Preview
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023
EXHIBIT “G”
EXHIBIT “G”
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
____________________..____________.._______________..--______________Ç
KEVIN McGONIGAL,
Plaintiff, Index No. 158327/13
-against -
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION VERIFIED
CORP. and BARING INDUSTRIES, INC., AMENDED
ANSWER
Defendants. TO SECOND
---------------------------------------------------------------------X THIRD-PARTY
PLAZA CONSTRUCTION CORP., COMPLAINT
Third-Party Plaintiff,
-against -
BARING INDUSTRIES, INC., TP Index No.:
595146/14
Third-Party Defendant.
-------------..___________.._________________----_______________Ç
BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff,
-against -
DAY & NITE REFRIGERATION CORP. and KIMCO Second TP Index No.:
REFRIGERATION CORP., 595130/15
Second Third-Party Defendants.
___________-----------------_________......_____________________Ç
Second Third-Party Defendants, DAY & NITE REFRIGERATION CORP. and K.I.M.
CO. REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP. (collectively "Day &
Nite"), by their attorneys, Milber Makris Plousadis & Seiden, LLP, as and for their Verified
Amended Answer to the Second Third-Party Complaint dated February 23, 2015, puts forth upon
information and belief, as follows:
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
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1. Denies having knowledge or information sufficient to form a belief as to the truth
of the allegations set forth in paragraphs "1", "2", "3", "4", "5", "6", "10", "11", "12", "13",
"29"
"14", "15", "19", "28", and "33".
"7"
2. Admits the allegations contained in paragraphs and "8".
"9"
3. Admits the allegations contained in paragraph to the extent that K.I.M. CO.
REFRIGERATION CORP. transacted business in the State ofNew York.
4. Denies the allegations contained in paragraphs "16", "17", "20", "21", "23", "24",
"34"
"25", "26", "30", "31", "32", and "35".
5. As and for a response to the allegations contained in paragraph "18", answering
third-party defendants repeat, reiterate and reallege each and every response to the allegations
"1" "17"
contained in paragraphs through of the Second Third-Party Complaint with the same
force and effect as if fully set forth herein.
6. As and for a response to the allegations contained in paragraph "22", answering
third-party defendants repeat, reiterate and reallege each and every response to the allegations
"1" "21"
contained in paragraphs through of the Second Third-Party Complaint with the same
force and effect as if fully set forth herein.
7. As and for a response to the allegations contained in paragraph "27", answering
third-party defendants repeat, reiterate and reallege each and every response to the allegations
"1" "26"
contained in paragraphs through of the Second Third-Party Complaint with the same
force and effect as if fully set forth herein.
2
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE
8. The culpable conduct of plaintiff and third-party plaintiffs caused any injuries
and/or damages sustained by the plaintiff and third-party plaintiffs.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
9. In the event plaintiff and third-party plaintiffs recover a verdict or judgment
against the answering third-party defendants, 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
Workers'
economic loss, from any collateral source such as Insurance, Social Security,
Compensation or employee benefit programs.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
10. If the plaintiff sustained any personal injuries or damages as alleged in the
Complaint, such injuries or damages were caused, aggravated or contributed to by the plaintiff's
failure to take reasonable efforts to mitigate damages, and any award made to the plaintiff must
be reduced in such proportion and to the extent that the injuries complained of were caused,
aggravated or contributed to by said failure to mitigate damages.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
11. The answering third-party defendants alleges that plaintiff's claimed injuries and
damages were solely and proximately caused by the intervening and/or superseding negligence,
carelessness, gross negligence, willfulness, wantonness, recklessness, and/or intentional conduct
of an independent third party.
3
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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
12. That the accident or occurrence referred to in the plaintiff's Complaint and the
injuries claimed were caused in whole or in part by the carelessness, negligence, comparative
negligence or the assumption of risk of the plaintiff and third-party plaintiffs and the answering
third-party defendants demand that the plaintiff's damages be accordingly diminished or denied.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
13. The liability of the answering third-party defendants is limited under the terms of
Article 16 of the CPLR.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
14. In the event that any person or entity liable for the injury alleged in this action
has been given or hereafter be given a release or covenant not to the third-
may sue, answering
defendants will be entitled to protection under New York General Obligations Law 15-
party §
108 and the corresponding reduction of any damages which may be determined to be due against
the answering third-party defendant.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
15. Plaintiff's claims, including the Labor Law §240(1) claim, must be dismissed as
plaintiff's acts and/or omissions constituted the sole proximate cause of the alleged accident.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
16. Plaintiff's claims, including the Labor Law §240(1) claim, must be dismissed as
plaintiff was a recalcitrant worker and said recalcitrance caused the alleged accident.
4
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AS AND FOR A TENTH AFFIRMATIVE DEFENSE
17. The Third-Party Plaintiff may not maintain each of the causes of action because
of release, payment, lack of consideration, lack of legal capacity to sue, laches, privity, waiver,
estoppel, discharge in bankruptcy, arbitration and award, statute of limitations, res judicata,
collateral estoppel or statute of frauds.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
18. The causes of action stated in the Verified Third-Party Complaint herein did not
accrue, nor did any part thereof accrue, within the applicable time period prior to the
commencement of this action so that the action is barred by operation of the Statute of
Limitations.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
19. The Verified Second Third-Party Complaint fails to state a cause of action.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
20. The Third-Party Plaintiffs have failed to join and include in this action all
identifiable and indispensable parties without whom, in equity and fairness, this action should
not proceed.
AS AND FOR AN FOURTEENTH AFFIRMATIVE DEFENSE
21. Any claims by the plaintiff and/or third-party plaintiffs against the answering
Third-Party Defendant are barred by the New York State Worker's Compensation Law, as
amended by the Omnibus Worker's Compensation Reform Act of 1996.
5
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AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
22. If it should be found after trial that Third-Party Defendants are liable to the
plaintiff in the amount of 50% or less of the total liability assigned to all persons liable, the
liability of Third-Party Defendants to the plaintiff for non-economic loss shall not exceed the
Defendants'
Third-Party equitable share determined in accordance with the relative culpability of
each person causing or contributing to the total liability for non-economic loss in accordance
with Article 16 of the CPLR.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
23. The Third-Party Defendants will rely upon any and all other further defenses
which become available or appear during discovery in this action, or upon discovery of specific
facts upon which Third-Party Plaintiffs base their claims for relief, and hereby specifically
reserves the right to amend its answer for the purpose of asserting any such additional defenses.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
24. A defense is founded upon documentary evidence.
AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE
25. The Court has no jurisdiction of the subject matter of the cause(s) of action.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
26. The subject contractual indemnification provision(s) which is the purported basis
of one or more third-party claims is violative of New York General Obligations Law §5-322.1
and is void and unenforceable.
6
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AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
27. The subject contractual indemnification provision(s) which is the purported basis
of one or more third-party claims is violative of Florida Statute §725.06 and is void and
unenforceable.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
28. The subject third-party action was improperly brought in New York.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
29. In the event that plaintiff is awarded any damages, they must be reduced in whole
or in part due to the open and obvious nature of the alleged dangerous condition.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
30. There is another action pending between the same parties for the same cause of
action.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
31. The court has no jurisdiction of the person of the second third-party defendant.
AS AND FOR A FIRST CROSS-CLAIM AGAINST
DEFENDANTS NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP.
and BARING INDUSTRIES, INC.
32. If plaintiff and/or third-party plaintiff sustained any damages in the manner set
forth in their Complaints through any carelessness, recklessness or negligence other than their
own, such damages were sustained by reason of the sole active and primary negligence,
carelessness, recklessness and/or affirmative acts of omission or commission by the defendants
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING
7
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INDUSTRIES, INC., their agents, servants and/or employees, without any active or affirmative
negligence on the part of these answering third-party defendants contributing thereto.
33. By reason of the foregoing, defendants NYY STEAK MANHATTAN, LLC,
PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., will be liable to plaintiff
and/or third-party plaintiffs and/or Day & Nite under the doctrines of apportionment, contribution
and indemnification for the full amount of any verdict and judgment, or for a proportionate share
thereof, that plaintiff and/or third-party plaintiff may recover against third-party defendants, Day &
attorneys'
Nite, including, but not limited to, the costs of investigation and fees and disbursements
incurred in the defense of this action and the prosecution of this cross-claim.
AS AND FOR A SECOND CROSS-CLAIM AGAINST
DEFENDANTS NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP.
and BARING INDUSTRIES, INC.
34. If the plaintiff and/or third-party plaintiff sustained any damages in the manner set
forth in their Complaints through any carelessness, recklessness or negligence other than their
own, such damages were sustained by reason of the sole active and primary negligence,
carelessness, recklessness or affirmative acts of omission or commission by defendants, NYY
STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING
without active or affirmative negligence on the part of answering third-
INDUSTRIES, INC., any
party defendants, Day & Nite, contributing thereto.
35. By reason of the foregoing, defendants, NYY STEAK MANHATTAN, LLC,
PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., will be liable to
answering third-party defendants, Day & Nite, under the doctrines of apportionment, contribution
and common law and contractual indemnification for the full amount of any verdict and
judgment, or for a proportionate share thereof, that Plaintiff and/or third-party plaintiff may
8
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recover against answering third-party defendants, Day & Nite, including, but not limited to, the
attorneys'
costs of investigation and fees and disbursements incurred in the defense of this action
and the prosecution of this cross-claim.
AS AND FOR A FIRST COUNTER-CLAIM AGAINST
DEFENDANT/SECOND THIRD-PARTY PLAINTIFF,
BARING INDUSTRIES, INC. ("BARING")
36. If plaintiff sustained any damages in the manner set forth in his Complaint
through any carelessness, recklessness or negligence other than his own, such damages were
sustained by reason of the sole active and primary negligence, carelessness, recklessness and/or
affirmative acts of omission or commission by the Defendant/Second Third-Party Plaintiff,
BARING, its agents, servants and/or employees, without any active or affirmative negligence on
the part of this answering third-party defendants contributing thereto.
37. By reason of the foregoing, Defendant/Second Third-Party Plaintiff, BARING,
will be liable to plaintiff, direct defendants and/or Day & Nite under the doctrines of
apportionment, contribution and indemnification for the full amount of any verdict and
judgment, or for a proportionate share thereof, that plaintiff, direct defendants, and/or second
third-party plaintiff may recover against third-party defendants, Day & Nite, including, but not
attorneys'
limited to, the costs of investigation and fees and disbursements incurred in the
defense of this action and the prosecution of this counter-claim.
AS AND FOR A SECOND COUNTER-CLAIM AGAINST
DEFENDANT/SECOND THIRD-PARTY PLAINTIFF,
BARING INDUSTRIES3 INC. ("BARING")
38. If the plaintiff sustained any damages in the manner set forth in the Complaint
through any carelessness, recklessness or negligence other than his own, such damages were
sustained by reason of the sole active and primary negligence, carelessness, recklessness or
9
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affirmative acts of omission or commission by Defendant/Second Third-Party Plaintiff,
BARING, without any active or affirmative negligence on the part of answering third-party
defendants, Day & Nite, contributing thereto.
39. By reason of the foregoing, Defendant/Second Third-Party Plaintiff, BARING,
will be liable to answering third-party defendants, Day & Nite, under the doctrines of
apportionment, contribution and common law and contractual indemnification for the full
amount of any verdict and judgment, or for a proportionate share thereof, that Plaintiff, direct
defendants and/or second third-party plaintiff may recover against the answering third-party
attorneys'
defendants, Day & Nite, including, but not limited to, the costs of investigation and
fees and disbursements incurred in the defense of this action and the prosecution of this counter-
claim.
WHEREFORE, DAY & NITE REFRIGERATION CORP. and K.I.M. CO.
REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP., demand judgment:
(A) Dismissing the Complaint, Third-Party Complaint, and Second
Third-Party Complaint with prejudice in their entirety;
(B) Granting the Day & Nite third-party defendants judgment on their
cross-claims and counter-claims;
(C) Awarding the Day & Nite third-party defendants their costs and
disbursements in this action; and
(D) Awarding the Day & Nite third-party defendants, such other and
further relief as this Court may deem just and proper.
10
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 A
Preview
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023 EXHIBIT “G” EXHIBIT “G” FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ____________________..____________.._______________..--______________Ç KEVIN McGONIGAL, Plaintiff, Index No. 158327/13 -against - NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION VERIFIED CORP. and BARING INDUSTRIES, INC., AMENDED ANSWER Defendants. TO SECOND ---------------------------------------------------------------------X THIRD-PARTY PLAZA CONSTRUCTION CORP., COMPLAINT Third-Party Plaintiff, -against - BARING INDUSTRIES, INC., TP Index No.: 595146/14 Third-Party Defendant. -------------..___________.._________________----_______________Ç BARING INDUSTRIES, INC., Second Third-Party Plaintiff, -against - DAY & NITE REFRIGERATION CORP. and KIMCO Second TP Index No.: REFRIGERATION CORP., 595130/15 Second Third-Party Defendants. ___________-----------------_________......_____________________Ç Second Third-Party Defendants, DAY & NITE REFRIGERATION CORP. and K.I.M. CO. REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP. (collectively "Day & Nite"), by their attorneys, Milber Makris Plousadis & Seiden, LLP, as and for their Verified Amended Answer to the Second Third-Party Complaint dated February 23, 2015, puts forth upon information and belief, as follows: FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023 1. Denies having knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs "1", "2", "3", "4", "5", "6", "10", "11", "12", "13", "29" "14", "15", "19", "28", and "33". "7" 2. Admits the allegations contained in paragraphs and "8". "9" 3. Admits the allegations contained in paragraph to the extent that K.I.M. CO. REFRIGERATION CORP. transacted business in the State ofNew York. 4. Denies the allegations contained in paragraphs "16", "17", "20", "21", "23", "24", "34" "25", "26", "30", "31", "32", and "35". 5. As and for a response to the allegations contained in paragraph "18", answering third-party defendants repeat, reiterate and reallege each and every response to the allegations "1" "17" contained in paragraphs through of the Second Third-Party Complaint with the same force and effect as if fully set forth herein. 6. As and for a response to the allegations contained in paragraph "22", answering third-party defendants repeat, reiterate and reallege each and every response to the allegations "1" "21" contained in paragraphs through of the Second Third-Party Complaint with the same force and effect as if fully set forth herein. 7. As and for a response to the allegations contained in paragraph "27", answering third-party defendants repeat, reiterate and reallege each and every response to the allegations "1" "26" contained in paragraphs through of the Second Third-Party Complaint with the same force and effect as if fully set forth herein. 2 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023 AS AND FOR A FIRST AFFIRMATIVE DEFENSE 8. The culpable conduct of plaintiff and third-party plaintiffs caused any injuries and/or damages sustained by the plaintiff and third-party plaintiffs. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 9. In the event plaintiff and third-party plaintiffs recover a verdict or judgment against the answering third-party defendants, 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 Workers' economic loss, from any collateral source such as Insurance, Social Security, Compensation or employee benefit programs. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 10. If the plaintiff sustained any personal injuries or damages as alleged in the Complaint, such injuries or damages were caused, aggravated or contributed to by the plaintiff's failure to take reasonable efforts to mitigate damages, and any award made to the plaintiff must be reduced in such proportion and to the extent that the injuries complained of were caused, aggravated or contributed to by said failure to mitigate damages. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 11. The answering third-party defendants alleges that plaintiff's claimed injuries and damages were solely and proximately caused by the intervening and/or superseding negligence, carelessness, gross negligence, willfulness, wantonness, recklessness, and/or intentional conduct of an independent third party. 3 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 12. That the accident or occurrence referred to in the plaintiff's Complaint and the injuries claimed were caused in whole or in part by the carelessness, negligence, comparative negligence or the assumption of risk of the plaintiff and third-party plaintiffs and the answering third-party defendants demand that the plaintiff's damages be accordingly diminished or denied. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 13. The liability of the answering third-party defendants is limited under the terms of Article 16 of the CPLR. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 14. In the event that any person or entity liable for the injury alleged in this action has been given or hereafter be given a release or covenant not to the third- may sue, answering defendants will be entitled to protection under New York General Obligations Law 15- party § 108 and the corresponding reduction of any damages which may be determined to be due against the answering third-party defendant. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 15. Plaintiff's claims, including the Labor Law §240(1) claim, must be dismissed as plaintiff's acts and/or omissions constituted the sole proximate cause of the alleged accident. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 16. Plaintiff's claims, including the Labor Law §240(1) claim, must be dismissed as plaintiff was a recalcitrant worker and said recalcitrance caused the alleged accident. 4 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023 AS AND FOR A TENTH AFFIRMATIVE DEFENSE 17. The Third-Party Plaintiff may not maintain each of the causes of action because of release, payment, lack of consideration, lack of legal capacity to sue, laches, privity, waiver, estoppel, discharge in bankruptcy, arbitration and award, statute of limitations, res judicata, collateral estoppel or statute of frauds. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 18. The causes of action stated in the Verified Third-Party Complaint herein did not accrue, nor did any part thereof accrue, within the applicable time period prior to the commencement of this action so that the action is barred by operation of the Statute of Limitations. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 19. The Verified Second Third-Party Complaint fails to state a cause of action. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 20. The Third-Party Plaintiffs have failed to join and include in this action all identifiable and indispensable parties without whom, in equity and fairness, this action should not proceed. AS AND FOR AN FOURTEENTH AFFIRMATIVE DEFENSE 21. Any claims by the plaintiff and/or third-party plaintiffs against the answering Third-Party Defendant are barred by the New York State Worker's Compensation Law, as amended by the Omnibus Worker's Compensation Reform Act of 1996. 5 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023 AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 22. If it should be found after trial that Third-Party Defendants are liable to the plaintiff in the amount of 50% or less of the total liability assigned to all persons liable, the liability of Third-Party Defendants to the plaintiff for non-economic loss shall not exceed the Defendants' Third-Party equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss in accordance with Article 16 of the CPLR. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 23. The Third-Party Defendants will rely upon any and all other further defenses which become available or appear during discovery in this action, or upon discovery of specific facts upon which Third-Party Plaintiffs base their claims for relief, and hereby specifically reserves the right to amend its answer for the purpose of asserting any such additional defenses. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 24. A defense is founded upon documentary evidence. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 25. The Court has no jurisdiction of the subject matter of the cause(s) of action. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 26. The subject contractual indemnification provision(s) which is the purported basis of one or more third-party claims is violative of New York General Obligations Law §5-322.1 and is void and unenforceable. 6 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023 AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 27. The subject contractual indemnification provision(s) which is the purported basis of one or more third-party claims is violative of Florida Statute §725.06 and is void and unenforceable. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 28. The subject third-party action was improperly brought in New York. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 29. In the event that plaintiff is awarded any damages, they must be reduced in whole or in part due to the open and obvious nature of the alleged dangerous condition. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 30. There is another action pending between the same parties for the same cause of action. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 31. The court has no jurisdiction of the person of the second third-party defendant. AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANTS NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC. 32. If plaintiff and/or third-party plaintiff sustained any damages in the manner set forth in their Complaints through any carelessness, recklessness or negligence other than their own, such damages were sustained by reason of the sole active and primary negligence, carelessness, recklessness and/or affirmative acts of omission or commission by the defendants NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING 7 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023 INDUSTRIES, INC., their agents, servants and/or employees, without any active or affirmative negligence on the part of these answering third-party defendants contributing thereto. 33. By reason of the foregoing, defendants NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., will be liable to plaintiff and/or third-party plaintiffs and/or Day & Nite under the doctrines of apportionment, contribution and indemnification for the full amount of any verdict and judgment, or for a proportionate share thereof, that plaintiff and/or third-party plaintiff may recover against third-party defendants, Day & attorneys' Nite, including, but not limited to, the costs of investigation and fees and disbursements incurred in the defense of this action and the prosecution of this cross-claim. AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANTS NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC. 34. If the plaintiff and/or third-party plaintiff sustained any damages in the manner set forth in their Complaints through any carelessness, recklessness or negligence other than their own, such damages were sustained by reason of the sole active and primary negligence, carelessness, recklessness or affirmative acts of omission or commission by defendants, NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING without active or affirmative negligence on the part of answering third- INDUSTRIES, INC., any party defendants, Day & Nite, contributing thereto. 35. By reason of the foregoing, defendants, NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., will be liable to answering third-party defendants, Day & Nite, under the doctrines of apportionment, contribution and common law and contractual indemnification for the full amount of any verdict and judgment, or for a proportionate share thereof, that Plaintiff and/or third-party plaintiff may 8 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023 recover against answering third-party defendants, Day & Nite, including, but not limited to, the attorneys' costs of investigation and fees and disbursements incurred in the defense of this action and the prosecution of this cross-claim. AS AND FOR A FIRST COUNTER-CLAIM AGAINST DEFENDANT/SECOND THIRD-PARTY PLAINTIFF, BARING INDUSTRIES, INC. ("BARING") 36. If plaintiff sustained any damages in the manner set forth in his Complaint through any carelessness, recklessness or negligence other than his own, such damages were sustained by reason of the sole active and primary negligence, carelessness, recklessness and/or affirmative acts of omission or commission by the Defendant/Second Third-Party Plaintiff, BARING, its agents, servants and/or employees, without any active or affirmative negligence on the part of this answering third-party defendants contributing thereto. 37. By reason of the foregoing, Defendant/Second Third-Party Plaintiff, BARING, will be liable to plaintiff, direct defendants and/or Day & Nite under the doctrines of apportionment, contribution and indemnification for the full amount of any verdict and judgment, or for a proportionate share thereof, that plaintiff, direct defendants, and/or second third-party plaintiff may recover against third-party defendants, Day & Nite, including, but not attorneys' limited to, the costs of investigation and fees and disbursements incurred in the defense of this action and the prosecution of this counter-claim. AS AND FOR A SECOND COUNTER-CLAIM AGAINST DEFENDANT/SECOND THIRD-PARTY PLAINTIFF, BARING INDUSTRIES3 INC. ("BARING") 38. If the plaintiff sustained any damages in the manner set forth in the Complaint through any carelessness, recklessness or negligence other than his own, such damages were sustained by reason of the sole active and primary negligence, carelessness, recklessness or 9 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 554 RECEIVED NYSCEF: 04/17/2023 affirmative acts of omission or commission by Defendant/Second Third-Party Plaintiff, BARING, without any active or affirmative negligence on the part of answering third-party defendants, Day & Nite, contributing thereto. 39. By reason of the foregoing, Defendant/Second Third-Party Plaintiff, BARING, will be liable to answering third-party defendants, Day & Nite, under the doctrines of apportionment, contribution and common law and contractual indemnification for the full amount of any verdict and judgment, or for a proportionate share thereof, that Plaintiff, direct defendants and/or second third-party plaintiff may recover against the answering third-party attorneys' defendants, Day & Nite, including, but not limited to, the costs of investigation and fees and disbursements incurred in the defense of this action and the prosecution of this counter- claim. WHEREFORE, DAY & NITE REFRIGERATION CORP. and K.I.M. CO. REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP., demand judgment: (A) Dismissing the Complaint, Third-Party Complaint, and Second Third-Party Complaint with prejudice in their entirety; (B) Granting the Day & Nite third-party defendants judgment on their cross-claims and counter-claims; (C) Awarding the Day & Nite third-party defendants their costs and disbursements in this action; and (D) Awarding the Day & Nite third-party defendants, such other and further relief as this Court may deem just and proper. 10 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 A