Preview
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023
EXHIBIT “B”
EXHIBIT “B”
F ILED
FILED: NEW YORK
: NEW YORK COUNTY
COUNTY CLERK
CLERK 04/17/2023
04/27/2015 11:48
05 : 13 AM INDEX
INDEX NO.
NO. 158327/2013
158327/2013
PM|
NYSCEF
NYSCEF DOC. NO.
DOC. NO. 549
46 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 04/17/2023
04/27/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
_..______-____________________________ ________________________Ç
KEVIN McGONIGAL,
Plaintiff,
-against-
Index No.: 158327/13
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION
CORP. and BARING INDUSTRIES, INC.,
Defendants.
_________-__________________________-_______________-___________Ç
PLAZA CONSTRUCTION CORP., AMENDED VERIFIED
ANSWER TO AMENDED
Defendant/Third-Party Plaintiff VERIFIED COMPLAINT
-against-
BARING INDUSTRIES, INC.,
Third-Party Index No.
Third-Party Defendant. 595146/14
____________..______ ________________________________-___Ç
BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff,
Second Third Party
-against- Index No.
DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP.,
Second-Third-Party Defendants.
__________________________-__________________________________Ç
Defendant, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff,
PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. by their attorneys,
. .
FABIANI COHEN & HALL, LLP, as and for an amended verified answer to the plaintiff's
amended verified complaint, set forth, upon information and belief, the following:
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023
1. Deny each and every allegation contained in Paragraph Nos. "FIRST", "FIFTH",
"THIRTEENTH", "FOURTEENTH", "SIXTEENTH", "NINTEENTH", "TWENTIETH",
"TWENTY-FIRST" "TWENTY-SECOND"
and of the plaintiff's amended verified complaint.
"SECOND"
2. Deny the allegations contained in Paragraph No. of the plaintiff's
amended verified complaint, except admit that on September 6, 2013, defendant, NYY STEAK
MANHATTAN, LLC, was a foreign limited liability company authorized to do business in the
State of New York.
"THIRD"
3. Deny the allegations contained in Paragraph No. of the plaintiff's
amended verified complaint, except admit that on September 6, 2013, PLAZA
CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. was a domestic business
corporation duly organized and existing under and by virtue of the laws of the State of New
York.
4. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in Paragraph Nos. "FOURTH", "NINTH", "TENTH", "ELEVENTH", and
"SEVENTEENTH"
of the plaintiff's amended verified complaint.
"SIXTH"
5. Deny the allegations contained in Paragraph No. of the plaintiff's
amended verified complaint, except admit that on September 6, 2013, NYY STEAK
51''
MANHATTAN, LLC was the lessee of the premises under construction at 7 West Street,
New York, New York.
"SEVENTH"
6. Deny the allegations contained in Paragraph No. of the plaintiff's
amended verified complaint, except admits that some time prior to September 6, 2013, NYY
STEAK MANHATTAN, LLC entered into a contract with PLAZA CONSTRUCTION, LLC
51't
f/k/a PLAZA CONSTRUCTION CORP. to perform certain work at 7 West Street, New
[830637 ]
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023
York, New York and beg leave to refer to all relevant documents, contracts and agreements for
their terms and conditions at the time of trial.
"EIGHTH"
7. Deny the allegations contained in Paragraph No. of the plaintiff's
amended verified complaint, except admits that some time prior to September 6, 2013, NYY
STEAK MANHATTAN, LLC entered into a contract with PLAZA CONSTRUCTION, LLC
51't
f/k/a PLAZA CONSTRUCTION CORP. to perform certain work at 7 West Street, New
York, New York and beg leave to refer to all relevant documents, contracts and agreements for
a their terms and conditions at the time of trial.
"TWELFTH"
8. Deny the allegations contained in Paragraph No. of the plaintiff's
amended verified complaint, except admits that some time prior to September 6, 2013, NYY
STEAK MANHATTAN, LLC entered into a contract with PLAZA CONSTRUCTION, LLC
51''
f/k/a PLAZA CONSTRUCTION CORP. to perform certain work at 7 West Street, New
York, New York and beg leave to refer to all relevant documents, contracts and agreements for
their terms and conditions at the time of trial.
"FIFTEENTH"
9. Deny the allegations contained in Paragraph No. of the plaintiff's
amended verified complaint, except admits that some time prior to September 6, 2013, PLAZA
CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. entered into a contract with
BARING INDUSTRIES INC. pursuant to which BARING INDUSTRIES INC. agreed to
51"
perform certain work at 7 West Street, New York, New York and beg leave to refer to all
relevant documents, contracts and agreements for their terms and conditions at the time of trial.
"EIGHTEENTH"
10. Deny the allegations contained in Paragraph No. of the
plaintiff's amended verified complaint and respectfully refer all questions of law to the
determination of the Trial Court.
[830637/1]
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
11. Upon information and belief, any damages sustained by the plaintiff herein were
not caused by any negligence or carelessness on the part of NYY STEAK MANHATTAN, LLC
and PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP., 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 NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a
PLAZA CONSTRUCTION CORP.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
12. Notwithstanding that NYY STEAK MANHATTAN, LLC and PLAZA
CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. has denied liability herein, in
the event that liability is found, the liability of NYY STEAK MANHATTAN, LLC and PLAZA
CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. 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 NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a
PLAZA CONSTRUCTION CORP. 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.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
13. 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,
[830637/1]
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023
the amount of the award shall be reduced by the sum total of all collateral reimbursements, from
Workers'
whatever source, whether it be insurance, social security payments, Compensation,
employee benefits or other such programs, in accordance with the provisions of the CPLR
§4545.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
14. That all risks and alleged dangers connected with the situation at the time and
place mentioned in the amended verified complaint were open, obvious and apparent and were
known to and assumed by plaintiff herein.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
15. That upon information and belief, the injuries allegedly sustained by plaintiff
were the result of the acts of independent contractors over whose work NYY STEAK
MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION
CORP. exercised no direction or control.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
16. 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 NYY
STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a PLAZA
CONSTRUCTION CORP. had neither control nor the right of control.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
17. The plaintiff's own negligence was the sole proximate cause of his injuries.
[830637 ]
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
18. That upon information and belief, the injuries allegedly sustained by plaintiff
were the result of the acts of another over whom NYY STEAK MANHATTAN, LLC and
PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. exercised no
direction or control.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
19. To the extent the damages set forth in plaintiff's Complaint could have been
wholly or in part avoided by reasonable effort of the plaintiff, its agents, servants and/or
employees and without undue burden, risk or expense, said damages were the result of plaintiff's
failure to mitigate and may not be recovered from defendant NYY STEAK MAHNATTAN,
LLC. and PLAZA CONSTRUCTION, LLC f/lda PLAZA CONSTRUCTION CORP.
AS AND FOR A FIRST CROSS-CLAINI
AGAINST DEFENDANT/THIRD-PARTY DEFENDANT
BARING INDUSTRIES, INC.
(COMMON LAW INDEMNIFICATION)
20. That although the answering defendant and defendant/third-party plaintiff have
denied the allegations of wrongdoing asserted against them by the plaintiff, nevertheless, should
said defendant and/or defendant/third-party plaintiff be found liable to the plaintiff, such liability
will have been the result of the active and affirmative wrongdoing of defendant/third-party
defendant BARING INDUSTRIES, INC., while the wrongdoing of the answering defendant
and/or defendant/third-party plaintiff will have been passive and secondary.
21. By reason of the foregoing, the answering defendant and/or defendant/third-party
plaintiff are entitled to full indemnity from defendant/third-party defendant BARING
INDUSTRIES, INC.
[830637/I]
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023
AS AND FOR A SECOND CROSS-CLAIM
AGAINST DEFENDANT/THIRD-PARTY DEFENDANT
BARING INDUSTRIES, INC.
(CONTRIBUTION)
22. That although the answering defendant and defendant/third-party plaintiff have
denied the allegations of wrongdoing asserted against them by the plaintiff, nevertheless, should
said defendant and/or defendant/third-party plaintiff be found liable to the plaintiff and should
said defendant and/or defendant/third-party plaintiff not be awarded full indemnity on the first
cross-claim of this verified answer, then the answering defendant and/or defendant/third-party
defendant are entitled to an apportionment of fault against defendant/third-party defendant
BARING INDUSTRIES, INC. in proportion to the relative degrees of fault or wrongdoing
among the parties to this action or as otherwise provided under Articles 14 and 16 of the CPLR.
23. By reason of the foregoing, the answering defendant and/or defendant/third-party
plaintiff are entitled to contribution or partial indemnity from the defendant/third-party defendant
BARING INDUSTRIES, INC. in accordance with the relative degrees of fault or wrongdoing of
the parties to this action or as otherwise provided under Articles 14 and 16 of the CPLR.
AS AND FOR A THIRD CROSS-CLAIM
AGAINST DEFENDANT/THIRD-PARTY DEFENDANT
BARING INDUSTRIES, INC
(CONTRACTUAL INDEMNIFICATION)
24, That an agreement was made by and between the answering defendant/third-party
plaintiff, on the one part, and defendant/third-party defendant BARING INDUSTRIES, INC., on
the other part, pursuant to which, inter alia, defendant/third-party defendant BARING
INDUSTRIES, INC undertook to indemnify, fully or partially, the answering defendant and
defendant/third-party plaintiff for loss or damage arising out of or in connection with the
[830637/1]
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023
aforesaid agreement. The answering defendant and defendant/third-party plaintiff beg leave to
refer to the original of such agreement for its terms and conditions.
25. By reason of the foregoing agreement, the answering defendant and
defendant/third-party plaintiff are entitled to either complete indemnification or partial indemnity
by contract from defendant/third-party defendant BARING INDUSTRIES, INC. for any verdict,
judgment or settlement reached in this action against the answering defendant and/or
attorneys'
defendant/third-party defendant, together with costs, disbursements and fees.
AS AND FOR A FOURTH CROSS-CLAIM
AGAINST DEFENDANT/THIRD-PARTY DEFENDANT
BARING INDUSTRIES, INC
(BREACH OF CONTRACTUAL OBLIGATION
(TO PROCURE LIABILITY INSURANCE)
26. That an agreement was made by and between the answering defendant/third-party
plaintiff, on the one part, and defendant/third-party defendant BARING INDUSTRIES, INC., on
the other part, pursuant to which, inter alia, defendant/third-party defendant BARING
INDUSTRIES, INC. undertook to procure liability insurance for the benefit of the answering
defendant and defendant/third-party defendant for all claims arising out of or in connection with
the work or services performed by the answering defendant/third-party defendant under the
aforesaid agreement.
27. The answering defendant and defendant/third-party plaintiff have demanded that a
insurer undertake to defend and the defendant and defendant/third-
liability indemnify answering
party plaintiff in connection with this action but, to date, no such liability insurer has done so.
28. Upon information and belief, by reason of the failure of any liability insurance
company to undertake the defense and indemnification of defendant and defendant/third-party
plaintiff in connection with this action, defendant/third-party defendant BARING INDUSTRIES,
[830637/1]
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023
INC. has breached its contractual obligation to the defendant and defendant/third-
answering
party plaintiff.
29. By reason of such breach, defendant/third-party defendant BARING
INDUSTRIES, INC. is obligated to indemnify fully the answering defendant and
defendant/third-party plaintiff for any verdict, judgment or settlement in this action together with
attorneys'
costs, disbursements and fees.
NYY STEAK and defendant/third-
WHEREFORE, defendant, MANHATTAN, LLC,
party plaintiff, PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP.
demand:
1. Judgment dismissing the Amended Verified Complaint;
2. In the event that the Amended Verified Complaint is not dismissed, then full
indemnity with respect to the first and third cross-claims;
attorneys'
3. Full indemnity, together with costs, disbursements, and fees pursuant to
the fourth cross-claim;
4. In the event that full indemnity is not granted, then contribution pursuant to the
second cross-claim in accordance with degrees of wrongdoing;
5. Together with the costs and disbursements of this action.
Dated: New York, New York
April 27, 2015
Yours, etc.,
FABIANI COHEN & H LL, LLP
Kenneth J. Kutner
Attomeys for Defendant
NYY STEAK MANHATTAN, LLC and
Defendant/Third-Party Plaintiff
[830637 ]
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023
Preview
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023 EXHIBIT “B” EXHIBIT “B” F ILED FILED: NEW YORK : NEW YORK COUNTY COUNTY CLERK CLERK 04/17/2023 04/27/2015 11:48 05 : 13 AM INDEX INDEX NO. NO. 158327/2013 158327/2013 PM| NYSCEF NYSCEF DOC. NO. DOC. NO. 549 46 RECEIVED RECEIVED NYSCEF: NYSCEF: 04/17/2023 04/27/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK _..______-____________________________ ________________________Ç KEVIN McGONIGAL, Plaintiff, -against- Index No.: 158327/13 NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., Defendants. _________-__________________________-_______________-___________Ç PLAZA CONSTRUCTION CORP., AMENDED VERIFIED ANSWER TO AMENDED Defendant/Third-Party Plaintiff VERIFIED COMPLAINT -against- BARING INDUSTRIES, INC., Third-Party Index No. Third-Party Defendant. 595146/14 ____________..______ ________________________________-___Ç BARING INDUSTRIES, INC., Second Third-Party Plaintiff, Second Third Party -against- Index No. DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., Second-Third-Party Defendants. __________________________-__________________________________Ç Defendant, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff, PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. by their attorneys, . . FABIANI COHEN & HALL, LLP, as and for an amended verified answer to the plaintiff's amended verified complaint, set forth, upon information and belief, the following: FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023 1. Deny each and every allegation contained in Paragraph Nos. "FIRST", "FIFTH", "THIRTEENTH", "FOURTEENTH", "SIXTEENTH", "NINTEENTH", "TWENTIETH", "TWENTY-FIRST" "TWENTY-SECOND" and of the plaintiff's amended verified complaint. "SECOND" 2. Deny the allegations contained in Paragraph No. of the plaintiff's amended verified complaint, except admit that on September 6, 2013, defendant, NYY STEAK MANHATTAN, LLC, was a foreign limited liability company authorized to do business in the State of New York. "THIRD" 3. Deny the allegations contained in Paragraph No. of the plaintiff's amended verified complaint, except admit that on September 6, 2013, PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. was a domestic business corporation duly organized and existing under and by virtue of the laws of the State of New York. 4. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph Nos. "FOURTH", "NINTH", "TENTH", "ELEVENTH", and "SEVENTEENTH" of the plaintiff's amended verified complaint. "SIXTH" 5. Deny the allegations contained in Paragraph No. of the plaintiff's amended verified complaint, except admit that on September 6, 2013, NYY STEAK 51'' MANHATTAN, LLC was the lessee of the premises under construction at 7 West Street, New York, New York. "SEVENTH" 6. Deny the allegations contained in Paragraph No. of the plaintiff's amended verified complaint, except admits that some time prior to September 6, 2013, NYY STEAK MANHATTAN, LLC entered into a contract with PLAZA CONSTRUCTION, LLC 51't f/k/a PLAZA CONSTRUCTION CORP. to perform certain work at 7 West Street, New [830637 ] FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023 York, New York and beg leave to refer to all relevant documents, contracts and agreements for their terms and conditions at the time of trial. "EIGHTH" 7. Deny the allegations contained in Paragraph No. of the plaintiff's amended verified complaint, except admits that some time prior to September 6, 2013, NYY STEAK MANHATTAN, LLC entered into a contract with PLAZA CONSTRUCTION, LLC 51't f/k/a PLAZA CONSTRUCTION CORP. to perform certain work at 7 West Street, New York, New York and beg leave to refer to all relevant documents, contracts and agreements for a their terms and conditions at the time of trial. "TWELFTH" 8. Deny the allegations contained in Paragraph No. of the plaintiff's amended verified complaint, except admits that some time prior to September 6, 2013, NYY STEAK MANHATTAN, LLC entered into a contract with PLAZA CONSTRUCTION, LLC 51'' f/k/a PLAZA CONSTRUCTION CORP. to perform certain work at 7 West Street, New York, New York and beg leave to refer to all relevant documents, contracts and agreements for their terms and conditions at the time of trial. "FIFTEENTH" 9. Deny the allegations contained in Paragraph No. of the plaintiff's amended verified complaint, except admits that some time prior to September 6, 2013, PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. entered into a contract with BARING INDUSTRIES INC. pursuant to which BARING INDUSTRIES INC. agreed to 51" perform certain work at 7 West Street, New York, New York and beg leave to refer to all relevant documents, contracts and agreements for their terms and conditions at the time of trial. "EIGHTEENTH" 10. Deny the allegations contained in Paragraph No. of the plaintiff's amended verified complaint and respectfully refer all questions of law to the determination of the Trial Court. [830637/1] FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023 AS AND FOR A FIRST AFFIRMATIVE DEFENSE 11. Upon information and belief, any damages sustained by the plaintiff herein were not caused by any negligence or carelessness on the part of NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP., 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 NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 12. Notwithstanding that NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. has denied liability herein, in the event that liability is found, the liability of NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. 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 NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. 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. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 13. 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, [830637/1] FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023 the amount of the award shall be reduced by the sum total of all collateral reimbursements, from Workers' whatever source, whether it be insurance, social security payments, Compensation, employee benefits or other such programs, in accordance with the provisions of the CPLR §4545. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 14. That all risks and alleged dangers connected with the situation at the time and place mentioned in the amended verified complaint were open, obvious and apparent and were known to and assumed by plaintiff herein. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 15. That upon information and belief, the injuries allegedly sustained by plaintiff were the result of the acts of independent contractors over whose work NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. exercised no direction or control. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 16. 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 NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. had neither control nor the right of control. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 17. The plaintiff's own negligence was the sole proximate cause of his injuries. [830637 ] FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 18. That upon information and belief, the injuries allegedly sustained by plaintiff were the result of the acts of another over whom NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. exercised no direction or control. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 19. To the extent the damages set forth in plaintiff's Complaint could have been wholly or in part avoided by reasonable effort of the plaintiff, its agents, servants and/or employees and without undue burden, risk or expense, said damages were the result of plaintiff's failure to mitigate and may not be recovered from defendant NYY STEAK MAHNATTAN, LLC. and PLAZA CONSTRUCTION, LLC f/lda PLAZA CONSTRUCTION CORP. AS AND FOR A FIRST CROSS-CLAINI AGAINST DEFENDANT/THIRD-PARTY DEFENDANT BARING INDUSTRIES, INC. (COMMON LAW INDEMNIFICATION) 20. That although the answering defendant and defendant/third-party plaintiff have denied the allegations of wrongdoing asserted against them by the plaintiff, nevertheless, should said defendant and/or defendant/third-party plaintiff be found liable to the plaintiff, such liability will have been the result of the active and affirmative wrongdoing of defendant/third-party defendant BARING INDUSTRIES, INC., while the wrongdoing of the answering defendant and/or defendant/third-party plaintiff will have been passive and secondary. 21. By reason of the foregoing, the answering defendant and/or defendant/third-party plaintiff are entitled to full indemnity from defendant/third-party defendant BARING INDUSTRIES, INC. [830637/I] FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023 AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANT/THIRD-PARTY DEFENDANT BARING INDUSTRIES, INC. (CONTRIBUTION) 22. That although the answering defendant and defendant/third-party plaintiff have denied the allegations of wrongdoing asserted against them by the plaintiff, nevertheless, should said defendant and/or defendant/third-party plaintiff be found liable to the plaintiff and should said defendant and/or defendant/third-party plaintiff not be awarded full indemnity on the first cross-claim of this verified answer, then the answering defendant and/or defendant/third-party defendant are entitled to an apportionment of fault against defendant/third-party defendant BARING INDUSTRIES, INC. in proportion to the relative degrees of fault or wrongdoing among the parties to this action or as otherwise provided under Articles 14 and 16 of the CPLR. 23. By reason of the foregoing, the answering defendant and/or defendant/third-party plaintiff are entitled to contribution or partial indemnity from the defendant/third-party defendant BARING INDUSTRIES, INC. in accordance with the relative degrees of fault or wrongdoing of the parties to this action or as otherwise provided under Articles 14 and 16 of the CPLR. AS AND FOR A THIRD CROSS-CLAIM AGAINST DEFENDANT/THIRD-PARTY DEFENDANT BARING INDUSTRIES, INC (CONTRACTUAL INDEMNIFICATION) 24, That an agreement was made by and between the answering defendant/third-party plaintiff, on the one part, and defendant/third-party defendant BARING INDUSTRIES, INC., on the other part, pursuant to which, inter alia, defendant/third-party defendant BARING INDUSTRIES, INC undertook to indemnify, fully or partially, the answering defendant and defendant/third-party plaintiff for loss or damage arising out of or in connection with the [830637/1] FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023 aforesaid agreement. The answering defendant and defendant/third-party plaintiff beg leave to refer to the original of such agreement for its terms and conditions. 25. By reason of the foregoing agreement, the answering defendant and defendant/third-party plaintiff are entitled to either complete indemnification or partial indemnity by contract from defendant/third-party defendant BARING INDUSTRIES, INC. for any verdict, judgment or settlement reached in this action against the answering defendant and/or attorneys' defendant/third-party defendant, together with costs, disbursements and fees. AS AND FOR A FOURTH CROSS-CLAIM AGAINST DEFENDANT/THIRD-PARTY DEFENDANT BARING INDUSTRIES, INC (BREACH OF CONTRACTUAL OBLIGATION (TO PROCURE LIABILITY INSURANCE) 26. That an agreement was made by and between the answering defendant/third-party plaintiff, on the one part, and defendant/third-party defendant BARING INDUSTRIES, INC., on the other part, pursuant to which, inter alia, defendant/third-party defendant BARING INDUSTRIES, INC. undertook to procure liability insurance for the benefit of the answering defendant and defendant/third-party defendant for all claims arising out of or in connection with the work or services performed by the answering defendant/third-party defendant under the aforesaid agreement. 27. The answering defendant and defendant/third-party plaintiff have demanded that a insurer undertake to defend and the defendant and defendant/third- liability indemnify answering party plaintiff in connection with this action but, to date, no such liability insurer has done so. 28. Upon information and belief, by reason of the failure of any liability insurance company to undertake the defense and indemnification of defendant and defendant/third-party plaintiff in connection with this action, defendant/third-party defendant BARING INDUSTRIES, [830637/1] FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023 INC. has breached its contractual obligation to the defendant and defendant/third- answering party plaintiff. 29. By reason of such breach, defendant/third-party defendant BARING INDUSTRIES, INC. is obligated to indemnify fully the answering defendant and defendant/third-party plaintiff for any verdict, judgment or settlement in this action together with attorneys' costs, disbursements and fees. NYY STEAK and defendant/third- WHEREFORE, defendant, MANHATTAN, LLC, party plaintiff, PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. demand: 1. Judgment dismissing the Amended Verified Complaint; 2. In the event that the Amended Verified Complaint is not dismissed, then full indemnity with respect to the first and third cross-claims; attorneys' 3. Full indemnity, together with costs, disbursements, and fees pursuant to the fourth cross-claim; 4. In the event that full indemnity is not granted, then contribution pursuant to the second cross-claim in accordance with degrees of wrongdoing; 5. Together with the costs and disbursements of this action. Dated: New York, New York April 27, 2015 Yours, etc., FABIANI COHEN & H LL, LLP Kenneth J. Kutner Attomeys for Defendant NYY STEAK MANHATTAN, LLC and Defendant/Third-Party Plaintiff [830637 ] FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 04/17/2023