.,
Third-Party Defendant,
---------------------------------------------------------------------x
YOU ARE HEREBY SUMMONED to answer the Complaint of Defendant/Third Party
Plaintiff SUTTER AVENUE REALTY CO. LLC, a copy of which is hereby served upon you
and is incorporated by reference as if more fully set forth herein, and to serve copies of your
answer upon the undersigned Attorneys for Defendant/Third Party Plaintiff, SUTTER AVENUE
REALTY CO. LLC and upon Attorneys at the service addresses listed herein below within
twenty (20) days after service of this Third Party Summons and Third Party Complaint exclusive
of the day of service or within thirty days after completion of service where service is made in
any manner other than by personal delivery within the State.
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In case of your failure to answer the Third Party Complaint, a judgment will be taken
against you by default for the relief demanded in this Third Party Complaint.
WHEREFORE, the Third-Party Defendant is liable in contribution and indemnification
to Defendant/Third-Party Plaintiff for the whole and any judgment which may be rendered
against said Defendant/Third-Party Plaintiff in the action herein, together with costs,
disbursements and attorney fees arising therefrom in the defense of this action.
Pursuant to CPLR 3402 (b), we give NOTICE that the title of this action has been
changed from the style of the Complaint of the Plaintiff (Exhibit "A") to the style of this THIRD
PARTY SUMMONS and THIRD PARTY COMPLAINT; the calendar status of this action as of
this date is: "NOT ON CALENDAR"
DATED: November 18, 2020
New York, New York
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant/Third Party Plaintiff
SUTTER AVENUE REALTY CO. LLC
Office and Post Office Address
55 Water Street, 28th Floor
New York, New York 10041
(212) 612-4200
By:____________________________
Daniel P. Rocco
TO:
Subin Associates, LLP
Attorneys for Plaintiff,
Luis Alberto Herrera
150 Broadway, 23rd Floor
New York, New York 10038
(212) 285-3800
The City of New York
Attorneys for Defendant,
The City of New York
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100 Church Street
New York, NY 10007
Newman Law Associates, PLLC.
Attorneys for Defendant,,
Belmont RE LLC
111 John Street, Suite 1500
New York, New York 10038
(212) 945-1010
Trinchese Iron Works & Construction
Attorneys for Third Party Defendant,
Trinchese Iron Works & Construction
234 Belmont Ave
Brooklyn, NY 11207
(718) 848-1954
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------------x Index No.: 512147/2020(ECF)
LUIS ALBERTO HERRERA,
Plaintiff, THIRD-PARTY
COMPLAINT
v.
THE CITY OF NEW YORK, BELMONT RE, LLC AND
SUTTER AVENUE REALTY CO., LLC.,
Defendants.
---------------------------------------------------------------------x
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SUTTER AVENUE REALTY CO., LLC
Third-Party Plaintiff,
v.
TRINCHESE IRON WORKS & CONSTRUCTION INC.,
Third-Party Defendant,
---------------------------------------------------------------------x
Defendant/Third Party Plaintiff SUTTER AVENUE REALTY CO. LLC, by its
attorneys, EUSTACE, PREZIOSO & YAPCHANYK, as and for its Third Party Complaint
against Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION respectfully
alleges upon information and belief as follows:
1. That at all times hereinafter mentioned, Third Party Defendant TRINCHESE
IRON WORKS & CONSTRUCTION INC was and still is a domestic corporation organized and
existing under the laws of the State of New York with its principal place of business located at
234 Belmont Ave Brooklyn, NY 11207.
2. That at all times hereinafter mentioned, Third Party Defendant TRINCHESE
IRON WORKS & CONSTRUCTION INC actually conducted and transacted business, engaged
in a persistent course of conduct and derived substantial revenue from services within the State
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of New York.
3. That this action is based on transactions or occurrences within the State of New
York.
4. That heretofore, Plaintiff LUIS ALBERTO HERRERA, commenced an action
against Defendant SUTTER AVENUE REALTY CO. LLC wherein it is alleged that Plaintiff
suffered injuries as a result of an alleged trip and fall accident on the premises of 222 Belmont
Avenue, Brooklyn, New York 11207 on August 6, 2019. A copy of said complaint is annexed
hereto as Exhibit A.
5. That Defendant SUTTER AVENUE REALTY CO. LLC has denied all material
allegations to the Plaintiff’s complaint. A copy of Defendant/Third Party Plaintiff’s Answer is
annexed hereto as Exhibit B.
AS AND FOR A FIRST CAUSE OF ACTION FOR COMMON LAW INDEMNITY
6. Defendant SUTTER AVENUE REALTY CO. LLC repeats and realleges each
and every allegation contained in paragraphs 1 through 5 of this Third Party Complaint.
7. That at all times hereinafter mentioned, Third Party Defendant TRINCHESE
IRON WORKS & CONSTRUCTION INC controlled the subject premises located at 222
Belmont Avenue, Brooklyn, New York 11207.
8. That at all times hereinafter mentioned, Third Party Defendant TRINCHESE
IRON WORKS & CONSTRUCTION INC maintained the subject premises located 222 Belmont
Avenue, Brooklyn, New York 11207.
9. That at all times hereinafter mentioned, Third Party Defendant TRINCHESE
IRON WORKS & CONSTRUCTION INC supervised the subject premises located at 222
Belmont Avenue, Brooklyn, New York 11207.
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10. That if Plaintiff recovers a judgment against Defendant SUTTER AVENUE
REALTY CO. LLC for the alleged injuries and damages that Plaintiff alleges to have suffered at
the time and place mentioned in the Complaint, such damages and liability imposed on the
Defendant/Third Party Plaintiff will have been caused and brought by reason of the primary and
active negligence and/or violation of the statue, rule, regulation and/or ordinance by the Third
Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION INC, its agents, servants
and/or employees in permitting, causing, creating and/or permitting to exist the alleged
conditions set forth in Plaintiff’s Complaint, in generally failing to exercise due care and
diligence, all without any active or primary negligence on the part of Defendant SUTTER
AVENUE REALTY CO. LLC contributing thereto. As a result, then said Defendant SUTTER
AVENUE REALTY CO. LLC shall be entitled to indemnification pursuant to the principles of
common law, from Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION
INC for all damages which may be assessed against Defendant SUTTER AVENUE REALTY
CO. LLC, including but not limited to costs, disbursements and attorney fees.
AS AND FOR A SECOND CAUSE OF ACTION FOR CONTRIBUTION
11. Defendant SUTTER AVENUE REALTY CO. LLC repeats and realleges each
and every allegation contained in paragraphs 1 through 10 of this Third Party Complaint.
12. That it is alleged that Plaintiff sustained personal injuries as a result of the
aforementioned accident on the premises of 222 Belmont Avenue, Brooklyn, New York 11207,
allegedly due to the negligence of Defendant SUTTER AVENUE REALTY CO. LLC.
13. That if Plaintiff was caused to sustain injuries at the time and place in the in the
manner alleged in the Complaint, through any carelessness, recklessness and negligence, or
contributory negligence, then any such injuries or damages were caused by the carelessness,
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recklessness and negligence of Third Party Defendant TRINCHESE IRON WORKS &
CONSTRUCTION INC its agents, servants and/or employees and consequently, Third Party
Defendant is responsible in whole or in part for such injuries.
14. That by reason of the foregoing, the impleaded Third Party Defendant
TRINCHESE IRON WORKS & CONSTRUCTION INC will be liable to Defendant SUTTER
AVENUE REALTY CO. LLC in that event and in the full amount of recovery herein by Plaintiff
or for that proportion thereof caused by the relative responsibility of Third Party Defendant
TRINCHESE IRON WORKS & CONSTRUCTION INC and that said Third Party Defendant is
bound to pay any and all attorneys’ fees, costs of investigations and disbursements.
WHEREFORE, the Third-Party Defendant is liable in contribution and indemnification
to Defendant/Third-Party Plaintiff for the whole and any judgment which may be rendered
against said Defendant/Third-Party Plaintiff in the action herein, together with costs,
disbursements and attorney fees arising therefrom in the defense of this action.
Pursuant to CPLR 3402 (b), we give NOTICE that the title of this action has been
changed from the style of the Complaint of the plaintiffs (Exhibit "A") to the style of this THIRD
PARTY SUMMONS and THIRD PARTY COMPLAINT; the calendar status of this action as of
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this date is: "NOT ON CALENDAR"
DATED: November 18, 2020
New York, New York
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant/Third Party Plaintiff
SUTTER AVENUE REALTY CO. LLC
Office and Post Office Address
55 Water Street, 28th Floor
New York, New York 10041
(212) 612-4200
By:____________________________
Daniel P. Rocco
TO:
Subin Associates, LLP
Attorneys for Plaintiff,
Luis Alberto Herrera
150 Broadway, 23rd Floor
New York, New York 10038
(212) 285-3800
The City of New York
Attorneys for Defendant,
The City of New York
100 Church Street
New York, NY 10007
Newman Law Associates, PLLC.
Attorneys for Defendant,,
Belmont RE LLC
111 John Street, Suite 1500
New York, New York 10038
(212) 945-1010
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Index No.: 512147/2020(ECF)
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
LUIS ALBERTO HERRERA,
Plaintiff,
-against-
THE CITY OF NEW YORK, BELMONT RE, LLC AND SUTTER
AVENUE REALTY CO., LLC.,
Defendants.
AND THIRD-PARTY ACTION.
THIRD-PARTY SUMMONS AND THIRD-PARTY COMPLAINT
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant/Third Party Plaintiff
Sutter Avenue Realty Co. LLC
Office and Post Office Address
55 Water Street, 28th Floor
New York, New York 10041
(212) 612-4200
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
LUIS ALBERTO HERRERA, Index No.: 512147/2020
Plaintiff,
-against- VERIFIED ANSWER TO SUTTER
AVENUE REALTY CO. LLC'S
THE CITY OF NEW YORK, BELMONT RE, THIRD-PARTY COMPLAINT
LLC and SUTTER AVENUE REALTY CO. LLC,
Defendants.
X
SUTTER AVENUE REALTY CO., LLC,
Third-Party Plaintiff,
-against-
TRINCHESE IRON WORKS & CONSTRUCTION
INC.,
Third-Party Defendant.
X
Third-Party Defendant, TRINCHESE IRON WORKS & CONSTRUCTION, INC., by its
attorneys, NEWMAN LAW ASSOCIATES PLLC, answers SUTTER AVENUE REALTY CO.
LLC'S Third-Party Complaint dated November 18, 2020 as follows:
"1"
1. Denies in the form alleged each and every allegation as set forth in paragraph
of the Third-Party Complaint except admits that Trinchese Iron Works & Construction, Inc. was
a domestic entity authorized to do business in the State of New York;
"2"
2. Denies in the form alleged each and every allegation as set forth in paragraph
of the Third-Party Complaint except admits that Trinchese Iron Works & Construction, Inc. was
a domestic entity authorized to do business in the State of New York;
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3. Denies knowledge or sufficient information to form a belief as to the truth of the
"3"
allegations as set forth in paragraph of the Third-Party Complaint;
"4"
4. Denies in the form alleged each and every allegation as set forth in paragraph
of the Third-Party Complaint except admits the existence of an underlying action commenced by
Luis Alberto Herrera;
"5"
5. Denies in the form alleged each and every allegation as set forth in paragraph
of the Third-Party Complaint except admits the existence of an underlying action commenced by
Luis Alberto Herrera.
AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION
"6"
6. In response to the allegations contained in paragraph of the Third-Party
Complaint, Answering Third-Party Defendant repeats, reiterates and realleges each and every
"1" "5"
response contained in paragraphs through of this Verified Answer to the Third-Party
Complaint with the same force and effect as if more fully set forth at length herein;
"7"
7. Denies each and every allegation as set forth in paragraph of the Third-Party
Complaint and refers all questions of law to the Court;
"8"
8. Denies each and every allegation as set forth in paragraph of the Third-Party
Complaint and refers all questions of law to the Court;
"9"
9. Denies each and every allegation as set forth in paragraph of the Third-Party
Complaint and refers all questions of law to the Court;
2
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"10"
10. Denies each and every allegation as set forth in paragraph of the Third-Party
Complaint.
AS AND FOR A RES_PONSE TO THE SECOND CAUSE OF ACTION
"11"
11. In response to the allegations contained in paragraph of the Third-Party
Complaiñt, Answering Third-Party Defendant repeats, reiterates and realleges each and every
"1" "10"
response contained in paragraphs through of this Verified Answer to the Third-Party
Complaint with the same force and effect as if more fully set forth at length herein;
12. Denies in the form alleged each and every allegation as set forth in paragraph
"12"
of the Third-Party Complaint except admits the existence of an underlying action
commenced by Luis Alberto Herrera;
"13"
13. Denies each and every allegation as set forth in paragraph of the Third-Party
Complaint;
"14"
14. Denies each and every allegation as set forth in paragraph of the Third-Party
Complaint.
FIRST AFFIRMATIVE DEFENSE
The injuries and damages, if any, alleged to have been sustained by Phintiff and/or
Third-Party Plaintiff were caused in whole or in part by the culpable conduct and/or contributory
negligence of Plaintiff and/or Third-Party Plaintiff, and Plaintiff's and Third-Party Plaintiff's
damages, if any, should be barred or diminished in the proportion which such conduct bears to
the culpable conduct that caused said injuries and damages.
3
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SECOND AFFIRM.ATIVE DEFENSE
Upon information and belief, the injuries and damages, if any, alleged to have been
sustained by Plaintiff and/or Third-Party Plaintiff were caused in whole or in part the acts,
by
omissions, or other conduct of individuals or entities over which the Answering Third-Party
Defendant had no control and had no duty to control.
THIRD AFFIRMATIVE DEFENSE
The injured Plaintiff and/or Third-Party Plaintiff assumed a known or an open or obvious
risk for which Plaintiff and/or Third-Party Plaintiff may not recover any damages, or Plaintiff's
and/or Third-Party Plaintiff's damages must be reduced accordingly.
FOURTH AFFIRMATIVE DEFENSE
The injuries and damages allegedly sustained by Plaintiff and/or Third-Party Plaintiff
were not reasonably foreseeable.
FIFTH AFFIRMATIVE DEFENSE
The Answering Third-Party Defendant owes no legal duty to Plaintiff and/or Third-Party
Plaintiff.
SIXTH AFFIRMATIVE DEFENSE
Plaintiff's and/or Third-Party Plaintiff's injuries/damages, if any, were caused by
intervening and/or superseding factors which relieve the answering Third-Party Defendant from
any liability in this action.
SEVENTH AFFIRMATIVE DEFENSE
In accordance with CPLR §1601 et seq., the liability of Third-Party Defendant, if any, to
Plaintiff and/or Third-Party Plaintiff for non-economic loss is limited to each defendant's
equitable share, determined in accordance with relative culpability of all persons and/or entities
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contributing to the total liability for non-economic loss, including parties and others over whom
Plaintiff and/or Third-Party Plaintiff could have obtained personal jurisdiction with due
diligence.
EIGHTH AF_FIRMATIVE DEFENSE
Plaintiff and/or Third-Party Plaintiff have failed to join necessary and essential parties to
this litigation.
NINTH AFFIRMATIVE DEFENSE
Upon information and belief, any costs, loss or expenses incurred or to be incurred by
Plaintiff for medical care, custodial care or rehabilitative services, loss of earnings or other
economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or
in part from a collateral source as defined in CPLR 4545 (c).
TENTH AFFIRMATIVE DEFENSE
Plaintiff's and/or Third-Party Plaintiff's damages must be diminished in proportion to
culpable conduct in accordance with CPLR 1411 and 1412.
ELEVENTH AFFIRMATIVE DEFENSE
Phintiff's Complaint and/or Third-Party Plaintiff's Third-Party Complaint fail to state a
cause of action upon which relief can be granted as a matter of law.
TWELFTH AFFIRMATIVE DEFENSE
This action is barred by the applicable statute of limitations.
THIRTEENTH AFFIRMATIVE DEFENSE
This action does not fallwithin one of the exceptions set forth in CPLR 1602.
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FOURTEENTH AFFIRMATIVE DEFENSE
The Third-Party Complaint is barred in whole or in part by virtue of the doctrines of
waiver, laches, and/or estoppel.
AS AND FOR A FIRST COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFF
If Plaintiff was caused to sustain injuries and/or damages at the time and place and in the
manner set forth in this action through any carelessness, recklessness, or negligence, other than
Plaintiff's own carelessness, recklessness, or negligence, then the injuries and damages were
caused and sustained by reason of the sole active and primary carelessness, recklessness,
negligence, and/or acts or omissions of Third-Party Plaintiff, and Answering Third-Party
Defendant is entitled to indemnification, and thereby Third-Party Plaintiff is primarily liable.
AS AND FOR A SECOND COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFF
If Plaintiff sustained the injuries and/or damages in the manner and at the time and place
alleged, and it is found that Answering Third-Party Defendant is liable herein, all of which is
specifically denied, then Answering Defendant on the basis of apporticinnent of
Third-Party
responsibility and/or contractual responsibility for the alleged occurrence, is entitled to
contractual indemnification from and judgment over and against Third-Party Plaintiff.
By reason of the foregoing, Answering Third-Party Defendant is entitled to have
judgment over and against Plaintiff as to sum awarded against Third-
Third-Party any Answering
attorneys'
Party Defendant, including costs, expenses, and fees.
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AS AND FOR A THIRD COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFF
If Plaintiff sustained the injuries and damages in the manner and at the time and place
alleged, and it is found that Answering Third-Party Defendant is liable herein, all of which is
specifically denied, then Answering Third-Party Defendant, on the basis of apportionment of
responsibility and/or contractual responsibility for the alleged occurrence, is entitled to
contribution from and judgment over and against Third-Party Plaintiff.
By reason of the foregoing, Answering Third-Party Defendant is entitled to contribution
and judgment over and against Third-Party Plaintiff.
WHEREFORE Third-Party Defendant demands judgment dismissing Plaintiff's
Complaint and Third-Party Plaintiff's Third-Party Complaint, together with costs and
attorneys'
disbursements thereof, including costs, expenses, and fees.
Dated: New York, New York
December 23, 2020
NEWMAN LAW ASSOCIATES
JfÏ 15. Warshaw, Esq.
ttomeys for Defendant and Third-Party
Defendant
BELMONT RE. LLC and TRINCHESE IRON
WORKS & CONSTRUCTION INC.
111 John Street, Suite 1500
New York, New York 10038
(212) 945-1010
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TO:
SUBIN ASSOCIATES, LLP
Attorneys for Plaintiff
LUIS ALBERTO HERRERA
23rd
150 Broadway, Floor
New York, New York 10038
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for
Preview
FILED: KINGS COUNTY CLERK 12/02/2022 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 76 RECEIVED NYSCEF: 12/02/2022 EXHIBIT “C” FILED: KINGS COUNTY CLERK 11/19/2020 12/02/2022 10:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 19 76 RECEIVED NYSCEF: 11/19/2020 12/02/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------x Index No.: 512147/2020(ECF) LUIS ALBERTO HERRERA, Plaintiff, THIRD-PARTY SUMMONS v. THE CITY OF NEW YORK, BELMONT RE, LLC AND SUTTER AVENUE REALTY CO., LLC., Defendants. ---------------------------------------------------------------------x ---------------------------------------------------------------------x Index No.: SUTTER AVENUE REALTY CO., LLC Third-Party Plaintiff, v. TRINCHESE IRON WORKS & CONSTRUCTION INC., Third-Party Defendant, ---------------------------------------------------------------------x YOU ARE HEREBY SUMMONED to answer the Complaint of Defendant/Third Party Plaintiff SUTTER AVENUE REALTY CO. LLC, a copy of which is hereby served upon you and is incorporated by reference as if more fully set forth herein, and to serve copies of your answer upon the undersigned Attorneys for Defendant/Third Party Plaintiff, SUTTER AVENUE REALTY CO. LLC and upon Attorneys at the service addresses listed herein below within twenty (20) days after service of this Third Party Summons and Third Party Complaint exclusive of the day of service or within thirty days after completion of service where service is made in any manner other than by personal delivery within the State. 1 of 9 FILED: KINGS COUNTY CLERK 11/19/2020 12/02/2022 10:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 19 76 RECEIVED NYSCEF: 11/19/2020 12/02/2022 In case of your failure to answer the Third Party Complaint, a judgment will be taken against you by default for the relief demanded in this Third Party Complaint. WHEREFORE, the Third-Party Defendant is liable in contribution and indemnification to Defendant/Third-Party Plaintiff for the whole and any judgment which may be rendered against said Defendant/Third-Party Plaintiff in the action herein, together with costs, disbursements and attorney fees arising therefrom in the defense of this action. Pursuant to CPLR 3402 (b), we give NOTICE that the title of this action has been changed from the style of the Complaint of the Plaintiff (Exhibit "A") to the style of this THIRD PARTY SUMMONS and THIRD PARTY COMPLAINT; the calendar status of this action as of this date is: "NOT ON CALENDAR" DATED: November 18, 2020 New York, New York EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant/Third Party Plaintiff SUTTER AVENUE REALTY CO. LLC Office and Post Office Address 55 Water Street, 28th Floor New York, New York 10041 (212) 612-4200 By:____________________________ Daniel P. Rocco TO: Subin Associates, LLP Attorneys for Plaintiff, Luis Alberto Herrera 150 Broadway, 23rd Floor New York, New York 10038 (212) 285-3800 The City of New York Attorneys for Defendant, The City of New York 2 of 9 FILED: KINGS COUNTY CLERK 11/19/2020 12/02/2022 10:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 19 76 RECEIVED NYSCEF: 11/19/2020 12/02/2022 100 Church Street New York, NY 10007 Newman Law Associates, PLLC. Attorneys for Defendant,, Belmont RE LLC 111 John Street, Suite 1500 New York, New York 10038 (212) 945-1010 Trinchese Iron Works & Construction Attorneys for Third Party Defendant, Trinchese Iron Works & Construction 234 Belmont Ave Brooklyn, NY 11207 (718) 848-1954 3 of 9 FILED: KINGS COUNTY CLERK 11/19/2020 12/02/2022 10:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 19 76 RECEIVED NYSCEF: 11/19/2020 12/02/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------x Index No.: 512147/2020(ECF) LUIS ALBERTO HERRERA, Plaintiff, THIRD-PARTY COMPLAINT v. THE CITY OF NEW YORK, BELMONT RE, LLC AND SUTTER AVENUE REALTY CO., LLC., Defendants. ---------------------------------------------------------------------x ---------------------------------------------------------------------x Index No.: SUTTER AVENUE REALTY CO., LLC Third-Party Plaintiff, v. TRINCHESE IRON WORKS & CONSTRUCTION INC., Third-Party Defendant, ---------------------------------------------------------------------x Defendant/Third Party Plaintiff SUTTER AVENUE REALTY CO. LLC, by its attorneys, EUSTACE, PREZIOSO & YAPCHANYK, as and for its Third Party Complaint against Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION respectfully alleges upon information and belief as follows: 1. That at all times hereinafter mentioned, Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION INC was and still is a domestic corporation organized and existing under the laws of the State of New York with its principal place of business located at 234 Belmont Ave Brooklyn, NY 11207. 2. That at all times hereinafter mentioned, Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION INC actually conducted and transacted business, engaged in a persistent course of conduct and derived substantial revenue from services within the State 4 of 9 FILED: KINGS COUNTY CLERK 11/19/2020 12/02/2022 10:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 19 76 RECEIVED NYSCEF: 11/19/2020 12/02/2022 of New York. 3. That this action is based on transactions or occurrences within the State of New York. 4. That heretofore, Plaintiff LUIS ALBERTO HERRERA, commenced an action against Defendant SUTTER AVENUE REALTY CO. LLC wherein it is alleged that Plaintiff suffered injuries as a result of an alleged trip and fall accident on the premises of 222 Belmont Avenue, Brooklyn, New York 11207 on August 6, 2019. A copy of said complaint is annexed hereto as Exhibit A. 5. That Defendant SUTTER AVENUE REALTY CO. LLC has denied all material allegations to the Plaintiff’s complaint. A copy of Defendant/Third Party Plaintiff’s Answer is annexed hereto as Exhibit B. AS AND FOR A FIRST CAUSE OF ACTION FOR COMMON LAW INDEMNITY 6. Defendant SUTTER AVENUE REALTY CO. LLC repeats and realleges each and every allegation contained in paragraphs 1 through 5 of this Third Party Complaint. 7. That at all times hereinafter mentioned, Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION INC controlled the subject premises located at 222 Belmont Avenue, Brooklyn, New York 11207. 8. That at all times hereinafter mentioned, Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION INC maintained the subject premises located 222 Belmont Avenue, Brooklyn, New York 11207. 9. That at all times hereinafter mentioned, Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION INC supervised the subject premises located at 222 Belmont Avenue, Brooklyn, New York 11207. 5 of 9 FILED: KINGS COUNTY CLERK 11/19/2020 12/02/2022 10:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 19 76 RECEIVED NYSCEF: 11/19/2020 12/02/2022 10. That if Plaintiff recovers a judgment against Defendant SUTTER AVENUE REALTY CO. LLC for the alleged injuries and damages that Plaintiff alleges to have suffered at the time and place mentioned in the Complaint, such damages and liability imposed on the Defendant/Third Party Plaintiff will have been caused and brought by reason of the primary and active negligence and/or violation of the statue, rule, regulation and/or ordinance by the Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION INC, its agents, servants and/or employees in permitting, causing, creating and/or permitting to exist the alleged conditions set forth in Plaintiff’s Complaint, in generally failing to exercise due care and diligence, all without any active or primary negligence on the part of Defendant SUTTER AVENUE REALTY CO. LLC contributing thereto. As a result, then said Defendant SUTTER AVENUE REALTY CO. LLC shall be entitled to indemnification pursuant to the principles of common law, from Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION INC for all damages which may be assessed against Defendant SUTTER AVENUE REALTY CO. LLC, including but not limited to costs, disbursements and attorney fees. AS AND FOR A SECOND CAUSE OF ACTION FOR CONTRIBUTION 11. Defendant SUTTER AVENUE REALTY CO. LLC repeats and realleges each and every allegation contained in paragraphs 1 through 10 of this Third Party Complaint. 12. That it is alleged that Plaintiff sustained personal injuries as a result of the aforementioned accident on the premises of 222 Belmont Avenue, Brooklyn, New York 11207, allegedly due to the negligence of Defendant SUTTER AVENUE REALTY CO. LLC. 13. That if Plaintiff was caused to sustain injuries at the time and place in the in the manner alleged in the Complaint, through any carelessness, recklessness and negligence, or contributory negligence, then any such injuries or damages were caused by the carelessness, 6 of 9 FILED: KINGS COUNTY CLERK 11/19/2020 12/02/2022 10:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 19 76 RECEIVED NYSCEF: 11/19/2020 12/02/2022 recklessness and negligence of Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION INC its agents, servants and/or employees and consequently, Third Party Defendant is responsible in whole or in part for such injuries. 14. That by reason of the foregoing, the impleaded Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION INC will be liable to Defendant SUTTER AVENUE REALTY CO. LLC in that event and in the full amount of recovery herein by Plaintiff or for that proportion thereof caused by the relative responsibility of Third Party Defendant TRINCHESE IRON WORKS & CONSTRUCTION INC and that said Third Party Defendant is bound to pay any and all attorneys’ fees, costs of investigations and disbursements. WHEREFORE, the Third-Party Defendant is liable in contribution and indemnification to Defendant/Third-Party Plaintiff for the whole and any judgment which may be rendered against said Defendant/Third-Party Plaintiff in the action herein, together with costs, disbursements and attorney fees arising therefrom in the defense of this action. Pursuant to CPLR 3402 (b), we give NOTICE that the title of this action has been changed from the style of the Complaint of the plaintiffs (Exhibit "A") to the style of this THIRD PARTY SUMMONS and THIRD PARTY COMPLAINT; the calendar status of this action as of 7 of 9 FILED: KINGS COUNTY CLERK 11/19/2020 12/02/2022 10:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 19 76 RECEIVED NYSCEF: 11/19/2020 12/02/2022 this date is: "NOT ON CALENDAR" DATED: November 18, 2020 New York, New York EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant/Third Party Plaintiff SUTTER AVENUE REALTY CO. LLC Office and Post Office Address 55 Water Street, 28th Floor New York, New York 10041 (212) 612-4200 By:____________________________ Daniel P. Rocco TO: Subin Associates, LLP Attorneys for Plaintiff, Luis Alberto Herrera 150 Broadway, 23rd Floor New York, New York 10038 (212) 285-3800 The City of New York Attorneys for Defendant, The City of New York 100 Church Street New York, NY 10007 Newman Law Associates, PLLC. Attorneys for Defendant,, Belmont RE LLC 111 John Street, Suite 1500 New York, New York 10038 (212) 945-1010 8 of 9 FILED: KINGS COUNTY CLERK 11/19/2020 12/02/2022 10:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 19 76 RECEIVED NYSCEF: 11/19/2020 12/02/2022 Index No.: 512147/2020(ECF) SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS LUIS ALBERTO HERRERA, Plaintiff, -against- THE CITY OF NEW YORK, BELMONT RE, LLC AND SUTTER AVENUE REALTY CO., LLC., Defendants. AND THIRD-PARTY ACTION. THIRD-PARTY SUMMONS AND THIRD-PARTY COMPLAINT EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant/Third Party Plaintiff Sutter Avenue Realty Co. LLC Office and Post Office Address 55 Water Street, 28th Floor New York, New York 10041 (212) 612-4200 9 of 9 FILED: KINGS COUNTY CLERK 12/23/2020 12/02/2022 04:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 23 76 RECEIVED NYSCEF: 12/23/2020 12/02/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X LUIS ALBERTO HERRERA, Index No.: 512147/2020 Plaintiff, -against- VERIFIED ANSWER TO SUTTER AVENUE REALTY CO. LLC'S THE CITY OF NEW YORK, BELMONT RE, THIRD-PARTY COMPLAINT LLC and SUTTER AVENUE REALTY CO. LLC, Defendants. X SUTTER AVENUE REALTY CO., LLC, Third-Party Plaintiff, -against- TRINCHESE IRON WORKS & CONSTRUCTION INC., Third-Party Defendant. X Third-Party Defendant, TRINCHESE IRON WORKS & CONSTRUCTION, INC., by its attorneys, NEWMAN LAW ASSOCIATES PLLC, answers SUTTER AVENUE REALTY CO. LLC'S Third-Party Complaint dated November 18, 2020 as follows: "1" 1. Denies in the form alleged each and every allegation as set forth in paragraph of the Third-Party Complaint except admits that Trinchese Iron Works & Construction, Inc. was a domestic entity authorized to do business in the State of New York; "2" 2. Denies in the form alleged each and every allegation as set forth in paragraph of the Third-Party Complaint except admits that Trinchese Iron Works & Construction, Inc. was a domestic entity authorized to do business in the State of New York; 1 of 10 FILED: KINGS COUNTY CLERK 12/23/2020 12/02/2022 04:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 23 76 RECEIVED NYSCEF: 12/23/2020 12/02/2022 3. Denies knowledge or sufficient information to form a belief as to the truth of the "3" allegations as set forth in paragraph of the Third-Party Complaint; "4" 4. Denies in the form alleged each and every allegation as set forth in paragraph of the Third-Party Complaint except admits the existence of an underlying action commenced by Luis Alberto Herrera; "5" 5. Denies in the form alleged each and every allegation as set forth in paragraph of the Third-Party Complaint except admits the existence of an underlying action commenced by Luis Alberto Herrera. AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION "6" 6. In response to the allegations contained in paragraph of the Third-Party Complaint, Answering Third-Party Defendant repeats, reiterates and realleges each and every "1" "5" response contained in paragraphs through of this Verified Answer to the Third-Party Complaint with the same force and effect as if more fully set forth at length herein; "7" 7. Denies each and every allegation as set forth in paragraph of the Third-Party Complaint and refers all questions of law to the Court; "8" 8. Denies each and every allegation as set forth in paragraph of the Third-Party Complaint and refers all questions of law to the Court; "9" 9. Denies each and every allegation as set forth in paragraph of the Third-Party Complaint and refers all questions of law to the Court; 2 2 of 10 FILED: KINGS COUNTY CLERK 12/23/2020 12/02/2022 04:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 23 76 RECEIVED NYSCEF: 12/23/2020 12/02/2022 "10" 10. Denies each and every allegation as set forth in paragraph of the Third-Party Complaint. AS AND FOR A RES_PONSE TO THE SECOND CAUSE OF ACTION "11" 11. In response to the allegations contained in paragraph of the Third-Party Complaiñt, Answering Third-Party Defendant repeats, reiterates and realleges each and every "1" "10" response contained in paragraphs through of this Verified Answer to the Third-Party Complaint with the same force and effect as if more fully set forth at length herein; 12. Denies in the form alleged each and every allegation as set forth in paragraph "12" of the Third-Party Complaint except admits the existence of an underlying action commenced by Luis Alberto Herrera; "13" 13. Denies each and every allegation as set forth in paragraph of the Third-Party Complaint; "14" 14. Denies each and every allegation as set forth in paragraph of the Third-Party Complaint. FIRST AFFIRMATIVE DEFENSE The injuries and damages, if any, alleged to have been sustained by Phintiff and/or Third-Party Plaintiff were caused in whole or in part by the culpable conduct and/or contributory negligence of Plaintiff and/or Third-Party Plaintiff, and Plaintiff's and Third-Party Plaintiff's damages, if any, should be barred or diminished in the proportion which such conduct bears to the culpable conduct that caused said injuries and damages. 3 3 of 10 FILED: KINGS COUNTY CLERK 12/23/2020 12/02/2022 04:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 23 76 RECEIVED NYSCEF: 12/23/2020 12/02/2022 SECOND AFFIRM.ATIVE DEFENSE Upon information and belief, the injuries and damages, if any, alleged to have been sustained by Plaintiff and/or Third-Party Plaintiff were caused in whole or in part the acts, by omissions, or other conduct of individuals or entities over which the Answering Third-Party Defendant had no control and had no duty to control. THIRD AFFIRMATIVE DEFENSE The injured Plaintiff and/or Third-Party Plaintiff assumed a known or an open or obvious risk for which Plaintiff and/or Third-Party Plaintiff may not recover any damages, or Plaintiff's and/or Third-Party Plaintiff's damages must be reduced accordingly. FOURTH AFFIRMATIVE DEFENSE The injuries and damages allegedly sustained by Plaintiff and/or Third-Party Plaintiff were not reasonably foreseeable. FIFTH AFFIRMATIVE DEFENSE The Answering Third-Party Defendant owes no legal duty to Plaintiff and/or Third-Party Plaintiff. SIXTH AFFIRMATIVE DEFENSE Plaintiff's and/or Third-Party Plaintiff's injuries/damages, if any, were caused by intervening and/or superseding factors which relieve the answering Third-Party Defendant from any liability in this action. SEVENTH AFFIRMATIVE DEFENSE In accordance with CPLR §1601 et seq., the liability of Third-Party Defendant, if any, to Plaintiff and/or Third-Party Plaintiff for non-economic loss is limited to each defendant's equitable share, determined in accordance with relative culpability of all persons and/or entities 4 4 of 10 FILED: KINGS COUNTY CLERK 12/23/2020 12/02/2022 04:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 23 76 RECEIVED NYSCEF: 12/23/2020 12/02/2022 contributing to the total liability for non-economic loss, including parties and others over whom Plaintiff and/or Third-Party Plaintiff could have obtained personal jurisdiction with due diligence. EIGHTH AF_FIRMATIVE DEFENSE Plaintiff and/or Third-Party Plaintiff have failed to join necessary and essential parties to this litigation. NINTH AFFIRMATIVE DEFENSE Upon information and belief, any costs, loss or expenses incurred or to be incurred by Plaintiff for medical care, custodial care or rehabilitative services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in CPLR 4545 (c). TENTH AFFIRMATIVE DEFENSE Plaintiff's and/or Third-Party Plaintiff's damages must be diminished in proportion to culpable conduct in accordance with CPLR 1411 and 1412. ELEVENTH AFFIRMATIVE DEFENSE Phintiff's Complaint and/or Third-Party Plaintiff's Third-Party Complaint fail to state a cause of action upon which relief can be granted as a matter of law. TWELFTH AFFIRMATIVE DEFENSE This action is barred by the applicable statute of limitations. THIRTEENTH AFFIRMATIVE DEFENSE This action does not fallwithin one of the exceptions set forth in CPLR 1602. 5 5 of 10 FILED: KINGS COUNTY CLERK 12/23/2020 12/02/2022 04:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 23 76 RECEIVED NYSCEF: 12/23/2020 12/02/2022 FOURTEENTH AFFIRMATIVE DEFENSE The Third-Party Complaint is barred in whole or in part by virtue of the doctrines of waiver, laches, and/or estoppel. AS AND FOR A FIRST COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFF If Plaintiff was caused to sustain injuries and/or damages at the time and place and in the manner set forth in this action through any carelessness, recklessness, or negligence, other than Plaintiff's own carelessness, recklessness, or negligence, then the injuries and damages were caused and sustained by reason of the sole active and primary carelessness, recklessness, negligence, and/or acts or omissions of Third-Party Plaintiff, and Answering Third-Party Defendant is entitled to indemnification, and thereby Third-Party Plaintiff is primarily liable. AS AND FOR A SECOND COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFF If Plaintiff sustained the injuries and/or damages in the manner and at the time and place alleged, and it is found that Answering Third-Party Defendant is liable herein, all of which is specifically denied, then Answering Defendant on the basis of apporticinnent of Third-Party responsibility and/or contractual responsibility for the alleged occurrence, is entitled to contractual indemnification from and judgment over and against Third-Party Plaintiff. By reason of the foregoing, Answering Third-Party Defendant is entitled to have judgment over and against Plaintiff as to sum awarded against Third- Third-Party any Answering attorneys' Party Defendant, including costs, expenses, and fees. 6 6 of 10 FILED: KINGS COUNTY CLERK 12/23/2020 12/02/2022 04:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 23 76 RECEIVED NYSCEF: 12/23/2020 12/02/2022 AS AND FOR A THIRD COUNTERCLAIM AGAINST THIRD-PARTY PLAINTIFF If Plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and it is found that Answering Third-Party Defendant is liable herein, all of which is specifically denied, then Answering Third-Party Defendant, on the basis of apportionment of responsibility and/or contractual responsibility for the alleged occurrence, is entitled to contribution from and judgment over and against Third-Party Plaintiff. By reason of the foregoing, Answering Third-Party Defendant is entitled to contribution and judgment over and against Third-Party Plaintiff. WHEREFORE Third-Party Defendant demands judgment dismissing Plaintiff's Complaint and Third-Party Plaintiff's Third-Party Complaint, together with costs and attorneys' disbursements thereof, including costs, expenses, and fees. Dated: New York, New York December 23, 2020 NEWMAN LAW ASSOCIATES JfÏ 15. Warshaw, Esq. ttomeys for Defendant and Third-Party Defendant BELMONT RE. LLC and TRINCHESE IRON WORKS & CONSTRUCTION INC. 111 John Street, Suite 1500 New York, New York 10038 (212) 945-1010 7 7 of 10 FILED: KINGS COUNTY CLERK 12/23/2020 12/02/2022 04:20 12:46 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 23 76 RECEIVED NYSCEF: 12/23/2020 12/02/2022 TO: SUBIN ASSOCIATES, LLP Attorneys for Plaintiff LUIS ALBERTO HERRERA 23rd 150 Broadway, Floor New York, New York 10038 EUSTACE, PREZIOSO & YAPCHANYK Attorneys for