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FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023
EXHIBIT G
FILED:
F ILED : ALBANY
BRONX COUNTY CLERK
COUNTY CLERK 11/03/2014
09/08/2023 11:12:39 PM INDINDEX
EX NONO.
. 2 4908471-23
2 6 3 / 2 0 13E
29 AM|
NYSCEF
NYSCEF DOC.
DOC. NO. 34
NO. 9 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 09/08/2023
11/03/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
__---______________......._______________________Ç
EDWIN SAUL CORLETO and ALBA CORI, Index No.: 24263/2013E
Plaintiffs,
-against-
VERIFIED ANSWER TO
HENRY RESTORATION LTD and EUCLID HALL THIRD-PARTY COMPLAINT
HOUSING DEVELOPMENT FUND COMPANY INC.,
Defendants.
_____________________..____________________...x
HENRY RESTORATION LTD,
Third-Party Plaintiff, Index No.:
-against-
BSK RESTORATION CORPORATION,
Third-Party Defendant.
.._.._____________________.._______.---------..x
Third-party defendant BSK RESTORATION CORPORATION, by its attorneys, LEWIS
BRISBOIS BISGAARD & SMITH LLP, as and for its Answer to the Third-Party Complaint,
alleges upon information and belief:
1. Defendant denies knowledge or information sufficient upon which to form a
belief as to the truth of the allegations contained in paragraphs numbered "1", "2", "3", "4", "5",
"6" "7"
and in the third-party complaint.
2. Defendant denies each and every allegation contained in the third-party complaint
designated as paragraph numbered "8", and respectfully refers all questions of law to the Court.
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
3. With respect to paragraph numbered "9", third-party defendant repeats, reiterates
"1"
and realleges each and every allegation in the foregoing paragraphs through "8", as if each
were more fully set forth herein.
4845.-912.7-9904.1
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4. Defendant denies each and every allegation contained in the third-party complaint
"10"
designated as paragraphs numbered and "11", and respectfully refers all questions of law to
the Court.
AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
5. With respect to paragraph number "12", third-party defendant repeats, reiterates
"1"
and realleges each and every allegation in the foregoing paragraphs through "11", as if each
were more fully set forth herein.
6. Defendant denies each and every allegation contained in the third-party complaint
"14"
designated as paragraphs numbered "13", and "15", and respectfully refers all questions of
law to the Court.
AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
7. With respect to paragraph number "16", the answering third-party defendant
"1"
repeats, reiterates and realleges each and every allegation in the foregoing paragraphs
through "15", as if each were more fully set forth herein.
8. Defendant denies each and every allegation contained in the third-party complaint
"18"
designated as paragraphs numbered "17", and "19", and respectfully refers all questions of
law to the Court.
AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION
9. With respect to paragraph number "20", the answering second third-party
defendant repeats, reiterates and realleges each and every allegation in the fomgoing paragraphs
"1"
though "19", as if each were more fully set forth herein.
4845-9)-9904 -2-
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10. Defendant denies each and every allegation contained in the third-party complaint
designated as paragraph numbered "21", and respectfully refers all questions of law to the Court.
11. Defendant denies each and every allegation contained in the plaintiff's
WHEREFORE clause.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
12. If the plaintiffs incurred any injuries or damages as alleged in the complaint, such
injuries and/or damages were incurred entirely as a result of subsequent substantial modifications
and/or alterations to the instrumentalities identified in the complaint by persons or entities not
under the control of the answering third-party defendant without any negligence or breach of
warranty on behalf of the answering third-party defendant.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
13. If plaintiffs and third-party plaintiff incurred any injuries as alleged in the
complaint, such injuries and/or damages were incurred entirely as a result of misuse of the
instrumentalities identified in the complaint by the plaintiffs and/or third-party plaintiff without
any negligence or breach of warranty on behalf of the answering third-party defendant.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
14. If there were any defects in the workmanship alleged in the complaint, which the
answering third-party defendant specifically denies, plaintiffs and third-party plaintiff failed to
exercise reasonable care to discover the alleged defects and to mitigate the damages therefrom.
4845-9127-9904.1 -3-
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
15. Any damages suffered by the plaintiffs and third-party plaintiff were the result of
the culpable conduct or fault of other persons for whose conduct the answering third-party
defendant is not legally responsible.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
16. Without relieving third-party plaintiff of its burden of proof of establishing their
injuries or damages, if any, any damages sustained by the third-party plaintiff were proximately
caused or contributed to by the intervening or superseding intentional conduct or negligence of
third-parties that is not named in this action.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
17. Upon information and belief, that whatever damages the third-party plaintiff may
have sustained may at the time and place mentioned in the Complaint were caused in whole or in
part by the culpable conduct of the third-party plaintiff. The amount of damages recovewd, if
any, shall therefore be diminished in the proportion to which said culpable conduct, attributable
to third-party plaintiff, and/or third-party plaintiff bears to the culpable conduct which caused
said injuries and/or damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
18. The workmanship in question was not defective but was modified, bypassed and
otherwise altered by persons or entities not under the control of the answering third-party
defendant.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
19. The third-party plaintiff has failed to bring all necessary and indispensable parties
into this action.
4845-9127-9904.1
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AS AND FOR A NINTH AFFIRMATIVE DEFENSE
20. The third-party plaintiff has failed to plead causes of action for negligence and
unjust enrichment for which relief can be granted.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
21. Upon information and belief, that any and all risks, hazards, defects or dangers
alleged were open, obvious and apparent, natural and inherent and known, or should have been
known to the plaintiffs herein, and the plaintiffs voluntarily assumed all such risks, hazards,
defects and dangers.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
22. If and in the event the answering third-party defendant is found to be liable to the
plaintiffs and/or third-party plaintiff, the answering third-party defendant's liability is limited by
the provisions of the CPLR Article 16.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
23. In the event the plaintiffs and/or third-party plaintiff recover a verdict or judgment
against the answering third-party defendant, then said verdict or judgment must be reduced
pursuant to CPLR § 4545 (c) by those amounts which have been, or will, with reasonable
certainty, replace or indemnify plaintiffs and/or third-party plaintiff, in whole or in part, for any
past or future claimed economic loss, from any collateral source.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
24. Plaintiffs and third-party plaintiff failed to mitigate, obviate, diminish or
otherwise act to lessen or reduce the injuries, damages and disabilities alleged in the Complaint.
4845-9127-9904.1 -5-
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AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
25. That the third-party complaint fails to state a cause or causes of action upon
which relief can be granted against the answering third-party defendant.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
26. Upon information and belief, no act, error or omission, on the part of the
plaintiffs'
answering third-party defendant as alleged in third-party complaint was the proximate
cause of any damage, loss or injury to plaintiffs and/or third-party plaintiff.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
plaintiffs' third-
27. Upon information and belief, the causes of action asserted in
party complaint against the answering third-party defendant are barred in whole or in party by
the doctrine of laches.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
28. Upon information and belief, the causes of action asserted in the third-party
plaintiffs'
complaint against the answering third-party defendant is barred in whole or in part by
the doctrine of estoppel.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
29. Upon information and belief, that plaintiffs and third-party plaintiff sustained no
damage proximately caused as a result of any alleged breach of contract between third-party
plaintiff and the answering third-party defendant.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
30. Upon information and belief, this action is barred by the applicable statute of
limitations.
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AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
plaintiffs'
31. Upon information and belief, the action is barred by third-party express
assumption of the risk for the activity third-party plaintiff and/or its agents, subrogors, etc. were
carrying out at the time of the occurrence.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
plaintiffs'
32. Upon information and belief, the action is barred by and/or third-party
plaintiffs'
misuse of the instrumentality described in the Complaint.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
33. Upon information and belief, if any damages were sustained by the plaintiffs as
plaintiffs'
alleged in the and third-party plaintiff's complaint, which damages are expressly
denied, all such damages have been caused or were brought about, in whole or in part, by the
affirmative wrongdoing, negligence, want of care, omissions, failure to mitigate damages, or
other culpable conduct or comparative negligence of the plaintiffs and/or third-party plaintiff,
their agents, servants, employees and such persons other than the answering third-party
defendant, without the affirmative acts of the answering third-party defendant contributing
plaintiffs'
thereto, and as a consequence thereof, and third-party plaintiff's damages, if any,
plaintiffs'
should be reduced by the proportion of the and third-party plaintiff's culpable conduct
which caused the alleged damages.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
34. Answering third-party defendant did not breach any obligation of good faith or
otherwise allegedly owed to the plaintiffs and/or third-party plaintiff.
4845-9127-9904. I _7.
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AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
35. Answering third-party defendant did not breach any contractual obligation
allegedly owed to the plaintiffs and/or third-party plaintiff, including but not limited to an
alleged obligation to procure insurance.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
39. Answering third-party defendant complied with all of the terms and conditions
plaintiffs'
upon which it was obligated to comply which are referred to in the and third-party
plaintiff's complaint.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
40. Answering third-party defendant has no contractual or common law obligation to
indemnify and/or hold harmless the third-party plaintiff.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
4L Plaintiff was a recalcitrant worker.
AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs'
42. conductwasthe sole proximate cause ofhisinjuries.
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
43. The New York Labor Law does not apply to the answering third-party defendant.
AS AND FOR A COUNTERCLAIM AGAINST DEFENDANTS
HENRY RESTORATION LTD and EUCLID HALL
HOUSING DEVELOPMENT FUND COMPANY INC.
44. Upon information and belief, that if and in the event plaintiffs sustained the
injuries and damages complained of, such injuries and damages were caused in whole or in part
by reason of the wrongful conduct of defendants and/or third-party plaintiff, there being no
4845-9127-9904.1 -8.
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active or primary wrong-doing on the part of the answering third-party defendant BSK
RESTORATION CORPORATION contributing thereto.
45. By reason of the foregoing, and under the principles of common law indemnity
and/or contribution and contractual indemnification, third-party plaintiff is obligated to
indemnify the answering third-party defendant BSK RESTORATION CORPORATION by
plaintiffs'
reason of the occurrence described in complaint and third-party plaintiff's complaint,
or, in the alternative, for such proportion of any judgment as the relative responsibilities may
warrant, and the answering third-party defendant BSK RESTORATION CORPORATION is
entitled to have judgment over and against defendants and/or third-party plaintiff for all or any
verdict or judgment which may be recurring herein against the answering third-party defendant
BSK RESTORATION CORPORATION in this action.
WHEREFORE, third-party defendant BSK RESTORATION CORPORATION, by and
through its attorneys, LEWIS BRISBOIS BISGAARD & SMITH LLP, respectfully demands
judgment dismissing the third-party complaint, herein; demands judgment on the counter-claim
against HENRY RESTORATION LTD and EUCLID HALL HOUSING DEVELOPMENT
FUND COMPANY for the amount of judgment obtained against the third-
INC., any answering
party defendant, on the basis of apportionment of responsibility, in such amounts as a jury or
Court may direct; together with the costs and disbursements of this action; and for such other and
further relief as to this Honorable Court may deem just, proper and equitable.
Dated: New York, New York
October 28, 2014
4845-9127-9904.1 -9-
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NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023
Yours, etc.
LEWI RIS DIS G & SMITH LLP
By:
GRE 1 TZ
Attorneys for hird-Party Defendant
BSK RESTORATION CORPORATION
77 Water Street, Suite 2100
New York, New York 10005
(212) 232-1300
File No. : 19995.1307
TO: GINARTE, O'DWYER, GONZALEZ
GALLARDO AND WINOGRAD LLP
Attorneys for Plaintiffs
225 Broadway, 13th Floor
New York, New York 10024
GORTON & GORTON, LLP
Attorneys for Defendant/Third-Party Plaintiff
HENRY RESTORATION LTD
1539 Franklin Avenue
Mineola, New York 11501
(516) 742-8466
EUCLID HALL HOUSING
DEVELOPMENT FUND COMPANY INC.
2345 Broadway
New York, New York 10024
4845-9127-9904.1 -10-
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NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023
VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
GREGORY S. KATZ, being an attorney duly admitted to practice before the Courts of
the State of New York and fully aware of the penalties of perjury, hereby affirms as follows:
Affirmant is a member with the law firm of LEWIS BRISBOIS BISGAARD & SMITH
LLP, attorneys for the answering third-party defendant BSK RESTORATION CORPORATION
in the within action,
Preview
FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023 EXHIBIT G FILED: F ILED : ALBANY BRONX COUNTY CLERK COUNTY CLERK 11/03/2014 09/08/2023 11:12:39 PM INDINDEX EX NONO. . 2 4908471-23 2 6 3 / 2 0 13E 29 AM| NYSCEF NYSCEF DOC. DOC. NO. 34 NO. 9 RECEIVED RECEIVED NYSCEF: NYSCEF: 09/08/2023 11/03/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX __---______________......._______________________Ç EDWIN SAUL CORLETO and ALBA CORI, Index No.: 24263/2013E Plaintiffs, -against- VERIFIED ANSWER TO HENRY RESTORATION LTD and EUCLID HALL THIRD-PARTY COMPLAINT HOUSING DEVELOPMENT FUND COMPANY INC., Defendants. _____________________..____________________...x HENRY RESTORATION LTD, Third-Party Plaintiff, Index No.: -against- BSK RESTORATION CORPORATION, Third-Party Defendant. .._.._____________________.._______.---------..x Third-party defendant BSK RESTORATION CORPORATION, by its attorneys, LEWIS BRISBOIS BISGAARD & SMITH LLP, as and for its Answer to the Third-Party Complaint, alleges upon information and belief: 1. Defendant denies knowledge or information sufficient upon which to form a belief as to the truth of the allegations contained in paragraphs numbered "1", "2", "3", "4", "5", "6" "7" and in the third-party complaint. 2. Defendant denies each and every allegation contained in the third-party complaint designated as paragraph numbered "8", and respectfully refers all questions of law to the Court. AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION 3. With respect to paragraph numbered "9", third-party defendant repeats, reiterates "1" and realleges each and every allegation in the foregoing paragraphs through "8", as if each were more fully set forth herein. 4845.-912.7-9904.1 FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023 4. Defendant denies each and every allegation contained in the third-party complaint "10" designated as paragraphs numbered and "11", and respectfully refers all questions of law to the Court. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION 5. With respect to paragraph number "12", third-party defendant repeats, reiterates "1" and realleges each and every allegation in the foregoing paragraphs through "11", as if each were more fully set forth herein. 6. Defendant denies each and every allegation contained in the third-party complaint "14" designated as paragraphs numbered "13", and "15", and respectfully refers all questions of law to the Court. AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION 7. With respect to paragraph number "16", the answering third-party defendant "1" repeats, reiterates and realleges each and every allegation in the foregoing paragraphs through "15", as if each were more fully set forth herein. 8. Defendant denies each and every allegation contained in the third-party complaint "18" designated as paragraphs numbered "17", and "19", and respectfully refers all questions of law to the Court. AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION 9. With respect to paragraph number "20", the answering second third-party defendant repeats, reiterates and realleges each and every allegation in the fomgoing paragraphs "1" though "19", as if each were more fully set forth herein. 4845-9)-9904 -2- FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023 10. Defendant denies each and every allegation contained in the third-party complaint designated as paragraph numbered "21", and respectfully refers all questions of law to the Court. 11. Defendant denies each and every allegation contained in the plaintiff's WHEREFORE clause. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 12. If the plaintiffs incurred any injuries or damages as alleged in the complaint, such injuries and/or damages were incurred entirely as a result of subsequent substantial modifications and/or alterations to the instrumentalities identified in the complaint by persons or entities not under the control of the answering third-party defendant without any negligence or breach of warranty on behalf of the answering third-party defendant. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 13. If plaintiffs and third-party plaintiff incurred any injuries as alleged in the complaint, such injuries and/or damages were incurred entirely as a result of misuse of the instrumentalities identified in the complaint by the plaintiffs and/or third-party plaintiff without any negligence or breach of warranty on behalf of the answering third-party defendant. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 14. If there were any defects in the workmanship alleged in the complaint, which the answering third-party defendant specifically denies, plaintiffs and third-party plaintiff failed to exercise reasonable care to discover the alleged defects and to mitigate the damages therefrom. 4845-9127-9904.1 -3- FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 15. Any damages suffered by the plaintiffs and third-party plaintiff were the result of the culpable conduct or fault of other persons for whose conduct the answering third-party defendant is not legally responsible. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 16. Without relieving third-party plaintiff of its burden of proof of establishing their injuries or damages, if any, any damages sustained by the third-party plaintiff were proximately caused or contributed to by the intervening or superseding intentional conduct or negligence of third-parties that is not named in this action. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 17. Upon information and belief, that whatever damages the third-party plaintiff may have sustained may at the time and place mentioned in the Complaint were caused in whole or in part by the culpable conduct of the third-party plaintiff. The amount of damages recovewd, if any, shall therefore be diminished in the proportion to which said culpable conduct, attributable to third-party plaintiff, and/or third-party plaintiff bears to the culpable conduct which caused said injuries and/or damages. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 18. The workmanship in question was not defective but was modified, bypassed and otherwise altered by persons or entities not under the control of the answering third-party defendant. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 19. The third-party plaintiff has failed to bring all necessary and indispensable parties into this action. 4845-9127-9904.1 FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023 AS AND FOR A NINTH AFFIRMATIVE DEFENSE 20. The third-party plaintiff has failed to plead causes of action for negligence and unjust enrichment for which relief can be granted. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 21. Upon information and belief, that any and all risks, hazards, defects or dangers alleged were open, obvious and apparent, natural and inherent and known, or should have been known to the plaintiffs herein, and the plaintiffs voluntarily assumed all such risks, hazards, defects and dangers. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 22. If and in the event the answering third-party defendant is found to be liable to the plaintiffs and/or third-party plaintiff, the answering third-party defendant's liability is limited by the provisions of the CPLR Article 16. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 23. In the event the plaintiffs and/or third-party plaintiff recover a verdict or judgment against the answering third-party defendant, then said verdict or judgment must be reduced pursuant to CPLR § 4545 (c) by those amounts which have been, or will, with reasonable certainty, replace or indemnify plaintiffs and/or third-party plaintiff, in whole or in part, for any past or future claimed economic loss, from any collateral source. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 24. Plaintiffs and third-party plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce the injuries, damages and disabilities alleged in the Complaint. 4845-9127-9904.1 -5- FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023 AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 25. That the third-party complaint fails to state a cause or causes of action upon which relief can be granted against the answering third-party defendant. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 26. Upon information and belief, no act, error or omission, on the part of the plaintiffs' answering third-party defendant as alleged in third-party complaint was the proximate cause of any damage, loss or injury to plaintiffs and/or third-party plaintiff. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE plaintiffs' third- 27. Upon information and belief, the causes of action asserted in party complaint against the answering third-party defendant are barred in whole or in party by the doctrine of laches. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 28. Upon information and belief, the causes of action asserted in the third-party plaintiffs' complaint against the answering third-party defendant is barred in whole or in part by the doctrine of estoppel. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 29. Upon information and belief, that plaintiffs and third-party plaintiff sustained no damage proximately caused as a result of any alleged breach of contract between third-party plaintiff and the answering third-party defendant. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 30. Upon information and belief, this action is barred by the applicable statute of limitations. 48.45m9127-9904.1 - 6- FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023 AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE plaintiffs' 31. Upon information and belief, the action is barred by third-party express assumption of the risk for the activity third-party plaintiff and/or its agents, subrogors, etc. were carrying out at the time of the occurrence. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE plaintiffs' 32. Upon information and belief, the action is barred by and/or third-party plaintiffs' misuse of the instrumentality described in the Complaint. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 33. Upon information and belief, if any damages were sustained by the plaintiffs as plaintiffs' alleged in the and third-party plaintiff's complaint, which damages are expressly denied, all such damages have been caused or were brought about, in whole or in part, by the affirmative wrongdoing, negligence, want of care, omissions, failure to mitigate damages, or other culpable conduct or comparative negligence of the plaintiffs and/or third-party plaintiff, their agents, servants, employees and such persons other than the answering third-party defendant, without the affirmative acts of the answering third-party defendant contributing plaintiffs' thereto, and as a consequence thereof, and third-party plaintiff's damages, if any, plaintiffs' should be reduced by the proportion of the and third-party plaintiff's culpable conduct which caused the alleged damages. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 34. Answering third-party defendant did not breach any obligation of good faith or otherwise allegedly owed to the plaintiffs and/or third-party plaintiff. 4845-9127-9904. I _7. FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023 AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 35. Answering third-party defendant did not breach any contractual obligation allegedly owed to the plaintiffs and/or third-party plaintiff, including but not limited to an alleged obligation to procure insurance. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 39. Answering third-party defendant complied with all of the terms and conditions plaintiffs' upon which it was obligated to comply which are referred to in the and third-party plaintiff's complaint. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 40. Answering third-party defendant has no contractual or common law obligation to indemnify and/or hold harmless the third-party plaintiff. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 4L Plaintiff was a recalcitrant worker. AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiffs' 42. conductwasthe sole proximate cause ofhisinjuries. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 43. The New York Labor Law does not apply to the answering third-party defendant. AS AND FOR A COUNTERCLAIM AGAINST DEFENDANTS HENRY RESTORATION LTD and EUCLID HALL HOUSING DEVELOPMENT FUND COMPANY INC. 44. Upon information and belief, that if and in the event plaintiffs sustained the injuries and damages complained of, such injuries and damages were caused in whole or in part by reason of the wrongful conduct of defendants and/or third-party plaintiff, there being no 4845-9127-9904.1 -8. FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023 active or primary wrong-doing on the part of the answering third-party defendant BSK RESTORATION CORPORATION contributing thereto. 45. By reason of the foregoing, and under the principles of common law indemnity and/or contribution and contractual indemnification, third-party plaintiff is obligated to indemnify the answering third-party defendant BSK RESTORATION CORPORATION by plaintiffs' reason of the occurrence described in complaint and third-party plaintiff's complaint, or, in the alternative, for such proportion of any judgment as the relative responsibilities may warrant, and the answering third-party defendant BSK RESTORATION CORPORATION is entitled to have judgment over and against defendants and/or third-party plaintiff for all or any verdict or judgment which may be recurring herein against the answering third-party defendant BSK RESTORATION CORPORATION in this action. WHEREFORE, third-party defendant BSK RESTORATION CORPORATION, by and through its attorneys, LEWIS BRISBOIS BISGAARD & SMITH LLP, respectfully demands judgment dismissing the third-party complaint, herein; demands judgment on the counter-claim against HENRY RESTORATION LTD and EUCLID HALL HOUSING DEVELOPMENT FUND COMPANY for the amount of judgment obtained against the third- INC., any answering party defendant, on the basis of apportionment of responsibility, in such amounts as a jury or Court may direct; together with the costs and disbursements of this action; and for such other and further relief as to this Honorable Court may deem just, proper and equitable. Dated: New York, New York October 28, 2014 4845-9127-9904.1 -9- FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023 Yours, etc. LEWI RIS DIS G & SMITH LLP By: GRE 1 TZ Attorneys for hird-Party Defendant BSK RESTORATION CORPORATION 77 Water Street, Suite 2100 New York, New York 10005 (212) 232-1300 File No. : 19995.1307 TO: GINARTE, O'DWYER, GONZALEZ GALLARDO AND WINOGRAD LLP Attorneys for Plaintiffs 225 Broadway, 13th Floor New York, New York 10024 GORTON & GORTON, LLP Attorneys for Defendant/Third-Party Plaintiff HENRY RESTORATION LTD 1539 Franklin Avenue Mineola, New York 11501 (516) 742-8466 EUCLID HALL HOUSING DEVELOPMENT FUND COMPANY INC. 2345 Broadway New York, New York 10024 4845-9127-9904.1 -10- FILED: ALBANY COUNTY CLERK 09/08/2023 12:39 PM INDEX NO. 908471-23 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 09/08/2023 VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) GREGORY S. KATZ, being an attorney duly admitted to practice before the Courts of the State of New York and fully aware of the penalties of perjury, hereby affirms as follows: Affirmant is a member with the law firm of LEWIS BRISBOIS BISGAARD & SMITH LLP, attorneys for the answering third-party defendant BSK RESTORATION CORPORATION in the within action,