Preview
INDEX NO. 521387/2016
(FILED: KINGS COUNTY CLERK 01/11/2017 02:32 PM
NYSCEF DOC. N 4 RECEIVED NYSCEF: 01/11/4017
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF KINGS
pee eee etree penne ne ee anne enn ene een K
MARLENE FLORES, Index No: 521387/16
Plaintiff, VERIFIED ANSWER
TO VERIFIED
- against - COMPLAINT
US MAINTENANCE, INC., AND ONE-A CLEANING &
MAINTENANCE CORP.,
Defendants.
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Defendant, USM, INC., i/s/h/a “US MAINTENANCE, INC.” (“USM”), by its
attorneys, LONDON FISCHER LLP, as and for its Verified Answer to Plaintiffs Verified
Complaint, alleges upon information and belief,.as follows:
ANSWERING AS TO A CAUSE OF ACTION
1 Denies having knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraphs “FIRST,” “THIRD,” “THIRTEENTH,”
“FOURTEENTH,” “FIFTEENTH,” “SIXTEENTH,” “SEVENTEENTH,” “EIGHTEENTH,”
“NINETEENTH,” “TWENTIETH,” “TWENTY-FIRST” and “TWENTY-SECOND” of the
Verified Complaint.
2 Admits each and every allegation contained in paragraph “SECOND” of
the Verified Complaint.
3 Denies each and every allegation contained in paragraphs “FOURTH” and
“TWELFTH” of the Verified Complaint, except admits that USM did have a contract for services
related to the premises at 8973-95 Bay Parkway Brooklyn, New York, and respectfully refers to
the contract for its terms and conditions.
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4. Denies each and every allegation contained in paragraphs “FIFTH,”
“SIXTH,” “SEVENTH,” “EIGHTH,” “NINTH,” “TENTH” and “ELEVENTH?” of the Verified
Complaint.
5 Denies each and every allegation contained in paragraphs “TWENTY-
THIRD,” “TWENTY-FOURTH,” “TWENTY-SIXTH” and “TWENTY-SEVENTH” of the
Verified Complaint as it pertains to USM, and denies having knowledge or information as to the
truth of the allegations contained in paragraph “TWENTY-THIRD,” “TWENTY-FOURTH,”
“TWENTY-SIXTH” and “TWENTY-SEVENTH” as they pertain to Co-Defendant.
6 Denies the application of the law contained in paragraph “TWENTY-
FIFTH” of the Verified Complaint, and refers all questions of law to the Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
7 Whatever injuries and/or damages Plaintiff may have sustained at the time
and place mentioned in the Verified Complaint and/or as a result of the occurrence alleged in the
Verified Complaint, all of which is denied by USM, were caused in whole or in part by the culpable
conduct of Plaintiff. The amount of damages recovered, if any, shall therefore be diminished in the
proportion which the culpable conduct, attributable to Plaintiff, bears to the culpable conduct which
caused said injuries.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
8 Each risk and danger of loss or damage connected with the situation alleged
in the Verified Complaint were at the time and place mentioned obvious and apparent and were
known by Plaintiff and voluntarily assumed by Plaintiff.
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AS AND FOR A THIRD AFFIRMATIVE DEFENSE
9 The injuries and damages alleged were caused by the culpable conduct of
some third person or persons over whom USM neither had nor exercised control.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
10. The liability of USM is limited by the provisions of Article 16 of the Civil
Practice Law and Rules.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
il. Plaintiff failed to mitigate her damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
12. Any verdict, judgment or decision that might be obtained by Plaintiff against
USM shall be reduced by the amount of any collateral source payments received by Plaintiff
pursuant to CPLR § 4545(c) as determined by the Court.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
13. The negligence of those responsible for the accident or the occurrence
alleged in the Verified Complaint constituted a separate, independent, superseding, intervening
culpable act or acts which constitute the sole proximate cause of the accident or occurrence alleged.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
14, The Verified Complaint fails to state a cause of action.
AS AND FOR CROSS-CLAIMS AGAINST
ONE-A CLEANING & MAINTENANCE CORP.
15. Upon information and belief, that if and in the event Plaintiff sustained
any damages as alleged in the Verified Complaint, all of which is denied by defendant USM, said
damages were caused by the negligence, culpable conduct and/or wrongful acts of Defendant
ONE-A CLEANING & MAINTENANCE CORP. (hereinafter “ONE-A”), its agents, servants
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and/or employees, and not through any acts of negligence, culpable or wrongful conduct on the
part of USM, its agents, servants, and/or employees.
16. By reason of the foregoing, USM is entitled to full common law indemnity
and/or contribution from, and to judgment over and against ONE-A for common Jaw
indemnification, or for contribution in the amount of the excess paid by USM over and above its
equitable share of the judgment, verdict and/or recovery, as determined in accordance with the
relative culpability of each party liable for contribution.
WHEREFORE, USM, INC. hereby demand judgment dismissing the Verified
Complaint, together with the costs and disbursements, including attomeys' fees, or alternatively
against defendant ONE-A CLEANING & MAINTENANCE CORP. for common law indemnity
or contribution, and for such other, further and different relief as this Court may deem just and
proper.
Dated: New York, New York
January 11, 2017
LONDON FISCHER LLP
by. AF 2———__
Yekaterina Berkovich, Esq.
LONDON FISCHER LLP
Attorneys for Defendant
USM, INC,, i/s/h/a
US MAINTENANCE, INC.
59 Maiden Lane
New York, NY 10038
(212) 972-1000
(N1067850.1}
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TO FRIEDMAN & SIMON, [LP
Attorneys for Plaintiff
390 North Broadway
Jericho, New York 11753
(516) 932-0400
ONE-A CLEANING & MAINTENANCE CORP.
Defendant
c/o Lina M. Quintero
63-37A Douglaston Parkway
Douglaston, NY 11362
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
YEKATERINA BERKOVICH, an attorney duly admitted to practice law before
the Courts of the State of New York, hereby affirms the following statements to be true under
the penalties of perjury:
1 I am an associate of the law firm LONDON FISCHER LLP, attorneys for
Defendant USM, INC., i/s/h/a “US MAINTENANCE, INC.” (“USM”) in the within action, and
am fully familiar with the facts and circumstances set forth herein.
2 Affirmant has read the foregoing Verified Answer, knows the contents
thereof, and the same is true to Affirmant’s own knowledge, except as to those matters therein
stated to be alleged upon information and belief, and as to those matters Affirmant believes them
to be true.
3 Affirmant further states that the reason this affirmation is made by the
undersigned and not by USM is because this entity neither maintains its place of business nor is
present in New York County where the Affirmant maintains his office.
4 The basis of Affirmant’s belief as to all matters not stated to be upon
Affirmant’s knowledge is investigation and other information contained in the file of said law
firm and that learned in conversations with the client.
Dated: New York, New York
January 11,2017
TTERINA BERKOVICH
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Preview
INDEX NO. 521387/2016 (FILED: KINGS COUNTY CLERK 01/11/2017 02:32 PM NYSCEF DOC. N 4 RECEIVED NYSCEF: 01/11/4017 SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF KINGS pee eee etree penne ne ee anne enn ene een K MARLENE FLORES, Index No: 521387/16 Plaintiff, VERIFIED ANSWER TO VERIFIED - against - COMPLAINT US MAINTENANCE, INC., AND ONE-A CLEANING & MAINTENANCE CORP., Defendants. nnn en teem nn nnn eee ne nen ennenennnnnn ee nenennennenenen eee Defendant, USM, INC., i/s/h/a “US MAINTENANCE, INC.” (“USM”), by its attorneys, LONDON FISCHER LLP, as and for its Verified Answer to Plaintiffs Verified Complaint, alleges upon information and belief,.as follows: ANSWERING AS TO A CAUSE OF ACTION 1 Denies having knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs “FIRST,” “THIRD,” “THIRTEENTH,” “FOURTEENTH,” “FIFTEENTH,” “SIXTEENTH,” “SEVENTEENTH,” “EIGHTEENTH,” “NINETEENTH,” “TWENTIETH,” “TWENTY-FIRST” and “TWENTY-SECOND” of the Verified Complaint. 2 Admits each and every allegation contained in paragraph “SECOND” of the Verified Complaint. 3 Denies each and every allegation contained in paragraphs “FOURTH” and “TWELFTH” of the Verified Complaint, except admits that USM did have a contract for services related to the premises at 8973-95 Bay Parkway Brooklyn, New York, and respectfully refers to the contract for its terms and conditions. {N1067890.1 } 1 of 6 4. Denies each and every allegation contained in paragraphs “FIFTH,” “SIXTH,” “SEVENTH,” “EIGHTH,” “NINTH,” “TENTH” and “ELEVENTH?” of the Verified Complaint. 5 Denies each and every allegation contained in paragraphs “TWENTY- THIRD,” “TWENTY-FOURTH,” “TWENTY-SIXTH” and “TWENTY-SEVENTH” of the Verified Complaint as it pertains to USM, and denies having knowledge or information as to the truth of the allegations contained in paragraph “TWENTY-THIRD,” “TWENTY-FOURTH,” “TWENTY-SIXTH” and “TWENTY-SEVENTH” as they pertain to Co-Defendant. 6 Denies the application of the law contained in paragraph “TWENTY- FIFTH” of the Verified Complaint, and refers all questions of law to the Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 7 Whatever injuries and/or damages Plaintiff may have sustained at the time and place mentioned in the Verified Complaint and/or as a result of the occurrence alleged in the Verified Complaint, all of which is denied by USM, were caused in whole or in part by the culpable conduct of Plaintiff. The amount of damages recovered, if any, shall therefore be diminished in the proportion which the culpable conduct, attributable to Plaintiff, bears to the culpable conduct which caused said injuries. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 8 Each risk and danger of loss or damage connected with the situation alleged in the Verified Complaint were at the time and place mentioned obvious and apparent and were known by Plaintiff and voluntarily assumed by Plaintiff. £N1967890.1 } 2 of 6 AS AND FOR A THIRD AFFIRMATIVE DEFENSE 9 The injuries and damages alleged were caused by the culpable conduct of some third person or persons over whom USM neither had nor exercised control. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 10. The liability of USM is limited by the provisions of Article 16 of the Civil Practice Law and Rules. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE il. Plaintiff failed to mitigate her damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 12. Any verdict, judgment or decision that might be obtained by Plaintiff against USM shall be reduced by the amount of any collateral source payments received by Plaintiff pursuant to CPLR § 4545(c) as determined by the Court. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 13. The negligence of those responsible for the accident or the occurrence alleged in the Verified Complaint constituted a separate, independent, superseding, intervening culpable act or acts which constitute the sole proximate cause of the accident or occurrence alleged. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 14, The Verified Complaint fails to state a cause of action. AS AND FOR CROSS-CLAIMS AGAINST ONE-A CLEANING & MAINTENANCE CORP. 15. Upon information and belief, that if and in the event Plaintiff sustained any damages as alleged in the Verified Complaint, all of which is denied by defendant USM, said damages were caused by the negligence, culpable conduct and/or wrongful acts of Defendant ONE-A CLEANING & MAINTENANCE CORP. (hereinafter “ONE-A”), its agents, servants (1067890.1 } 3 of 6 and/or employees, and not through any acts of negligence, culpable or wrongful conduct on the part of USM, its agents, servants, and/or employees. 16. By reason of the foregoing, USM is entitled to full common law indemnity and/or contribution from, and to judgment over and against ONE-A for common Jaw indemnification, or for contribution in the amount of the excess paid by USM over and above its equitable share of the judgment, verdict and/or recovery, as determined in accordance with the relative culpability of each party liable for contribution. WHEREFORE, USM, INC. hereby demand judgment dismissing the Verified Complaint, together with the costs and disbursements, including attomeys' fees, or alternatively against defendant ONE-A CLEANING & MAINTENANCE CORP. for common law indemnity or contribution, and for such other, further and different relief as this Court may deem just and proper. Dated: New York, New York January 11, 2017 LONDON FISCHER LLP by. AF 2———__ Yekaterina Berkovich, Esq. LONDON FISCHER LLP Attorneys for Defendant USM, INC,, i/s/h/a US MAINTENANCE, INC. 59 Maiden Lane New York, NY 10038 (212) 972-1000 (N1067850.1} 4 of 6 TO FRIEDMAN & SIMON, [LP Attorneys for Plaintiff 390 North Broadway Jericho, New York 11753 (516) 932-0400 ONE-A CLEANING & MAINTENANCE CORP. Defendant c/o Lina M. Quintero 63-37A Douglaston Parkway Douglaston, NY 11362 (n88067890.1 } 5 of 6 ATTORNEY VERIFICATION STATE OF NEW YORK ) )ss.: COUNTY OF NEW YORK ) YEKATERINA BERKOVICH, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following statements to be true under the penalties of perjury: 1 I am an associate of the law firm LONDON FISCHER LLP, attorneys for Defendant USM, INC., i/s/h/a “US MAINTENANCE, INC.” (“USM”) in the within action, and am fully familiar with the facts and circumstances set forth herein. 2 Affirmant has read the foregoing Verified Answer, knows the contents thereof, and the same is true to Affirmant’s own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters Affirmant believes them to be true. 3 Affirmant further states that the reason this affirmation is made by the undersigned and not by USM is because this entity neither maintains its place of business nor is present in New York County where the Affirmant maintains his office. 4 The basis of Affirmant’s belief as to all matters not stated to be upon Affirmant’s knowledge is investigation and other information contained in the file of said law firm and that learned in conversations with the client. Dated: New York, New York January 11,2017 TTERINA BERKOVICH {N1067890.1 6 of 6