Preview
FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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MICHELLE DEVITA, as Administratrix of the AMENDED VERIFIED
Estate of KEVIN McGONIGAL, ANSWER TO THIRD THIRD
PARTY COMPLAINT
Plaintiff,
Index No.: 158327/13
-against-
NYY STEAK MANHATTAN, LLC, PLAZA
CONSTRUCTION CORP. and BARING INDUSTRIES,
INC.,
Defendants.
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PLAZA CONSTRUCTION CORP.,
Third-Party Plaintiff, Third Party Index
No. 595146/14
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
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BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff,
-against- Second Third Party
Index No. 59130/15
DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP.,
Second Third-Party Defendant.
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NYY STEAK MANHATTAN, LLC & PLAZA
CONSTRUCTION LLC, f/k/a PLAZA CONSTRUCTION
CORP.,
Third Third-Party Plaintiffs,
Third Third Party
-against- Index No.
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACOUSTICAL CONTRACTORS, INC., and BARING
INDUSTRIES, INC.,
Third Third-Party Defendants.
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FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023
The defendant/third party defendant/second third party plaintiff/third third party
defendant, BARING INDUSTRIES, INC., by its attorneys GOLDBERG SEGALLA LLP,
answering the Third Third Party Complaint herein alleges:
FIRST: Denies having any knowledge or information thereof sufficient to form a
belief as to each and every allegation contained in paragraphs numbered “1”, “2”. “3”, “4”, “6”,
“10”, “11”, “13”, “14” and “15” of the Third Third Party Complaint.
SECOND: Admits each and every allegation contained in paragraph numbered
“5”, “7” and “8” of the Third Third Party Complaint.
THIRD: Denies having any knowledge or information thereof sufficient to form
a belief as to each and every allegation contained in paragraphs numbered “9” and “12” of the
Third Third Party Complaint and the Court is respectfully referred to the contract for its terms and
conditions.
AS AND FOR AN ANSWER TO A FIRST CAUSE OF ACTION
ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK
MANHATTAN, LLC AGAINST DEFENDANT/THIRD PARTY DEFENDANT/SECOND
THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT BARING
INDUSTRIES, INC.
FOURTH: As to paragraph numbered “16” of the Third Third Party Complaint,
the defendant/third party defendant/second third party plaintiff/third third party defendant,
BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained
in paragraphs numbered “1” through “15” of the Third Third Party Complaint.
FIFTH: Denies having any knowledge or information thereof sufficient to form a
belief as to each and every allegation contained in paragraph numbered “17” of the Third Third
Party Complaint and the Court is respectfully referred to the contract for its terms and conditions.
SIXTH: Denies each and every allegation contained in paragraphs numbered “18”,
“19”, “20”, “21”, “22” and “23” of the Third Third Party Complaint, respectfully leaving all
questions of law to the trial court to determine.
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AS AND FOR AN ANSWER TO A SECOND CAUSE OF ACTION
ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK
MANHATTAN, LLC AGAINST DEFENDANT/THIRD PARTY DEFENDANT/SECOND
THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT BARING
INDUSTRIES, INC.
SEVENTH: As to paragraph numbered “24” of the Third Third Party Complaint,
the defendant/third party defendant/second third party plaintiff/third third party defendant,
BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained
in paragraphs numbered “1” through “23” of the Third Third Party Complaint.
EIGHTH: Denies each and every allegation contained in paragraphs numbered
“25” and “26” of the Third Third Party Complaint, respectfully leaving all questions of law to the
trial court to determine.
AS AND FOR AN ANSWER TO A THIRD CAUSE OF ACTION
ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK
MANHATTAN, LLC AGAINST DEFENDANT/THIRD PARTY DEFENDANT/SECOND
THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT BARING
INDUSTRIES, INC.
NINTH: As to paragraph numbered “27” of the Third Third Party Complaint, the
defendant/third party defendant/second third party plaintiff/third third party defendant, BARING
INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in
paragraphs numbered “1” through “26” of the Third Third Party Complaint.
TENTH: Denies each and every allegation contained in paragraphs numbered
“28” and “29” of the Third Third Party Complaint, respectfully leaving all questions of law to the
trial court to determine.
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AS AND FOR AN ANSWER TO A SECOND SECOND CAUSE OF ACTION
ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK
MANHATTAN, LLC AGAINST DEFENDANT/THIRD PARTY DEFENDANT/SECOND
THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT BARING
INDUSTRIES, INC.
ELEVENTH: As to paragraph numbered “30” of the Third Third Party Complaint,
the defendant/third party defendant/second third party plaintiff/third third party defendant,
BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained
in paragraphs numbered “1” through “29” of the Third Third Party Complaint.
TWELFTH: Denies each and every allegation contained in paragraphs numbered
“31”, “33” and “34” of the Third Third Party Complaint, respectfully leaving all questions of law
to the trial court to determine.
THIRTEENTH: Denies having any knowledge or information thereof sufficient
to form a belief as to each and every allegation contained in paragraph numbered “32” of the Third
Third Party Complaint.
AS AND FOR AN ANSWER TO A FIFTH CAUSE OF ACTION AND FIRST CAUSE OF
ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY
STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD
THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA
CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT
B&G ELECTRICAL CONTRACTORS
[COMMON LAW INDEMNITY]
FOURTEENTH: As to paragraph numbered “35” of the Third Third Party
Complaint, the defendant/third party defendant/second third party plaintiff/third third party
defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every
response contained in paragraphs numbered “1” through “34” of the Third Third Party Complaint.
FIFTEENTH: Denies having any knowledge or information thereof sufficient to
form a belief as to each and every allegation contained in paragraph numbered “36” of the Third
Third Party Complaint.
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AS AND FOR AN ANSWER TO A SIXTH CAUSE OF ACTION AND SECOND CAUSE
OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY
STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD
THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA
CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT
B&G ELECTRICAL CONTRACTORS
[CONTRIBUTION]
SIXTEENTH: As to paragraph numbered “37” of the Third Third Party
Complaint, the defendant/third party defendant/second third party plaintiff/third third party
defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every
response contained in paragraphs numbered “1” through “36” of the Third Third Party Complaint.
SEVENTEENTH: Denies having any knowledge or information thereof
sufficient to form a belief as to each and every allegation contained in paragraphs numbered “38”
and “39” of the Third Third Party Complaint.
AS AND FOR AN ANSWER TO A SEVENTH CAUSE OF ACTION AND THIRD
CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY
PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY
PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a
PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT
B&G ELECTRICAL CONTRACTORS
[CONTRACTUAL INDEMNITY]
EIGHTEENTH: As to paragraph numbered “40” of the Third Third Party
Complaint, the defendant/third party defendant/second third party plaintiff/third third party
defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every
response contained in paragraphs numbered “1” through “39” of the Third Third Party Complaint.
NINETEENTH: Denies having any knowledge or information thereof sufficient
to form a belief as to each and every allegation contained in paragraphs numbered “41”, “42”, and
“43” of the Third Third Party Complaint.
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AS AND FOR AN ANSWER TO AN EIGHTH CAUSE OF ACTION AND FOURTH
CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY
PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY
PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a
PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT
B&G ELECTRICAL CONTRACTORS
[BREACH OF AGREEMENT TO SECURE LIABILITY INSURANCE]
TWENTIETH: As to paragraph numbered “44” of the Third Third Party
Complaint, the defendant/third party defendant/second third party plaintiff/third third party
defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every
response contained in paragraphs numbered “1” through “43” of the Third Third Party Complaint.
TWENTY-FIRST: Denies having any knowledge or information thereof
sufficient to form a belief as to each and every allegation contained in paragraphs numbered “45”,
“46”, “47”and “48” of the Third Third Party Complaint.
AS AND FOR AN ANSWER TO A NINTH CAUSE OF ACTION AND FIRST CAUSE
OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY
STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD
THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA
CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT
ESS & VEE ACOUSTICAL CONTRACTORS, INC.
[COMMON LAW INDEMNITY]
TWENTY-SECOND: As to paragraph numbered “49” of the Third Third Party
Complaint, the defendant/third party defendant/second third party plaintiff/third third party
defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every
response contained in paragraphs numbered “1” through “48” of the Third Third Party Complaint.
TWENTY-THIRD: Denies each and every allegation contained in paragraph
numbered “50” of the Third Third Party Complaint, respectfully leaving all questions of law to the
trial court to determine.
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AS AND FOR AN ANSWER TO A TENTH CAUSE OF ACTION AND SECOND CAUSE
OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY
STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD
THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA
CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT
ESS & VEE ACOUSTICAL CONTRACTORS, INC.
[CONTRIBUTION]
TWENTY-FOURTH: As to paragraph numbered “51” of the Third Third Party
Complaint, the defendant/third party defendant/second third party plaintiff/third third party
defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every
response contained in paragraphs numbered “1” through “50” of the Third Third Party Complaint.
TWENTY-FIFTH: Denies having any knowledge or information thereof
sufficient to form a belief as to each and every allegation contained in paragraphs numbered “52”
and “53” of the Third Third Party Complaint.
AS AND FOR AN ANSWER TO AN ELEVENTH CAUSE OF ACTION AND THIRD
CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY
PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY
PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a
PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT
ESS & VEE ACOUSTICAL CONTRACTORS, INC.
[CONTRACTUAL INDEMNITY]
TWENTY-SIXTH: As to paragraph numbered “54” of the Third Third Party
Complaint, the defendant/third party defendant/second third party plaintiff/third third party
defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every
response contained in paragraphs numbered “1” through “53” of the Third Third Party Complaint.
TWENTY-SEVENTH: Denies having any knowledge or information thereof
sufficient to form a belief as to each and every allegation contained in paragraphs numbered “55”,
“56”, and “57” of the Third Third Party Complaint.
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AS AND FOR AN ANSWER TO A TWELFTH CAUSE OF ACTION AND FOURTH
CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY
PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY
PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a
PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT
ESS & VEE ACOUSTICAL CONTRACTORS, INC.
[BREACH OF AGREEMENT TO SECURE LIABILITY INSURANCE]
TWENTY-EIGHTH: As to paragraph numbered “58” of the Third Third Party
Complaint, the defendant/third party defendant/second third party plaintiff/third third party
defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every
response contained in paragraphs numbered “1” through “57” of the Third Third Party Complaint.
TWENTY-NINTH: Denies having any knowledge or information thereof
sufficient to form a belief as to each and every allegation contained in paragraphs numbered “59”,
“60”, “61” and “62” of the Third Third Party Complaint.
THIRTIETH: Any paragraphs not specifically admitted or denied shall be
deemed denied.
AS AND FOR A FIRST SEPARATE, DISTINCT AND
COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY
DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY
DEFENDANT, BARING INDUSTRIES, INC.
UPON INFORMATION AND BELIEF, ALLEGES:
THIRTY-FIRST: In the event the plaintiff recovers any judgment against the
defendants and third third party defendants herein, the answering defendant/third party
defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC.
demands that any such judgment be diminished in proportion to which the culpable conduct
attributable to the plaintiff bears to the total culpable conduct which caused the damages.
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AS AND FOR A SECOND SEPARATE, DISTINCT AND
COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY
DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY
DEFENDANT, BARING INDUSTRIES, INC.
UPON INFORMATION AND BELIEF, ALLEGES:
THIRTY-SECOND: The defendant/third party defendant/second third party
plaintiff/third third party defendant, BARING INDUSTRIES, INC. denies the existence of any
foreseeable danger or risk, but if such risk is found to exist (by the Court and/or trier of fact), such
risk, if any, was assumed by plaintiff and any sum that the plaintiff may be entitled to recover shall
be reduced in proportion to the culpable conduct of the plaintiff in assuming the risk of injuries
and damages referred to.
AS AND FOR A THIRD SEPARATE, DISTINCT AND
COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY
DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY
DEFENDANT, BARING INDUSTRIES, INC.
UPON INFORMATION AND BELIEF, ALLEGES:
THIRTY-THIRD: The defendant/third party defendant/second third party
plaintiff/third third party defendant, BARING INDUSTRIES, INC. denies the existence of any
foreseeable danger or risk, but if such risk is found to exist (by the Court and/or trier of fact), such
risk, if any, was assumed by plaintiff and that by entering into the activity in which the plaintiff
was engaged at the time of the occurrence set forth in the Complaint and Complaint, said plaintiff
knew the hazards thereof and the inherent risk incident thereto and had full knowledge of the
dangers thereof; that whatever injuries and damages were sustained by the plaintiff herein as
alleged in the Complaint arose from and were caused by reason of such risks and were assumed
and accepted by plaintiff in performing and engaging in said activities.
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AS AND FOR A FOURTH SEPARATE, DISTINCT AND
COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY
DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY
DEFENDANT, BARING INDUSTRIES, INC.
UPON INFORMATION AND BELIEF, ALLEGES:
THIRTY-FOURTH: The defendant/third party defendant/second third party
plaintiff/third third party defendant, BARING INDUSTRIES, INC. denies the existence of any
foreseeable danger or risk, but if such risk is found to exist (by the Court and/or trier of fact), such
risk, if any, was assumed by plaintiff and that all the dangers and risks incident to the situation
mentioned in the Complaint were open, obvious and apparent and were known and assumed by
the plaintiff.
AS AND FOR A FIFTH SEPARATE, DISTINCT AND
COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY
DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY
DEFENDANT, BARING INDUSTRIES, INC.
UPON INFORMATION AND BELIEF, ALLEGES:
THIRTY-FIFTH: That the plaintiff through the exercise of reasonable care could
have discovered the alleged defect, apprehended the danger and avoided the injury.
AS AND FOR A SIXTH SEPARATE, DISTINCT AND
COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY
DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY
DEFENDANT, BARING INDUSTRIES, INC.
UPON INFORMATION AND BELIEF, ALLEGES:
THIRTY-SIXTH: If the liability of the answering defendant/third party
defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC.
is found to be fifty (50) percent or less than fifty (50) percent of the total liability, the answering
defendant/third party defendant/second third party plaintiff/third third party defendant, BARING
INDUSTRIES, INC.’s liability will be limited pursuant to Article 16 of the New York Civil
Procedure Laws and Rules.
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AS AND FOR A SEVENTH SEPARATE, DISTINCT AND
COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY
DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY
DEFENDANT, BARING INDUSTRIES, INC.
UPON INFORMATION AND BELIEF, ALLEGES:
THIRTY-SEVENTH: The Complaint fails to state a cause of action upon which
relief can be granted to the plaintiff.
AS AND FOR A SEVENTH SEPARATE, DISTINCT AND
COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY
DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY
DEFENDANT, BARING INDUSTRIES, INC.
UPON INFORMATION AND BELIEF, ALLEGES:
THIRTY-EIGHTH: Upon information and belief, any past or future costs or
expenses incurred or to be incurred by the plaintiff for medical care, dental care; custodial care,
property damage or rehabilitative services, loss of earnings or other economic loss, has been or
will with reasonable certainty, be replaced or indemnified in whole or in part from a collateral
source as defined in §4545(c) of the New York Civil Practice Law and Rules.
AS AND FOR AN EIGHTH SEPARATE, DISTINCT AND
COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY
DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY
DEFENDANT, BARING INDUSTRIES, INC.
UPON INFORMATION AND BELIEF, ALLEGES:
THIRTY-NINTH: That if the plaintiff recovers judgment against the defendants
and third third party plaintiffs, and the defendants and third third party plaintiffs in turn are granted
judgment for contribution from the third third party defendants, the amount of such contribution
shall be limited to an equitable share of any such judgment in favor of the plaintiff on the basis of
the comparative degree of culpability, if any, of the third third party defendants.
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AS AND FOR A FIRST CROSS-CLAIM AGAINST THIRD THIRD PARTY CO-
DEFENDANTS B&G ELECTRICAL CONTRACTORS and
ESS & VEE ACOUSTICAL CONTRACTORS, INC.
FORTIETH: Upon information and belief, this third party defendant denies any
negligence on its part. However, if the plaintiff and/or third third party plaintiffs recovers a
judgment in this action against this third third party defendant, its liability will have been brought
about or caused by reason of the primary carelessness and negligence of the co-third third party
defendants, B&G ELECTRICAL CONTRACTORS and ESS & VEE ACOUSTICAL
CONTRACTORS, INC., without any negligence on the part of this third third party defendant.
Furthermore, if the plaintiff and/or third third party plaintiff should recover a judgment against this
third third party defendant, then the co-third third party defendants shall indemnify this third third
party defendant for all or part of any such judgment, including reasonable attorneys' fees and costs,
and in such amount as shall be ultimately determined upon the trial of this action, by reason of
common law indemnity.
AS AND FOR A SECOND CROSS-CLAIM AGAINST THIRD THIRD PARTY CO-
DEFENDANTS B&G ELECTRICAL CONTRACTORS and
ESS & VEE ACOUSTICAL CONTRACTORS, INC.
FORTY-FIRST: That if the plaintiff and/or third third party plaintiffs sustained
injuries and damages as alleged, through any fault other than the plaintiff's and/or third third party
plaintiffs’ own fault, then such injuries and damages were sustained due to the primary, active and
sole fault of co-third third party defendants B&G ELECTRICAL CONTRACTORS and ESS &
VEE ACOUSTICAL CONTRACTORS, INC., and the fault, if any, of this answering third third
party defendant vicarious only, based upon statutory and/or contractual liability, and if the plaintiff
and/or third third party plaintiffs should obtain and/or recover judgment against this answering
third third party defendant, then the co-third third party defendants shall be liable over to this
answering third third party defendant for the full amount of said judgment or for any part hereof
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obtained and/or recovered on the basis of apportionment of responsibility for the alleged
occurrence as found by the Court or jury.
WHEREFORE, defendant/third party defendant/second third party plaintiff/third
third party defendant, BARING INDUSTRIES, INC., demands judgment dismissing the plaintiff's
and/or third third party plaintiffs’ Complaint(s) on the merits; and if plaintiff and/or third third
party plaintiffs are found to have contributed to the accident or damages, that any damages be
reduced in proportion to which the plaintiff and/or third third party plaintiffs may be found to have
so contributed to the accident and damages, together with the costs and disbursements of this action
and for such other and further relief as to this Court seems just and proper. Furthermore, if the
plaintiff and/or third third party plaintiffs should recover a judgment against this third third party
defendant, then the co-third third party defendants shall indemnify this defendant for all or part of
any such judgment, including reasonable attorneys' fees and costs, and in such amount as shall be
ultimately determined upon the trial of this action on the basis of apportionment of responsibility
for the alleged occurrence as found by the Court or jury.
Dated: New York, New York
May 26, 2023
GOLDBERG SEGALLA, LLP
____________________________
Reed M. Podell
Attorneys for Defendant/Third-Party
Defendant/Second Third-Party
Plaintiff/Third Third-Party Defendant
BARING INDUSTRIES, INC.
711 3RD Avenue, Suite 1900
New York, New York 10017
(646) 292-8700
TO: Scott N. Singer, Esq.
SACKS & SACKS, LLP
Attorneys for the Plaintiff
KEVIN McGONIGAL
150 Broadway 4th Floor
New York, New York 10038
212-964-5500
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Alisa Dultz, Esq.
FABIANI COHEN & HALL, LLP
Attorneys for Defendant/Defendant-Third-Party Plaintiff
and Third Third-Party Plaintiff
PLAZA CONSTRUCTION LLC f/k/a PLAZA
CONSTRUCTION CORP.
570 Lexington Avenue, 4th Floor
New York, New York 10022
212-644-4420
David A. Lore, Esq.
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
Attorneys for Second T.P. Defendants
Day & Nite Refrigeration Corp. and K.I.M.C.O.
Refrigeration Corp. s/h/a KIMCO REFRIGERATION CORP.
1000 Woodbury Road,, Suite 402
Woodbury, New York 11797
(5126) 712-4000
Carol Morokoff, Esq.
SMITH MAZURE, P.C.
Attorneys for Third Third-Party Defendant
Ess & Vee Acoustical Contractors, Inc.
111 John Street, 20th Floor
New York, New York 10038
(212) 964-7400
Edward Guardaro, Jr., Esq.
FULLERTON BECK, L.L.P.
Attorneys for Third Third-Party Defendant
B & G ELECTRICAL CONTRACTORS
Four West Red Oak Lane
White Plains, New York 10604
(914) 305-8634
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ATTORNEY’S VERIFICATION
Reed M. Podell, hereby affirms under the penalties of perjury, pursuant to CPLR
2106, that he is an attorney admitted to practice in the Courts of this State and that he is a Partner
with Goldberg Segalla LLP, attorneys for defendant/third party defendant/second third party
plaintiff/third third party defendant, BARING INDUSTRIES, INC. in the within action; that the
foregoing Amended Answer is true to his knowledge, except as to matters therein stated to be
alleged upon information and belief, and that as to those matters he believes it to be true.
That this Amended Answer is affirmed by your affirmant and not by the
defendant/third party defendant/second third party plaintiff/third third party defendant because the
defendant/third party defendant/second third party plaintiff/third third party defendant upon
information and belief, is a corporation and individual, whose offices and/or place of residence is
not within the County where Goldberg Segalla LLP has its offices, and the source of affirmant's
information, and the grounds for his belief as to all the matters as stated upon his knowledge, are
the records and reports of investigation kept in the office of the said attorney for the defendant/third
party defendant/second third party plaintiff/third third party defendant in connection with this
action and the accident out of which said action arises.
Dated: New York, New York
May 24, 2023
_____________________________
Reed M. Podell
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______________________________________________________________________________
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------X Index No. 158327/13
MICHELLE DEVITA, as Administratrix of the
Estate of KEVIN McGONIGAL,
Plaintiff,
-against-
NYY STEAK MANHATTAN, LLC, PLAZA
CONSTRUCTION CORP. and BARING INDUSTRIES,
INC.,
Defendants.
------------------------------------------------------X
(AND THIRD PARTY ACTION)
______________________________________________________________________________
AMENDED VERIFIED ANSWER TO THIRD THIRD PARTY COMPLAINT
______________________________________________________________________________
GOLDBERG SEGALLA, LLP
Attorneys for BARING INDUSTRIES INC
711 3RD Avenue, Suite 1900
New York, New York 10017
(646) 292-8700
Fax: (646) 292-8701
______________________________________________________________________________
Service of a copy of the within
is hereby admitted.
Dated:
______________________________________
Attorney(s) for
______________________________________________________________________________
PLEASE TAKE NOTICE
[ ] NOTICE OF ENTRY
that the within is a (certified) true copy of a
entered in the office of the clerk of the within named court on , 20
[ ] NOTICE OF SETTLEMENT
that an Order of which the within is a true copy will be presented for settlement to the
Hon. one of the judges of the within named Court, at
on , 20 , at 9:30 a.m.
Dated: New York, NY
GOLDBERG SEGALLA, LLP
Attorneys for BARING INDUSTRIES INC
711 3RD Avenue, Suite 1900
New York, New York 10017
To:
Attorney(s) for
Preview
FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------X MICHELLE DEVITA, as Administratrix of the AMENDED VERIFIED Estate of KEVIN McGONIGAL, ANSWER TO THIRD THIRD PARTY COMPLAINT Plaintiff, Index No.: 158327/13 -against- NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., Defendants. ------------------------------------------------------------------X PLAZA CONSTRUCTION CORP., Third-Party Plaintiff, Third Party Index No. 595146/14 -against- BARING INDUSTRIES, INC., Third-Party Defendant. -------------------------------------------------------------------X BARING INDUSTRIES, INC., Second Third-Party Plaintiff, -against- Second Third Party Index No. 59130/15 DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., Second Third-Party Defendant. -------------------------------------------------------------------X NYY STEAK MANHATTAN, LLC & PLAZA CONSTRUCTION LLC, f/k/a PLAZA CONSTRUCTION CORP., Third Third-Party Plaintiffs, Third Third Party -against- Index No. B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC., and BARING INDUSTRIES, INC., Third Third-Party Defendants. -------------------------------------------------------------------X FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 The defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., by its attorneys GOLDBERG SEGALLA LLP, answering the Third Third Party Complaint herein alleges: FIRST: Denies having any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraphs numbered “1”, “2”. “3”, “4”, “6”, “10”, “11”, “13”, “14” and “15” of the Third Third Party Complaint. SECOND: Admits each and every allegation contained in paragraph numbered “5”, “7” and “8” of the Third Third Party Complaint. THIRD: Denies having any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraphs numbered “9” and “12” of the Third Third Party Complaint and the Court is respectfully referred to the contract for its terms and conditions. AS AND FOR AN ANSWER TO A FIRST CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AGAINST DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT BARING INDUSTRIES, INC. FOURTH: As to paragraph numbered “16” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “15” of the Third Third Party Complaint. FIFTH: Denies having any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph numbered “17” of the Third Third Party Complaint and the Court is respectfully referred to the contract for its terms and conditions. SIXTH: Denies each and every allegation contained in paragraphs numbered “18”, “19”, “20”, “21”, “22” and “23” of the Third Third Party Complaint, respectfully leaving all questions of law to the trial court to determine. FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 AS AND FOR AN ANSWER TO A SECOND CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AGAINST DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT BARING INDUSTRIES, INC. SEVENTH: As to paragraph numbered “24” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “23” of the Third Third Party Complaint. EIGHTH: Denies each and every allegation contained in paragraphs numbered “25” and “26” of the Third Third Party Complaint, respectfully leaving all questions of law to the trial court to determine. AS AND FOR AN ANSWER TO A THIRD CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AGAINST DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT BARING INDUSTRIES, INC. NINTH: As to paragraph numbered “27” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “26” of the Third Third Party Complaint. TENTH: Denies each and every allegation contained in paragraphs numbered “28” and “29” of the Third Third Party Complaint, respectfully leaving all questions of law to the trial court to determine. FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 AS AND FOR AN ANSWER TO A SECOND SECOND CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AGAINST DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT BARING INDUSTRIES, INC. ELEVENTH: As to paragraph numbered “30” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “29” of the Third Third Party Complaint. TWELFTH: Denies each and every allegation contained in paragraphs numbered “31”, “33” and “34” of the Third Third Party Complaint, respectfully leaving all questions of law to the trial court to determine. THIRTEENTH: Denies having any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph numbered “32” of the Third Third Party Complaint. AS AND FOR AN ANSWER TO A FIFTH CAUSE OF ACTION AND FIRST CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT B&G ELECTRICAL CONTRACTORS [COMMON LAW INDEMNITY] FOURTEENTH: As to paragraph numbered “35” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “34” of the Third Third Party Complaint. FIFTEENTH: Denies having any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph numbered “36” of the Third Third Party Complaint. FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 AS AND FOR AN ANSWER TO A SIXTH CAUSE OF ACTION AND SECOND CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT B&G ELECTRICAL CONTRACTORS [CONTRIBUTION] SIXTEENTH: As to paragraph numbered “37” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “36” of the Third Third Party Complaint. SEVENTEENTH: Denies having any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraphs numbered “38” and “39” of the Third Third Party Complaint. AS AND FOR AN ANSWER TO A SEVENTH CAUSE OF ACTION AND THIRD CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT B&G ELECTRICAL CONTRACTORS [CONTRACTUAL INDEMNITY] EIGHTEENTH: As to paragraph numbered “40” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “39” of the Third Third Party Complaint. NINETEENTH: Denies having any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraphs numbered “41”, “42”, and “43” of the Third Third Party Complaint. FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 AS AND FOR AN ANSWER TO AN EIGHTH CAUSE OF ACTION AND FOURTH CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT B&G ELECTRICAL CONTRACTORS [BREACH OF AGREEMENT TO SECURE LIABILITY INSURANCE] TWENTIETH: As to paragraph numbered “44” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “43” of the Third Third Party Complaint. TWENTY-FIRST: Denies having any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraphs numbered “45”, “46”, “47”and “48” of the Third Third Party Complaint. AS AND FOR AN ANSWER TO A NINTH CAUSE OF ACTION AND FIRST CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT ESS & VEE ACOUSTICAL CONTRACTORS, INC. [COMMON LAW INDEMNITY] TWENTY-SECOND: As to paragraph numbered “49” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “48” of the Third Third Party Complaint. TWENTY-THIRD: Denies each and every allegation contained in paragraph numbered “50” of the Third Third Party Complaint, respectfully leaving all questions of law to the trial court to determine. FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 AS AND FOR AN ANSWER TO A TENTH CAUSE OF ACTION AND SECOND CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT ESS & VEE ACOUSTICAL CONTRACTORS, INC. [CONTRIBUTION] TWENTY-FOURTH: As to paragraph numbered “51” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “50” of the Third Third Party Complaint. TWENTY-FIFTH: Denies having any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraphs numbered “52” and “53” of the Third Third Party Complaint. AS AND FOR AN ANSWER TO AN ELEVENTH CAUSE OF ACTION AND THIRD CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT ESS & VEE ACOUSTICAL CONTRACTORS, INC. [CONTRACTUAL INDEMNITY] TWENTY-SIXTH: As to paragraph numbered “54” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “53” of the Third Third Party Complaint. TWENTY-SEVENTH: Denies having any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraphs numbered “55”, “56”, and “57” of the Third Third Party Complaint. FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 AS AND FOR AN ANSWER TO A TWELFTH CAUSE OF ACTION AND FOURTH CAUSE OF ACTION ON BEHALF OF DEFENDANT/THIRD THIRD PARTY PLAINTIFF NYY STEAK MANHATTAN, LLC AND DEFENDANT/THIRD PARTY PLAINTIFF/THIRD THIRD PARTY PLAINTIFF PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. AGAINST THIRD THIRD PARTY DEFENDANT ESS & VEE ACOUSTICAL CONTRACTORS, INC. [BREACH OF AGREEMENT TO SECURE LIABILITY INSURANCE] TWENTY-EIGHTH: As to paragraph numbered “58” of the Third Third Party Complaint, the defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., repeats, realleges and reiterates each and every response contained in paragraphs numbered “1” through “57” of the Third Third Party Complaint. TWENTY-NINTH: Denies having any knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraphs numbered “59”, “60”, “61” and “62” of the Third Third Party Complaint. THIRTIETH: Any paragraphs not specifically admitted or denied shall be deemed denied. AS AND FOR A FIRST SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT, BARING INDUSTRIES, INC. UPON INFORMATION AND BELIEF, ALLEGES: THIRTY-FIRST: In the event the plaintiff recovers any judgment against the defendants and third third party defendants herein, the answering defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC. demands that any such judgment be diminished in proportion to which the culpable conduct attributable to the plaintiff bears to the total culpable conduct which caused the damages. FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 AS AND FOR A SECOND SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT, BARING INDUSTRIES, INC. UPON INFORMATION AND BELIEF, ALLEGES: THIRTY-SECOND: The defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC. denies the existence of any foreseeable danger or risk, but if such risk is found to exist (by the Court and/or trier of fact), such risk, if any, was assumed by plaintiff and any sum that the plaintiff may be entitled to recover shall be reduced in proportion to the culpable conduct of the plaintiff in assuming the risk of injuries and damages referred to. AS AND FOR A THIRD SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT, BARING INDUSTRIES, INC. UPON INFORMATION AND BELIEF, ALLEGES: THIRTY-THIRD: The defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC. denies the existence of any foreseeable danger or risk, but if such risk is found to exist (by the Court and/or trier of fact), such risk, if any, was assumed by plaintiff and that by entering into the activity in which the plaintiff was engaged at the time of the occurrence set forth in the Complaint and Complaint, said plaintiff knew the hazards thereof and the inherent risk incident thereto and had full knowledge of the dangers thereof; that whatever injuries and damages were sustained by the plaintiff herein as alleged in the Complaint arose from and were caused by reason of such risks and were assumed and accepted by plaintiff in performing and engaging in said activities. FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 AS AND FOR A FOURTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT, BARING INDUSTRIES, INC. UPON INFORMATION AND BELIEF, ALLEGES: THIRTY-FOURTH: The defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC. denies the existence of any foreseeable danger or risk, but if such risk is found to exist (by the Court and/or trier of fact), such risk, if any, was assumed by plaintiff and that all the dangers and risks incident to the situation mentioned in the Complaint were open, obvious and apparent and were known and assumed by the plaintiff. AS AND FOR A FIFTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT, BARING INDUSTRIES, INC. UPON INFORMATION AND BELIEF, ALLEGES: THIRTY-FIFTH: That the plaintiff through the exercise of reasonable care could have discovered the alleged defect, apprehended the danger and avoided the injury. AS AND FOR A SIXTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT, BARING INDUSTRIES, INC. UPON INFORMATION AND BELIEF, ALLEGES: THIRTY-SIXTH: If the liability of the answering defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC. is found to be fifty (50) percent or less than fifty (50) percent of the total liability, the answering defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC.’s liability will be limited pursuant to Article 16 of the New York Civil Procedure Laws and Rules. FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 AS AND FOR A SEVENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT, BARING INDUSTRIES, INC. UPON INFORMATION AND BELIEF, ALLEGES: THIRTY-SEVENTH: The Complaint fails to state a cause of action upon which relief can be granted to the plaintiff. AS AND FOR A SEVENTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT, BARING INDUSTRIES, INC. UPON INFORMATION AND BELIEF, ALLEGES: THIRTY-EIGHTH: Upon information and belief, any past or future costs or expenses incurred or to be incurred by the plaintiff for medical care, dental care; custodial care, property damage or rehabilitative services, loss of earnings or other economic loss, has been or will with reasonable certainty, be replaced or indemnified in whole or in part from a collateral source as defined in §4545(c) of the New York Civil Practice Law and Rules. AS AND FOR AN EIGHTH SEPARATE, DISTINCT AND COMPLETE AFFIRMATIVE DEFENSE, THE DEFENDANT/THIRD PARTY DEFENDANT/SECOND THIRD PARTY PLAINTIFF/THIRD THIRD PARTY DEFENDANT, BARING INDUSTRIES, INC. UPON INFORMATION AND BELIEF, ALLEGES: THIRTY-NINTH: That if the plaintiff recovers judgment against the defendants and third third party plaintiffs, and the defendants and third third party plaintiffs in turn are granted judgment for contribution from the third third party defendants, the amount of such contribution shall be limited to an equitable share of any such judgment in favor of the plaintiff on the basis of the comparative degree of culpability, if any, of the third third party defendants. FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 AS AND FOR A FIRST CROSS-CLAIM AGAINST THIRD THIRD PARTY CO- DEFENDANTS B&G ELECTRICAL CONTRACTORS and ESS & VEE ACOUSTICAL CONTRACTORS, INC. FORTIETH: Upon information and belief, this third party defendant denies any negligence on its part. However, if the plaintiff and/or third third party plaintiffs recovers a judgment in this action against this third third party defendant, its liability will have been brought about or caused by reason of the primary carelessness and negligence of the co-third third party defendants, B&G ELECTRICAL CONTRACTORS and ESS & VEE ACOUSTICAL CONTRACTORS, INC., without any negligence on the part of this third third party defendant. Furthermore, if the plaintiff and/or third third party plaintiff should recover a judgment against this third third party defendant, then the co-third third party defendants shall indemnify this third third party defendant for all or part of any such judgment, including reasonable attorneys' fees and costs, and in such amount as shall be ultimately determined upon the trial of this action, by reason of common law indemnity. AS AND FOR A SECOND CROSS-CLAIM AGAINST THIRD THIRD PARTY CO- DEFENDANTS B&G ELECTRICAL CONTRACTORS and ESS & VEE ACOUSTICAL CONTRACTORS, INC. FORTY-FIRST: That if the plaintiff and/or third third party plaintiffs sustained injuries and damages as alleged, through any fault other than the plaintiff's and/or third third party plaintiffs’ own fault, then such injuries and damages were sustained due to the primary, active and sole fault of co-third third party defendants B&G ELECTRICAL CONTRACTORS and ESS & VEE ACOUSTICAL CONTRACTORS, INC., and the fault, if any, of this answering third third party defendant vicarious only, based upon statutory and/or contractual liability, and if the plaintiff and/or third third party plaintiffs should obtain and/or recover judgment against this answering third third party defendant, then the co-third third party defendants shall be liable over to this answering third third party defendant for the full amount of said judgment or for any part hereof FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 obtained and/or recovered on the basis of apportionment of responsibility for the alleged occurrence as found by the Court or jury. WHEREFORE, defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC., demands judgment dismissing the plaintiff's and/or third third party plaintiffs’ Complaint(s) on the merits; and if plaintiff and/or third third party plaintiffs are found to have contributed to the accident or damages, that any damages be reduced in proportion to which the plaintiff and/or third third party plaintiffs may be found to have so contributed to the accident and damages, together with the costs and disbursements of this action and for such other and further relief as to this Court seems just and proper. Furthermore, if the plaintiff and/or third third party plaintiffs should recover a judgment against this third third party defendant, then the co-third third party defendants shall indemnify this defendant for all or part of any such judgment, including reasonable attorneys' fees and costs, and in such amount as shall be ultimately determined upon the trial of this action on the basis of apportionment of responsibility for the alleged occurrence as found by the Court or jury. Dated: New York, New York May 26, 2023 GOLDBERG SEGALLA, LLP ____________________________ Reed M. Podell Attorneys for Defendant/Third-Party Defendant/Second Third-Party Plaintiff/Third Third-Party Defendant BARING INDUSTRIES, INC. 711 3RD Avenue, Suite 1900 New York, New York 10017 (646) 292-8700 TO: Scott N. Singer, Esq. SACKS & SACKS, LLP Attorneys for the Plaintiff KEVIN McGONIGAL 150 Broadway 4th Floor New York, New York 10038 212-964-5500 FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 Alisa Dultz, Esq. FABIANI COHEN & HALL, LLP Attorneys for Defendant/Defendant-Third-Party Plaintiff and Third Third-Party Plaintiff PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP. 570 Lexington Avenue, 4th Floor New York, New York 10022 212-644-4420 David A. Lore, Esq. MILBER MAKRIS PLOUSADIS & SEIDEN, LLP Attorneys for Second T.P. Defendants Day & Nite Refrigeration Corp. and K.I.M.C.O. Refrigeration Corp. s/h/a KIMCO REFRIGERATION CORP. 1000 Woodbury Road,, Suite 402 Woodbury, New York 11797 (5126) 712-4000 Carol Morokoff, Esq. SMITH MAZURE, P.C. Attorneys for Third Third-Party Defendant Ess & Vee Acoustical Contractors, Inc. 111 John Street, 20th Floor New York, New York 10038 (212) 964-7400 Edward Guardaro, Jr., Esq. FULLERTON BECK, L.L.P. Attorneys for Third Third-Party Defendant B & G ELECTRICAL CONTRACTORS Four West Red Oak Lane White Plains, New York 10604 (914) 305-8634 FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 ATTORNEY’S VERIFICATION Reed M. Podell, hereby affirms under the penalties of perjury, pursuant to CPLR 2106, that he is an attorney admitted to practice in the Courts of this State and that he is a Partner with Goldberg Segalla LLP, attorneys for defendant/third party defendant/second third party plaintiff/third third party defendant, BARING INDUSTRIES, INC. in the within action; that the foregoing Amended Answer is true to his knowledge, except as to matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true. That this Amended Answer is affirmed by your affirmant and not by the defendant/third party defendant/second third party plaintiff/third third party defendant because the defendant/third party defendant/second third party plaintiff/third third party defendant upon information and belief, is a corporation and individual, whose offices and/or place of residence is not within the County where Goldberg Segalla LLP has its offices, and the source of affirmant's information, and the grounds for his belief as to all the matters as stated upon his knowledge, are the records and reports of investigation kept in the office of the said attorney for the defendant/third party defendant/second third party plaintiff/third third party defendant in connection with this action and the accident out of which said action arises. Dated: New York, New York May 24, 2023 _____________________________ Reed M. Podell FILED: NEW YORK COUNTY CLERK 05/26/2023 06:53 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 635 RECEIVED NYSCEF: 05/26/2023 ______________________________________________________________________________ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------X Index No. 158327/13 MICHELLE DEVITA, as Administratrix of the Estate of KEVIN McGONIGAL, Plaintiff, -against- NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., Defendants. ------------------------------------------------------X (AND THIRD PARTY ACTION) ______________________________________________________________________________ AMENDED VERIFIED ANSWER TO THIRD THIRD PARTY COMPLAINT ______________________________________________________________________________ GOLDBERG SEGALLA, LLP Attorneys for BARING INDUSTRIES INC 711 3RD Avenue, Suite 1900 New York, New York 10017 (646) 292-8700 Fax: (646) 292-8701 ______________________________________________________________________________ Service of a copy of the within is hereby admitted. Dated: ______________________________________ Attorney(s) for ______________________________________________________________________________ PLEASE TAKE NOTICE [ ] NOTICE OF ENTRY that the within is a (certified) true copy of a entered in the office of the clerk of the within named court on , 20 [ ] NOTICE OF SETTLEMENT that an Order of which the within is a true copy will be presented for settlement to the Hon. one of the judges of the within named Court, at on , 20 , at 9:30 a.m. Dated: New York, NY GOLDBERG SEGALLA, LLP Attorneys for BARING INDUSTRIES INC 711 3RD Avenue, Suite 1900 New York, New York 10017 To: Attorney(s) for