Preview
INDEX NO. 155570/2016
FILED: NEW YORK COUNTY CLERK 08/25/2016 04:32 PM
NYSCEF DOC. NQ). 7 RECEIVED NYSCEF: 08/25/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ANTHONY MAGNI, Index No.:155570/16E
Plaintiff, ANSWER TO
PLAINTIFF’S VERIFIED
-against- COMPLAINT WITH
CROSS-CLAIMS AND
THIRD AVENUE TOWNER OWNER, LLC, POLSINELLI DEMAND TO ANSWER
PC and CLUNE CONSTRUCTION COMPANY, L.P.,
Defendants.
cee X
PLEASE TAKE NOTICE, that defendant, THIRD AVENUE TOWNER OWNER,
LLC, by its attorneys, O;CONNOR REDD LLP as and for its Verified Answer to plaintiff's
Verified Complaint, sets forth the following, upon information and belief:
ANSWERING THE FIRST CAUSE OF ACTION
FIRST: Denies each and every allegation contained in the paragraphs of the
Verified Complaint marked and designated “1”, “2", “10", “11", “12", “13", “14", "15", “16",
"47", "48" "49" "20", "21", 22", "23", “60", "61", "62", “63", “64", “65", “66", “67", and "68".
SECOND: The paragraphs of the Verified Amended Complaint marked and
designated “3", and “9" are admitted.
THIRD: Denies any knowledge or information sufficient to form a belief as to the
truth or falsity of the allegations in the paragraphs of the Verified Complaint marked and
designated “4”, “5", “6", “7", “8", "24", "25", "26", "27", "28", “29", "30", "34", "32", "33",
"34", "35", "36", "37", "38", “39", "40", "41", "42", "43", "44" "45", "46", “47" "4g" “4gr,
"50", “51", "52", “53", "54", "55", "56", “57", “58", and “59”,
ANSWERING THE SECOND CAUSE OF ACTION
FOURTH: As to paragraph “69” of the plaintiff's Verified Complaint, the answering
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defendant repeats, realleges and reiterates each and every denial of the allegations
contained in the paragraphs of the Verified Complaint marked and designated “1” through
“68” as if said denials were more fully and specifically set forth at length herein.
FIFTH: Denies each and every allegation contained in the paragraphs of the
Verified Complaint marked and designated “70”, “71", “72", “73", and “74".
AS AND FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
SIXTH: Any injuries and/or damages sustained by the plaintiff, as alleged in the
plaintiff's Verified Complaint herein, which the answering defendant denies, were caused,
in whole or in part, by the contributory negligence and/or culpable conduct of the plaintiff
and not as a result of any negligence and/or culpable conduct on the part of the
answering defendant.
AS AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
SEVENTH: That by entering into the activity in which the plaintiff was engaged at
the time of the occurrence set forth in the complaint, said plaintiff knew the inherent risks
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 voluntarily undertaken by the plaintiff in the
activities and such risks were assumed and accepted by the plaintiff in performing and
engaging in said activities.
AS AND FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
EIGHTH: If there were any defects or hazardous condition (hereafter collectively
referred to as “defect’) in the shelving referred to in plaintiff's complaint, which this
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answering defendant denies, plaintiff failed to exercise reasonable care to discover the
alleged defects and to appreciate the dangers thereof.
AS AND FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
NINTH: A necessary or indispensable party has not been joined and, therefore,
the action should not proceed and should be dismissed.
AS AND FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TENTH: In the event plaintiff recover a verdict or judgment against this answering
defendants, then said verdict or judgment must be reduced pursuant to CPLR 4545(c)
by those amounts which have been orwill, with reasonable certainty, replace or indemnify
plaintiff in whole or in part, for any past or future claimed economic loss, from any
collateral source such as insurance, social security, Workers’ Compensation or employee
benefit programs.
AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
ELEVENTH: Pursuant to the provisions of Article 16 of the C.P.L.R., should this
answering Defendant be found liable for damages, such liability being 50 percent or less
of the total liability assigned to all persons liable, the liability of this answering Defendant
for non-economic loss shall not exceed its equitable share determined in accordance with
the relative culpability of all parties liable.
AS AND FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TWELFTH: The negligence of a third person or entity over whom this answering
defendant had no control was a superseding cause and insulates this answering
defendant from liability.
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AS AND FOR A EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
THIRTEENTH: Plaintiff destroyed evidence that was subject to discovery in this
lawsuit and would be admissible in evidence at trial, thereby depriving this Court and this
answering defendant of such evidence and, therefore, plaintiff's suit ought to be barred.
AS AND FOR A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
FOURTEENTH: An unknown third-party destroyed evidence that was subject to
discovery in this lawsuit and would be admissible in evidence at trial, thereby depriving
this Court and this answering defendant of such evidence and, therefore, plaintiffs suit
ought to be barred.
AS AND FOR A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
FIFTEENTH: Plaintiff failed to exercise ordinary care to effect a cure and to
prevent aggravation of the alleged injury and damages.
AS AND FOR A ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
SIXTEENTH: The provisions of C.P.L.R. Article 50-B apply to any verdict in this
case.
AS AND FOR A TWELFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
SEVENTEENTH: The dangers, if any, alleged in the complaint were patent, open
and obvious.
AS AND FOR A CROSS-CLAIM AGAINST THE CO-DEFENDANTS POLSINELLI PC
AND CLUNE CONSTRUCTION COMPANY, L.P., DEFENDANT, THIRD AVENUE
TOWER OWNER, LLC, ALLEGES:
EIGHTEENTH: If Plaintiff sustained any injuries or damages as alleged in the
Verified Complaint, which this answering defendant denies, then such injuries or
4
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damages were caused by reason of the culpable conduct, acts or omissions, negligence,
strict products liability, statutory violation, breach of contract, obligation or warranty of the
co-defendant(s) above-named.
By reason of the foregoing, this answering defendant is entitled to
indemnification or contribution from, and to have judgment against the co-defendant(s)
above-named, for all or part of any verdict or judgment that plaintiff may recover against
this answering defendant.
WHEREFORE, defendant, THIRD AVENUE TOWER OWNER, LLC, demand
judgment dismissing the Verified Complaint or, in the event the plaintiffs recover a verdict
or judgment against these defendants, then said defendants demand judgment against
the co-defendant and plaintiff above-named on the cross-claim and counterclaim, for all
or part of any such verdict or judgment, together with the attorneys’ fees, costs and
disbursements of this action.
Dated: August 25, 2016
Port Chester, New York
Yours @tc.
EDD LLP
eve’M. O'Connor
Attorneys for Defendant
THIRD AVENUE TOWER
OWNER, LLC
P.O. Box 1000
242 King Street
Port Chester, New York 10573
(914) 686-1700
oconnor@oconnorlawfirm.com
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To:
Laurence D. Rogers, Esq.
SACKSTEIN, SACSTEIN & LEE, LLP
Attorneys for Plaintiff
1140 Franklin Avenue, Suite 210
Garden City, New York 11530
(516) 248-2234
Idrogers@cupitlaw.com
POLSINELLI PC
CLUNE CONTRUCTION COMPANY, L.P.
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Preview
INDEX NO. 155570/2016 FILED: NEW YORK COUNTY CLERK 08/25/2016 04:32 PM NYSCEF DOC. NQ). 7 RECEIVED NYSCEF: 08/25/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ANTHONY MAGNI, Index No.:155570/16E Plaintiff, ANSWER TO PLAINTIFF’S VERIFIED -against- COMPLAINT WITH CROSS-CLAIMS AND THIRD AVENUE TOWNER OWNER, LLC, POLSINELLI DEMAND TO ANSWER PC and CLUNE CONSTRUCTION COMPANY, L.P., Defendants. cee X PLEASE TAKE NOTICE, that defendant, THIRD AVENUE TOWNER OWNER, LLC, by its attorneys, O;CONNOR REDD LLP as and for its Verified Answer to plaintiff's Verified Complaint, sets forth the following, upon information and belief: ANSWERING THE FIRST CAUSE OF ACTION FIRST: Denies each and every allegation contained in the paragraphs of the Verified Complaint marked and designated “1”, “2", “10", “11", “12", “13", “14", "15", “16", "47", "48" "49" "20", "21", 22", "23", “60", "61", "62", “63", “64", “65", “66", “67", and "68". SECOND: The paragraphs of the Verified Amended Complaint marked and designated “3", and “9" are admitted. THIRD: Denies any knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in the paragraphs of the Verified Complaint marked and designated “4”, “5", “6", “7", “8", "24", "25", "26", "27", "28", “29", "30", "34", "32", "33", "34", "35", "36", "37", "38", “39", "40", "41", "42", "43", "44" "45", "46", “47" "4g" “4gr, "50", “51", "52", “53", "54", "55", "56", “57", “58", and “59”, ANSWERING THE SECOND CAUSE OF ACTION FOURTH: As to paragraph “69” of the plaintiff's Verified Complaint, the answering 1 of 6 defendant repeats, realleges and reiterates each and every denial of the allegations contained in the paragraphs of the Verified Complaint marked and designated “1” through “68” as if said denials were more fully and specifically set forth at length herein. FIFTH: Denies each and every allegation contained in the paragraphs of the Verified Complaint marked and designated “70”, “71", “72", “73", and “74". AS AND FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE SIXTH: Any injuries and/or damages sustained by the plaintiff, as alleged in the plaintiff's Verified Complaint herein, which the answering defendant denies, were caused, in whole or in part, by the contributory negligence and/or culpable conduct of the plaintiff and not as a result of any negligence and/or culpable conduct on the part of the answering defendant. AS AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE SEVENTH: That by entering into the activity in which the plaintiff was engaged at the time of the occurrence set forth in the complaint, said plaintiff knew the inherent risks 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 voluntarily undertaken by the plaintiff in the activities and such risks were assumed and accepted by the plaintiff in performing and engaging in said activities. AS AND FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE EIGHTH: If there were any defects or hazardous condition (hereafter collectively referred to as “defect’) in the shelving referred to in plaintiff's complaint, which this 2 of 6 answering defendant denies, plaintiff failed to exercise reasonable care to discover the alleged defects and to appreciate the dangers thereof. AS AND FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE NINTH: A necessary or indispensable party has not been joined and, therefore, the action should not proceed and should be dismissed. AS AND FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TENTH: In the event plaintiff recover a verdict or judgment against this answering defendants, then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have been orwill, with reasonable certainty, replace or indemnify plaintiff in whole or in part, for any past or future claimed economic loss, from any collateral source such as insurance, social security, Workers’ Compensation or employee benefit programs. AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE ELEVENTH: Pursuant to the provisions of Article 16 of the C.P.L.R., should this answering Defendant be found liable for damages, such liability being 50 percent or less of the total liability assigned to all persons liable, the liability of this answering Defendant for non-economic loss shall not exceed its equitable share determined in accordance with the relative culpability of all parties liable. AS AND FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TWELFTH: The negligence of a third person or entity over whom this answering defendant had no control was a superseding cause and insulates this answering defendant from liability. 3 of 6 AS AND FOR A EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE THIRTEENTH: Plaintiff destroyed evidence that was subject to discovery in this lawsuit and would be admissible in evidence at trial, thereby depriving this Court and this answering defendant of such evidence and, therefore, plaintiff's suit ought to be barred. AS AND FOR A NINTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE FOURTEENTH: An unknown third-party destroyed evidence that was subject to discovery in this lawsuit and would be admissible in evidence at trial, thereby depriving this Court and this answering defendant of such evidence and, therefore, plaintiffs suit ought to be barred. AS AND FOR A TENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE FIFTEENTH: Plaintiff failed to exercise ordinary care to effect a cure and to prevent aggravation of the alleged injury and damages. AS AND FOR A ELEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE SIXTEENTH: The provisions of C.P.L.R. Article 50-B apply to any verdict in this case. AS AND FOR A TWELFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE SEVENTEENTH: The dangers, if any, alleged in the complaint were patent, open and obvious. AS AND FOR A CROSS-CLAIM AGAINST THE CO-DEFENDANTS POLSINELLI PC AND CLUNE CONSTRUCTION COMPANY, L.P., DEFENDANT, THIRD AVENUE TOWER OWNER, LLC, ALLEGES: EIGHTEENTH: If Plaintiff sustained any injuries or damages as alleged in the Verified Complaint, which this answering defendant denies, then such injuries or 4 4 of 6 damages were caused by reason of the culpable conduct, acts or omissions, negligence, strict products liability, statutory violation, breach of contract, obligation or warranty of the co-defendant(s) above-named. By reason of the foregoing, this answering defendant is entitled to indemnification or contribution from, and to have judgment against the co-defendant(s) above-named, for all or part of any verdict or judgment that plaintiff may recover against this answering defendant. WHEREFORE, defendant, THIRD AVENUE TOWER OWNER, LLC, demand judgment dismissing the Verified Complaint or, in the event the plaintiffs recover a verdict or judgment against these defendants, then said defendants demand judgment against the co-defendant and plaintiff above-named on the cross-claim and counterclaim, for all or part of any such verdict or judgment, together with the attorneys’ fees, costs and disbursements of this action. Dated: August 25, 2016 Port Chester, New York Yours @tc. EDD LLP eve’M. O'Connor Attorneys for Defendant THIRD AVENUE TOWER OWNER, LLC P.O. Box 1000 242 King Street Port Chester, New York 10573 (914) 686-1700 oconnor@oconnorlawfirm.com 5 of 6 To: Laurence D. Rogers, Esq. SACKSTEIN, SACSTEIN & LEE, LLP Attorneys for Plaintiff 1140 Franklin Avenue, Suite 210 Garden City, New York 11530 (516) 248-2234 Idrogers@cupitlaw.com POLSINELLI PC CLUNE CONTRUCTION COMPANY, L.P. 6 of 6