Preview
FILED: NEW YORK COUNTY CLERK 08/27/2018 11:54 AM INDEX NO. 155570/2016
NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------- ---X
ANTHONY MAGNI, VERIFIED ANSWER
TO AMENDED COMPLAINT
Plaintiff, WITH CROSS CLAIMS
-against-
Index No: Index No.: 155570/16E
THIRD AVENUE TOWER OWNER, LLC, POLSINELLI, TP Index No.: 595198/17E
P.C., CLUNE CONSTRUCTION COMPANY, L.P.,
CONCEPTS FOR BUSINESS, LLC.,
and G&S CONCEPTS, INC.
Defendants.
---- ------- ---------X
POLSINELLI, P.C.,
Third-Party Plaintiff,
-against-
CONCEPTS FOR BUSINESS, LLC and
G&S CONCEPTS, INC.,
Third-Party Defendants.
----- -----------X
C O U N S E L O R S :
The Defendant, CONCEPTS FOR BUSINESS, LLC by its attorneys LAW OFFICES OF
TOBIAS & KUHN, answering the plaintiff's amended complaint her in, respectfully alleges
upon information and belief, as follows:
1. The defendant denies knowledge or information thereof sufficient to form a belief
as to the allegations contained in the paragraphs designated "1", "2", "3", "4", "5", "12", "13",
"14", "15", "16", "17", "18", "19", "20", "21", "22", "23", "24", "25", "26", "27", "28",
"29", "30", "31", "32", "33", "34", "35", "36", "37", "38", "39", "40", "41", "42", "43",
"44", "45", "46", "47", "48", "49", "50", "51", "52", "53", "54", "55", "56", "57", "58",
"59", "60", "61", "62", "63", "64", "65", "66", "67", "68", "69", "85", "86", "87", "88",
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"101" "102"
"89", "90", "91", "92", "93", "94", "95", '96", "97", "98", "99", "100", and of
the verified complaint.
2. The defendant denies each and every allegation contained in the paragraphs
designated "6", "8", "9", "70", "81", "82", "83", "84", "104", "105", "106", "107", "108",
"110" "112"
"109", and of the verified complaint.
3. The defendant denies each and every allegation contained in the paragraphs
designated "7", "10", "11", "71", "72", "73", "74", "75", "76", "77", "78", "79", "80",
"111"
"103", and of the verified complaint and refers all questions of law to the Honorable
Court.
AS AND FOR A SECOND CAUSE OF ACTION
"113"
4. In response to the paragraph designated the defendant repeats, reiterates
"1"
and realleges each and every response to the allegations of the paragraphs designated to
"112"
of the complaint with the same force and effect as if set forth at length herein.
5. The defendant denies each and every allegation contained in the paragraphs
"117" "118"
designated "114", '115", "116", and of the verified complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
Upon information and belief, that the actions of the plaintiff had certain risks attendent
thereto, which were obvious and well known to the plaintiff at all times, and those risks were
assumed by the plaintiff, and whatever injuries and damages the plaintiff received, and which are
coñ1plaiñêd of by the plaintiff herein, arose from and were caused by those risks thus assumed by
the plaintiff.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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 or rehabilitative services,
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loss of earnings or other economic loss, have been or will with reasonable certainty be replaced
or indemnified in whole or in part from a collateral source as defined in CPLR 4545(c) of the
New York Civil Practice Law and Rules.
If any damages are recoverable against the answering Defeñdâñt, the amount of such
damages shall be diminished by the amount of the funds received by the plaintiff from such
collateral sources.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
Upon information and belief, any injuries or damages allegedly sustained by the plaintiff
were caused or contributed to in whole or in part by the plaintiff's own culpable conduct,
carelessness, recklessness and negligence, and if judgment is recovered against the
any
Defendant said judgment should be apportioned and reduced by the percentage of the plaintiff's
culpable conduct and negligence contributing thereto.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
Upon information and belief, any injuries or damages allegedly sustained by the plaintiff
were caused or contributed to in whole or in part by the actions carelessness, recklessness or
negligence of non-parties, and if any judgment is recovered against the Defendant, said judgment
should be apportioned and reduced by the percentage of the non-parties conduct and negligence
contributing thereto.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
Upon information and belief, the Defendant asserts that this case falls within the limited
liability provisions of CPLR 1601 of the Civil Practice Law and Rules, and that the liability of
the Defendant, if any, shall be limited to its equitable share of the total liability.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
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Upon information and belief, it isalleged that the damages sustained by the plaintiff were
the result of the culpable conduct of the co-defendants. The cross-claiming Defendant begs
leave to refer to the plaintiff's complaint at the time of trial.
If the plaintiff was caused to sustain damages alleged in the complaint, said damages will
have been sustained by reason of the culpable conduct of the adverse Defendant.
That if the answering cross-claiming Defendants are found culpable, then the answering
Defendant will be entitled to contribution or indemnification, in whole or in part, from the
culpable parties named in this claim over, for the proportion of the damages suffered by the
pkintiff which were caused by the culpable parties named in this claim over, together with all
attorney's fees, costs and disbursements.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENS_E
Upon information and belief, any injuries or damages allegedly sustained by the failure of
the plaintiff to mitigate said injuries or damages, and ifany judgment is recovered against the
Defendant, said judgment should be apportioned and reduced by the percentage of the failure by
the plaintiff to mitigate said injuries or damages.
AS_AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
Upon information and belief, that the plaintiff's complaint fails to state a cause of action.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
Upon information and belief, if the phintiff sustained the injuries alleged in its
complaint, then such injuries were not the result of the answering defendant's action or inaction,
but rather were the result of intervening and/or superseding acts or occurrences over which the
answering Defendant did not have control.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
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Upon information and belief, that this Honorable Court does not have jurisdiction over
the person of the answering Defendant since service was never properly effected.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
Upon information and belief, that the Court has failed to acquire personal jurisdiction of
the Defendant herein.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
Upon information and belief, that the Court does not have jurisdiction over the subject
matter of this cause of action.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
Upon information and belief, the Defendant denies ownership, operation and control of
the premises involved in this incident.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
Upon information and belief, that the Court does not have specific jurisdiction of the
Defendant herein.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
Upon information and belief, that the Court does not have general jurisdiction of the
Defendant herein.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
Upon information and belief, that the Court does not have long arm jurisdiction of the
Defendant herein.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENS_E
Upon information and belief, that the Defendant herein is not subject to in personam
jurisdiction in the State of New York.
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AS AND FOR A FIRST CROSS-CLAIM AGAIN_ST CO-DEFENDANTS. THIRD
AVENUE TOWER OWNER, LLC. POLSINELLI PC, CLUNE CONSTRUCTION
COMPANY, L.P. and G&S CONCEPTS, INC., DEFENDANT, CONCEPTS FOR
BUSINESS, LLC, ALLEGES UPON INFORMATION AND BELIEF AS FOLLOWSi
Upon information and belief, that if the plaintiff was caused to sustain damages at the
time and place set forth in the complaint of the plaintiff through any carelessness, recklessness,
negligence, breach of contract, breach of warranty and/or strict products liability other than by
the plaintiff's own carelessness, recklessness and negligence, then said damages were sustained
in whole or in part by reason of the sole, active and primary carelessness, recklessness,
negligence, breach of contract, breach of warranty, strict products liability and/or affirmative acts
of commission or omission by the co-defendants, THIRD AVENUE TOWER OWNER, LLC,
POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC.,
who are, or will be, primarily liable therefore.
That by reason of the foregoing, the co-defendants, co-defendants, THIRD AVENUE
TOWER OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and
G&S CONCEPTS, INC., will be liable in whole or in part in contribution and common law
indemnification to this defendant, CONCEPTS FOR BUSINESS, LLC, in the event of a
attorneys'
recovery herein by plaintiff, including any and all fees, costs and disbursements
incurred by this defendant, CONCEPTS FOR BUSINESS, LLC, herein.
AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANTS, THIRD
AVENUE TOWER OWNER. LLC, POLSINELLI PC, CLUNE CONSTRUCTION
COMPANY, L.P. and G&S CONCEPTS, INC.. DEFENDANT, CONCEPTS FOR
BUSINESS, LLC, ALLEGES UPON INFORMATIO_N AND BELIEF AS FOLLOWS:
Upon information and belief, that as and prior to 2/10/2016, the defendant entered into a
contract with the co-defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC,
CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC.
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Upon information and that the aforementioned contract provided that the co-
belief,
defendants would indemnify and hold harmless this defender, CONCEPTS FOR BUSINESS,
LLC.
Upon information and belief, that pursuant to the terms of said contract, in the event of a
recovery herein by plaintiff against this defendant, CONCEPTS FOR BUSINESS, LLC, said
defendant(s) are entitled to full contractual indemnification from the co-defendants, THIRD
AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION
COMPANY, L.P. and G&S CONCEPTS, INC. in the full amount of any said recovery along
attorneys'
with all fees, costs and disbursements.
AS AND FOR A THIRD CROSS-CLAIM AGAINST CO-DEFENDANTS. THIRD
AVENUE TOWER OWNER. LLC, POLSINELLI PC, CLUNE CONSTRUCTION
COMPANY, L.P. and G&S CONCEPTS. INC.. DEFENDANT,_CONCEPTS FOR
BUSINESS, LLC, ALLEGES UPON INFORMATION AND BELIEF AS FOLLOWS:
Upon information and belief, the aforementioned contract provides that co-defendants,
co-defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE
CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC., secure polices of liability
insurance naming this defendant, CONCEPTS FOR BUSINESS, LLC, as an additional named
insured with respect to the work to be performed by co-defendants, THIRD AVENUE TOWER
OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S
CONCEPTS, INC.
Upon information and belief, co-defendants, THIRD AVENUE TOWER OWNER, LLC,
POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC.,
failed to secure said insurance policies.
Upon information and belief, co-defendants, THIRD AVENUE TOWER OWNER, LLC,
POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC.,
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has thereby breached its contract with defendant, CONCEPTS FOR BUSINESS, LLC, and is
thereby fully liable to this defendant, CONCEPTS FOR BUSINESS, LLC, for all damages
incurred thereby, including the full amount for any recovery had by plaintiff against this
attorneys'
defendant, CONCEPTS FOR BUSINESS, LLC, together with all fees, costs and
disbursements.
WHEREFORE, this cross-claiming answering defendant demands judgment dismissing
the plaintiff's complaint or, in the event that the plaintiff recovers any sum of money against this
then said defendant demands judgment over against co-
answering defendant, answering
defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE
CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC., on the cross-claims, as to
any such amount, and for any expenses incurred by it in the defense thereof, including attorneys
fees.
Dated: New York, New York
August 14, 2018
By: iane L. D Vita
LAW OFFICES TOBIAS & -.HN_.
Attorneys for Defendant
CONCEPTS FOR BUSINESS, LLC
100 William Street, Suite 920
New York, New York 10038
Tel No.: (212) 553-8700/DD/cm
File No: Y43L41146-001
To: Laurence D. Rogers, Esq.
SACKSTEIN, SACKSTEIN & LEE, LLP
Attorneys for Plaintiff
ANTHONY MAGNI
1140 Frankin Avenue, Suite 210
Garden City, New York 11530
(516) 248-2234
ldrogers(dlcupitlaw.com
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Sean Latella, Esq.
O'CONNOR REDD, LLP
Attorneys for Defendant
THIRD AVENUE TOWER OWNER, LLC
P.O. Box 1000
242 King Street
Port Chester, New York 10573
(914) 686-1700
slatella@oconnorlawfirm.com
Sana Suhail, Esq.
LEWIS BRISBOIS BISGAARD & SMITH, LLP
Attorneys for Defendant
CLUNE CONSTRUCTION COMPANY, L.P.
77 Water Street, 21st Floor
New York, NY 10005
(212) 232-1300
sana.suhail@lewisbrisbois.com
John R. Marquez, Esq.
EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK
Attorneys for Defendant/Third-Party Plaintiff
POLSINELLI, P.C.
55 Water Street, 29th Floor
New York, NY 10041
(212) 612-4200
imarauez@eustacelaw.com
Kevin G. Mescall, Esq.
LEWIS JOHS AVALLONE & AVILES, LLP
Attorneys for Defendant/Third-Party Defendant
G&S CONCEPTS, INC.
61 Broadway, Suite 2000
New York, NY 10006
Tel. No.: (212) 233-7195
kgmescall@Iewisiohs.com
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ATTORNEY'S VERIFICATION
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
DIANE L. DEVITA, ESQ., being duly sworn, deposes and says:
I am an attorney associated with the firm of LAW OFFICES OF TOBIAS & KUHN, the
attorneys of record for Defendant in the within action.
I have read the foregoing VERIFIED ANSWER TO AMENDED COMPLAINT WITH
CROSS-CLAIMS and knows the contents thereof.
The same is true to deponent's own knowledge, except as to the matters therein stated to
be alleged on information and belief, and that as to those matters deponent believes itto be true.
This verification is made by deponent and not by Defendant as Defendant is not located
in New York County.
The grounds of deponent's belief as to allmatters not stated upon deponent's knowledge
are as follows:
Review of File Contents
The undersigned affirms that the foregoing statements are true, under the penalties of
perjury.
,_,
Dated: New York, New York
August 14, 2018
DI E L. DEVITA, E 'Q.
.
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Preview
FILED: NEW YORK COUNTY CLERK 08/27/2018 11:54 AM INDEX NO. 155570/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------- ---X ANTHONY MAGNI, VERIFIED ANSWER TO AMENDED COMPLAINT Plaintiff, WITH CROSS CLAIMS -against- Index No: Index No.: 155570/16E THIRD AVENUE TOWER OWNER, LLC, POLSINELLI, TP Index No.: 595198/17E P.C., CLUNE CONSTRUCTION COMPANY, L.P., CONCEPTS FOR BUSINESS, LLC., and G&S CONCEPTS, INC. Defendants. ---- ------- ---------X POLSINELLI, P.C., Third-Party Plaintiff, -against- CONCEPTS FOR BUSINESS, LLC and G&S CONCEPTS, INC., Third-Party Defendants. ----- -----------X C O U N S E L O R S : The Defendant, CONCEPTS FOR BUSINESS, LLC by its attorneys LAW OFFICES OF TOBIAS & KUHN, answering the plaintiff's amended complaint her in, respectfully alleges upon information and belief, as follows: 1. The defendant denies knowledge or information thereof sufficient to form a belief as to the allegations contained in the paragraphs designated "1", "2", "3", "4", "5", "12", "13", "14", "15", "16", "17", "18", "19", "20", "21", "22", "23", "24", "25", "26", "27", "28", "29", "30", "31", "32", "33", "34", "35", "36", "37", "38", "39", "40", "41", "42", "43", "44", "45", "46", "47", "48", "49", "50", "51", "52", "53", "54", "55", "56", "57", "58", "59", "60", "61", "62", "63", "64", "65", "66", "67", "68", "69", "85", "86", "87", "88", 1 of 10 FILED: NEW YORK COUNTY CLERK 08/27/2018 11:54 AM INDEX NO. 155570/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/27/2018 "101" "102" "89", "90", "91", "92", "93", "94", "95", '96", "97", "98", "99", "100", and of the verified complaint. 2. The defendant denies each and every allegation contained in the paragraphs designated "6", "8", "9", "70", "81", "82", "83", "84", "104", "105", "106", "107", "108", "110" "112" "109", and of the verified complaint. 3. The defendant denies each and every allegation contained in the paragraphs designated "7", "10", "11", "71", "72", "73", "74", "75", "76", "77", "78", "79", "80", "111" "103", and of the verified complaint and refers all questions of law to the Honorable Court. AS AND FOR A SECOND CAUSE OF ACTION "113" 4. In response to the paragraph designated the defendant repeats, reiterates "1" and realleges each and every response to the allegations of the paragraphs designated to "112" of the complaint with the same force and effect as if set forth at length herein. 5. The defendant denies each and every allegation contained in the paragraphs "117" "118" designated "114", '115", "116", and of the verified complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE Upon information and belief, that the actions of the plaintiff had certain risks attendent thereto, which were obvious and well known to the plaintiff at all times, and those risks were assumed by the plaintiff, and whatever injuries and damages the plaintiff received, and which are coñ1plaiñêd of by the plaintiff herein, arose from and were caused by those risks thus assumed by the plaintiff. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 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 or rehabilitative services, 2 of 10 FILED: NEW YORK COUNTY CLERK 08/27/2018 11:54 AM INDEX NO. 155570/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/27/2018 loss of earnings or other economic loss, have been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in CPLR 4545(c) of the New York Civil Practice Law and Rules. If any damages are recoverable against the answering Defeñdâñt, the amount of such damages shall be diminished by the amount of the funds received by the plaintiff from such collateral sources. AS AND FOR A THIRD AFFIRMATIVE DEFENSE Upon information and belief, any injuries or damages allegedly sustained by the plaintiff were caused or contributed to in whole or in part by the plaintiff's own culpable conduct, carelessness, recklessness and negligence, and if judgment is recovered against the any Defendant said judgment should be apportioned and reduced by the percentage of the plaintiff's culpable conduct and negligence contributing thereto. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Upon information and belief, any injuries or damages allegedly sustained by the plaintiff were caused or contributed to in whole or in part by the actions carelessness, recklessness or negligence of non-parties, and if any judgment is recovered against the Defendant, said judgment should be apportioned and reduced by the percentage of the non-parties conduct and negligence contributing thereto. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE Upon information and belief, the Defendant asserts that this case falls within the limited liability provisions of CPLR 1601 of the Civil Practice Law and Rules, and that the liability of the Defendant, if any, shall be limited to its equitable share of the total liability. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 3 of 10 FILED: NEW YORK COUNTY CLERK 08/27/2018 11:54 AM INDEX NO. 155570/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/27/2018 Upon information and belief, it isalleged that the damages sustained by the plaintiff were the result of the culpable conduct of the co-defendants. The cross-claiming Defendant begs leave to refer to the plaintiff's complaint at the time of trial. If the plaintiff was caused to sustain damages alleged in the complaint, said damages will have been sustained by reason of the culpable conduct of the adverse Defendant. That if the answering cross-claiming Defendants are found culpable, then the answering Defendant will be entitled to contribution or indemnification, in whole or in part, from the culpable parties named in this claim over, for the proportion of the damages suffered by the pkintiff which were caused by the culpable parties named in this claim over, together with all attorney's fees, costs and disbursements. AS AND FOR A SEVENTH AFFIRMATIVE DEFENS_E Upon information and belief, any injuries or damages allegedly sustained by the failure of the plaintiff to mitigate said injuries or damages, and ifany judgment is recovered against the Defendant, said judgment should be apportioned and reduced by the percentage of the failure by the plaintiff to mitigate said injuries or damages. AS_AND FOR AN EIGHTH AFFIRMATIVE DEFENSE Upon information and belief, that the plaintiff's complaint fails to state a cause of action. AS AND FOR A NINTH AFFIRMATIVE DEFENSE Upon information and belief, if the phintiff sustained the injuries alleged in its complaint, then such injuries were not the result of the answering defendant's action or inaction, but rather were the result of intervening and/or superseding acts or occurrences over which the answering Defendant did not have control. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 4 of 10 FILED: NEW YORK COUNTY CLERK 08/27/2018 11:54 AM INDEX NO. 155570/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/27/2018 Upon information and belief, that this Honorable Court does not have jurisdiction over the person of the answering Defendant since service was never properly effected. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE Upon information and belief, that the Court has failed to acquire personal jurisdiction of the Defendant herein. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE Upon information and belief, that the Court does not have jurisdiction over the subject matter of this cause of action. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE Upon information and belief, the Defendant denies ownership, operation and control of the premises involved in this incident. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE Upon information and belief, that the Court does not have specific jurisdiction of the Defendant herein. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE Upon information and belief, that the Court does not have general jurisdiction of the Defendant herein. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE Upon information and belief, that the Court does not have long arm jurisdiction of the Defendant herein. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENS_E Upon information and belief, that the Defendant herein is not subject to in personam jurisdiction in the State of New York. 5 of 10 FILED: NEW YORK COUNTY CLERK 08/27/2018 11:54 AM INDEX NO. 155570/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/27/2018 AS AND FOR A FIRST CROSS-CLAIM AGAIN_ST CO-DEFENDANTS. THIRD AVENUE TOWER OWNER, LLC. POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC., DEFENDANT, CONCEPTS FOR BUSINESS, LLC, ALLEGES UPON INFORMATION AND BELIEF AS FOLLOWSi Upon information and belief, that if the plaintiff was caused to sustain damages at the time and place set forth in the complaint of the plaintiff through any carelessness, recklessness, negligence, breach of contract, breach of warranty and/or strict products liability other than by the plaintiff's own carelessness, recklessness and negligence, then said damages were sustained in whole or in part by reason of the sole, active and primary carelessness, recklessness, negligence, breach of contract, breach of warranty, strict products liability and/or affirmative acts of commission or omission by the co-defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC., who are, or will be, primarily liable therefore. That by reason of the foregoing, the co-defendants, co-defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC., will be liable in whole or in part in contribution and common law indemnification to this defendant, CONCEPTS FOR BUSINESS, LLC, in the event of a attorneys' recovery herein by plaintiff, including any and all fees, costs and disbursements incurred by this defendant, CONCEPTS FOR BUSINESS, LLC, herein. AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANTS, THIRD AVENUE TOWER OWNER. LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC.. DEFENDANT, CONCEPTS FOR BUSINESS, LLC, ALLEGES UPON INFORMATIO_N AND BELIEF AS FOLLOWS: Upon information and belief, that as and prior to 2/10/2016, the defendant entered into a contract with the co-defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC. 6 of 10 FILED: NEW YORK COUNTY CLERK 08/27/2018 11:54 AM INDEX NO. 155570/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/27/2018 Upon information and that the aforementioned contract provided that the co- belief, defendants would indemnify and hold harmless this defender, CONCEPTS FOR BUSINESS, LLC. Upon information and belief, that pursuant to the terms of said contract, in the event of a recovery herein by plaintiff against this defendant, CONCEPTS FOR BUSINESS, LLC, said defendant(s) are entitled to full contractual indemnification from the co-defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC. in the full amount of any said recovery along attorneys' with all fees, costs and disbursements. AS AND FOR A THIRD CROSS-CLAIM AGAINST CO-DEFENDANTS. THIRD AVENUE TOWER OWNER. LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS. INC.. DEFENDANT,_CONCEPTS FOR BUSINESS, LLC, ALLEGES UPON INFORMATION AND BELIEF AS FOLLOWS: Upon information and belief, the aforementioned contract provides that co-defendants, co-defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC., secure polices of liability insurance naming this defendant, CONCEPTS FOR BUSINESS, LLC, as an additional named insured with respect to the work to be performed by co-defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC. Upon information and belief, co-defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC., failed to secure said insurance policies. Upon information and belief, co-defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC., 7 of 10 FILED: NEW YORK COUNTY CLERK 08/27/2018 11:54 AM INDEX NO. 155570/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/27/2018 has thereby breached its contract with defendant, CONCEPTS FOR BUSINESS, LLC, and is thereby fully liable to this defendant, CONCEPTS FOR BUSINESS, LLC, for all damages incurred thereby, including the full amount for any recovery had by plaintiff against this attorneys' defendant, CONCEPTS FOR BUSINESS, LLC, together with all fees, costs and disbursements. WHEREFORE, this cross-claiming answering defendant demands judgment dismissing the plaintiff's complaint or, in the event that the plaintiff recovers any sum of money against this then said defendant demands judgment over against co- answering defendant, answering defendants, THIRD AVENUE TOWER OWNER, LLC, POLSINELLI PC, CLUNE CONSTRUCTION COMPANY, L.P. and G&S CONCEPTS, INC., on the cross-claims, as to any such amount, and for any expenses incurred by it in the defense thereof, including attorneys fees. Dated: New York, New York August 14, 2018 By: iane L. D Vita LAW OFFICES TOBIAS & -.HN_. Attorneys for Defendant CONCEPTS FOR BUSINESS, LLC 100 William Street, Suite 920 New York, New York 10038 Tel No.: (212) 553-8700/DD/cm File No: Y43L41146-001 To: Laurence D. Rogers, Esq. SACKSTEIN, SACKSTEIN & LEE, LLP Attorneys for Plaintiff ANTHONY MAGNI 1140 Frankin Avenue, Suite 210 Garden City, New York 11530 (516) 248-2234 ldrogers(dlcupitlaw.com 8 of 10 FILED: NEW YORK COUNTY CLERK 08/27/2018 11:54 AM INDEX NO. 155570/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/27/2018 Sean Latella, Esq. O'CONNOR REDD, LLP Attorneys for Defendant THIRD AVENUE TOWER OWNER, LLC P.O. Box 1000 242 King Street Port Chester, New York 10573 (914) 686-1700 slatella@oconnorlawfirm.com Sana Suhail, Esq. LEWIS BRISBOIS BISGAARD & SMITH, LLP Attorneys for Defendant CLUNE CONSTRUCTION COMPANY, L.P. 77 Water Street, 21st Floor New York, NY 10005 (212) 232-1300 sana.suhail@lewisbrisbois.com John R. Marquez, Esq. EUSTACE, MARQUEZ, EPSTEIN, PREZIOSO & YAPCHANYK Attorneys for Defendant/Third-Party Plaintiff POLSINELLI, P.C. 55 Water Street, 29th Floor New York, NY 10041 (212) 612-4200 imarauez@eustacelaw.com Kevin G. Mescall, Esq. LEWIS JOHS AVALLONE & AVILES, LLP Attorneys for Defendant/Third-Party Defendant G&S CONCEPTS, INC. 61 Broadway, Suite 2000 New York, NY 10006 Tel. No.: (212) 233-7195 kgmescall@Iewisiohs.com 9 of 10 FILED: NEW YORK COUNTY CLERK 08/27/2018 11:54 AM INDEX NO. 155570/2016 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/27/2018 ATTORNEY'S VERIFICATION STATE OF NEW YORK ) ) SS: COUNTY OF NEW YORK ) DIANE L. DEVITA, ESQ., being duly sworn, deposes and says: I am an attorney associated with the firm of LAW OFFICES OF TOBIAS & KUHN, the attorneys of record for Defendant in the within action. I have read the foregoing VERIFIED ANSWER TO AMENDED COMPLAINT WITH CROSS-CLAIMS and knows the contents thereof. The same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes itto be true. This verification is made by deponent and not by Defendant as Defendant is not located in New York County. The grounds of deponent's belief as to allmatters not stated upon deponent's knowledge are as follows: Review of File Contents The undersigned affirms that the foregoing statements are true, under the penalties of perjury. ,_, Dated: New York, New York August 14, 2018 DI E L. DEVITA, E 'Q. . 10 of 10