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NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 03/10/2023
EXHIBIT A
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MARIA CABRERA, Index No. 161687/2019
Plaintiff, Hon. Richard G. Latin
-against- NOTICE OF MOTION
FOR SUMMARY
CREG REALTY CORPORATION, JUDGMENT
Defendant.
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CREG REALTY CORPORATION,
Third-Party Plaintiff,
-against-
MOHAMMED LAMINE OUATTARA a/k/a OUATTARA
MOHAMED and MODERN GIFT SHOP,
Third-Party Defendants.
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PLEASE TAKE NOTICE that upon the annexed Affirmation of Jennifer R. Oxman
dated July 7, 2022, and the accompanying Memorandum of Law, and all papers filed and
proceedings had in this action, third-party defendant MODERN GIFT SHOP, by its
undersigned counsel, will move this court at the Motion Submission Part, Room 130, 60
Centre Street, New York, New York, on August 30, 2022, at 9:30 am, or as soon thereafter
as counsel may be heard, for entry of an order pursuant to CPLR 3212 awarding summary
judgment in favor of third-party defendant, dismissing the third-party complaint in its
entirety, together with such other and further relief as this court deems just and proper.
PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214 [b], answering
papers and any notice of cross-motion, with supporting papers, if any, are required to be
served upon the undersigned at least seven days prior to the return date of this motion.
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Dated: New York, New York LEWIS BRISBOIS BISGAARD &
July 12, 2022 SMITH LLP
By: ___________________________________
Jennifer R. Oxman
John C. Sullivan
77 Water Street
New York, NY 10005
(212) 232-1300
jennifer.oxman@lewisbrisbois.com
john.c.sullivan@lewisbrisbois.com
File No. 30841.1490
Attorneys for Third-Party
Defendant MODERN GIFT SHOP
TO:
Terrell McCasland
SUBIN ASSOCIATES LLP
150 Broadway, 23rd Floor
New York, NY 10038
(212) 285-3800
tm@subinlaw.com
File No. 31108
Attorneys for Plaintiff
Jody Benard
HICKEY SMITH DODD LLP
1040 Avenue of the Americas, Suite 9C
New York, NY 10018
(212) 729-3565
jbenard@hickeysmith.com
Attorneys for Defendant/
Third-Party Plaintiff
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SUPREME COURT OF THE STATE OF NEW YORK
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MARIA CABRERA, Index No. 161687/2019
Plaintiff, Hon Richard G. Latin
-against- AFFIRMATION OF
JENNIFER R. OXMAN
CREG REALTY CORPORATION, IN SUPPORT OF
THIRD-PARTY
Defendant. DEFENDANT’S MOTION
-------------------------------------------------------------------------------X FOR SUMMARY
CREG REALTY CORPORATION, JUDGMENT
Third-Party Plaintiff,
-against-
MOHAMMED LAMINE OUATTARA a/k/a OUATTARA
MOHAMED and MODERN GIFT SHOP,
Third-Party Defendants.
-------------------------------------------------------------------------------X
Jennifer R. Oxman, an attorney admitted to practice in the courts of the State of
New York affirms the following under penalty of perjury pursuant to CPLR 2106:
1. I am a member of Lewis Brisbois Bisgaard & Smith LLP, attorneys for third-
party defendant MODERN GIFT SHOP (“Modern Gift”). As such, I am fully familiar with
the facts and circumstances set forth herein. I submit this affirmation in support of Modern
Gift’s motion for summary judgment pursuant to CPLR 3212.
2. Plaintiff MARIA CABRERA (“Plaintiff”) commenced this action by filing a
summons and verified complaint on December 3, 2019. Plaintiff alleges that she sustained
personal injuries after tripping and falling on a crack in the sidewalk abutting the real
property located at 564 West 160 Street, New York, New York (“Subject Premises”). The
complaint asserts a single cause of action for negligence against defendant/third-party
plaintiff CREG REALTY CORPORATION (“Creg Realty”), the owner of the Subject
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Premises. A true and correct copy of the summons and verified complaint is annexed as
Exhibit A.
3. Creg Realty filed a Verified Answer denying all substantive allegations and
asserting various affirmative defenses. A true and correct copy of Creg Realty’s Verified
Answer dated May 1, 2020 is annexed as Exhibit B.
4. Creg Realty impleaded Modern Gift by filing a third-party summons and
verified complaint on December 30, 2020. The third-party complaint attempts to assert
claims for contribution, contractual indemnification, common law indemnification, and
breach of contract. A true and correct copy of the third-party summons and complaint is
annexed as Exhibit C.
5. Modern Gift filed a verified answer to the third-party complaint on January
28, 2021. A true and correct copy of Modern Gift’s verified answer to the third-party
complaint is annexed as Exhibit D.
6. To date, third-party defendant MOHAMMED LAMINE OUATTARA a/k/a
OUATTARA MOHAMED (“Ouattara”) has failed to respond to the third-party complaint or
otherwise appear in this matter. Creg Realty has not moved for default judgment against
Ouattara.
7. The basis for the third-party claims appears to be a lease dated December 22,
2015 between Ouattara and Creg Realty. Section 4 of the lease, which addresses
responsibility for repairs, provides:
“Owner shall maintain and repair the public portions of the building, both exterior
and interior, except … Tenant shall, throughout the term of this lease, take good
care of the demised premises and the fixtures and appurtenances therein, and the
sidewalks adjacent thereto, and at its sole cost and expense, make all non-
structural repairs thereto as and when needed to preserve them in good working
order and condition, reasonable wear and tear, obsolescence and damage from the
elements, fire or other casualty excepted”
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A true and correct copy of the lease dated December 22, 2015 is annexed as Exhibit E.
8. Upon information and belief, Ouattara is the brother of Modern Gift’s
principal, Mr. Zongo Yacouba. I am advised by Mr. Yacouba that he and Ouattara operate
Modern Gift as a general partnership.
9. At the time of Plaintiff’s accident, Modern Gift possessed insurance coverage
under a general liability policy issued by Hiscox Insurance. The policy named Creg Realty
as an additional insured. A true and correct copy of the policy is annexed as Exhibit F.
10. Plaintiff appeared for deposition in this matter on January 19, 2022. In her
sworn deposition testimony, she testified that she sustained personal injury after her right
foot came in contact with a “crack” in the sidewalk and she fell to the ground. A true and
correct copy of Plaintiff’s deposition transcript is annexed as Exhibit G.
11. During her deposition, Plaintiff identified the crack in a photograph marked
as Defendants’ Exhibit A. The photograph depicts a gap between two sidewalk flags. A true
and correct copy of the photograph identified by Plaintiff is annexed as Exhibit H.
12. Creg Realty produced the building’s superintendent, Mr. Merfin Morrobel, for
deposition on January 26, 2022. Mr. Morrobel testified that he performed daily inspections
of the building’s exterior, focusing specifically on “tripping hazards” which he described as
“holes in the sidewalk … that somebody can trip or fall in.” He further testified that he had
previously repaired the very gap on which Plaintiff claims to have tripped – once in 2015
and again in 2018. He claims that the photograph produced by Plaintiff pre-dated March
2019 and that the gap did not exist at the time of the alleged accident. A true and correct
copy of the deposition transcript for Merfin Morrobel is annexed as Exhibit I.
13. As the lease and foregoing testimony show, Modern Gift is entitled to
summary judgment on the third-party contribution claim because it owed no duty to repair
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the defect that caused Plaintiff’s alleged injury. See accompanying Memorandum of Law,
point I.
14. Similarly, Modern Gift is entitled to summary judgment on the third-party
claim for contractual indemnification for two reasons. First, Modern Gift is not a party to
the lease. Second, the lease does not require Modern Gift to indemnify Creg Realty for
damages arising out of the latter’s negligence. Creg Realty’s claim for contractual
indemnification appears to be based on paragraph eight of the lease. The language of that
provision is clear that neither Ouattara nor Modern Gift has any duty to indemnify Creg
Realty for damages “caused by or due to the negligence of [Creg Realty], its agents,
servants, or employees.” Here, the Plaintiff’s alleged injuries were caused exclusively by
Creg Realty’s failure to maintain the subject sidewalk. See accompanying Memorandum of
Law, point II (A).
15. Modern Gift is also entitled to summary judgment on the third-party claim
for common law indemnification because Plaintiff’s alleged injuries, if any, were wholly
caused by Creg Realty’s failure to repair structural defects in the sidewalk abutting the
Subject Premises. A party seeking indemnification must show that it is completely
blameless and that the proposed indemnitor is the true wrongdoer. Here, the opposite is
true. Creg Realty, not Modern Gift is exclusively responsible for repairing the defect that
caused Plaintiff’s alleged injuries and may not shift its responsibility to Modern Gift. See
accompanying Memorandum of Law, point II (B).
16. Finally, Modern Gift is entitled to summary judgment on the third-party
claim for breach of contract for two reasons. First, there is no written contract between
Creg Realty and Modern Gift. Second, assuming there is, the record is clear that there was
no breach. Creg Realty argues two alternative theories of breach. First, it argues that
Modern Gift failed to obtain insurance coverage naming Creg Realty as an additional
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insured. Or, in the alternative, that Modern Gift obtained such coverage, but failed to make
a claim upon its insurance carrier to assume Creg Realty’s defense. The record shows that
Modern Gift obtained coverage naming Creg Realty as an additional insured. Furthermore,
Modern Gift had no duty to assume the defense and indemnity of Creg Realty for damages
clearly arising out of the latter’s negligence. Modern Gift did not breach the lease and is,
accordingly, entitled to summary judgment on the third-party breach of contract claim. See
accompanying Memorandum of Law, point III.
WHEREFORE, for the reasons set forth herein Third-Party Defendant MODERN
GIFT SHOP requests that the Court issue an Order pursuant to CPLR 3212 awarding
summary judgment to third-party defendant, dismissing the third-party complaint in its
entirety, together with such other and further relief as the Court deems just and proper.
Dated: New York, New York
July 7, 2022 ________________________________
Jennifer R. Oxman
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ATTORNEY CERTIFICATION PURSUANT TO RULE 202.8-b [c]
I, Jennifer R. Oxman, an attorney duly admitted to practice before the Courts of the
State of New York, hereby certify that this Affirmation in Support of Third-Party
Defendant’s Motion for Summary Judgment contains 1,412 words and complies with the
word count limit of 7,000 words set forth in Rule 202.8-b [a] of the Uniform Civil Rules for
the Supreme and the County Court. In preparing this certification, I have relied on the
word count of the word-processing system used to prepare this document.
Dated: New York, New York
July 7, 2022 ________________________________
Jennifer R. Oxman
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EXHIBIT A
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File #: 31108
SUPREME COURT OF THE STATE OF NEW YORK IndexNo.: --------
COUNTY OF NEW YORK Date of Purchase:
===========================X
MARIA CABRERA, SUMMONS
Plaintiff(s), Plaintiff designates
NEW YORK
-against- County as the place of trial
CREG REALTY CORPORATION, The basis of the venue is:
Situs of Occurrence
Defendant(s).
County of NEW YORK
===========================X
To the above named defendant(s):
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer,or, if the complaint is not served with this summons, to serve a notice of
appearance on the Plaintiffs Attorneys within 20 days after the service of this summons
exclusive of the day of service (or within 30 days after the service is complete if this summons is
not personally delivered to you within the State of New York); and in case of your failure to
appear or answer, judgment will be taken against you by default for the relief demanded herein.
Dated: New York, New York
November 4, 2019
ÊETER MAÝ, ESQ.
SUBIN ASSOCIATES LLP
Attorneys for Plaintiff
Address and Telephone Number
-
150 Broadway 23rd Fl
New York, New York 10038
(212) 285-3800
FILE NO.: 31108
Defendants Address:
CREG REALTY CORPORATION
369 East 62nd Street
New York, New York 10021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MARIA CABRERA, VERIFIED COMPLAINT
Plaintiff(s),
-agamst-
CREG REALTY CORPORATION,
Defendant(s).
--------------------------------------------------------------------X
Plaintiff, MARIA CABRERA, by her attorneys, SUBIN ASSOCIATES LLP as and
for a cause of action alleges, upon information and belief, as follows:
1. That at all the times herein mentioned, and more particularly 3/12/2019, West 160th Street, was
and still is a public roadway in the Borough of New York, County of New York, City and State of
New York which consisted of a roadway and sidewalks thereat.
2. That said sidewalks and sidewalk flags were public thoroughfares along and over which the
public at large had a right to walk.
3. That at all the times herein mentioned, the defendant CREG REALTY CORPORATION,
was and still is a corporation doing business in the State of New York.
4. That at all times herein mentioned, the CREG REALTY CORPORATION, was the
owner of the premises located at 564 West 160th Street, New York, New York 10032.
5. That at all the times herein mentioned, the defendant CREG REALTY CORPORATION, its
agents, servants and/or employees operated the aforementioned premises and the abutting
sidewalks and sidewalk flags.
6. That at all the times herein mentioned, the defendant CREG REALTY CORPORATION, its
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agents, servants and/or employees maintained the aforementioned premises and the abutting
sidewalks and sidewalk flags.
7. That at all the times herein mentioned, the defendant CREG REALTY CORPORATION, its
agents, servants and/or employees managed the aforementioned premises and the abutting
sidewalks and sidewalk flags.
8. That at all the times herein mentioned, the defendant CREG REALTY CORPORATION, its
agents, servants and/or employees controlled the aforementioned premises and the abutting
sidewalks and sidewalk flags.
9. That at all the times herein mentioned, it was the duty of the defendant(s) its agents, servants
and/or employees to keep and maintain said sidewalks and sidewalk flags in a reasonable state of
repair and good and safe condition, and not to suffer and permit said premises to become unsafe
and dangerous to pedestrians and/or customers.
10. That on or about 3/12/2019, while plaintiff was lawfully walking on the aforementioned
sidewalks and sidewalk flags plaintiff MARIA CABRERA was caused to fall and sustain
multiple injuries by reason of the negligence, carelessness and want of proper care of the
defendant(s),
11. That the said incident and resulting injuries to the plaintiff were caused through no fault of her
own but were solely and wholly caused by reason of the negligence of the defendants, their
agents, servants and/or employees in that the defendants suffered, caused and/or permitted and/or
allowed portions of said sidewalks and sidewalk flags, to be, become and remain in a
dangerous, defective, hazardous, unsafe, broken, cracked, uneven, holey, chipped, depressed,
raised, unsmooth, loose condition and was negligently and/or improperly maintained, and same
was otherwise so dangerous, hazardous, and/or unsuitable for use by persons lawfully upon the
sidewalks and sidewalk flags constituting a nuisance and a trap, and permitting same to be and
remain in such a dangerous and defective condition for a long period and/or unreasonable period
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of time; in improperly causing, suffering, permitting and/or allowing improper construction of
said sidewalks and sidewalk flags and in failing to properly maintaining said sidewalks and
sidewalk flags, in permitting and allowing defective repairs on said sidewalks and sidewalk
flags, in failing to apprise and/or warn the public and in particular the plaintiff of the
aforementioned conditions; in failing to place signs, barricades, warnings and/or other devices to
apprise persons of the dangerous, unsafe condition thereat; in generally maintaining said
sidewalks and sidewalk flags in such a dangerous defective and/or unsafe condition so as to
cause the incident herein complained of; in creating and maintaining a menace, hazard, nuisance
and trap thereat; in failing to comply with the laws, statutes, ordinances and regulations made and
provided therefor. Plaintiff further relies on the doctrine of Res Ipsa Loquitur.
12. Both actual and constructive notice are claimed. Actual notice in that the defendants, their
agents, servants and/or employees had actual knowledge and/or created the complained of
condition; constructive notice in that the condition existed for a long and unreasonable period of
time.
13. That by reason of the foregoing, plaintiff was caused to sustain serious, harmful and permanent
injuries, has been and will be caused great bodily injuries and pain, shock, mental anguish; loss of
normal pursuits and pleasures of life; has been and is informed and verily believes maybe
permanently injured; has and will be prevented from attending to usual duties;
has incurred and will incur great expense for medical care and attention; in all to plaintiff s
damage in an amount which exceeds the jurisdictional limits of all lower courts which would
otherwise have jurisdiction and which warrants the jurisdiction of this Court.
WHEREFORE, plaintiff demands judgment against the defendants in the FIRST cause
of action an amount which exceeds the jurisdictional limits of all lower courts and which
warrants the jurisdiction of this Court; together with the costs and disbursements of this action.
DATED: New York, New York
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November 4, 2019
Yours etc.
PETER MAÝ, ESQ.
SUBIN ASSOCIATES, LLP
Attorneys for Plaintiffs
150 Broadway
New York, New York 10038
(212)285-3800
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I, the undersigned, an attorney admitted to practice in the courts of New York State, state under
penalty of perjury that I am one of the attorneys for the plaintiff(s) in the within action; I have
read the foregoing SUMMONS AND COMPLAINT and know the contents thereof; the same is
true to my own knowledge, except as to the matters therein stated to be alleged on information
and belief, and as to those matters I believe to be true. The reason this verification is made by me
and not by my client(s), is that my client(s) are not presently in the County where I maintain my
offices. The grounds of my belief as to all matters not stated upon my own knowledge are the
materials in my file and the investigations conducted by my office.
Dated: New York, New York
November 4, 2019
*PET AY, ESQ.
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Index No:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
MARIA CABRERA,
Plaintiff(s),
-against-
CREG REALTY CORPORATION,
Defendant(s).
SUMMONS AND VERIFIED COMPLAINT
SUBIN ASSOCIATES LLP
Attorneys for Plaintiff
Office and Post Office Address, Telephone
150 Broadway - 23rd F1
New York, New York 10038
(212) 285-3800
File No.: 31108
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EXHIBIT B
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
MARIA CABRERA, Index No.: 161687/2019
Plaintiff, DEFENDANT CREG REALTY
CORP'S VERIFIED ANSWER
-against-
CREG REALTY CORPORATION,
Defendant.
Defendant Creg Realty Corporation (“Creg” or “Defendant”), by and through the
undersigned attorneys, HICKEY SMITH LLP, hereby answers, avers, and asserts affirmative
defenses to the Verified Complaint of Plaintiff Maria Cabrera (“Cabrera”) dated November 4,
2019, as follows:
1. Answering defendant admits the truth of the allegations of the Verified Complaint
as contained in the paragraphs numbered 4.
2. Answering defendant denies knowledge and information sufficient to form a
belief as to the truth of the allegations of the Verified Complaint as contained in the paragraphs
numbered 1 and 2.
3. Answering defendant denies each and every allegation of the Verified Complaint
as contained in the paragraphs numbered 5, 6, 7, 8, 10, 11, 12 and 13.
4. Answering defendant neither admits nor denies the allegations set forth in the
paragraphs numbered 9 and refers all questions of law to the Court.
5. Answering defendant denies each and every allegation of the Verified Complaint
as contained in the paragraphs numbered 3, except to admit that Defendant is a domestic
corporation existing pursuant to the laws of the State of New York.
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AFFIRMATIVE DEFENSES
Defendant, Creg Realty Corporation, without any prejudice to any prior answer filed
hereto, and without assuming any burden of proof otherwise borne by Plaintiff Maria Cabrera,
sets forth and asserts the following affirmative defenses.
AS AND FOR A
FIRST AFFIRMATIVE DEFENSE
Upon information and belief, the injuries, loss and/or damages, if any, alleged to have
been sustained by Plaintiff Maria Cabrera at the time and place alleged in the Verified
Complaint, were caused in whole or part by the culpable, negligent conduct of Plaintiff Maria
Cabrera and, as such, any amount of damages recoverable by Plaintiff Maria Cabrera must be
diminished and apportioned in accordance with the provisions set forth in Article 14 of the
CPLR.
AS AND FOR A
SECOND AFFIRMATIVE DEFENSE
If Plaintiff Maria Cabrera sustained any injuries and/or damages at the time and place and
in the manner set forth in the Verified Complaint due to the facts, circumstances, conditions,
negligence and/or culpable conduct alleged therein, then Defendant Creg Realty Corporation’s
liability, if any, will be limited in accordance with the provisions set forth in of Article 16 of the
CPLR.
AS AND FOR A
THIRD AFFIRMATIVE DEFENSE
In the event the Plaintiff Maria Cabrera recovers a verdict or judgment against Defendant
Creg Realty Corporation, then said verdict or judgment must be reduced pursuant to CPLR
4545(c) by those amounts which have been, or will, with reasonable certainty, be paid on behalf
of or indemnify Plaintiff Maria Cabrera in whole or in part, for any past or future claimed
economic loss, from any and all collateral source(s) including but not limited to no-fault
insurance, insurance coverage, social security, worker’s compensation or any other employee
benefit program.
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AS AND FOR A
FOURTH AFFIRMATIVE DEFENSE
The Verified Complaint fails to state a cause of action, cognizable in equity or law, upon
which relief can be granted against Defendant Creg Realty Corporation and must therefore be
dismissed.
AS AND FOR A
FIFTH AFFIRMATIVE DEFENSE
If Plaintiff Maria Cabrera sustained any injuries, loss and/or damages as alleged in the
Verified Complaint, which is denied, there was an intervening cause or causes leading to these
alleged injuries, loss and/or damages and, therefore, any action on the part of Defendant Creg
Realty Corporation was not the proximate and/or competent producing cause of the alleged
injuries.
AS AND FOR A
SIXTH AFFIRMATIVE DEFENSE
If Plaintiff Maria Cabrera sustained any of the injuries, loss and/or damages as alleged in
the Verified Complaint , which is denied, these alleged injuries were caused solely by the
conduct of one or more third persons for whose conduct Defendant Creg Realty Corporation is
not responsible, or with whom Defendant Creg Realty Corporation has no legal relationship.
AS AND FOR A
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff Maria Cabrera’s alleged causes of action are barred by the applicable Statute(s)
of Limitations.
AS AND FOR A
EIGHTH AFFIRMATIVE DEFENSE
This Court lacks in personam jurisdiction over Defendant Creg Realty Corporation due to
improper service of the Summons and Verified Complaint.
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AS AND FOR A
NINTH AFFIRMATIVE DEFENSE
The Verified Complaint is barred by the New York Statute of Frauds and/or the General
Obligations Law.
AS AND FOR A
TENTH AFFIRMATIVE DEFENSE
The Verified Complaint is barred by the doctrine of unclean hands.
AS AND FOR A
ELEVENTH AFFIRMATIVE DEFENSE
In the event any party or non-party to the above captioned action settles with Plaintiff
Maria Cabrera, Defendant Creg Realty Corporation pleads, and is entitled to, all rights as are
afforded under the General Obligations Law Section 15-108, as well as any other applicable
statute(s) governing settlements, as to all settling and/or non-settling parties.
AS AND FOR A
TWELFTH AFFIRMATIVE DEFENSE
This matter should not proceed due to Plaintiff Maria Cabrera’s failure to join all
necessary parties.
AS AND FOR A
THIRTEENTH AFFIRMATIVE DEFENSE
Any recovery or verdict against Defendant Creg Realty Corporation is to be reduced by
virtue of the failure of Plaintiff Maria Cabrera to have exercised due care to avoid, eliminate
and/or mitigate the injury, loss and/or damages allegedly sustained.
AS AND FOR A
FOURTEENTH AFFIRMATIVE DEFENSE
That by entering into the activity in which Plaintiff Maria Cabrera was engaged at the
time of the occurrence set forth in the Verified Complaint , Plaintiff knew the hazards thereof an
the inherent risks incident thereto and had full knowledge of the dangers thereof; that whatever
injuries and damages were sustained by Plaintiff as alleged in the Verified Complaint arose from
and were caused by reasons of such risks voluntarily undertaken by the Plaintiff in the activities
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NYSCEF DOC. NO. 94
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51 RECEIVED NYSCEF: 03/10/2023
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Preview
FILED: NEW YORK COUNTY CLERK 03/10/2023 05:03 PM INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 03/10/2023 EXHIBIT A FILED: NEW YORK COUNTY CLERK 03/10/2023 07/07/2022 05:03 12:32 PM INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 48 RECEIVED NYSCEF: 03/10/2023 07/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------------X MARIA CABRERA, Index No. 161687/2019 Plaintiff, Hon. Richard G. Latin -against- NOTICE OF MOTION FOR SUMMARY CREG REALTY CORPORATION, JUDGMENT Defendant. -------------------------------------------------------------------------------X CREG REALTY CORPORATION, Third-Party Plaintiff, -against- MOHAMMED LAMINE OUATTARA a/k/a OUATTARA MOHAMED and MODERN GIFT SHOP, Third-Party Defendants. -------------------------------------------------------------------------------X PLEASE TAKE NOTICE that upon the annexed Affirmation of Jennifer R. Oxman dated July 7, 2022, and the accompanying Memorandum of Law, and all papers filed and proceedings had in this action, third-party defendant MODERN GIFT SHOP, by its undersigned counsel, will move this court at the Motion Submission Part, Room 130, 60 Centre Street, New York, New York, on August 30, 2022, at 9:30 am, or as soon thereafter as counsel may be heard, for entry of an order pursuant to CPLR 3212 awarding summary judgment in favor of third-party defendant, dismissing the third-party complaint in its entirety, together with such other and further relief as this court deems just and proper. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214 [b], answering papers and any notice of cross-motion, with supporting papers, if any, are required to be served upon the undersigned at least seven days prior to the return date of this motion. -1- 1 of 2 FILED: NEW YORK COUNTY CLERK 03/10/2023 07/07/2022 05:03 12:32 PM INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 48 RECEIVED NYSCEF: 03/10/2023 07/12/2022 Dated: New York, New York LEWIS BRISBOIS BISGAARD & July 12, 2022 SMITH LLP By: ___________________________________ Jennifer R. Oxman John C. Sullivan 77 Water Street New York, NY 10005 (212) 232-1300 jennifer.oxman@lewisbrisbois.com john.c.sullivan@lewisbrisbois.com File No. 30841.1490 Attorneys for Third-Party Defendant MODERN GIFT SHOP TO: Terrell McCasland SUBIN ASSOCIATES LLP 150 Broadway, 23rd Floor New York, NY 10038 (212) 285-3800 tm@subinlaw.com File No. 31108 Attorneys for Plaintiff Jody Benard HICKEY SMITH DODD LLP 1040 Avenue of the Americas, Suite 9C New York, NY 10018 (212) 729-3565 jbenard@hickeysmith.com Attorneys for Defendant/ Third-Party Plaintiff -2- 2 of 2 FILED: NEW YORK COUNTY CLERK 03/10/2023 07/07/2022 05:03 12:32 PM INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 49 RECEIVED NYSCEF: 03/10/2023 07/07/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------------X MARIA CABRERA, Index No. 161687/2019 Plaintiff, Hon Richard G. Latin -against- AFFIRMATION OF JENNIFER R. OXMAN CREG REALTY CORPORATION, IN SUPPORT OF THIRD-PARTY Defendant. DEFENDANT’S MOTION -------------------------------------------------------------------------------X FOR SUMMARY CREG REALTY CORPORATION, JUDGMENT Third-Party Plaintiff, -against- MOHAMMED LAMINE OUATTARA a/k/a OUATTARA MOHAMED and MODERN GIFT SHOP, Third-Party Defendants. -------------------------------------------------------------------------------X Jennifer R. Oxman, an attorney admitted to practice in the courts of the State of New York affirms the following under penalty of perjury pursuant to CPLR 2106: 1. I am a member of Lewis Brisbois Bisgaard & Smith LLP, attorneys for third- party defendant MODERN GIFT SHOP (“Modern Gift”). As such, I am fully familiar with the facts and circumstances set forth herein. I submit this affirmation in support of Modern Gift’s motion for summary judgment pursuant to CPLR 3212. 2. Plaintiff MARIA CABRERA (“Plaintiff”) commenced this action by filing a summons and verified complaint on December 3, 2019. Plaintiff alleges that she sustained personal injuries after tripping and falling on a crack in the sidewalk abutting the real property located at 564 West 160 Street, New York, New York (“Subject Premises”). The complaint asserts a single cause of action for negligence against defendant/third-party plaintiff CREG REALTY CORPORATION (“Creg Realty”), the owner of the Subject -1- 1 of 6 FILED: NEW YORK COUNTY CLERK 03/10/2023 07/07/2022 05:03 12:32 PM INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 49 RECEIVED NYSCEF: 03/10/2023 07/07/2022 Premises. A true and correct copy of the summons and verified complaint is annexed as Exhibit A. 3. Creg Realty filed a Verified Answer denying all substantive allegations and asserting various affirmative defenses. A true and correct copy of Creg Realty’s Verified Answer dated May 1, 2020 is annexed as Exhibit B. 4. Creg Realty impleaded Modern Gift by filing a third-party summons and verified complaint on December 30, 2020. The third-party complaint attempts to assert claims for contribution, contractual indemnification, common law indemnification, and breach of contract. A true and correct copy of the third-party summons and complaint is annexed as Exhibit C. 5. Modern Gift filed a verified answer to the third-party complaint on January 28, 2021. A true and correct copy of Modern Gift’s verified answer to the third-party complaint is annexed as Exhibit D. 6. To date, third-party defendant MOHAMMED LAMINE OUATTARA a/k/a OUATTARA MOHAMED (“Ouattara”) has failed to respond to the third-party complaint or otherwise appear in this matter. Creg Realty has not moved for default judgment against Ouattara. 7. The basis for the third-party claims appears to be a lease dated December 22, 2015 between Ouattara and Creg Realty. Section 4 of the lease, which addresses responsibility for repairs, provides: “Owner shall maintain and repair the public portions of the building, both exterior and interior, except … Tenant shall, throughout the term of this lease, take good care of the demised premises and the fixtures and appurtenances therein, and the sidewalks adjacent thereto, and at its sole cost and expense, make all non- structural repairs thereto as and when needed to preserve them in good working order and condition, reasonable wear and tear, obsolescence and damage from the elements, fire or other casualty excepted” -2- 2 of 6 FILED: NEW YORK COUNTY CLERK 03/10/2023 07/07/2022 05:03 12:32 PM INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 49 RECEIVED NYSCEF: 03/10/2023 07/07/2022 A true and correct copy of the lease dated December 22, 2015 is annexed as Exhibit E. 8. Upon information and belief, Ouattara is the brother of Modern Gift’s principal, Mr. Zongo Yacouba. I am advised by Mr. Yacouba that he and Ouattara operate Modern Gift as a general partnership. 9. At the time of Plaintiff’s accident, Modern Gift possessed insurance coverage under a general liability policy issued by Hiscox Insurance. The policy named Creg Realty as an additional insured. A true and correct copy of the policy is annexed as Exhibit F. 10. Plaintiff appeared for deposition in this matter on January 19, 2022. In her sworn deposition testimony, she testified that she sustained personal injury after her right foot came in contact with a “crack” in the sidewalk and she fell to the ground. A true and correct copy of Plaintiff’s deposition transcript is annexed as Exhibit G. 11. During her deposition, Plaintiff identified the crack in a photograph marked as Defendants’ Exhibit A. The photograph depicts a gap between two sidewalk flags. A true and correct copy of the photograph identified by Plaintiff is annexed as Exhibit H. 12. Creg Realty produced the building’s superintendent, Mr. Merfin Morrobel, for deposition on January 26, 2022. Mr. Morrobel testified that he performed daily inspections of the building’s exterior, focusing specifically on “tripping hazards” which he described as “holes in the sidewalk … that somebody can trip or fall in.” He further testified that he had previously repaired the very gap on which Plaintiff claims to have tripped – once in 2015 and again in 2018. He claims that the photograph produced by Plaintiff pre-dated March 2019 and that the gap did not exist at the time of the alleged accident. A true and correct copy of the deposition transcript for Merfin Morrobel is annexed as Exhibit I. 13. As the lease and foregoing testimony show, Modern Gift is entitled to summary judgment on the third-party contribution claim because it owed no duty to repair -3- 3 of 6 FILED: NEW YORK COUNTY CLERK 03/10/2023 07/07/2022 05:03 12:32 PM INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 49 RECEIVED NYSCEF: 03/10/2023 07/07/2022 the defect that caused Plaintiff’s alleged injury. See accompanying Memorandum of Law, point I. 14. Similarly, Modern Gift is entitled to summary judgment on the third-party claim for contractual indemnification for two reasons. First, Modern Gift is not a party to the lease. Second, the lease does not require Modern Gift to indemnify Creg Realty for damages arising out of the latter’s negligence. Creg Realty’s claim for contractual indemnification appears to be based on paragraph eight of the lease. The language of that provision is clear that neither Ouattara nor Modern Gift has any duty to indemnify Creg Realty for damages “caused by or due to the negligence of [Creg Realty], its agents, servants, or employees.” Here, the Plaintiff’s alleged injuries were caused exclusively by Creg Realty’s failure to maintain the subject sidewalk. See accompanying Memorandum of Law, point II (A). 15. Modern Gift is also entitled to summary judgment on the third-party claim for common law indemnification because Plaintiff’s alleged injuries, if any, were wholly caused by Creg Realty’s failure to repair structural defects in the sidewalk abutting the Subject Premises. A party seeking indemnification must show that it is completely blameless and that the proposed indemnitor is the true wrongdoer. Here, the opposite is true. Creg Realty, not Modern Gift is exclusively responsible for repairing the defect that caused Plaintiff’s alleged injuries and may not shift its responsibility to Modern Gift. See accompanying Memorandum of Law, point II (B). 16. Finally, Modern Gift is entitled to summary judgment on the third-party claim for breach of contract for two reasons. First, there is no written contract between Creg Realty and Modern Gift. Second, assuming there is, the record is clear that there was no breach. Creg Realty argues two alternative theories of breach. First, it argues that Modern Gift failed to obtain insurance coverage naming Creg Realty as an additional -4- 4 of 6 FILED: NEW YORK COUNTY CLERK 03/10/2023 07/07/2022 05:03 12:32 PM INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 49 RECEIVED NYSCEF: 03/10/2023 07/07/2022 insured. Or, in the alternative, that Modern Gift obtained such coverage, but failed to make a claim upon its insurance carrier to assume Creg Realty’s defense. The record shows that Modern Gift obtained coverage naming Creg Realty as an additional insured. Furthermore, Modern Gift had no duty to assume the defense and indemnity of Creg Realty for damages clearly arising out of the latter’s negligence. Modern Gift did not breach the lease and is, accordingly, entitled to summary judgment on the third-party breach of contract claim. See accompanying Memorandum of Law, point III. WHEREFORE, for the reasons set forth herein Third-Party Defendant MODERN GIFT SHOP requests that the Court issue an Order pursuant to CPLR 3212 awarding summary judgment to third-party defendant, dismissing the third-party complaint in its entirety, together with such other and further relief as the Court deems just and proper. Dated: New York, New York July 7, 2022 ________________________________ Jennifer R. Oxman -5- 5 of 6 FILED: NEW YORK COUNTY CLERK 03/10/2023 07/07/2022 05:03 12:32 PM INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 49 RECEIVED NYSCEF: 03/10/2023 07/07/2022 ATTORNEY CERTIFICATION PURSUANT TO RULE 202.8-b [c] I, Jennifer R. Oxman, an attorney duly admitted to practice before the Courts of the State of New York, hereby certify that this Affirmation in Support of Third-Party Defendant’s Motion for Summary Judgment contains 1,412 words and complies with the word count limit of 7,000 words set forth in Rule 202.8-b [a] of the Uniform Civil Rules for the Supreme and the County Court. In preparing this certification, I have relied on the word count of the word-processing system used to prepare this document. Dated: New York, New York July 7, 2022 ________________________________ Jennifer R. Oxman -6- 6 of 6 FILED: NEW YORK COUNTY CLERK 03/10/2023 05:03 PM INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 03/10/2023 EXHIBIT A FILED: NEW YORK COUNTY CLERK 03/10/2023 12/03/2019 05:03 07/07/2022 04:15 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 1 50 RECEIVED NYSCEF: 03/10/2023 12/03/2019 07/07/2022 File #: 31108 SUPREME COURT OF THE STATE OF NEW YORK IndexNo.: -------- COUNTY OF NEW YORK Date of Purchase: ===========================X MARIA CABRERA, SUMMONS Plaintiff(s), Plaintiff designates NEW YORK -against- County as the place of trial CREG REALTY CORPORATION, The basis of the venue is: Situs of Occurrence Defendant(s). County of NEW YORK ===========================X To the above named defendant(s): YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer,or, if the complaint is not served with this summons, to serve a notice of appearance on the Plaintiffs Attorneys within 20 days after the service of this summons exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded herein. Dated: New York, New York November 4, 2019 ÊETER MAÝ, ESQ. SUBIN ASSOCIATES LLP Attorneys for Plaintiff Address and Telephone Number - 150 Broadway 23rd Fl New York, New York 10038 (212) 285-3800 FILE NO.: 31108 Defendants Address: CREG REALTY CORPORATION 369 East 62nd Street New York, New York 10021 1 of 7 FILED: NEW YORK COUNTY CLERK 03/10/2023 12/03/2019 05:03 07/07/2022 04:15 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 1 50 RECEIVED NYSCEF: 03/10/2023 12/03/2019 07/07/2022 FILE #: 31108 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------X MARIA CABRERA, VERIFIED COMPLAINT Plaintiff(s), -agamst- CREG REALTY CORPORATION, Defendant(s). --------------------------------------------------------------------X Plaintiff, MARIA CABRERA, by her attorneys, SUBIN ASSOCIATES LLP as and for a cause of action alleges, upon information and belief, as follows: 1. That at all the times herein mentioned, and more particularly 3/12/2019, West 160th Street, was and still is a public roadway in the Borough of New York, County of New York, City and State of New York which consisted of a roadway and sidewalks thereat. 2. That said sidewalks and sidewalk flags were public thoroughfares along and over which the public at large had a right to walk. 3. That at all the times herein mentioned, the defendant CREG REALTY CORPORATION, was and still is a corporation doing business in the State of New York. 4. That at all times herein mentioned, the CREG REALTY CORPORATION, was the owner of the premises located at 564 West 160th Street, New York, New York 10032. 5. That at all the times herein mentioned, the defendant CREG REALTY CORPORATION, its agents, servants and/or employees operated the aforementioned premises and the abutting sidewalks and sidewalk flags. 6. That at all the times herein mentioned, the defendant CREG REALTY CORPORATION, its 2 of 7 FILED: NEW YORK COUNTY CLERK 03/10/2023 12/03/2019 05:03 07/07/2022 04:15 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 1 50 RECEIVED NYSCEF: 03/10/2023 12/03/2019 07/07/2022 agents, servants and/or employees maintained the aforementioned premises and the abutting sidewalks and sidewalk flags. 7. That at all the times herein mentioned, the defendant CREG REALTY CORPORATION, its agents, servants and/or employees managed the aforementioned premises and the abutting sidewalks and sidewalk flags. 8. That at all the times herein mentioned, the defendant CREG REALTY CORPORATION, its agents, servants and/or employees controlled the aforementioned premises and the abutting sidewalks and sidewalk flags. 9. That at all the times herein mentioned, it was the duty of the defendant(s) its agents, servants and/or employees to keep and maintain said sidewalks and sidewalk flags in a reasonable state of repair and good and safe condition, and not to suffer and permit said premises to become unsafe and dangerous to pedestrians and/or customers. 10. That on or about 3/12/2019, while plaintiff was lawfully walking on the aforementioned sidewalks and sidewalk flags plaintiff MARIA CABRERA was caused to fall and sustain multiple injuries by reason of the negligence, carelessness and want of proper care of the defendant(s), 11. That the said incident and resulting injuries to the plaintiff were caused through no fault of her own but were solely and wholly caused by reason of the negligence of the defendants, their agents, servants and/or employees in that the defendants suffered, caused and/or permitted and/or allowed portions of said sidewalks and sidewalk flags, to be, become and remain in a dangerous, defective, hazardous, unsafe, broken, cracked, uneven, holey, chipped, depressed, raised, unsmooth, loose condition and was negligently and/or improperly maintained, and same was otherwise so dangerous, hazardous, and/or unsuitable for use by persons lawfully upon the sidewalks and sidewalk flags constituting a nuisance and a trap, and permitting same to be and remain in such a dangerous and defective condition for a long period and/or unreasonable period 3 of 7 FILED: NEW YORK COUNTY CLERK 03/10/2023 12/03/2019 05:03 07/07/2022 04:15 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 1 50 RECEIVED NYSCEF: 03/10/2023 12/03/2019 07/07/2022 of time; in improperly causing, suffering, permitting and/or allowing improper construction of said sidewalks and sidewalk flags and in failing to properly maintaining said sidewalks and sidewalk flags, in permitting and allowing defective repairs on said sidewalks and sidewalk flags, in failing to apprise and/or warn the public and in particular the plaintiff of the aforementioned conditions; in failing to place signs, barricades, warnings and/or other devices to apprise persons of the dangerous, unsafe condition thereat; in generally maintaining said sidewalks and sidewalk flags in such a dangerous defective and/or unsafe condition so as to cause the incident herein complained of; in creating and maintaining a menace, hazard, nuisance and trap thereat; in failing to comply with the laws, statutes, ordinances and regulations made and provided therefor. Plaintiff further relies on the doctrine of Res Ipsa Loquitur. 12. Both actual and constructive notice are claimed. Actual notice in that the defendants, their agents, servants and/or employees had actual knowledge and/or created the complained of condition; constructive notice in that the condition existed for a long and unreasonable period of time. 13. That by reason of the foregoing, plaintiff was caused to sustain serious, harmful and permanent injuries, has been and will be caused great bodily injuries and pain, shock, mental anguish; loss of normal pursuits and pleasures of life; has been and is informed and verily believes maybe permanently injured; has and will be prevented from attending to usual duties; has incurred and will incur great expense for medical care and attention; in all to plaintiff s damage in an amount which exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction and which warrants the jurisdiction of this Court. WHEREFORE, plaintiff demands judgment against the defendants in the FIRST cause of action an amount which exceeds the jurisdictional limits of all lower courts and which warrants the jurisdiction of this Court; together with the costs and disbursements of this action. DATED: New York, New York 4 of 7 FILED: NEW YORK COUNTY CLERK 03/10/2023 12/03/2019 05:03 07/07/2022 04:15 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 1 50 RECEIVED NYSCEF: 03/10/2023 12/03/2019 07/07/2022 November 4, 2019 Yours etc. PETER MAÝ, ESQ. SUBIN ASSOCIATES, LLP Attorneys for Plaintiffs 150 Broadway New York, New York 10038 (212)285-3800 5 of 7 FILED: NEW YORK COUNTY CLERK 03/10/2023 12/03/2019 05:03 07/07/2022 04:15 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 1 50 RECEIVED NYSCEF: 03/10/2023 12/03/2019 07/07/2022 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) I, the undersigned, an attorney admitted to practice in the courts of New York State, state under penalty of perjury that I am one of the attorneys for the plaintiff(s) in the within action; I have read the foregoing SUMMONS AND COMPLAINT and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe to be true. The reason this verification is made by me and not by my client(s), is that my client(s) are not presently in the County where I maintain my offices. The grounds of my belief as to all matters not stated upon my own knowledge are the materials in my file and the investigations conducted by my office. Dated: New York, New York November 4, 2019 *PET AY, ESQ. 6 of 7 FILED: NEW YORK COUNTY CLERK 03/10/2023 12/03/2019 05:03 07/07/2022 04:15 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 1 50 RECEIVED NYSCEF: 03/10/2023 12/03/2019 07/07/2022 Index No: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARIA CABRERA, Plaintiff(s), -against- CREG REALTY CORPORATION, Defendant(s). SUMMONS AND VERIFIED COMPLAINT SUBIN ASSOCIATES LLP Attorneys for Plaintiff Office and Post Office Address, Telephone 150 Broadway - 23rd F1 New York, New York 10038 (212) 285-3800 File No.: 31108 7 of 7 FILED: NEW YORK COUNTY CLERK 03/10/2023 05:03 PM INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 03/10/2023 EXHIBIT B FILED: NEW YORK COUNTY CLERK 03/10/2023 05/27/2020 05:03 07/07/2022 02:43 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 6 51 RECEIVED NYSCEF: 03/10/2023 05/27/2020 07/07/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MARIA CABRERA, Index No.: 161687/2019 Plaintiff, DEFENDANT CREG REALTY CORP'S VERIFIED ANSWER -against- CREG REALTY CORPORATION, Defendant. Defendant Creg Realty Corporation (“Creg” or “Defendant”), by and through the undersigned attorneys, HICKEY SMITH LLP, hereby answers, avers, and asserts affirmative defenses to the Verified Complaint of Plaintiff Maria Cabrera (“Cabrera”) dated November 4, 2019, as follows: 1. Answering defendant admits the truth of the allegations of the Verified Complaint as contained in the paragraphs numbered 4. 2. Answering defendant denies knowledge and information sufficient to form a belief as to the truth of the allegations of the Verified Complaint as contained in the paragraphs numbered 1 and 2. 3. Answering defendant denies each and every allegation of the Verified Complaint as contained in the paragraphs numbered 5, 6, 7, 8, 10, 11, 12 and 13. 4. Answering defendant neither admits nor denies the allegations set forth in the paragraphs numbered 9 and refers all questions of law to the Court. 5. Answering defendant denies each and every allegation of the Verified Complaint as contained in the paragraphs numbered 3, except to admit that Defendant is a domestic corporation existing pursuant to the laws of the State of New York. 1 of 8 FILED: NEW YORK COUNTY CLERK 03/10/2023 05/27/2020 05:03 07/07/2022 02:43 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 6 51 RECEIVED NYSCEF: 03/10/2023 05/27/2020 07/07/2022 AFFIRMATIVE DEFENSES Defendant, Creg Realty Corporation, without any prejudice to any prior answer filed hereto, and without assuming any burden of proof otherwise borne by Plaintiff Maria Cabrera, sets forth and asserts the following affirmative defenses. AS AND FOR A FIRST AFFIRMATIVE DEFENSE Upon information and belief, the injuries, loss and/or damages, if any, alleged to have been sustained by Plaintiff Maria Cabrera at the time and place alleged in the Verified Complaint, were caused in whole or part by the culpable, negligent conduct of Plaintiff Maria Cabrera and, as such, any amount of damages recoverable by Plaintiff Maria Cabrera must be diminished and apportioned in accordance with the provisions set forth in Article 14 of the CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE If Plaintiff Maria Cabrera sustained any injuries and/or damages at the time and place and in the manner set forth in the Verified Complaint due to the facts, circumstances, conditions, negligence and/or culpable conduct alleged therein, then Defendant Creg Realty Corporation’s liability, if any, will be limited in accordance with the provisions set forth in of Article 16 of the CPLR. AS AND FOR A THIRD AFFIRMATIVE DEFENSE In the event the Plaintiff Maria Cabrera recovers a verdict or judgment against Defendant Creg Realty Corporation, then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have been, or will, with reasonable certainty, be paid on behalf of or indemnify Plaintiff Maria Cabrera in whole or in part, for any past or future claimed economic loss, from any and all collateral source(s) including but not limited to no-fault insurance, insurance coverage, social security, worker’s compensation or any other employee benefit program. 2 of 8 FILED: NEW YORK COUNTY CLERK 03/10/2023 05/27/2020 05:03 07/07/2022 02:43 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 6 51 RECEIVED NYSCEF: 03/10/2023 05/27/2020 07/07/2022 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE The Verified Complaint fails to state a cause of action, cognizable in equity or law, upon which relief can be granted against Defendant Creg Realty Corporation and must therefore be dismissed. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE If Plaintiff Maria Cabrera sustained any injuries, loss and/or damages as alleged in the Verified Complaint, which is denied, there was an intervening cause or causes leading to these alleged injuries, loss and/or damages and, therefore, any action on the part of Defendant Creg Realty Corporation was not the proximate and/or competent producing cause of the alleged injuries. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE If Plaintiff Maria Cabrera sustained any of the injuries, loss and/or damages as alleged in the Verified Complaint , which is denied, these alleged injuries were caused solely by the conduct of one or more third persons for whose conduct Defendant Creg Realty Corporation is not responsible, or with whom Defendant Creg Realty Corporation has no legal relationship. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Plaintiff Maria Cabrera’s alleged causes of action are barred by the applicable Statute(s) of Limitations. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE This Court lacks in personam jurisdiction over Defendant Creg Realty Corporation due to improper service of the Summons and Verified Complaint. 3 of 8 FILED: NEW YORK COUNTY CLERK 03/10/2023 05/27/2020 05:03 07/07/2022 02:43 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 6 51 RECEIVED NYSCEF: 03/10/2023 05/27/2020 07/07/2022 AS AND FOR A NINTH AFFIRMATIVE DEFENSE The Verified Complaint is barred by the New York Statute of Frauds and/or the General Obligations Law. AS AND FOR A TENTH AFFIRMATIVE DEFENSE The Verified Complaint is barred by the doctrine of unclean hands. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE In the event any party or non-party to the above captioned action settles with Plaintiff Maria Cabrera, Defendant Creg Realty Corporation pleads, and is entitled to, all rights as are afforded under the General Obligations Law Section 15-108, as well as any other applicable statute(s) governing settlements, as to all settling and/or non-settling parties. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE This matter should not proceed due to Plaintiff Maria Cabrera’s failure to join all necessary parties. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE Any recovery or verdict against Defendant Creg Realty Corporation is to be reduced by virtue of the failure of Plaintiff Maria Cabrera to have exercised due care to avoid, eliminate and/or mitigate the injury, loss and/or damages allegedly sustained. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE That by entering into the activity in which Plaintiff Maria Cabrera was engaged at the time of the occurrence set forth in the Verified Complaint , Plaintiff knew the hazards thereof an the inherent risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries and damages were sustained by Plaintiff as alleged in the Verified Complaint arose from and were caused by reasons of such risks voluntarily undertaken by the Plaintiff in the activities 4 of 8 FILED: NEW YORK COUNTY CLERK 03/10/2023 05/27/2020 05:03 07/07/2022 02:43 PM 12:32 INDEX NO. 161687/2019 NYSCEF DOC. NO. 94 6 51 RECEIVED NYSCEF: 03/10/2023 05/27/2020