Preview
FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/09/2022
EXHIBIT B
FILED: NEW YORK COUNTY CLERK 11/02/2022
12/09/2022 05:11
04:01 PM INDEX NO. 653391/2022
NYSCEF DOC. NO. 3
7 RECEIVED NYSCEF: 11/02/2022
12/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
WASSERSTEIN ENTERPRISES LLC,
Plaintiff, Index No. 653391/2022
-against-
ANSWER
JOSEPH A. PETRILLO, JR.,
Defendant.
Defendant JOSEPH A. PETRILLO, JR. (“Defendant”), by its attorneys, Sanvenero &
Cittadino, LLC., as and for itsanswer against Plaintiff WASSERSTEIN ENTERPRISES LLC,
alleges as follows:
1. Answering defendant denies the truth of each and every allegation contained in
the paragraphs numbered as “1”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”,
“17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, “25”, “26”, “27”, “28”, “29”, “30” “31”, “32”
“33” and “34” of the verified complaint, and refers all questions of law to the court and all
questions of fact to the trier thereof.
2. Answering defendant denies knowledge and information sufficient to form a
belief as to the truth of each and every allegation contained in the paragraph numbered as “2” “3”
and “4”, of the verified complaint, and refers all questions of law to the court and all questions of
fact to the trier thereof.
3. Answering defendant admits the truth of each and every allegation contained in
the paragraphs numbered as “5” of the verified complaint and refers all questions of law to the
court and all questions of fact to the trier thereof.
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AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION
4. With respect to the paragraph numbered as “35” of the verified complaint,
answering defendant repeats, reiterates and realleges each and every admission and denial set forth
in the paragraphs numbered as “1” through “5” of this verified answer with the same force and
effect as if fully asserted at length in full herein.
5. Answering defendant denies the truth of each and every allegation contained in
the paragraphs numbered as “36”, “37”, “38”, “39”,“40”, “41” and “42” of the verified complaint,
and refers all questions of law to the court and all questions of fact to the trier thereof.
AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION
6. With respect to the paragraph numbered as “43” of the verified complaint,
answering defendant repeats, reiterates and realleges each and every admission and denial set forth
in the paragraphs numbered as “1” through “5” of this verified answer with the same force and
effect as if fully asserted at length in full herein.
7. Answering defendant denies the truth of each and every allegation contained in
the paragraph numbered as “44”, “45” and “46” of the verified complaint and refers all questions
of law to the court and all questions of fact to the trier thereof.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
1. Answering defendant reserves the right to claim the limitations of liability pursuant
to Article 16 of the New York Civil Practice Law and Rules (hereinafter CPLR), for any recovery
herein by plaintiffs for non-economic loss.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
2. That any injuries sustained or suffered by plaintiffs, as stated in the complaint,
were caused in whole or in part by the comparative negligence, fault and/or want of care of plaintiff
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and the amount of damages awarded therein, if any, should be denied or diminished in proportion
to the amount of said culpable conduct and negligence of plaintiff.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
3. That the alleged causes of action of plaintiffs, as stated in the complaint, are
time-barred in that this action was not commenced within the period of the applicable Statute of
Limitations.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
4. That plaintiffs have failed to state a cause of action upon which relief can be
granted.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
5. That answering defendant claims the benefit of each and every provision of
CPLR 4545, including but not limited to any credit or offset by reason of any replacement or
indemnification of costs or expenses from any collateral source.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
6. That in the event of any award made to plaintiffs, answering defendant is
entitled to a set-off with respect to the amounts of any and all payments made to plaintiffs in
settlement of any claims arising out of the claims of damages or injuries alleged in this action
pursuant to N.Y. General Obligations Law §15-108.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
7. If plaintiffs sustained damages as alleged, such damages occurred while
plaintiffs engaged in an activity into which he/they entered, knowing the hazard, risk and danger
of the activity and he/they assumed the risks incidental to and attending the activity.
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AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
8. Plaintiffs failed and/or refused to take reasonable steps to avoid, minimize
and/or mitigate his alleged injuries and/or damages.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
9. The damages alleged to have been sustained by the plaintiffs were caused in
whole or in part by the culpable conduct of the plaintiffs or other parties without any culpable
conduct on the part of the answering defendant and, therefore, the amount of damages, if any,
recovered by the plaintiffs from the answering defendant should be reduced pursuant to Article 14
and Article 14-A of the New York Civil Practice Law and Rules in that proportion to which the
culpable conduct attributed to the plaintiffs, or others bears to the culpable conduct which caused
said purported damages.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
10. Plaintiffs lack capacity to sue.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
11. The negligence of those responsible for the accident or the occurrence alleged
in the verified complaint, including plaintiffs, constituted a separate, independent, superseding
intervening culpable act or acts, and constitutes the proximate cause of the accident or occurrence
alleged.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
12. Plaintiffs failed to join a necessary and indispensable party and therefore the
verified complaint must be dismissed.
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AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
13. Plaintiffs lack standing to bring one or more of the causes of action set forth in
the verified complaint.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
14. Plaintiffs’ claims are barred under the doctrines of res judicata and collateral
estoppel.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
15. Plaintiffs’ claims are barred, enjoined and estopped by the plaintiff if discharge
in bankruptcy.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
16. Plaintiffs’ claims are barred in whole or in part by the equitable doctrines of
estoppel and/or unclean hands.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
17. Answering defendant claims entitlement to release and payment to the extent
that the answering defendant is to respond in damages in an amount that exceeds any settlement
proceeds received by plaintiffs.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
18. In the event that any person or entity liable or claimed to be liable for injuries
and/or damages claimed in this action has been given or may hereafter be given arbitration, the
answering defendant shall be entitled to protection under CPLR 3211 and a cause of action may
not be maintained.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
19. The injuries and damages alleged were caused by the culpable conduct of some
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third person or persons over whom answering defendant neither had, nor exercised, control.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
20. That plaintiffs was a special employee of the answering defendant herein.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
21. The New York State Workers’ Compensation law bars plaintiffs’ claims against
the answering defendant and constitutes plaintiffs sole source of relief for his/their alleged injuries.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
22. This action is improper pursuant to CPLR 3211(a)(4) because of a prior pending
action.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
23. Answering defendant is not a proper party to this action.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
24. The answering defendant reserves its right to assert any and all additional
defenses as may be revealed by further investigation and discovery.
WHEREFORE, defendant, JOSEPH A. PETRILLO demands judgment dismissing the
verified complaint of the plaintiffs, over and together with the costs and disbursements of this
action.
To the best of my knowledge, information and belief, formed after an inquiry reasonable under the
circumstances, the presentation of this paper of contentions herein are not frivolous, as that term
is defined in Part 130 of the Court Rules.
Dated: New York, New York SANVENERO & CITTADINO, LLC
November 2, 2022 Attorneys for Defendant
___________________________________
JOSHUA P. CITTADINO, ESQ.
228 Maple Avenue
Red Bank, NJ 07701
(732)743-9665
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VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
JOSHUA P. CITTADINO, ESQ., being duly sworn, states that he is a member of the law
firm of SANVENERO & CITTADINO LLC attorneys for the defendant JOSEPH A.
PETRILLO in this action, and that the foregoing VERIFIED ANSWER, is true to his
knowledge, except as to those matters therein stated upon information and belief, and as to those
matters he believes them to be true; that the grounds of his belief as to all matters not stated upon
his knowledge are correspondence and other writings furnished by the answering defendant and
other documentation maintained in the office of its attorneys.
Dated: New York, New York
November 2, 2022
__________________________________
JOSHUA P. CITTADINO, ESQ.
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Preview
FILED: NEW YORK COUNTY CLERK 12/09/2022 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/09/2022 EXHIBIT B FILED: NEW YORK COUNTY CLERK 11/02/2022 12/09/2022 05:11 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 3 7 RECEIVED NYSCEF: 11/02/2022 12/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK WASSERSTEIN ENTERPRISES LLC, Plaintiff, Index No. 653391/2022 -against- ANSWER JOSEPH A. PETRILLO, JR., Defendant. Defendant JOSEPH A. PETRILLO, JR. (“Defendant”), by its attorneys, Sanvenero & Cittadino, LLC., as and for itsanswer against Plaintiff WASSERSTEIN ENTERPRISES LLC, alleges as follows: 1. Answering defendant denies the truth of each and every allegation contained in the paragraphs numbered as “1”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, “25”, “26”, “27”, “28”, “29”, “30” “31”, “32” “33” and “34” of the verified complaint, and refers all questions of law to the court and all questions of fact to the trier thereof. 2. Answering defendant denies knowledge and information sufficient to form a belief as to the truth of each and every allegation contained in the paragraph numbered as “2” “3” and “4”, of the verified complaint, and refers all questions of law to the court and all questions of fact to the trier thereof. 3. Answering defendant admits the truth of each and every allegation contained in the paragraphs numbered as “5” of the verified complaint and refers all questions of law to the court and all questions of fact to the trier thereof. 1 of 7 FILED: NEW YORK COUNTY CLERK 11/02/2022 12/09/2022 05:11 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 3 7 RECEIVED NYSCEF: 11/02/2022 12/09/2022 AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION 4. With respect to the paragraph numbered as “35” of the verified complaint, answering defendant repeats, reiterates and realleges each and every admission and denial set forth in the paragraphs numbered as “1” through “5” of this verified answer with the same force and effect as if fully asserted at length in full herein. 5. Answering defendant denies the truth of each and every allegation contained in the paragraphs numbered as “36”, “37”, “38”, “39”,“40”, “41” and “42” of the verified complaint, and refers all questions of law to the court and all questions of fact to the trier thereof. AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION 6. With respect to the paragraph numbered as “43” of the verified complaint, answering defendant repeats, reiterates and realleges each and every admission and denial set forth in the paragraphs numbered as “1” through “5” of this verified answer with the same force and effect as if fully asserted at length in full herein. 7. Answering defendant denies the truth of each and every allegation contained in the paragraph numbered as “44”, “45” and “46” of the verified complaint and refers all questions of law to the court and all questions of fact to the trier thereof. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 1. Answering defendant reserves the right to claim the limitations of liability pursuant to Article 16 of the New York Civil Practice Law and Rules (hereinafter CPLR), for any recovery herein by plaintiffs for non-economic loss. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 2. That any injuries sustained or suffered by plaintiffs, as stated in the complaint, were caused in whole or in part by the comparative negligence, fault and/or want of care of plaintiff 2 of 7 FILED: NEW YORK COUNTY CLERK 11/02/2022 12/09/2022 05:11 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 3 7 RECEIVED NYSCEF: 11/02/2022 12/09/2022 and the amount of damages awarded therein, if any, should be denied or diminished in proportion to the amount of said culpable conduct and negligence of plaintiff. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 3. That the alleged causes of action of plaintiffs, as stated in the complaint, are time-barred in that this action was not commenced within the period of the applicable Statute of Limitations. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 4. That plaintiffs have failed to state a cause of action upon which relief can be granted. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 5. That answering defendant claims the benefit of each and every provision of CPLR 4545, including but not limited to any credit or offset by reason of any replacement or indemnification of costs or expenses from any collateral source. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 6. That in the event of any award made to plaintiffs, answering defendant is entitled to a set-off with respect to the amounts of any and all payments made to plaintiffs in settlement of any claims arising out of the claims of damages or injuries alleged in this action pursuant to N.Y. General Obligations Law §15-108. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 7. If plaintiffs sustained damages as alleged, such damages occurred while plaintiffs engaged in an activity into which he/they entered, knowing the hazard, risk and danger of the activity and he/they assumed the risks incidental to and attending the activity. 3 of 7 FILED: NEW YORK COUNTY CLERK 11/02/2022 12/09/2022 05:11 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 3 7 RECEIVED NYSCEF: 11/02/2022 12/09/2022 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 8. Plaintiffs failed and/or refused to take reasonable steps to avoid, minimize and/or mitigate his alleged injuries and/or damages. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 9. The damages alleged to have been sustained by the plaintiffs were caused in whole or in part by the culpable conduct of the plaintiffs or other parties without any culpable conduct on the part of the answering defendant and, therefore, the amount of damages, if any, recovered by the plaintiffs from the answering defendant should be reduced pursuant to Article 14 and Article 14-A of the New York Civil Practice Law and Rules in that proportion to which the culpable conduct attributed to the plaintiffs, or others bears to the culpable conduct which caused said purported damages. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 10. Plaintiffs lack capacity to sue. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 11. The negligence of those responsible for the accident or the occurrence alleged in the verified complaint, including plaintiffs, constituted a separate, independent, superseding intervening culpable act or acts, and constitutes the proximate cause of the accident or occurrence alleged. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 12. Plaintiffs failed to join a necessary and indispensable party and therefore the verified complaint must be dismissed. 4 of 7 FILED: NEW YORK COUNTY CLERK 11/02/2022 12/09/2022 05:11 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 3 7 RECEIVED NYSCEF: 11/02/2022 12/09/2022 AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 13. Plaintiffs lack standing to bring one or more of the causes of action set forth in the verified complaint. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 14. Plaintiffs’ claims are barred under the doctrines of res judicata and collateral estoppel. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 15. Plaintiffs’ claims are barred, enjoined and estopped by the plaintiff if discharge in bankruptcy. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 16. Plaintiffs’ claims are barred in whole or in part by the equitable doctrines of estoppel and/or unclean hands. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 17. Answering defendant claims entitlement to release and payment to the extent that the answering defendant is to respond in damages in an amount that exceeds any settlement proceeds received by plaintiffs. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 18. In the event that any person or entity liable or claimed to be liable for injuries and/or damages claimed in this action has been given or may hereafter be given arbitration, the answering defendant shall be entitled to protection under CPLR 3211 and a cause of action may not be maintained. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 19. The injuries and damages alleged were caused by the culpable conduct of some 5 of 7 FILED: NEW YORK COUNTY CLERK 11/02/2022 12/09/2022 05:11 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 3 7 RECEIVED NYSCEF: 11/02/2022 12/09/2022 third person or persons over whom answering defendant neither had, nor exercised, control. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 20. That plaintiffs was a special employee of the answering defendant herein. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 21. The New York State Workers’ Compensation law bars plaintiffs’ claims against the answering defendant and constitutes plaintiffs sole source of relief for his/their alleged injuries. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 22. This action is improper pursuant to CPLR 3211(a)(4) because of a prior pending action. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 23. Answering defendant is not a proper party to this action. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 24. The answering defendant reserves its right to assert any and all additional defenses as may be revealed by further investigation and discovery. WHEREFORE, defendant, JOSEPH A. PETRILLO demands judgment dismissing the verified complaint of the plaintiffs, over and together with the costs and disbursements of this action. To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this paper of contentions herein are not frivolous, as that term is defined in Part 130 of the Court Rules. Dated: New York, New York SANVENERO & CITTADINO, LLC November 2, 2022 Attorneys for Defendant ___________________________________ JOSHUA P. CITTADINO, ESQ. 228 Maple Avenue Red Bank, NJ 07701 (732)743-9665 6 of 7 FILED: NEW YORK COUNTY CLERK 11/02/2022 12/09/2022 05:11 04:01 PM INDEX NO. 653391/2022 NYSCEF DOC. NO. 3 7 RECEIVED NYSCEF: 11/02/2022 12/09/2022 VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) JOSHUA P. CITTADINO, ESQ., being duly sworn, states that he is a member of the law firm of SANVENERO & CITTADINO LLC attorneys for the defendant JOSEPH A. PETRILLO in this action, and that the foregoing VERIFIED ANSWER, is true to his knowledge, except as to those matters therein stated upon information and belief, and as to those matters he believes them to be true; that the grounds of his belief as to all matters not stated upon his knowledge are correspondence and other writings furnished by the answering defendant and other documentation maintained in the office of its attorneys. Dated: New York, New York November 2, 2022 __________________________________ JOSHUA P. CITTADINO, ESQ. 7 of 7