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FILED: QUEENS COUNTY CLERK 06/23/2023 10:46 AM INDEX NO. 705517/2023
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/23/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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DUBERNEY RINCON-LEON,
Index No.: 705517/2023
Plaintiff,
VERIFIED ANSWER
-against-
35-01 ASTORIA OWNER, LLC, SMB QOZB 1, LLC,
RJB CONTRACTING CARTING CORP. D/B/A
ARMTECK CONSTRUCTION CORP., and AKI
RENOVATIONS, INC.,
Defendants.
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Defendants, 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC; SM
QOZB 1 LLC s/h/a SMB QOZB 1, LLC; RJB CONTRACTING CARTING CORP. s/h/a RJB
CONTRACTING CARTING CORP. D/B/A ARMTECK CONSTRUCTION CORP.; and AKI
RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC., as and for their Verified Answer
to Plaintiff’s Verified Complaint, state and allege upon information and belief:
FIRST: Answering Defendants deny knowledge or information sufficient to form a belief
as to the truth of the allegations contained in the paragraph designated “1” of the Verified
Complaint.
SECOND: Answering Defendants deny the truth of the allegations contained in the
paragraph designated “2” of the Verified Complaint, and respectfully refer all questions of law to
the Court.
THIRD: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “3” and “4” of the Verified Complaint, except admit that Defendant 35-01
ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC was a foreign limited liability
company on March 8, 2023, and respectfully refer all questions of law to the Court.
FOURTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “5” and “6” of the Verified Complaint, except admit that Defendant SM
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QOZB 1 LLC s/h/a SMB QOZB 1, LLC was a foreign limited liability company on March 8, 2023,
and respectfully refer all questions of law to the Court.
FIFTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “7”, “8”, and “9” of the Verified Complaint, except admit that Defendant
RJB CONTRACTING CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A
ARMTECK CONSTRUCTION CORP. was a New York domestic business corporation on March
8, 2023, and respectfully refer all questions of law to the Court.
SIXTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “10”, “11”, and “12” of the Verified Complaint, except admit that Defendant
AKI RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC. was a New York domestic
business corporation on March 8, 2023, and respectfully refer all questions of law to the Court.
AS AND FOR A FIRST CAUSE OF ACTION
SEVENTH: In answering paragraph “13”, Answering Defendants repeat, reiterate, and
reallege each of the responses to paragraphs “1” through “12” as if more fully set forth herein.
EIGHTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “14”, “23”, “32”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”,
and “44” of the Verified Complaint, and respectfully refer all questions of law to the Court.
NINTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “15”, “16”, “17”, “18”, “19”, “20”, “21”, and “22” of the Verified Complaint,
except admit that Defendant 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC
owned the premises located at 35-01 36th Street, Astoria, New York, on March 8, 2023, and
respectfully refer all questions of law to the Court.
TENTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “24”, “25”, and “26” of the Verified Complaint, except admit that
Defendants 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC and RJB
CONTRACTING CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A
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ARMTECK CONSTRUCTION CORP. entered into an agreement for work at the premises located
at 35-01 36th Street, Astoria, New York, prior to March 8, 2023, and refer to the terms and
conditions of the alleged agreement, and respectfully refer all questions of law to the Court.
ELEVENTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “27”, “28”, “29”, “30”, and “31” of the Verified Complaint, and refer to the
terms and conditions of the alleged agreement, and respectfully refer all questions of law to the
Court.
AS AND FOR A SECOND CAUSE OF ACTION
TWELFTH: In answering paragraph “45”, Answering Defendants repeat, reiterate, and
reallege each of the responses to paragraphs “1” through “44” as if more fully set forth herein.
THIRTEENTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “46”, “48”, “49”, “50”, “51”, “52”, “53”, “54”, “55”, “64”, “65”, “66”, “67”, “68”,
“69”, “70”, “71”, “72”, “73”, “74”, “75”, and “76” of the Verified Complaint, and respectfully refer all
questions of law to the Court.
FOURTEENTH: Answering Defendants deny the truth of the allegations contained in the
paragraph designated “47” of the Verified Complaint, except admit that, upon information and
belief, Defendant SM QOZB 1 LLC s/h/a SMB QOZB 1, LLC is a wholly-owned subsidiary of
Defendant 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC, which is the
owner of the premises located at 35-01 36th Street, Astoria, New York, and respectfully refer all
questions of law to the Court.
FIFTEENTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “56”, “57”, “58”, “59”, and “63” of the Verified Complaint, and refer to the
terms and conditions of the alleged agreement, and respectfully refer all questions of law to the
Court.
SIXTEENTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “60”, “61”, and “62” of the Verified Complaint in that there were no
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applicable agreements between Defendants SM QOZB 1 LLC s/h/a SMB QOZB 1, LLC and AKI
RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC. in effect on March 8, 2023, and
refer to the terms and conditions of the alleged agreement, and respectfully refer all questions of
law to the Court.
AS AND FOR A THIRD CAUSE OF ACTION
SEVENTEENTH: In answering paragraph “77”, Answering Defendants repeat, reiterate,
and reallege each of the responses to paragraphs “1” through “76” as if more fully set forth herein.
EIGHTEENTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “78”, “86”, “87”, “88”, “89”, “90”, “91”, “92”, “93”, “94”, “95”, “96”, “97”, and
“98” of the Verified Complaint, and respectfully refer all questions of law to the Court.
NINETEENTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “79”, “80”, “81”, “83”, and “84” of the Verified Complaint, except admit that
Defendants 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC and RJB
CONTRACTING CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A
ARMTECK CONSTRUCTION CORP. entered into an agreement for work at the premises located
at 35-01 36th Street, Astoria, New York, prior to March 8, 2023, and refer to the terms and
conditions of the alleged agreement, and respectfully refer all questions of law to the Court.
TWENTIETH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “82” and “85” of the Verified Complaint, and refer to the terms and
conditions of the alleged agreement, and respectfully refer all questions of law to the Court.
AS AND FOR A FOURTH CAUSE OF ACTION
TWENTY-FIRST: In answering paragraph “99”, Answering Defendants repeat, reiterate,
and reallege each of the responses to paragraphs “1” through “98” as if more fully set forth herein.
TWENTY-SECOND: Answering Defendants deny the truth of the allegations contained in
the paragraphs designated “100”, “108”, “109”, “110”, “111”, “112”, “113”, “114”, “115”, “116”,
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“117”, “118”, “119”, and “120” of the Verified Complaint, and respectfully refer all questions of law
to the Court.
TWENTY-THIRD: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “101” and “103” of the Verified Complaint, and refer to the terms and
conditions of the alleged agreement, and respectfully refer all questions of law to the Court.
TWENTY-FOURTH: Answering Defendants deny the truth of the allegations contained in
the paragraphs designated “102” and “104” of the Verified Complaint in that there were no
applicable agreements between Defendants SM QOZB 1 LLC s/h/a SMB QOZB 1, LLC and AKI
RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC. in effect on March 8, 2023, and
refer to the terms and conditions of the alleged agreement, and respectfully refer all questions of
law to the Court.
TWENTY-FIFTH: Answering Defendants deny the truth of the allegations contained in the
paragraphs designated “105”, “106”, and “107” of the Verified Complaint in that Defendant AKI
RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC. was not on site at the premises
located at 35-01 36th Street, Astoria, New York, on March 8, 2023, and refer to the terms and
conditions of the alleged agreement, and respectfully refer all questions of law to the Court.
AS AND FOR A FIFTH CAUSE OF ACTION
TWENTY-SIXTH: In answering paragraph “121”, Answering Defendants repeat, reiterate,
and reallege each of the responses to paragraphs “1” through “120” as if more fully set forth
herein.
TWENTY-SEVENTH: Answering Defendants deny the truth of the allegations contained
in the paragraphs designated “122”, “123”, “124”, “125”, “126”, “127”, “128”, “129”, “130”, “131”,
and “132” of the Verified Complaint, and respectfully refer all questions of law to the Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
TWENTY-EIGHTH: Whatever injuries and/or damages the Plaintiff may have sustained at
the time and place mentioned in the Verified Complaint as a result of the occurrence alleged, all
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of which are denied by the Answering Defendants, were caused in whole or in part by the culpable
conduct of the Plaintiff. The amount of damages recovered, if any, shall therefore be diminished
in the proportion which the culpable conduct, attributable to Plaintiff, bears to the culpable conduct
which caused said injuries.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
TWENTY-NINTH: All risks and danger of loss or damages connected with the situation
alleged in the Complaint was at the time and place mentioned obvious and apparent and were
known by the Plaintiff and voluntarily assumed by Plaintiff. The Plaintiff’s actions were therefore
the sole proximate cause of her injuries.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
THIRTIETH: The injuries and damages alleged were caused by the culpable conduct of
some third person or persons over whom the Answering Defendant neither had nor exercised
control.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
THIRTY-FIRST: The liabilities of the Answering Defendants are limited by the provisions
of Article 16 of the Civil Practice Law and Rules.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
THIRTY-SECOND: Plaintiff failed to mitigate his damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
THIRTY-THIRD: Any verdict, judgment or decision that might be obtained by Plaintiff
against the Answering Defendants shall be reduced by the amount of any collateral source
payments received by Plaintiff pursuant to CPLR § 4545(a) as determined by the Court.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
THIRTY-FOURTH: The negligence of those responsible for the accident or the occurrence
alleged in the Verified Complaint constituted a separate, independent, superseding, intervening
act which constitutes the sole proximate cause of the accident or occurrence alleged.
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AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
THIRTY-FIFTH: Plaintiff’s Complaint fails to name indispensable parties.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
THIRTY-SIXTH: Plaintiff is not in privity of contract with the Answering Defendants.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
THIRTY-SEVENTH: Upon information and belief, all risks and danger of loss or damages
connected with the situation alleged in the Verified Complaint were de minimus, trivial and do not
qualify as dangerous condition(s).
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
THIRTY-EIGHTH: The Answering Defendants owe no duty to Plaintiff.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
THIRTY-NINTH: Plaintiff’s Complaint fails to state a cause of action.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
FORTIETH: The Answering Defendants did not breach any duty or obligation owed, if any,
to Plaintiff under common law, statute, regulations, or standards.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
FORTY-FIRST: Plaintiff failed to appreciate the situation as it existed at the subject
premises at the time of the alleged incident.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
FORTY-SECOND: Plaintiff was not a construction laborer at the subject premises at the
time of the alleged incident.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
FORTY-THIRD: Plaintiff was not an agent, independent contractor, or employee of any
entity on site at the subject premises at the time of the alleged incident.
WHEREFORE, Answering Defendants, 35-01 ASTORIA OWNER LLC s/h/a 35-01
ASTORIA OWNER, LLC; SM QOZB 1 LLC s/h/a SM QOZB 1, LLC; RJB CONTRACTING
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CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A ARMTECK
CONSTRUCTION CORP.; and AKI RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS,
INC., hereby demand judgment dismissing the Plaintiff’s Verified Complaint herein, together with
the costs and disbursements of this action, including attorneys’ fees, and for such other, further
and different relief as this Court may deem just and proper.
To the best of my knowledge, information and belief, formed after an inquiry reasonable under
the circumstances, the presentation of this paper or the contentions herein are not frivolous, as
that term is defined in Part 130 of the Court Rules.
Dated: White Plains, New York
June 23, 2023
Yours, etc.,
COFFEY MODICA O’MEARA LLP
_____________________________________
By: Michael P. Mezzacappa
Attorneys for Defendants
35-01 ASTORIA OWNER LLC s/h/a 35-01
ASTORIA OWNER, LLC; SM QOZB 1 LLC s/h/a
SMB QOZB 1, LLC; RJB CONTRACTING
CARTING CORP. s/h/a RJB CONTRACTING
CARTING CORP. D/B/A ARMTECK
CONSTRUCTION CORP.; and AKI
RENOVATIONS GROUP, INC. s/h/a AKI
RENOVATIONS, INC.
200 E. Post Road, Suite 210
White Plains, NY 10601
(212) 827-4501
File No. 1081-0056
TO: CHAIKIN, PLLC
Attorneys for Plaintiff
445 Broadhollow Road, Suite 232
Melville, NY 11747
(212) 977-2020
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VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF WESTCHESTER )
MICHAEL P. MEZZACAPPA, being duly sworn, states that he is a member of the law firm
of COFFEY MODICA O'MEARA LLP, attorneys for the Defendants, 35-01 ASTORIA OWNER
LLC s/h/a 35-01 ASTORIA OWNER, LLC; SM QOZB 1 LLC s/h/a SMB QOZB 1, LLC; RJB
CONTRACTING CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A
ARMTECK CONSTRUCTION CORP.; and AKI RENOVATIONS GROUP, INC. s/h/a AKI
RENOVATIONS, INC., in this action and that the foregoing VERIFIED ANSWER is true to his
knowledge, except as to those matters therein stated upon information and belief, and as to those
matters he believes them to be true; that the grounds of his belief as to all matters not stated upon
his knowledge are correspondence and other writings furnished by the Defendants and other
documentations maintained in the office of its attorneys; and that the reason why this verification
is not made by Defendants is that the Defendants are located in a county other than the county
where their attorneys have its office.
Dated: White Plains, New York
June 23, 2023
_________________________
MICHAEL P. MEZZACAPPA
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FILED: QUEENS COUNTY CLERK 06/23/2023 10:46 AM INDEX NO. 705517/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/23/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------X DUBERNEY RINCON-LEON, Index No.: 705517/2023 Plaintiff, VERIFIED ANSWER -against- 35-01 ASTORIA OWNER, LLC, SMB QOZB 1, LLC, RJB CONTRACTING CARTING CORP. D/B/A ARMTECK CONSTRUCTION CORP., and AKI RENOVATIONS, INC., Defendants. ------------------------------------------------------------------------X Defendants, 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC; SM QOZB 1 LLC s/h/a SMB QOZB 1, LLC; RJB CONTRACTING CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A ARMTECK CONSTRUCTION CORP.; and AKI RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC., as and for their Verified Answer to Plaintiff’s Verified Complaint, state and allege upon information and belief: FIRST: Answering Defendants deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph designated “1” of the Verified Complaint. SECOND: Answering Defendants deny the truth of the allegations contained in the paragraph designated “2” of the Verified Complaint, and respectfully refer all questions of law to the Court. THIRD: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “3” and “4” of the Verified Complaint, except admit that Defendant 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC was a foreign limited liability company on March 8, 2023, and respectfully refer all questions of law to the Court. FOURTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “5” and “6” of the Verified Complaint, except admit that Defendant SM 1 1 of 9 FILED: QUEENS COUNTY CLERK 06/23/2023 10:46 AM INDEX NO. 705517/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/23/2023 QOZB 1 LLC s/h/a SMB QOZB 1, LLC was a foreign limited liability company on March 8, 2023, and respectfully refer all questions of law to the Court. FIFTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “7”, “8”, and “9” of the Verified Complaint, except admit that Defendant RJB CONTRACTING CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A ARMTECK CONSTRUCTION CORP. was a New York domestic business corporation on March 8, 2023, and respectfully refer all questions of law to the Court. SIXTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “10”, “11”, and “12” of the Verified Complaint, except admit that Defendant AKI RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC. was a New York domestic business corporation on March 8, 2023, and respectfully refer all questions of law to the Court. AS AND FOR A FIRST CAUSE OF ACTION SEVENTH: In answering paragraph “13”, Answering Defendants repeat, reiterate, and reallege each of the responses to paragraphs “1” through “12” as if more fully set forth herein. EIGHTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “14”, “23”, “32”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”, and “44” of the Verified Complaint, and respectfully refer all questions of law to the Court. NINTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “15”, “16”, “17”, “18”, “19”, “20”, “21”, and “22” of the Verified Complaint, except admit that Defendant 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC owned the premises located at 35-01 36th Street, Astoria, New York, on March 8, 2023, and respectfully refer all questions of law to the Court. TENTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “24”, “25”, and “26” of the Verified Complaint, except admit that Defendants 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC and RJB CONTRACTING CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A 2 2 of 9 FILED: QUEENS COUNTY CLERK 06/23/2023 10:46 AM INDEX NO. 705517/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/23/2023 ARMTECK CONSTRUCTION CORP. entered into an agreement for work at the premises located at 35-01 36th Street, Astoria, New York, prior to March 8, 2023, and refer to the terms and conditions of the alleged agreement, and respectfully refer all questions of law to the Court. ELEVENTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “27”, “28”, “29”, “30”, and “31” of the Verified Complaint, and refer to the terms and conditions of the alleged agreement, and respectfully refer all questions of law to the Court. AS AND FOR A SECOND CAUSE OF ACTION TWELFTH: In answering paragraph “45”, Answering Defendants repeat, reiterate, and reallege each of the responses to paragraphs “1” through “44” as if more fully set forth herein. THIRTEENTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “46”, “48”, “49”, “50”, “51”, “52”, “53”, “54”, “55”, “64”, “65”, “66”, “67”, “68”, “69”, “70”, “71”, “72”, “73”, “74”, “75”, and “76” of the Verified Complaint, and respectfully refer all questions of law to the Court. FOURTEENTH: Answering Defendants deny the truth of the allegations contained in the paragraph designated “47” of the Verified Complaint, except admit that, upon information and belief, Defendant SM QOZB 1 LLC s/h/a SMB QOZB 1, LLC is a wholly-owned subsidiary of Defendant 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC, which is the owner of the premises located at 35-01 36th Street, Astoria, New York, and respectfully refer all questions of law to the Court. FIFTEENTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “56”, “57”, “58”, “59”, and “63” of the Verified Complaint, and refer to the terms and conditions of the alleged agreement, and respectfully refer all questions of law to the Court. SIXTEENTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “60”, “61”, and “62” of the Verified Complaint in that there were no 3 3 of 9 FILED: QUEENS COUNTY CLERK 06/23/2023 10:46 AM INDEX NO. 705517/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/23/2023 applicable agreements between Defendants SM QOZB 1 LLC s/h/a SMB QOZB 1, LLC and AKI RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC. in effect on March 8, 2023, and refer to the terms and conditions of the alleged agreement, and respectfully refer all questions of law to the Court. AS AND FOR A THIRD CAUSE OF ACTION SEVENTEENTH: In answering paragraph “77”, Answering Defendants repeat, reiterate, and reallege each of the responses to paragraphs “1” through “76” as if more fully set forth herein. EIGHTEENTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “78”, “86”, “87”, “88”, “89”, “90”, “91”, “92”, “93”, “94”, “95”, “96”, “97”, and “98” of the Verified Complaint, and respectfully refer all questions of law to the Court. NINETEENTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “79”, “80”, “81”, “83”, and “84” of the Verified Complaint, except admit that Defendants 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC and RJB CONTRACTING CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A ARMTECK CONSTRUCTION CORP. entered into an agreement for work at the premises located at 35-01 36th Street, Astoria, New York, prior to March 8, 2023, and refer to the terms and conditions of the alleged agreement, and respectfully refer all questions of law to the Court. TWENTIETH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “82” and “85” of the Verified Complaint, and refer to the terms and conditions of the alleged agreement, and respectfully refer all questions of law to the Court. AS AND FOR A FOURTH CAUSE OF ACTION TWENTY-FIRST: In answering paragraph “99”, Answering Defendants repeat, reiterate, and reallege each of the responses to paragraphs “1” through “98” as if more fully set forth herein. TWENTY-SECOND: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “100”, “108”, “109”, “110”, “111”, “112”, “113”, “114”, “115”, “116”, 4 4 of 9 FILED: QUEENS COUNTY CLERK 06/23/2023 10:46 AM INDEX NO. 705517/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/23/2023 “117”, “118”, “119”, and “120” of the Verified Complaint, and respectfully refer all questions of law to the Court. TWENTY-THIRD: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “101” and “103” of the Verified Complaint, and refer to the terms and conditions of the alleged agreement, and respectfully refer all questions of law to the Court. TWENTY-FOURTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “102” and “104” of the Verified Complaint in that there were no applicable agreements between Defendants SM QOZB 1 LLC s/h/a SMB QOZB 1, LLC and AKI RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC. in effect on March 8, 2023, and refer to the terms and conditions of the alleged agreement, and respectfully refer all questions of law to the Court. TWENTY-FIFTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “105”, “106”, and “107” of the Verified Complaint in that Defendant AKI RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC. was not on site at the premises located at 35-01 36th Street, Astoria, New York, on March 8, 2023, and refer to the terms and conditions of the alleged agreement, and respectfully refer all questions of law to the Court. AS AND FOR A FIFTH CAUSE OF ACTION TWENTY-SIXTH: In answering paragraph “121”, Answering Defendants repeat, reiterate, and reallege each of the responses to paragraphs “1” through “120” as if more fully set forth herein. TWENTY-SEVENTH: Answering Defendants deny the truth of the allegations contained in the paragraphs designated “122”, “123”, “124”, “125”, “126”, “127”, “128”, “129”, “130”, “131”, and “132” of the Verified Complaint, and respectfully refer all questions of law to the Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE TWENTY-EIGHTH: Whatever injuries and/or damages the Plaintiff may have sustained at the time and place mentioned in the Verified Complaint as a result of the occurrence alleged, all 5 5 of 9 FILED: QUEENS COUNTY CLERK 06/23/2023 10:46 AM INDEX NO. 705517/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/23/2023 of which are denied by the Answering Defendants, were caused in whole or in part by the culpable conduct of the Plaintiff. The amount of damages recovered, if any, shall therefore be diminished in the proportion which the culpable conduct, attributable to Plaintiff, bears to the culpable conduct which caused said injuries. AS AND FOR A SECOND AFFIRMATIVE DEFENSE TWENTY-NINTH: All risks and danger of loss or damages connected with the situation alleged in the Complaint was at the time and place mentioned obvious and apparent and were known by the Plaintiff and voluntarily assumed by Plaintiff. The Plaintiff’s actions were therefore the sole proximate cause of her injuries. AS AND FOR A THIRD AFFIRMATIVE DEFENSE THIRTIETH: The injuries and damages alleged were caused by the culpable conduct of some third person or persons over whom the Answering Defendant neither had nor exercised control. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THIRTY-FIRST: The liabilities of the Answering Defendants are limited by the provisions of Article 16 of the Civil Practice Law and Rules. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE THIRTY-SECOND: Plaintiff failed to mitigate his damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE THIRTY-THIRD: Any verdict, judgment or decision that might be obtained by Plaintiff against the Answering Defendants shall be reduced by the amount of any collateral source payments received by Plaintiff pursuant to CPLR § 4545(a) as determined by the Court. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE THIRTY-FOURTH: The negligence of those responsible for the accident or the occurrence alleged in the Verified Complaint constituted a separate, independent, superseding, intervening act which constitutes the sole proximate cause of the accident or occurrence alleged. 6 6 of 9 FILED: QUEENS COUNTY CLERK 06/23/2023 10:46 AM INDEX NO. 705517/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/23/2023 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE THIRTY-FIFTH: Plaintiff’s Complaint fails to name indispensable parties. AS AND FOR A NINTH AFFIRMATIVE DEFENSE THIRTY-SIXTH: Plaintiff is not in privity of contract with the Answering Defendants. AS AND FOR A TENTH AFFIRMATIVE DEFENSE THIRTY-SEVENTH: Upon information and belief, all risks and danger of loss or damages connected with the situation alleged in the Verified Complaint were de minimus, trivial and do not qualify as dangerous condition(s). AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE THIRTY-EIGHTH: The Answering Defendants owe no duty to Plaintiff. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE THIRTY-NINTH: Plaintiff’s Complaint fails to state a cause of action. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE FORTIETH: The Answering Defendants did not breach any duty or obligation owed, if any, to Plaintiff under common law, statute, regulations, or standards. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE FORTY-FIRST: Plaintiff failed to appreciate the situation as it existed at the subject premises at the time of the alleged incident. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE FORTY-SECOND: Plaintiff was not a construction laborer at the subject premises at the time of the alleged incident. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE FORTY-THIRD: Plaintiff was not an agent, independent contractor, or employee of any entity on site at the subject premises at the time of the alleged incident. WHEREFORE, Answering Defendants, 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC; SM QOZB 1 LLC s/h/a SM QOZB 1, LLC; RJB CONTRACTING 7 7 of 9 FILED: QUEENS COUNTY CLERK 06/23/2023 10:46 AM INDEX NO. 705517/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/23/2023 CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A ARMTECK CONSTRUCTION CORP.; and AKI RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC., hereby demand judgment dismissing the Plaintiff’s Verified Complaint herein, together with the costs and disbursements of this action, including attorneys’ fees, and for such other, further and different relief as this Court may deem just and proper. To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this paper or the contentions herein are not frivolous, as that term is defined in Part 130 of the Court Rules. Dated: White Plains, New York June 23, 2023 Yours, etc., COFFEY MODICA O’MEARA LLP _____________________________________ By: Michael P. Mezzacappa Attorneys for Defendants 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC; SM QOZB 1 LLC s/h/a SMB QOZB 1, LLC; RJB CONTRACTING CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A ARMTECK CONSTRUCTION CORP.; and AKI RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC. 200 E. Post Road, Suite 210 White Plains, NY 10601 (212) 827-4501 File No. 1081-0056 TO: CHAIKIN, PLLC Attorneys for Plaintiff 445 Broadhollow Road, Suite 232 Melville, NY 11747 (212) 977-2020 8 8 of 9 FILED: QUEENS COUNTY CLERK 06/23/2023 10:46 AM INDEX NO. 705517/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/23/2023 VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF WESTCHESTER ) MICHAEL P. MEZZACAPPA, being duly sworn, states that he is a member of the law firm of COFFEY MODICA O'MEARA LLP, attorneys for the Defendants, 35-01 ASTORIA OWNER LLC s/h/a 35-01 ASTORIA OWNER, LLC; SM QOZB 1 LLC s/h/a SMB QOZB 1, LLC; RJB CONTRACTING CARTING CORP. s/h/a RJB CONTRACTING CARTING CORP. D/B/A ARMTECK CONSTRUCTION CORP.; and AKI RENOVATIONS GROUP, INC. s/h/a AKI RENOVATIONS, INC., in this action and that the foregoing VERIFIED ANSWER is true to his knowledge, except as to those matters therein stated upon information and belief, and as to those matters he believes them to be true; that the grounds of his belief as to all matters not stated upon his knowledge are correspondence and other writings furnished by the Defendants and other documentations maintained in the office of its attorneys; and that the reason why this verification is not made by Defendants is that the Defendants are located in a county other than the county where their attorneys have its office. Dated: White Plains, New York June 23, 2023 _________________________ MICHAEL P. MEZZACAPPA 9 9 of 9