Preview
FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
EXHIBIT B
FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
__________________________..____________________________Ç
ANTONIO ESPINOSA,
Plaintiff, Index No.: 515277/2018
- against -
MAC 60, LLC and ROYAL HOME IMPROVEMENTS, VERIFIED ANSWER
INC.,
Defendants.
_____________________________--__-------------________Ç
PLEASE TAKE NOTICE, that the defendant ROYAL HOME IMPROVEMENTS,
INC., by its attorneys, Havkins Rosenfeld Ritzert & Varriale, LLP, as and for its Verified
Answer to the plaintiff's Verified Complaint, states upon information and belief, as follows:
AS AND FOR A FIRST CAUSE OF ACTION
ON BEHALF OF PLAINTIFF ANTONIO ESPINOSA
1. Denies knowledge or information sufficient to form a belief as to the allegations
"1"
contained in paragraph of the Verified Complaint, and refers all questions of law to the
Court.
"2"
2. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
3. Denies knowledge or information sufficient to form a belief as to the allegations
"3"
contained in paragraph of the Verified Complaint.
"4"
4. Denies each and every allegation contained in paragraph of the Verified
Complaint, except admits that defendant ROYAL HOME IMPROVEMENTS, INC. was a
FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
domestic not-for-profit corporation duly organized and existing under and by virtue of the laws
of the State of New York on January 11, 2018.
5. Denies knowledge or information sufficient to form a belief as to the allegations
"5"
contained in paragraph of the Verified Complaint.
6. Denies knowledge or information sufficient to form a belief as to the allegations
"6"
contained in paragraph of the Verified Complaint.
"7"
7. Denies each and every allegation contained in paragraph of the Verified
Complaint.
8. Denies knowledge or information sufficient to form a belief as to the allegations
"8"
contained in paragraph of the Verified Complaint, and refers all questions of law to the
Court.
"9"
9. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
10. Denies knowledge or information sufficient to form a belief as to the allegations
"10"
contained in paragraph of the Verified Complaint, and refers all questions of law to the
Court.
"11"
11. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
12. Denies knowledge or information sufficient to form a belief as to the allegations
"12"
contained in paragraph of the Verified Complaint, and refers all questions of law to the
Court.
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NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
"13"
13. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
14. Denies knowledge or information sufficient to form a belief as to the allegations
"14"
contained in paragraph of the Verified Complaint, and refers all questions of law to the
Court.
"15"
15. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
16. Denies knowledge or information sufficient to form a belief as to the allegations
"16"
contained in paragraph of the Verified Complaint, and refers all questions of law to the
Court.
"17"
17. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
18. Denies knowledge or information sufficient to form a belief as to the allegations
"18"
contained in paragraph of the Verified Complaint, and refers all questions of law to the
Court.
"19"
19. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
"20"
20. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
"21"
21. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
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NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
"22"
22. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
23. Denies knowledge or information sufficient to form a belief as to the allegations
"23"
contained in paragraph of the Verified Complaint, and refers all questions of law to the
Court.
"24"
24. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
"25"
25. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
26. Denies knowledge or information sufficient to form a belief as to the allegations
"26"
contained in paragraph of the Verified Complaint, and refers all questions of law to the
Court.
"27"
27. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
28. Denies knowledge or information sufficient to form a belief as to the allegations
"28"
contained in paragraph of the Verified Complaint, and refers all questions of law to the
Court.
"29"
29. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
"30"
30. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
"31"
31. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
"32"
32. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
"33"
33. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
"34"
34. Denies each and every allegation contained in paragraph of the Verified
Complaint.
"35"
35. Denies each and every allegation contained in paragraph of the Verified
Complaint.
"36"
36. Denies each and every allegation contained in paragraph of the Verified
Complaint.
"37"
37. Denies each and every allegation contained in paragraph of the Verified
Complaint.
"35"
38. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
AS AND FOR A SECOND CAUSE OF ACTION
ON BEHALF OF PLAINTIFF ANTONIO ESPINOSA
39. Defendant ROYAL HOME IMPROVEMENTS, INC. repeats, reiterates, and
"1" "38"
realleges all responses and allegations contained in paragraphs though above as if fully
set forth herein.
FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
"40"
40. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
"41"
41. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
"42"
42. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
AS AND FOR A THIRD CAUSE OF ACTION
ON BEHALF OF PLAINTIFF ANTONIO ESPINOSA
43. Defendant ROYAL HOME IMPROVEMENTS, INC. repeats, reiterates, and
"1" "42"
realleges all responses and allegations contained in paragraphs though above as if fully
set forth herein.
"44"
44. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
"45"
45. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
"46"
46. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
"47"
47. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
AS AND FOR A FOURTH CAUSE OF ACTION
ON BEHALF OF PLAINTIFF ANTONIO ESPINOSA
48. Defendant ROYAL HOME IMPROVEMENTS, INC. repeats, reiterates, and
"1" "47"
realleges all responses and allegations contained in paragraphs though above as if fully
set forth herein.
"49"
49. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
"50"
50. Denies in the form alleged each and every allegation contained in paragraph
of the Verified Complaint and refers all questions of law to the Court.
"51"
51. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
"52"
52. Denies each and every allegation contained in paragraph of the Verified
Complaint, and refers all questions of law to the Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
53. If any injuries and/or damages were sustained by the plaintiff at the time and
place and in the manner alleged in the Verified Complaint, such injuries and/or damages are
attributable in whole or in part to the culpable conduct of the plaintiff, and plaintiff's recovery, if
any, shall be reduced by the proportionate share of culpability assigned to the plaintiff.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
54. Any damages alleged to have been sustained by plaintiff were caused in whole or
in part by the culpable conduct, contributory negligence and/or assumption of risk of plaintiff or
other parties, without any culpable conduct on the part of the answering defendant, and therefore,
the amount of damages, if any, recoverable by plaintiff must be reduced pursuant to CPLR
FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
Article 14, 14a and 16 in that proportion to which the culpable conduct attributed to the plaintiff
bear to the culpable conduct which caused the alleged damages.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
55. If any injuries and/or damages were sustained by the plaintiff at the time and
place and in the manner alleged in the Verified Complaint, plaintiff assumed a known or an open
and obvious risk for which plaintiff may not recover any damages, or plaintiff's damages must
be reduced accordingly.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
56. The plaintiff failed to properly mitigate his damages so as to prevent or reduce the
extent of the injuries sustained.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
57. Any damages alleged to have been sustained by plaintiffs were caused in whole or
in part by the culpable conduct, contributory negligence and/or assumption of risk of plaintiffs
and/or other parties, without any culpable conduct on the part of the answering defendant, and
therefore, the amount of damages, if any, recoverable by plaintiffs must be reduced pursuant to
Article 16 of the New York City Practice Law and Rules in that proportion to which the culpable
conduct attributed to the plaintiffs bear to the culpable conduct which caused the alleged
damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
58. Liability cannot be imposed on this answering defendant because the sole
proximate cause of the plaintiff's injuries as alleged in the Verified Complaint, were his own acts
and/or omissions.
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NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
worker"
59. The answering defendant hereby asserts the "recalcitrant defense.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
60. Plaintiff's injuries, if any, were increased or caused by plaintiff's failure or
neglect to properly utilize safety equipment at the time of the occurrence, and, therefore, plaintiff
may not recover for those injuries which would not otherwise have been sustained.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
61. That all the alleged hazard which caused the plaintiff's claimed injuries were
trivial in nature.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
62. With respect to the happening of the alleged occurrence, the defendant had no
duty of care, custody or control and as such defendant is not liable to plaintiffs.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
63. In the event that any person or entity liable or claimed to be liable for injuries or
damages in this action has been given or may hereafter be given a release or covenant not to sue,
the answering defendant shall be entitled to protection under General Obligations Law 15-108.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
64. In the event the plaintiff recovers a verdict or judgment against this defendant
then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts
which have been, or will, with reasonable certainty, replace or indemnify plaintiff, in whole or in
part, for any past or future claimed medical expenses or other such economic loss, paid from any
workers'
collateral source such as insurance, social security, compensation or employee benefit
program.
FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
65. Plaintiffs action is barred by Workers Compensation Law 29(6), which prohibits
an employee from bringing a direct action against his employer.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
66. The plaintiff s claims and causes of action, as alleged in the Verified Complaint,
Workers'
are barred under the terms of the Compensation Law.
AS AND FOR A FIRST CROSS-CLAIM
AGAINST DEFENDANT MAC 60 LLC
67. Defendant ROYAL HOME IMPROVEMENTS, INC. repeats, reiterates and
"1" "66"
realleges all responses and allegations contained in paragraphs though above as if fully
set forth herein.
68. Upon information and belief, that if and in the event the plaintiff sustained any
damages as alleged in the Verified Complaint, all of which are denied by the answering
defendant, said damages were caused by the negligence, culpable conduct and/or wrongful acts
of defendant MAC 60 LLC, its agents, servants and/or employees, and not through any
negligence, culpable or wrongful conduct on the part of this answering defendant, its agents,
servants, and/or employees.
69. By reasons of the foregoing, the answering defendant is entitled to judgment over
and against defendant MAC 60 LLC for common law indemnification for all or part of any
verdict or judgment that plaintiff may recover against this answering defendant.
FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023
AS AND FOR A SECOND CROSS-CLAIM
AGAINST DEFENDANT MAC 60 LLC
70. Defendant ROYAL HOME IMPROVEMENTS, INC. repeats, reiterates and
"1" "69"
realleges all responses and allegations contained in paragraphs though above as if fully
set forth herein.
71. Upon information and belief, that if and in the event the plaintiff sustained any
damages as alleged in the Verified Complaint, all of which are denied by the answering
defendant, said damages were caused by the negligence, culpable conduct and/or wrongful acts
of defendant MAC 60, LLC, its agents, servants and/or employees, and not through any
negligence, culpable or wrongful conduct on the part of these answering
Preview
FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 EXHIBIT B FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS __________________________..____________________________Ç ANTONIO ESPINOSA, Plaintiff, Index No.: 515277/2018 - against - MAC 60, LLC and ROYAL HOME IMPROVEMENTS, VERIFIED ANSWER INC., Defendants. _____________________________--__-------------________Ç PLEASE TAKE NOTICE, that the defendant ROYAL HOME IMPROVEMENTS, INC., by its attorneys, Havkins Rosenfeld Ritzert & Varriale, LLP, as and for its Verified Answer to the plaintiff's Verified Complaint, states upon information and belief, as follows: AS AND FOR A FIRST CAUSE OF ACTION ON BEHALF OF PLAINTIFF ANTONIO ESPINOSA 1. Denies knowledge or information sufficient to form a belief as to the allegations "1" contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "2" 2. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. 3. Denies knowledge or information sufficient to form a belief as to the allegations "3" contained in paragraph of the Verified Complaint. "4" 4. Denies each and every allegation contained in paragraph of the Verified Complaint, except admits that defendant ROYAL HOME IMPROVEMENTS, INC. was a FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 domestic not-for-profit corporation duly organized and existing under and by virtue of the laws of the State of New York on January 11, 2018. 5. Denies knowledge or information sufficient to form a belief as to the allegations "5" contained in paragraph of the Verified Complaint. 6. Denies knowledge or information sufficient to form a belief as to the allegations "6" contained in paragraph of the Verified Complaint. "7" 7. Denies each and every allegation contained in paragraph of the Verified Complaint. 8. Denies knowledge or information sufficient to form a belief as to the allegations "8" contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "9" 9. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. 10. Denies knowledge or information sufficient to form a belief as to the allegations "10" contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "11" 11. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. 12. Denies knowledge or information sufficient to form a belief as to the allegations "12" contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 "13" 13. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. 14. Denies knowledge or information sufficient to form a belief as to the allegations "14" contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "15" 15. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. 16. Denies knowledge or information sufficient to form a belief as to the allegations "16" contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "17" 17. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. 18. Denies knowledge or information sufficient to form a belief as to the allegations "18" contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "19" 19. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "20" 20. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. "21" 21. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 "22" 22. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. 23. Denies knowledge or information sufficient to form a belief as to the allegations "23" contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "24" 24. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. "25" 25. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. 26. Denies knowledge or information sufficient to form a belief as to the allegations "26" contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "27" 27. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. 28. Denies knowledge or information sufficient to form a belief as to the allegations "28" contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "29" 29. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. "30" 30. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 "31" 31. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "32" 32. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "33" 33. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "34" 34. Denies each and every allegation contained in paragraph of the Verified Complaint. "35" 35. Denies each and every allegation contained in paragraph of the Verified Complaint. "36" 36. Denies each and every allegation contained in paragraph of the Verified Complaint. "37" 37. Denies each and every allegation contained in paragraph of the Verified Complaint. "35" 38. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. AS AND FOR A SECOND CAUSE OF ACTION ON BEHALF OF PLAINTIFF ANTONIO ESPINOSA 39. Defendant ROYAL HOME IMPROVEMENTS, INC. repeats, reiterates, and "1" "38" realleges all responses and allegations contained in paragraphs though above as if fully set forth herein. FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 "40" 40. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. "41" 41. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "42" 42. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. AS AND FOR A THIRD CAUSE OF ACTION ON BEHALF OF PLAINTIFF ANTONIO ESPINOSA 43. Defendant ROYAL HOME IMPROVEMENTS, INC. repeats, reiterates, and "1" "42" realleges all responses and allegations contained in paragraphs though above as if fully set forth herein. "44" 44. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. "45" 45. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. "46" 46. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "47" 47. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 AS AND FOR A FOURTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF ANTONIO ESPINOSA 48. Defendant ROYAL HOME IMPROVEMENTS, INC. repeats, reiterates, and "1" "47" realleges all responses and allegations contained in paragraphs though above as if fully set forth herein. "49" 49. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. "50" 50. Denies in the form alleged each and every allegation contained in paragraph of the Verified Complaint and refers all questions of law to the Court. "51" 51. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. "52" 52. Denies each and every allegation contained in paragraph of the Verified Complaint, and refers all questions of law to the Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 53. If any injuries and/or damages were sustained by the plaintiff at the time and place and in the manner alleged in the Verified Complaint, such injuries and/or damages are attributable in whole or in part to the culpable conduct of the plaintiff, and plaintiff's recovery, if any, shall be reduced by the proportionate share of culpability assigned to the plaintiff. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 54. Any damages alleged to have been sustained by plaintiff were caused in whole or in part by the culpable conduct, contributory negligence and/or assumption of risk of plaintiff or other parties, without any culpable conduct on the part of the answering defendant, and therefore, the amount of damages, if any, recoverable by plaintiff must be reduced pursuant to CPLR FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 Article 14, 14a and 16 in that proportion to which the culpable conduct attributed to the plaintiff bear to the culpable conduct which caused the alleged damages. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 55. If any injuries and/or damages were sustained by the plaintiff at the time and place and in the manner alleged in the Verified Complaint, plaintiff assumed a known or an open and obvious risk for which plaintiff may not recover any damages, or plaintiff's damages must be reduced accordingly. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 56. The plaintiff failed to properly mitigate his damages so as to prevent or reduce the extent of the injuries sustained. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 57. Any damages alleged to have been sustained by plaintiffs were caused in whole or in part by the culpable conduct, contributory negligence and/or assumption of risk of plaintiffs and/or other parties, without any culpable conduct on the part of the answering defendant, and therefore, the amount of damages, if any, recoverable by plaintiffs must be reduced pursuant to Article 16 of the New York City Practice Law and Rules in that proportion to which the culpable conduct attributed to the plaintiffs bear to the culpable conduct which caused the alleged damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 58. Liability cannot be imposed on this answering defendant because the sole proximate cause of the plaintiff's injuries as alleged in the Verified Complaint, were his own acts and/or omissions. FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE worker" 59. The answering defendant hereby asserts the "recalcitrant defense. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 60. Plaintiff's injuries, if any, were increased or caused by plaintiff's failure or neglect to properly utilize safety equipment at the time of the occurrence, and, therefore, plaintiff may not recover for those injuries which would not otherwise have been sustained. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 61. That all the alleged hazard which caused the plaintiff's claimed injuries were trivial in nature. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 62. With respect to the happening of the alleged occurrence, the defendant had no duty of care, custody or control and as such defendant is not liable to plaintiffs. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 63. In the event that any person or entity liable or claimed to be liable for injuries or damages in this action has been given or may hereafter be given a release or covenant not to sue, the answering defendant shall be entitled to protection under General Obligations Law 15-108. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 64. In the event the plaintiff recovers a verdict or judgment against this defendant then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have been, or will, with reasonable certainty, replace or indemnify plaintiff, in whole or in part, for any past or future claimed medical expenses or other such economic loss, paid from any workers' collateral source such as insurance, social security, compensation or employee benefit program. FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 65. Plaintiffs action is barred by Workers Compensation Law 29(6), which prohibits an employee from bringing a direct action against his employer. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 66. The plaintiff s claims and causes of action, as alleged in the Verified Complaint, Workers' are barred under the terms of the Compensation Law. AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANT MAC 60 LLC 67. Defendant ROYAL HOME IMPROVEMENTS, INC. repeats, reiterates and "1" "66" realleges all responses and allegations contained in paragraphs though above as if fully set forth herein. 68. Upon information and belief, that if and in the event the plaintiff sustained any damages as alleged in the Verified Complaint, all of which are denied by the answering defendant, said damages were caused by the negligence, culpable conduct and/or wrongful acts of defendant MAC 60 LLC, its agents, servants and/or employees, and not through any negligence, culpable or wrongful conduct on the part of this answering defendant, its agents, servants, and/or employees. 69. By reasons of the foregoing, the answering defendant is entitled to judgment over and against defendant MAC 60 LLC for common law indemnification for all or part of any verdict or judgment that plaintiff may recover against this answering defendant. FILED: KINGS COUNTY CLERK 04/26/2023 06:55 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 04/26/2023 AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANT MAC 60 LLC 70. Defendant ROYAL HOME IMPROVEMENTS, INC. repeats, reiterates and "1" "69" realleges all responses and allegations contained in paragraphs though above as if fully set forth herein. 71. Upon information and belief, that if and in the event the plaintiff sustained any damages as alleged in the Verified Complaint, all of which are denied by the answering defendant, said damages were caused by the negligence, culpable conduct and/or wrongful acts of defendant MAC 60, LLC, its agents, servants and/or employees, and not through any negligence, culpable or wrongful conduct on the part of these answering