Preview
NYSCEF DOC. NO. 185 RECEIVED livSCEF: 09/27/2017
Exhibit F
INDEX NO. 158327/2013
VS ae New CORK COUN CLERK 1071472013) RECEIVER
WNSGEE 98427 /204"
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/14/2013
SUPREME COURT OF THE STATE OF NEW YORK
fOUNTY OF NEW YORK
foe ene eee eee eee eee eee
;EVIN McGONIGAL, Index No.: 158327/13
Plaintiff, VERIFIED ANSWER
-against-
YY STEAK MANHATTAN, LLC, PREF 7 WEST
1. STREET LLC and PLAZA CONSTRUCTION
‘ORP.,
Defendants.
Si me cy sp seem on ce hme eee mires eye eS es mM i BRE Te
Defendant, NYY STEAK MANHATTAN, LLC, by its attorneys JONES
HIRSCH CONNORS MILLER & BULL P.C., as and for its Verified
nswer to plaintiff's Verified Complaint alleges as follows:
FIRST: Denies, upon information and belief, the
llégations contained in paragraphs designated “1” “ou, “13”,
14", sis" and “16”.
SECOND: Denies the allegations contained in paragraph “2”
n the form alleged but admits that at all times herein
hentioned, defendant NYY STEAK MANHATTAN, LLC was and still is a
oreign limited liability company duly authorized to conduct
usiness in the State of New York.
THIRD: Denies having knowledge or information sufficient
Fo form a belief as to the allegations contained in paragraphs
Hesignated “3” van, sa, wey yon, way wyQe aq",
and
INDEX NO. 158327/2013
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017
FOURTH: Admits the allegations contained in paragraph
esignated “6”.
FIFTH: Denies the allegations contained in paragraph
10” in the form alleged.
AS AND FOR A FIRST, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
SIXTH: That the damages allegedly suffered by the
njured plaintiff were caused in whole or in part by the
ulpable conduct of the injured plaintiff herself. The
laintiff's claim is therefore barred or diminished in the
roportion that such culpable conduct of the injured plaintiff
ears to the total culpable conduct causing the damages.
AS AND FOR A. SECOND, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
SEVENTH: The injured plaintiff, if he may have sustained
any injuries at the time and place, and upon the occasion
mentioned in the Verified Complaint, assumed the risk of
pustaining same under the conditions and circumstances then
pxisting and obvious.
INDEX NO. 158327/2013
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017
AS AND FOR A THIRD, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
EIGHTH: That any liability to the plaintiff is limited by
he provisions of Article 16 of the CPLR.
AS AND FOR A FOURTH, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
NINTH: In the event plaintiff recovers a verdict or
udgment against these defendants, then said verdict or judgment
hust be reduced pursuant to CPLR §4545(c) by those amounts which
ave been or will, with reasonable certainty, replace or
Indemnify plaintiff in whole or in part, for any past future
laimed economic loss, from any collateral source such as
nsurance, social security, Workers' Compensation or employee
enefit programs.
AS AND FOR A FIFTH, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
TENTH: The negligent acts set forth in plaintiff's
Nomplaint were committed by third parties over which this
nswering defendant had no control or right of control.
INDEX NO. 158327/2013
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017
AS AND FOR A SIXTH, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE, THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
ELEVENTH: The injured plaintiff, if he may have sustained
nny injuries at the time and place, and upon the occasion
entioned in the Verified Complaint, assumed the risk of
ustaining same under the conditions and circumstances then
existing and obvious.
AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANT PLAZA
CONSTRUCTION CORP., THIS ANSWERING DEFENDANT ALLEGES
AS FOLLOWS:
TWELFTH: That if the plaintiff sustained the injuries and
lamages in the manner and at the time and place alleged, and if
t is found that this answering defendant, NYY STEAK MANHATTAN,
LLC; is liable to plaintiff herein, all of which is specifically
enied, then said answering defendant, on the basis of
pportionment of responsibility for the alleged occurrence, are
mtitled to contribution from co-defendant PLAZA CONSTRUCTION
tORP. to pay for all or part of amy verdict or judgment that
laintiff may recover against this answering defendant
broportionate to co-defendant’s actual negligence.
INDEX NO. 158327/2013
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017
AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANT PLAZA
CONSTRUCTION CORP., THIS ANSWERING DEFENDANT ALLEGES
AS FOLLOWS:
THIRTEENTH: That if the plaintiff sustained injuries and
amages in the manner and at the time and place alleged, and if
t is found that this answering defendant, NYY STEAK MANHATTAN,
pac is liable to plaintiff herein, all of which is specifically
Renied, then said answering defendant, on the basis of
pontractual and/or common-law indemnification, is entitled to
ecovery from co-defendant PLAZA CONSTRUCTION CORP. for all of
ny verdict or judgment that plaintiff may recover against this
nswering defendant.
WHEREFORE, defendant NYY STEAK MANHATTAN, LLC demands
udgment dismissing plaintiff's Verified Complaint against it,
nd further demands that in the event said answering defendant
s found liable to plaintiff herein, then said answering
Hefendant, on the basis of apportionment of responsibility
and/or on the basis of indemnity, have judgment over and against
PLAZA CONSTRUCTION CORP. for all or part of any verdict or
hudgment that plaintiff may recover against said answering
Hefendant, together with the costs and disbursements of this
5 -
INDEX NO. 158327/2013
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017
ction, and for any expenses incurred by it in the defense
hereof, including attorneys! fees actually expended.
ated: New York, New York
October 11, 2013
JONES HIRSCH CONNORS MILLER & BULL P.C.
wR James P. onnors, Esq.
GE
Attorn s for Defendants
NYY EAK MANHATTAN, LLC
One Battery Park Plaza
New York, New York 10004
(212) 527-1000
tO SACKS AND SACKS, LLP
Attorneys for Plaintiff
Office & P.O. Address
150 Broadway - 4° Floor
New York, New York 10038
(212) 964-5570
90444
6 x
= INDEX NO. 158327/2013
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017
ATTORNEY'S VERIFICATION
JAMES P. CONNORS affirms under the penalties of perjury
hat he is a principal of the firm of JONES HIRSCH CONNORS
TLLER & BULL P.C attorneys for defendant NYY STEAK MANHATTAN,
LLC in the captioned action; that he has read the foregoing
ERIFIED ANSWER TO VERIFIED COMPLAINT and knows the contents
hereof; that the same is true to his own knowledge, except as
o the matters therein stated to be alleged on information and
belief and that as to those matters he believes it to be true
The reason this verification is made by your affirmant and
ot by the third-party defendant herein is that the third-party
Hefendant is not in the County of New York, where the
undersigned has his office
The sources of your affirmant's information and belief are
From conversations had with the third-party defendant herein and
rom the documents contained in the affirmant's file
pated New York, New York
LP?
October 11 2013
fe P. CONNORS
fave
= 7
= INDEX NO. 158327/2013
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017
AFFIDAVIT OF SERVICE
PTATE OF NEW YORK )
) ss
SOUNTY OF NEW YORK )
LYNEL J. TAYLOR being duly sworn, deposes and says
feponent is not a party to the action, is over 18 years of age
and resides in Hudson County, New Jersey
On the 11h
day of October, 2013, deponent served the
ithin
VERIFIED ANSWER
JPON
SACKS AND SACKS, LLP
Attorneys for Plaintiff
Office & P.O. Address
150 Broadway - 4** Floor
New York, New York 10038
(212) 964-5570
at the addresse (s) designated by said attorney (s) for that
burpose by depositing a true copy of same enclosed in a postpaid
properly addressed envelope in an off¥tcial depository under the
exclusive care and custody of the Pyjyil
uy Ac 7 fayService
ithin the State of New York
Or
“LYNEL J. (jpnor 4h
Bworn to before me this
his day of October, 2013
AA,
YnOfar¥Y buBLic &
91040
WILLIAM E BELL
Notary Public, Stale of New York
we
No, 31-4505671
Qualified In New York C
axion Exoires October
INDEX NO. 158327/2013
(FILED: NEW YORK COUNTY CLERK 0972772017 10:54 AM
NYSCEF DOC. NO. 185 RECEIVED NYSCEF 09/27/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
wiiciascisaceSonic tei a REET EROES
KEVIN McGONIGAL, Index No, 158327/13
Plaintiff,
VERIFIED ANSWER
-against-
NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51*
STREET LLC and PLAZA CONSTRUCTION CORP.,
Defendants.
ch ae
iS RECT NENA ATC ASSERT,
Defendant, PLAZA CONSTRUCTION CORP. (“PLAZA”), by its attorneys, FABIANI
COHEN & HALL, LLP, as and for a verified answer to the plaintiff's verified complaint, sets
forth, upon information and belief, the following:
1 Denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in Paragraph Nos. “FIRST”, “SECOND”, “THIRD”, “FIFTH”, “SIXTH”
and “SEVENTH?” of the plaintiffs verified complaint.
2 Denies the allegations contained in Paragraph No, “FOURTH” of the plaintiff's
verified complaint, except admits that on September 6, 2013, PLAZA was a domestic business
corporation duly organized and existing under and by virtue of the laws of the State of New
York,
3 Denies the allegations contained in Paragraph No. “EIGHTH” of the plaintiff's
verified complaint, except admits that on September 6, 2013, PLAZA was a domestic business
corporation duly organized and existing under and by virtue of the laws of the State of New
York.
4 Denies the allegations contained in Paragraph No. “NINTH” of the plaintiff's
verified complaint, except admits that on September 6, 2013, PLAZA was a domestic business
6811 78/1
INDEX NO. 158327/2013
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017
corporation duly organized and existing under and by virtue of the laws of the State of New
York.
5 Denies the allegations contained in Paragraph No. “TENTH” of the plaintiffs
verified complaint, except admits that some time prior to September 6, 2013, NYY STEAK
entered into a contract with PLAZA to perform certain work at 7 West 51% Street, New York,
New York,
6 Denies each and every allegation contained in Paragraph Nos, “FIRST”,
“ELEVENTH”, “TWELFTH”, “FOURTEENTH”, “FIFTEENTH”, “SIXTEENTH” and
“SEVENTEENTH” of the plaintiff's verified complaint.
7
Deny the allegations contained in Paragraph No. “THIRTEENTH” of the
plaintiff's verified complaint and respectfully refers all questions of law to the determination of
the Trial Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
8 Upon information and belief, any damages sustained by the plaintiff herein were
not caused by any negligence or carelessness on the part of PLAZA, its servants, agents or
employees, but were caused solely by the negligence and carelessness of the plaintiff and that
such conduct requires diminution of any award, verdict or judgment that plaintiff may recover
against PLAZA.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
9 Notwithstanding that PLAZA has denied liability herein, in the event that liability
is found, the liability of PLAZA shall be fifty percent or less of the total liability assigned to all
persons liable and pursuant to CPLR §1601 et seq., the liability of PLAZA for non-economic
loss shall not exceed their equitable share determined in accordance with the relative culpability
of each person causing or contributing to the total liability of non-economic loss.
(6811 78/1)
INDEX NO. 158327/2013
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
10, That to the extent plaintiff recovers any damages for the cost of medical care,
dental care, custodial care or rehabilitation services, loss of earnings and/or other economic loss,
the amount of the award shall be reduced by the sum total of all collateral reimbursements, from
whatever source, whether it be insurance, social security payments, Workers' Compensation,
employee benefits or other such programs, in accordance with the provisions of the CPLR
§4545,
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE,
dels That all risks and alleged dangers connected with the situation at the time and
place mentioned in the verified complaint were open, obvious and apparent and were known to
and assumed by plaintiff herein.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
12. That upon information and belief, the injuries allegedly sustained by plaintiff
were the result of the acts of independent contractors over whose work PLAZA exercised no
direction or control.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
185 That upon information and belief, the injuries allegedly sustained by plaintiff
were the result of superseding and/or intervening acts of negligence by persons over whom
PLAZA had neither control nor the right of control.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
14, The plaintiff's own negligence was the sole proximate cause of his injuries.
[681178/1]
INDEX NO. 158327/2013
FILED: NEW YORK COUNTY CLERK 09/27/2017 10:54 AM
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017
WHEREFORE, defendant, PLAZA CONSTRUCTION CORP., demand judgment
dismissing plaintiff's verified complaint, together with the costs and disbursements of this action.
Dated: New York, New York
November 7, 2013
Yours, etc.,
FABIANI COHE}
i
Thomas J. Hall
Attorneys for Defendant
PLAZA CONSTRUCTION CORP.
570 Lexington Avenue, 4th Floor
New York, New York 10022
TO SACKS AND SACKS, LLP
Attorneys for Plaintiff
KEVIN McGONIGAL
150 Broadway — 4" Floor
New York, New York 10038
(212) 964-5570
[681178/1]
INDEX NO. 158327/2013
NYSCEF DOC. NO. 185 RECEIVED NYSCEF 09/27/2017
Kevin MeGoni: Ly. NYY Steak Manhattan, LLC, et al,
Index No: 158327/13
Our File Number: 736 37312
AFFIDAVIT OF SERVICE VIA MAIL
STATE OF NEW YORK)
) ss.
COUNTY OF NEW YORK )
MICHELLE HUNT, being duly sworn, says:
Tam not a party to this action, am over 18 years of age and I reside in Bronx County, State of
New York.
On the 7" day of November, 2013, I served the within:
VERIFIED ANSWER
Upon:
SACKS AND SACKS, LLP
150 Broadway, 4" Floor
New York, New York 10038
at the address designated by said attorneys for that purpose by depositing a true copy of said enclosed in a
postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of
the United States Postal Service within the State of New York.
MICHELLE HUNT
Sworn to before me this
7" dyy of November, 2013.
Lec CALLL
NOTARY PUBLIC
PETER J. CALANDRELLA
Notasy Public, State of eee York
0.
Qualilied in Richmond County
Commission Expires 2-18- AS
681857
Preview
NYSCEF DOC. NO. 185 RECEIVED livSCEF: 09/27/2017 Exhibit F INDEX NO. 158327/2013 VS ae New CORK COUN CLERK 1071472013) RECEIVER WNSGEE 98427 /204" NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/14/2013 SUPREME COURT OF THE STATE OF NEW YORK fOUNTY OF NEW YORK foe ene eee eee eee eee eee ;EVIN McGONIGAL, Index No.: 158327/13 Plaintiff, VERIFIED ANSWER -against- YY STEAK MANHATTAN, LLC, PREF 7 WEST 1. STREET LLC and PLAZA CONSTRUCTION ‘ORP., Defendants. Si me cy sp seem on ce hme eee mires eye eS es mM i BRE Te Defendant, NYY STEAK MANHATTAN, LLC, by its attorneys JONES HIRSCH CONNORS MILLER & BULL P.C., as and for its Verified nswer to plaintiff's Verified Complaint alleges as follows: FIRST: Denies, upon information and belief, the llégations contained in paragraphs designated “1” “ou, “13”, 14", sis" and “16”. SECOND: Denies the allegations contained in paragraph “2” n the form alleged but admits that at all times herein hentioned, defendant NYY STEAK MANHATTAN, LLC was and still is a oreign limited liability company duly authorized to conduct usiness in the State of New York. THIRD: Denies having knowledge or information sufficient Fo form a belief as to the allegations contained in paragraphs Hesignated “3” van, sa, wey yon, way wyQe aq", and INDEX NO. 158327/2013 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017 FOURTH: Admits the allegations contained in paragraph esignated “6”. FIFTH: Denies the allegations contained in paragraph 10” in the form alleged. AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: SIXTH: That the damages allegedly suffered by the njured plaintiff were caused in whole or in part by the ulpable conduct of the injured plaintiff herself. The laintiff's claim is therefore barred or diminished in the roportion that such culpable conduct of the injured plaintiff ears to the total culpable conduct causing the damages. AS AND FOR A. SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: SEVENTH: The injured plaintiff, if he may have sustained any injuries at the time and place, and upon the occasion mentioned in the Verified Complaint, assumed the risk of pustaining same under the conditions and circumstances then pxisting and obvious. INDEX NO. 158327/2013 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017 AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: EIGHTH: That any liability to the plaintiff is limited by he provisions of Article 16 of the CPLR. AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: NINTH: In the event plaintiff recovers a verdict or udgment against these defendants, then said verdict or judgment hust be reduced pursuant to CPLR §4545(c) by those amounts which ave been or will, with reasonable certainty, replace or Indemnify plaintiff in whole or in part, for any past future laimed economic loss, from any collateral source such as nsurance, social security, Workers' Compensation or employee enefit programs. AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: TENTH: The negligent acts set forth in plaintiff's Nomplaint were committed by third parties over which this nswering defendant had no control or right of control. INDEX NO. 158327/2013 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017 AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: ELEVENTH: The injured plaintiff, if he may have sustained nny injuries at the time and place, and upon the occasion entioned in the Verified Complaint, assumed the risk of ustaining same under the conditions and circumstances then existing and obvious. AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANT PLAZA CONSTRUCTION CORP., THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: TWELFTH: That if the plaintiff sustained the injuries and lamages in the manner and at the time and place alleged, and if t is found that this answering defendant, NYY STEAK MANHATTAN, LLC; is liable to plaintiff herein, all of which is specifically enied, then said answering defendant, on the basis of pportionment of responsibility for the alleged occurrence, are mtitled to contribution from co-defendant PLAZA CONSTRUCTION tORP. to pay for all or part of amy verdict or judgment that laintiff may recover against this answering defendant broportionate to co-defendant’s actual negligence. INDEX NO. 158327/2013 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017 AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANT PLAZA CONSTRUCTION CORP., THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: THIRTEENTH: That if the plaintiff sustained injuries and amages in the manner and at the time and place alleged, and if t is found that this answering defendant, NYY STEAK MANHATTAN, pac is liable to plaintiff herein, all of which is specifically Renied, then said answering defendant, on the basis of pontractual and/or common-law indemnification, is entitled to ecovery from co-defendant PLAZA CONSTRUCTION CORP. for all of ny verdict or judgment that plaintiff may recover against this nswering defendant. WHEREFORE, defendant NYY STEAK MANHATTAN, LLC demands udgment dismissing plaintiff's Verified Complaint against it, nd further demands that in the event said answering defendant s found liable to plaintiff herein, then said answering Hefendant, on the basis of apportionment of responsibility and/or on the basis of indemnity, have judgment over and against PLAZA CONSTRUCTION CORP. for all or part of any verdict or hudgment that plaintiff may recover against said answering Hefendant, together with the costs and disbursements of this 5 - INDEX NO. 158327/2013 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017 ction, and for any expenses incurred by it in the defense hereof, including attorneys! fees actually expended. ated: New York, New York October 11, 2013 JONES HIRSCH CONNORS MILLER & BULL P.C. wR James P. onnors, Esq. GE Attorn s for Defendants NYY EAK MANHATTAN, LLC One Battery Park Plaza New York, New York 10004 (212) 527-1000 tO SACKS AND SACKS, LLP Attorneys for Plaintiff Office & P.O. Address 150 Broadway - 4° Floor New York, New York 10038 (212) 964-5570 90444 6 x = INDEX NO. 158327/2013 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017 ATTORNEY'S VERIFICATION JAMES P. CONNORS affirms under the penalties of perjury hat he is a principal of the firm of JONES HIRSCH CONNORS TLLER & BULL P.C attorneys for defendant NYY STEAK MANHATTAN, LLC in the captioned action; that he has read the foregoing ERIFIED ANSWER TO VERIFIED COMPLAINT and knows the contents hereof; that the same is true to his own knowledge, except as o the matters therein stated to be alleged on information and belief and that as to those matters he believes it to be true The reason this verification is made by your affirmant and ot by the third-party defendant herein is that the third-party Hefendant is not in the County of New York, where the undersigned has his office The sources of your affirmant's information and belief are From conversations had with the third-party defendant herein and rom the documents contained in the affirmant's file pated New York, New York LP? October 11 2013 fe P. CONNORS fave = 7 = INDEX NO. 158327/2013 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017 AFFIDAVIT OF SERVICE PTATE OF NEW YORK ) ) ss SOUNTY OF NEW YORK ) LYNEL J. TAYLOR being duly sworn, deposes and says feponent is not a party to the action, is over 18 years of age and resides in Hudson County, New Jersey On the 11h day of October, 2013, deponent served the ithin VERIFIED ANSWER JPON SACKS AND SACKS, LLP Attorneys for Plaintiff Office & P.O. Address 150 Broadway - 4** Floor New York, New York 10038 (212) 964-5570 at the addresse (s) designated by said attorney (s) for that burpose by depositing a true copy of same enclosed in a postpaid properly addressed envelope in an off¥tcial depository under the exclusive care and custody of the Pyjyil uy Ac 7 fayService ithin the State of New York Or “LYNEL J. (jpnor 4h Bworn to before me this his day of October, 2013 AA, YnOfar¥Y buBLic & 91040 WILLIAM E BELL Notary Public, Stale of New York we No, 31-4505671 Qualified In New York C axion Exoires October INDEX NO. 158327/2013 (FILED: NEW YORK COUNTY CLERK 0972772017 10:54 AM NYSCEF DOC. NO. 185 RECEIVED NYSCEF 09/27/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK wiiciascisaceSonic tei a REET EROES KEVIN McGONIGAL, Index No, 158327/13 Plaintiff, VERIFIED ANSWER -against- NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51* STREET LLC and PLAZA CONSTRUCTION CORP., Defendants. ch ae iS RECT NENA ATC ASSERT, Defendant, PLAZA CONSTRUCTION CORP. (“PLAZA”), by its attorneys, FABIANI COHEN & HALL, LLP, as and for a verified answer to the plaintiff's verified complaint, sets forth, upon information and belief, the following: 1 Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph Nos. “FIRST”, “SECOND”, “THIRD”, “FIFTH”, “SIXTH” and “SEVENTH?” of the plaintiffs verified complaint. 2 Denies the allegations contained in Paragraph No, “FOURTH” of the plaintiff's verified complaint, except admits that on September 6, 2013, PLAZA was a domestic business corporation duly organized and existing under and by virtue of the laws of the State of New York, 3 Denies the allegations contained in Paragraph No. “EIGHTH” of the plaintiff's verified complaint, except admits that on September 6, 2013, PLAZA was a domestic business corporation duly organized and existing under and by virtue of the laws of the State of New York. 4 Denies the allegations contained in Paragraph No. “NINTH” of the plaintiff's verified complaint, except admits that on September 6, 2013, PLAZA was a domestic business 6811 78/1 INDEX NO. 158327/2013 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017 corporation duly organized and existing under and by virtue of the laws of the State of New York. 5 Denies the allegations contained in Paragraph No. “TENTH” of the plaintiffs verified complaint, except admits that some time prior to September 6, 2013, NYY STEAK entered into a contract with PLAZA to perform certain work at 7 West 51% Street, New York, New York, 6 Denies each and every allegation contained in Paragraph Nos, “FIRST”, “ELEVENTH”, “TWELFTH”, “FOURTEENTH”, “FIFTEENTH”, “SIXTEENTH” and “SEVENTEENTH” of the plaintiff's verified complaint. 7 Deny the allegations contained in Paragraph No. “THIRTEENTH” of the plaintiff's verified complaint and respectfully refers all questions of law to the determination of the Trial Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 8 Upon information and belief, any damages sustained by the plaintiff herein were not caused by any negligence or carelessness on the part of PLAZA, its servants, agents or employees, but were caused solely by the negligence and carelessness of the plaintiff and that such conduct requires diminution of any award, verdict or judgment that plaintiff may recover against PLAZA. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 9 Notwithstanding that PLAZA has denied liability herein, in the event that liability is found, the liability of PLAZA shall be fifty percent or less of the total liability assigned to all persons liable and pursuant to CPLR §1601 et seq., the liability of PLAZA for non-economic loss shall not exceed their equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability of non-economic loss. (6811 78/1) INDEX NO. 158327/2013 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017 AS AND FOR A THIRD AFFIRMATIVE DEFENSE 10, That to the extent plaintiff recovers any damages for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings and/or other economic loss, the amount of the award shall be reduced by the sum total of all collateral reimbursements, from whatever source, whether it be insurance, social security payments, Workers' Compensation, employee benefits or other such programs, in accordance with the provisions of the CPLR §4545, AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, dels That all risks and alleged dangers connected with the situation at the time and place mentioned in the verified complaint were open, obvious and apparent and were known to and assumed by plaintiff herein. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 12. That upon information and belief, the injuries allegedly sustained by plaintiff were the result of the acts of independent contractors over whose work PLAZA exercised no direction or control. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 185 That upon information and belief, the injuries allegedly sustained by plaintiff were the result of superseding and/or intervening acts of negligence by persons over whom PLAZA had neither control nor the right of control. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 14, The plaintiff's own negligence was the sole proximate cause of his injuries. [681178/1] INDEX NO. 158327/2013 FILED: NEW YORK COUNTY CLERK 09/27/2017 10:54 AM NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 09/27/2017 WHEREFORE, defendant, PLAZA CONSTRUCTION CORP., demand judgment dismissing plaintiff's verified complaint, together with the costs and disbursements of this action. Dated: New York, New York November 7, 2013 Yours, etc., FABIANI COHE} i Thomas J. Hall Attorneys for Defendant PLAZA CONSTRUCTION CORP. 570 Lexington Avenue, 4th Floor New York, New York 10022 TO SACKS AND SACKS, LLP Attorneys for Plaintiff KEVIN McGONIGAL 150 Broadway — 4" Floor New York, New York 10038 (212) 964-5570 [681178/1] INDEX NO. 158327/2013 NYSCEF DOC. NO. 185 RECEIVED NYSCEF 09/27/2017 Kevin MeGoni: Ly. NYY Steak Manhattan, LLC, et al, Index No: 158327/13 Our File Number: 736 37312 AFFIDAVIT OF SERVICE VIA MAIL STATE OF NEW YORK) ) ss. COUNTY OF NEW YORK ) MICHELLE HUNT, being duly sworn, says: Tam not a party to this action, am over 18 years of age and I reside in Bronx County, State of New York. On the 7" day of November, 2013, I served the within: VERIFIED ANSWER Upon: SACKS AND SACKS, LLP 150 Broadway, 4" Floor New York, New York 10038 at the address designated by said attorneys for that purpose by depositing a true copy of said enclosed in a postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State of New York. MICHELLE HUNT Sworn to before me this 7" dyy of November, 2013. Lec CALLL NOTARY PUBLIC PETER J. CALANDRELLA Notasy Public, State of eee York 0. Qualilied in Richmond County Commission Expires 2-18- AS 681857