Preview
FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019
NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JOSE GOMEZ,
Plaintiff, Index No.: 527680/2019
-against-
VERIFIED ANSWER
91-93 FRANKLIN LLC,
Y.N.H. CONSTRUCTION INC, and
ALPINE READY MIX INC.,
Defendants.
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Defendants, 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC, by and
through their attorneys, RYAN & CONLON, LLP, 2 Wall Street, Suite 710, New York, New
York 10005, as and for its Answer to the plaintiff’s Complaint dated December 20, 2019, alleges
upon information and belief as follows:
AND AS FOR THE FIRST CAUSE OF ACTION
1. Admit to each and every allegation contained in paragraph 1 of the complaint.
2. Admit to each and every allegation contained in paragraph 2 of the complaint
3. Deny having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 3 of the complaint.
4. Admit to each and every allegation contained in paragraph 4 of the complaint.
5. Deny each and every allegation contained in paragraph 5 of the complaint as
phrased.
6. Deny each and every allegation contained in paragraph 6 of the complaint as
phrased.
7. Deny each and every allegation contained in paragraph 7 of the complaint as
phrased.
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8. Deny each and every allegation contained in paragraph 8 of the complaint as
phrased.
9. Deny each and every allegation contained in paragraph 9 of the complaint as
phrased.
10. Admit to each and every allegation contained in paragraph 10 of the complaint.
11. Admit to each and every allegation contained in paragraph 11 of the complaint.
12. Deny having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 12 of the complaint as phrased and refers all questions of
law to the Honorable Court.
13. Deny having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 13 of the complaint.
14. Deny having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 14 of the complaint.
15. Deny having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 15 of the complaint.
16. Admit to each and every allegation contained in paragraph 16 of the complaint.
17. Deny having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 17 of the complaint.
18. Deny having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 18 of the complaint.
19. Deny having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 19 of the complaint.
20. Deny having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 20 of the complaint.
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21. Deny each and every allegation contained in paragraph 21 of the complaint.
22. Deny each and every allegation contained in paragraph 22 of the complaint.
23. Deny having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 23 of the complaint.
24. Deny having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 24 of the complaint.
25. Deny each and every allegation contained in paragraph 25 of the complaint.
26. Deny each and every allegation contained in paragraph 26 of the complaint.
27. Deny each and every allegation contained in paragraph 27 of the complaint.
28. Denies having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 28 of the complaint as phrased and refers all questions of
law to the Honorable Court.
29. Denies having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 29 of the complaint as phrased and refers all questions of
law to the Honorable Court.
30. Denies having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 30 of the complaint as phrased and refers all questions of
law to the Honorable Court.
AS FOR THE SECOND CAUSE OF ACTION
31. Defendants, 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC, hereby
repeat, reiterate, reallege, and incorporate by reference each and every denial in answer to
paragraphs 1 through 30 of the complaint as if more specifically set forth in answer to paragraph
designated 31 of the complaint and each and every part thereof.
32. Deny each and every allegation contained in paragraph 32 of the complaint.
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33. Deny each and every allegation contained in paragraph 33 of the complaint.
34. Deny each and every allegation contained in paragraph 34 of the complaint.
35. Deny each and every allegation contained in paragraph 35 of the complaint.
36. Deny each and every allegation contained in paragraph 36 of the complaint.
37. Deny each and every allegation contained in paragraph 37 of the complaint.
38. Denies having knowledge or information sufficient to form a belief as to each and
every allegation contained in paragraph 38 of the complaint as phrased and refers all questions of
law to the Honorable Court.
AS AND FOR A CROSS COMPLAINT OVER AND AGAINST THE CO-DEFENDANT,
ALPINE READY MIX INC., THE DEFENDANTS, 91-93 FRANKLIN LLC and Y.N.H.
CONSTRUCTION INC, ALLEGES UPON INFORMATION AND BELIEF
39. That if the plaintiff was caused to sustain personal injuries and resulting damages
at the time and place set forth in the plaintiff’s complaint and in the manner alleged therein,
through any carelessness, recklessness, acts, omissions, negligence and/or breaches of duty
completely and wholly as a result of the actions or inactions of the co-defendants, other than of
the plaintiff, then the said injuries and damages arose out of the several and joint carelessness,
recklessness, acts, omissions, negligence, intentional acts and breaches of duty and/or obligation
and/or Statute and/or contract in fact or implied by law, upon the part of the co-defendant, with
indemnification and save harmless agreement and/or responsibility by them in fact and/or
implied in law and without any breaches or any negligence of the answering defendants
contributing thereto; and if the answering defendants are found negligent as to the plaintiff for
the injuries and damages set forth in the plaintiff’s complaint, then, and in that event, the relative
responsibilities of all said defendants in fairness must be apportioned by a separate determination
in view of the existing factual disparity, and the said co-defendants herein will be liable over
jointly and severally to the answering defendants and bound to fully indemnify and hold the
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answering defendants harmless for the full amount of any verdict or judgment that the plaintiff
herein may recover against the answering defendants in this action, including all costs of
investigation, disbursements, expenses of this action including attorney’s fees.
AS AND FOR A FIRST
AFFIRMATIVE DEFENSE
40. Pursuant to CPLR 1603, the limitations of CPLR 1601 and 1602 and all rights
contained in Article 16 applicable provisions are preserved and incorporated herein as though
fully set forth at length.
AS AND FOR A SECOND
AFFIRMATIVE DEFENSE
41. A violation of the New York State Labor Law and/or Industrial Code of the State
of New York was not the proximate cause of plaintiff’s injury.
AS AND FOR A THIRD
AFFIRMATIVE DEFENSE
42. All risks and danger of loss or damages connected with the situation alleged in
plaintiff’s Complaint were at the time and place mentioned obvious and apparent, and were
known by Plaintiff and voluntarily assumed by him.
AS AND FOR A FOURTH
AFFIRMATIVE DEFENSE
43. Plaintiff was not an employee/worker within the meaning of the labor law and
therefore not subject to its protections.
AS AND FOR A FIFTH
AFFIRMATIVE DEFENSE
44. That the personal injuries and/or damages alleged to have been sustained by the
plaintiff were caused entirely or in part through the culpable conduct of the plaintiff, without any
negligence on the part of the answering defendant and the answering defendant seeks a dismissal
or reduction in any recovery that may be had by the plaintiff in the proportion to which the
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culpable conduct, attributable to the plaintiff, bears to the entire measure of responsibility for the
occurrence.
AS AND FOR A SIXTH
AFFIRMATIVE DEFENSE
45. Upon information and belief, any past and/or future damages, costs or expenses
incurred or to be incurred by plaintiff for medical care, dental care, custodial care or
rehabilitative services, loss of earnings or other economic loss, had been or will with reasonable
certainty be replaced or indemnified in whole or in part from collateral source as defined in
section 4545(a) of the New York Civil Practice Law and Rules.
46. If any damages are recoverable against said defendant, the amount of such
damages shall be diminished by the amount of funds which plaintiff has or shall receive from
such collateral source.
AS AND FOR A SEVENTH
AFFIRMATIVE DEFENSE
47. That plaintiff’s Complaint fails to state a valid cause of action upon which relief
may be granted.
AS AND FOR AN EIGHTH
AFFIRMATIVE DEFENSE
48. Plaintiff’s injuries and/or damages, if any, were solely and proximately caused by
the actions and/or negligence of another person or persons for whom or which this defendant is
not responsible.
AS AND FOR A NINTH
AFFIRMATIVE DEFENSE
49. Plaintiff failed to mitigate damages.
AS AND FOR A TENTH
AFFIRMATIVE DEFENSE
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50. The claims against the answering Defendants, is barred by the provisions of
General Obligations Law § 5-322.1.
AS AND FOR AN ELEVENTH
AFFIRMATIVE DEFENSE
51. The negligence of those responsible for the accident or the occurrence alleged in
the Complaint constituted a separate, independent, superseding, intervening culpable act or acts
which constitute the sole proximate cause of the accident or occurrence alleged.
AS AND FOR A TWELFTH
AFFIRMATIVE DEFENSE
52. Plaintiff’s claims are barred by assumption of risk.
AS AND FOR A THIRTEENTH
AFFIRMATIVE DEFENSE
53. Upon information and belief, the injuries and damages alleged to have been
sustained by Plaintiff was not reasonably foreseeable.
AS AND FOR A FOURTEENTH
AFFIRMATIVE DEFENSE
54. Upon information and belief, Plaintiff disregarded warnings, safety measures, and
training, and refused to utilize safety equipment that was available to him. Therefore, Plaintiff’s
recoverable damages, if any, shall be diminished by the proportion to which the same disregard
of warnings such that plaintiff was a recalcitrant worker, safety measures, and training attributed
to Plaintiff, bears to the conduct which caused and/or contributed to the alleged damages or
injuries.
AS AND FOR A FIFTEENTH
AFFIRMATIVE DEFENSE
55. Plaintiff failed to take reasonable and/or adequate steps and precautions for his
own safety.
AS AND FOR A SIXTEENTH
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AFFIRMATIVE DEFENSE
56. The answering Defendants, did not create any defect or unsafe condition on the
property at issue.
AS AND FOR A SEVENTEENTH
AFFIRMATIVE DEFENSE
57. The answering Defendants, did not have actual notice or constructive notice of
any defect and/or unsafe condition on the property at issue.
AS AND FOR A EIGHTEENTH
AFFIRMATIVE DEFENSE
58. To the extent the answering Defendants, are found to have actual notice or
constructive notice of any defect and/or unsafe condition on the property at issue, the answering
defendants, did not have the opportunity prior to the time of Plaintiff’s claimed injury to
remediate or ameliorate any such defect and/or unsafe condition on the property at issue before
Plaintiff’s claimed injuries occurred.
AS AND FOR A NINETEENTH
AFFIRMATIVE DEFENSE
59. Plaintiff’s speculative, uncertain and/or contingent damages have not accrued and
are not recoverable.
AS AND FOR A TWENTIETH
AFFIRMATIVE DEFENSE
60. The answering Defendants, are not liable to plaintiff to the extent defendants did
not have sufficient control over the allegedly injury-producing work.
AS AND FOR A TWENTY-FIRST
AFFIRMATIVE DEFENSE
61. The alleged injuries and/or damages complained of were not proximately caused
by any negligence or culpable conduct on the part of the answering Defendants.
AS AND FOR A TWENTY-SECOND
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AFFIRMATIVE DEFENSE
62. Plaintiff’s claims against the answering Defendants, must be dismissed because
no applicable statutes, laws, rules or regulations were violated by defendant.
AS AND FOR A TWENTY-THIRD
AFFIRMATIVE DEFENSE
63. Plaintiff was the sole proximate cause of any injuries and/or damage Plaintiff may
have sustained at the time and place mentioned in the Complaint and/or as a result of the
occurrence alleged in the Complaint, all of which are denied by defendant.
AS AND FOR A TWENTY-FOURTH
AFFIRMATIVE DEFENSE
64. To the extent that Plaintiff asserts claims against the answering Defendants,
arising under Sections 240, 241(6), and/or 200 of the New York State Labor Law, such claims
must be dismissed because there was no defined gravity related risk, no applicable rules or
regulations were violated, and defendant did not supervise, direct or control the plaintiff’s work
or create or have notice of any condition.
AS AND FOR A TWENTY-FIFTH
AFFIRMATIVE DEFENSE
65. In the event that any person or entity liable or claimed to be liable for the injury
alleged in this action has been given or may hereafter be given a release or covenant not to sue,
the answering Defendants, will be entitled to protection under General Obligation Law § 15-108
and the corresponding reductions of any damages which may be determined to be due against
defendant.
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WHEREFORE, the Defendants, 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION
INC, demand judgment dismissing the plaintiff’s complaint on the merits; and if the plaintiff,
JOSE GOMEZ,, is found to have contributed to the accident or damages, that any damages be
reduced in proportion to which the plaintiff may be found to have so contributed to the accident
or damages in such amounts as a jury or Court may direct together with the costs, disbursements
and expenses of this action including attorney’s fees.
Dated: April 1, 2020
New York, New York
_______________________________
Paul J. Wells, Esq.
RYAN & CONLON, LLP
Attorneys for Defendants
91-93 FRANKLIN LLC and Y.N.H.
CONSTRUCTION INC,
2 Wall Street, Suite 710
New York, New York 10005
(212) 509-6009
TO: Glenn P. Dolan, Esq.
MORGAN LEVINE DOLAN, P.C.
Attorneys for Plaintiff
JOSE GOMEZ
18 East 41st Street, 6th Floor
New York, New York 10017
(212) 785-5115
ALPINE READY MIX INC.
4626 Metropolitan Avenue
Ridgewood, New York 11385
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Bethany Rodriguez
From: Ruby Campos
Sent: Friday, April 3, 2020 2:43 PM
To: 'dalicea@mldlegal.com'; 'dmorgan@mldlegal.com'; 'gdolan@mldlegal.com';
'jlevine@mldlegal.com'; 'kmeza@mldlegal.com'; 'denglish@mldlegal.com';
'jgoris@mldlegal.com'; 'afields@mldlegal.com'; 'jgorczyca@mldlegal.com';
'jnunez@mldlegal.com'; 'sthomas@mldlegal.com'; 'costerhof@bgbfirm.com';
'rmazzuchin@bgbfirm.com'
Cc: Paul Wells
Subject: JOSE GOMEZ v. 91-93 FRANKLIN LLC et al. [Index No.: 527680/2019]
Attachments: 033120 Attorney Verification.doc; 033120 Demand for BP.DOCX; 033120 Demand for
Collateral.docx; 033120 Demand for Expert.docx; 033120 Demand for Medicaid.docx;
033120 Verified Answer.docx; 033120 Demand for Insurance.docx; 033120 Demand for
Proof.docx; 033120 Notice to Take Dep.docx; 033120 Demand for Medicals.docx;
033120 Notice for D&I.DOCX
Good Afternoon All,
Please see the attached Answer on behalf of the defendant 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION
INC, along with discovery demands and notices.
Thank you for your attention to this matter.
Ruby B. Campos
Paralegal
Ryan & Conlon, LLP
2 Wall Street, Suite 710
New York, NY 10005
T: (212) 509-6009
F: (212) 509-6119
The information transmitted herein is intended only for the person or entity to which it is addressed and may contain confidential
and/or privileged material. Any view, retransmission, dissemination or other use of, or taking of any action in reliance upon this
information by persons or entities other than the intended recipient is prohibited. If you received this transmission in error, please
contact the sender and delete the material from any computer.
1
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Preview
FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------X JOSE GOMEZ, Plaintiff, Index No.: 527680/2019 -against- VERIFIED ANSWER 91-93 FRANKLIN LLC, Y.N.H. CONSTRUCTION INC, and ALPINE READY MIX INC., Defendants. -----------------------------------------------------------------------X Defendants, 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC, by and through their attorneys, RYAN & CONLON, LLP, 2 Wall Street, Suite 710, New York, New York 10005, as and for its Answer to the plaintiff’s Complaint dated December 20, 2019, alleges upon information and belief as follows: AND AS FOR THE FIRST CAUSE OF ACTION 1. Admit to each and every allegation contained in paragraph 1 of the complaint. 2. Admit to each and every allegation contained in paragraph 2 of the complaint 3. Deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 3 of the complaint. 4. Admit to each and every allegation contained in paragraph 4 of the complaint. 5. Deny each and every allegation contained in paragraph 5 of the complaint as phrased. 6. Deny each and every allegation contained in paragraph 6 of the complaint as phrased. 7. Deny each and every allegation contained in paragraph 7 of the complaint as phrased. 1 of 11 FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023 8. Deny each and every allegation contained in paragraph 8 of the complaint as phrased. 9. Deny each and every allegation contained in paragraph 9 of the complaint as phrased. 10. Admit to each and every allegation contained in paragraph 10 of the complaint. 11. Admit to each and every allegation contained in paragraph 11 of the complaint. 12. Deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 12 of the complaint as phrased and refers all questions of law to the Honorable Court. 13. Deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 13 of the complaint. 14. Deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 14 of the complaint. 15. Deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 15 of the complaint. 16. Admit to each and every allegation contained in paragraph 16 of the complaint. 17. Deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 17 of the complaint. 18. Deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 18 of the complaint. 19. Deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 19 of the complaint. 20. Deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 20 of the complaint. 2 of 11 FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023 21. Deny each and every allegation contained in paragraph 21 of the complaint. 22. Deny each and every allegation contained in paragraph 22 of the complaint. 23. Deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 23 of the complaint. 24. Deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 24 of the complaint. 25. Deny each and every allegation contained in paragraph 25 of the complaint. 26. Deny each and every allegation contained in paragraph 26 of the complaint. 27. Deny each and every allegation contained in paragraph 27 of the complaint. 28. Denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 28 of the complaint as phrased and refers all questions of law to the Honorable Court. 29. Denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 29 of the complaint as phrased and refers all questions of law to the Honorable Court. 30. Denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 30 of the complaint as phrased and refers all questions of law to the Honorable Court. AS FOR THE SECOND CAUSE OF ACTION 31. Defendants, 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC, hereby repeat, reiterate, reallege, and incorporate by reference each and every denial in answer to paragraphs 1 through 30 of the complaint as if more specifically set forth in answer to paragraph designated 31 of the complaint and each and every part thereof. 32. Deny each and every allegation contained in paragraph 32 of the complaint. 3 of 11 FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023 33. Deny each and every allegation contained in paragraph 33 of the complaint. 34. Deny each and every allegation contained in paragraph 34 of the complaint. 35. Deny each and every allegation contained in paragraph 35 of the complaint. 36. Deny each and every allegation contained in paragraph 36 of the complaint. 37. Deny each and every allegation contained in paragraph 37 of the complaint. 38. Denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph 38 of the complaint as phrased and refers all questions of law to the Honorable Court. AS AND FOR A CROSS COMPLAINT OVER AND AGAINST THE CO-DEFENDANT, ALPINE READY MIX INC., THE DEFENDANTS, 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC, ALLEGES UPON INFORMATION AND BELIEF 39. That if the plaintiff was caused to sustain personal injuries and resulting damages at the time and place set forth in the plaintiff’s complaint and in the manner alleged therein, through any carelessness, recklessness, acts, omissions, negligence and/or breaches of duty completely and wholly as a result of the actions or inactions of the co-defendants, other than of the plaintiff, then the said injuries and damages arose out of the several and joint carelessness, recklessness, acts, omissions, negligence, intentional acts and breaches of duty and/or obligation and/or Statute and/or contract in fact or implied by law, upon the part of the co-defendant, with indemnification and save harmless agreement and/or responsibility by them in fact and/or implied in law and without any breaches or any negligence of the answering defendants contributing thereto; and if the answering defendants are found negligent as to the plaintiff for the injuries and damages set forth in the plaintiff’s complaint, then, and in that event, the relative responsibilities of all said defendants in fairness must be apportioned by a separate determination in view of the existing factual disparity, and the said co-defendants herein will be liable over jointly and severally to the answering defendants and bound to fully indemnify and hold the 4 of 11 FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023 answering defendants harmless for the full amount of any verdict or judgment that the plaintiff herein may recover against the answering defendants in this action, including all costs of investigation, disbursements, expenses of this action including attorney’s fees. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 40. Pursuant to CPLR 1603, the limitations of CPLR 1601 and 1602 and all rights contained in Article 16 applicable provisions are preserved and incorporated herein as though fully set forth at length. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 41. A violation of the New York State Labor Law and/or Industrial Code of the State of New York was not the proximate cause of plaintiff’s injury. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 42. All risks and danger of loss or damages connected with the situation alleged in plaintiff’s Complaint were at the time and place mentioned obvious and apparent, and were known by Plaintiff and voluntarily assumed by him. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 43. Plaintiff was not an employee/worker within the meaning of the labor law and therefore not subject to its protections. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 44. That the personal injuries and/or damages alleged to have been sustained by the plaintiff were caused entirely or in part through the culpable conduct of the plaintiff, without any negligence on the part of the answering defendant and the answering defendant seeks a dismissal or reduction in any recovery that may be had by the plaintiff in the proportion to which the 5 of 11 FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023 culpable conduct, attributable to the plaintiff, bears to the entire measure of responsibility for the occurrence. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 45. Upon information and belief, any past and/or future damages, costs or expenses incurred or to be incurred by plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings or other economic loss, had been or will with reasonable certainty be replaced or indemnified in whole or in part from collateral source as defined in section 4545(a) of the New York Civil Practice Law and Rules. 46. If any damages are recoverable against said defendant, the amount of such damages shall be diminished by the amount of funds which plaintiff has or shall receive from such collateral source. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 47. That plaintiff’s Complaint fails to state a valid cause of action upon which relief may be granted. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 48. Plaintiff’s injuries and/or damages, if any, were solely and proximately caused by the actions and/or negligence of another person or persons for whom or which this defendant is not responsible. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 49. Plaintiff failed to mitigate damages. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 6 of 11 FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023 50. The claims against the answering Defendants, is barred by the provisions of General Obligations Law § 5-322.1. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 51. The negligence of those responsible for the accident or the occurrence alleged in the Complaint constituted a separate, independent, superseding, intervening culpable act or acts which constitute the sole proximate cause of the accident or occurrence alleged. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 52. Plaintiff’s claims are barred by assumption of risk. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 53. Upon information and belief, the injuries and damages alleged to have been sustained by Plaintiff was not reasonably foreseeable. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 54. Upon information and belief, Plaintiff disregarded warnings, safety measures, and training, and refused to utilize safety equipment that was available to him. Therefore, Plaintiff’s recoverable damages, if any, shall be diminished by the proportion to which the same disregard of warnings such that plaintiff was a recalcitrant worker, safety measures, and training attributed to Plaintiff, bears to the conduct which caused and/or contributed to the alleged damages or injuries. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 55. Plaintiff failed to take reasonable and/or adequate steps and precautions for his own safety. AS AND FOR A SIXTEENTH 7 of 11 FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023 AFFIRMATIVE DEFENSE 56. The answering Defendants, did not create any defect or unsafe condition on the property at issue. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 57. The answering Defendants, did not have actual notice or constructive notice of any defect and/or unsafe condition on the property at issue. AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE 58. To the extent the answering Defendants, are found to have actual notice or constructive notice of any defect and/or unsafe condition on the property at issue, the answering defendants, did not have the opportunity prior to the time of Plaintiff’s claimed injury to remediate or ameliorate any such defect and/or unsafe condition on the property at issue before Plaintiff’s claimed injuries occurred. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 59. Plaintiff’s speculative, uncertain and/or contingent damages have not accrued and are not recoverable. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 60. The answering Defendants, are not liable to plaintiff to the extent defendants did not have sufficient control over the allegedly injury-producing work. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 61. The alleged injuries and/or damages complained of were not proximately caused by any negligence or culpable conduct on the part of the answering Defendants. AS AND FOR A TWENTY-SECOND 8 of 11 FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023 AFFIRMATIVE DEFENSE 62. Plaintiff’s claims against the answering Defendants, must be dismissed because no applicable statutes, laws, rules or regulations were violated by defendant. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 63. Plaintiff was the sole proximate cause of any injuries and/or damage Plaintiff may have sustained at the time and place mentioned in the Complaint and/or as a result of the occurrence alleged in the Complaint, all of which are denied by defendant. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 64. To the extent that Plaintiff asserts claims against the answering Defendants, arising under Sections 240, 241(6), and/or 200 of the New York State Labor Law, such claims must be dismissed because there was no defined gravity related risk, no applicable rules or regulations were violated, and defendant did not supervise, direct or control the plaintiff’s work or create or have notice of any condition. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 65. In the event that any person or entity liable or claimed to be liable for the injury alleged in this action has been given or may hereafter be given a release or covenant not to sue, the answering Defendants, will be entitled to protection under General Obligation Law § 15-108 and the corresponding reductions of any damages which may be determined to be due against defendant. 9 of 11 FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023 WHEREFORE, the Defendants, 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC, demand judgment dismissing the plaintiff’s complaint on the merits; and if the plaintiff, JOSE GOMEZ,, is found to have contributed to the accident or damages, that any damages be reduced in proportion to which the plaintiff may be found to have so contributed to the accident or damages in such amounts as a jury or Court may direct together with the costs, disbursements and expenses of this action including attorney’s fees. Dated: April 1, 2020 New York, New York _______________________________ Paul J. Wells, Esq. RYAN & CONLON, LLP Attorneys for Defendants 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC, 2 Wall Street, Suite 710 New York, New York 10005 (212) 509-6009 TO: Glenn P. Dolan, Esq. MORGAN LEVINE DOLAN, P.C. Attorneys for Plaintiff JOSE GOMEZ 18 East 41st Street, 6th Floor New York, New York 10017 (212) 785-5115 ALPINE READY MIX INC. 4626 Metropolitan Avenue Ridgewood, New York 11385 10 of 11 FILED: KINGS COUNTY CLERK 03/09/2023 12:45 PM INDEX NO. 527680/2019 NYSCEF DOC. NO. 217 RECEIVED NYSCEF: 03/09/2023 Bethany Rodriguez From: Ruby Campos Sent: Friday, April 3, 2020 2:43 PM To: 'dalicea@mldlegal.com'; 'dmorgan@mldlegal.com'; 'gdolan@mldlegal.com'; 'jlevine@mldlegal.com'; 'kmeza@mldlegal.com'; 'denglish@mldlegal.com'; 'jgoris@mldlegal.com'; 'afields@mldlegal.com'; 'jgorczyca@mldlegal.com'; 'jnunez@mldlegal.com'; 'sthomas@mldlegal.com'; 'costerhof@bgbfirm.com'; 'rmazzuchin@bgbfirm.com' Cc: Paul Wells Subject: JOSE GOMEZ v. 91-93 FRANKLIN LLC et al. [Index No.: 527680/2019] Attachments: 033120 Attorney Verification.doc; 033120 Demand for BP.DOCX; 033120 Demand for Collateral.docx; 033120 Demand for Expert.docx; 033120 Demand for Medicaid.docx; 033120 Verified Answer.docx; 033120 Demand for Insurance.docx; 033120 Demand for Proof.docx; 033120 Notice to Take Dep.docx; 033120 Demand for Medicals.docx; 033120 Notice for D&I.DOCX Good Afternoon All, Please see the attached Answer on behalf of the defendant 91-93 FRANKLIN LLC and Y.N.H. CONSTRUCTION INC, along with discovery demands and notices. Thank you for your attention to this matter. Ruby B. Campos Paralegal Ryan & Conlon, LLP 2 Wall Street, Suite 710 New York, NY 10005 T: (212) 509-6009 F: (212) 509-6119 The information transmitted herein is intended only for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any view, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is prohibited. If you received this transmission in error, please contact the sender and delete the material from any computer. 1 11 of 11