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= OUN NK Oo: AW INDEX NO. 532721/2021
NYSCEF BOC. NO. 40 RECEIVED NYSCEF: 02/23/2023
EXHIBIT “B”
INDEX NO. 532721/2021
FILED: KINGS COUNTY CLERK 0272372023 09:37 AM
NYSCEF DOC. NO. 40 RECEIVED NYSCEF 02/23/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
wane n nnn nee eee eee ene nenene,
CAROLINE RULLAN, VERIFIED ANSWER TO
AMENDED VERIFIED
Plaintiff, COMPLAINT
-against- Index No.: 532721/2021
ITA SHIMON AND JACOB SHIMON,
Defendants.
ween nen
ee eee
ITA SHIMON AND JACOB SHIMON,
Third-Party Plaintiffs
-agginst-
CITY SCAPE BUILDERS, LLC
Third-Party Defendant.
panne nnn nee ee eee een nenene,
The Defendants/Third-Party Plaintiffs, ITA SHIMON
AND JACOB SHIMON by their
attomeys, MARKS, O’NEILL, O’BRIEN, DOHERTY & KELLY, P.C., answering the
Amended Verified Complaint of the Plaintiff herein, respectfully alleges upon information and
belief:
1 Denies knowledge or information sufficient to form
a belief as to the truth of each
and every allegation contained in the paragraphs of the Amended Verified Complaint designated.
as follows:
“y', “4, 5", "6", "20", "22", "23", "2M", "25", "26", “29”, "35", "37", "39", “4” and
“aS!
{M0236921.1}
INDEX NO. 532721/2021
FILED: KINGS COUNTY CLERK 0272372023 09:37 AM
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/23/2023
2. Denies knowledge or information sufficient to form
a belief as to the truth of each
and every allegation contained in the paragraphs of the Amended Verified Complaint designated.
as follows:
“yy, “3”, “8”, “9”, "10", “10”, “12”, “14”, 115”, "16", “17”, “18” “30, “31”, “46” and “47”
and respectfully
refers all questions of law raised therein to the trial court
3. Admits each
and every allegation contained
in the paragraphs of the Amended.
Verified Complaint designated as follows:
“7 and “13”
4. Denies each and every allegation contained in the contained in the paragraphs of
the Amended Verified Complaint designated as follows:
“19", “20", “27”, "2B", “32”, "33" “F", "36", "38", 40", “42”, “43” and “44”
and respectfully
refers all questions of law raised therein to the trial court.
AS ANDFOR A FIRST SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
5. That any damages, injury and/or injuries sustained by plaintiff was caused in
whole or part by the culpable conduct and fault attributable to the plaintiff, including, but not
limited to, contributory negligence and/or want of care, and/or the plaintiff's assumption of the
tisk, and the amount recovered, if any, should be diminished pursuant to CPLR 1412
by the
proportion which the culpable conduct attributed to the plaintiff bearto the culpable conduct
which caused the damages,
if any.
{M0236921.1}
INDEX NO. 532721/2021
FILED: KINGS COUNTY CLERK 0272372023 09:37 AM
NYSCEF DOC. NO. 40 RECEIVED NYSCEF 02/23/2023
AS AND FOR A SECOND SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
6. The Amended Verified Complaint fails to state a cause of action upon which
relief can be founded.
AS AND FOR A THIRD SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
7. The present action is time barred by the operation of the Statute of Limitations
applicable pursuant to the CPLR.
AS AND FOR A FOURTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
8. If plaintiff
was causedto sustain damages at the time and place set forth
in the
plaintiffs Amended Verified Complaint it was due to the culpable conduct of person or persons
presently unknown.
AS ANDFOR A FIFTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
9. This Court has no jurisdiction over the persons of the defendants/Third-
Party
Plaintiffs and such defect has not been waived by defendants/Third-Party Plaintiffs and is
preserved.
AS AND FOR A SIXTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
10. The Worker's Compensation
Law Sec. 10 and 11 provides
the exclusive remedy
herein and the action at law is statutorily barred.
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INDEX NO. 532721/2021
FILED: KINGS COUNTY CLERK 0272372023 09:37 AM
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/23/2023
AS AND FOR A SEVENTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
11. The liability of this answering defendants/Third-
Party Plaintiffs are limited by law
under
the terms of Article Sixteenof the CPLR.
AS AND FOR AN EIGHTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
12. That any and all risks, hazards and dangers were open, obvious
and apparent,
Natural and inherent and known or should have been known by the plaintiff herein and that
Plaintiff assumed all such risks, hazards
and defects.
AS AND FOR A NINTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
13. That if the plaintiff sustained the injuries complained of in the manner alleged,
said injuries
were caused
by the negligence of parties over whom the answering defendant was
not obligated to exercise supervision or control.
AS AND FOR A TENTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
14. That any award recovered by plaintiff must be reduced by the receipt of collateral
source payments.
AS AND FOR AN ELEVENTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE
15. That plaintiff failed to mitigate damages.
AS AND FOR A TWELFTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
16. The condition which allegedly caused Plaintiff's accident was de minimis and/or
transient in nature and is, therefore, non-actionable as a matter
of law.
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INDEX NO. 532721/2021
FILED: KINGS COUNTY CLERK 0272372023 09:37 AM
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/23/2023
AS AND FOR A THIRTEENTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
17. The action is devoid of merit because Plaintiff has no basis for recovery against
Defendants/Third-Party Plaintiffs.
ASAND FOR A FOURTEENTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
18. To the extent the damages set forth in plaintiff's Complaint
could have been
wholly orin part avoided by reasonable effort of the plaintiff, and without undue burden, risk or
expense, said damages were the result of plaintiff's failure to mitigate and may not be recovered.
from this answering Defendants/Third-Party Plaintiffs.
AS AND FOR A FIFTEENTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
19. This action is barred by laches, estoppel and/or waiver.
AS AND FOR A SIXTEENTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
20. Defendants/Third-
Party Plaintiffs reserves the right to assert additional defenses
that may be applicable and to more specifically
assert affirmative defenses once the precise
nature of the claims are ascertained through discovery and investigation.
AS AND FOR A SEVENTEENTH SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE:
21. The complaint must be dismissed pursuant to CPLR §3211(a)(4) upon the
grounds
that there is another action pending in this court between the same parties for the same
causes of action.
WHEREFORE, Defendants/Third-Party Plaintiffs, ITA SHIMON AND JACOB
SHIMON, demand judgment against the Plaintiff as follows:
(a) dismissing Plaintiff's Amended Verified Complaint, together with the
costs and disbursements of this action;
{M0236921.1}
INDEX NO. 532721/2021
FILED: KINGS COUNTY CLERK 0272372023 09:37 AM
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/23/2023
(b) in the altemative, and in the event that Plaintiff prevails, the
Defendants/Third-Party Plaintiffs, ITA SHIMON AND JACOB
SHIMON, demand judgment determining the respective percentages of
fault on the part of the Third-Party Defendant CITY SCAPE
BUILDERS, LLC and Plaintiff, thereby reducing the amount of damages
as against the answering Defendants/Third- Party Plaintiffs, ITA
SHIMON AND JACOB SHIMON, by the respective percentage of fault
of the Plaintiff.
Dated: New Y ork, New Y ork
September 15, 2022
Maria Pattatos
MARIA PAVLATOS
MARKS, O'NEILL, O’ BRIEN,
DOHERTY & KELLY, P.C.
Attomeys for Defendants/Third- Party
Plaintiffs
ITA SHIMON AND JACOB SHIMON
600 Third Avenue, Suite 1501
New York, NY 10017
(212) 967-0080
File No.: 1929.110986
TO:
MICHAEL M. GOLDBERG
Attomeys for Plaintiff
CAROLINE RULLAN
265 Sunrise Highway, Suite 32
Rockville Centre, New
Y ork 11570
(212) 481-0011
CITYSCAPE BUILDERS LLC
5314 16th Ave, suite 166
Brooklyn, New
Y ork 11204
{M0236921.1}
INDEX NO. 532721/2021
FILED: KINGS COUNTY CLERK 0272372023 09:37 AM
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/23/2023
ATTORNEY VERIFICATION
The undersigned, under
the penalties of perjury, affirms:
That he is MARIA PAVLATOS, a partner of the firm of MARKS, O’NEILL,
O'BRIEN, DOHERTY
& KELLY, P.C., that she has read the foregoing papers and the same
are true to her knowledge, except those matters therein which are stated to be alleged on
information
and belief, and as to those matters, she believes them to be true; that the grounds
and
sources of such belief are matters contained in this firm's file, as well as conferences had between.
this affirmant and representatives of the defendant(s); and that the reason this affirmation is not
made by the party is that said party is not in the county where affirmant has his office.
Dated: New Y ork, New York
September 15, 2022
Maria Pattatos
MARIA PAVLATOS
{M0236921.1}
Preview
= OUN NK Oo: AW INDEX NO. 532721/2021 NYSCEF BOC. NO. 40 RECEIVED NYSCEF: 02/23/2023 EXHIBIT “B” INDEX NO. 532721/2021 FILED: KINGS COUNTY CLERK 0272372023 09:37 AM NYSCEF DOC. NO. 40 RECEIVED NYSCEF 02/23/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS wane n nnn nee eee eee ene nenene, CAROLINE RULLAN, VERIFIED ANSWER TO AMENDED VERIFIED Plaintiff, COMPLAINT -against- Index No.: 532721/2021 ITA SHIMON AND JACOB SHIMON, Defendants. ween nen ee eee ITA SHIMON AND JACOB SHIMON, Third-Party Plaintiffs -agginst- CITY SCAPE BUILDERS, LLC Third-Party Defendant. panne nnn nee ee eee een nenene, The Defendants/Third-Party Plaintiffs, ITA SHIMON AND JACOB SHIMON by their attomeys, MARKS, O’NEILL, O’BRIEN, DOHERTY & KELLY, P.C., answering the Amended Verified Complaint of the Plaintiff herein, respectfully alleges upon information and belief: 1 Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in the paragraphs of the Amended Verified Complaint designated. as follows: “y', “4, 5", "6", "20", "22", "23", "2M", "25", "26", “29”, "35", "37", "39", “4” and “aS! {M0236921.1} INDEX NO. 532721/2021 FILED: KINGS COUNTY CLERK 0272372023 09:37 AM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/23/2023 2. Denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in the paragraphs of the Amended Verified Complaint designated. as follows: “yy, “3”, “8”, “9”, "10", “10”, “12”, “14”, 115”, "16", “17”, “18” “30, “31”, “46” and “47” and respectfully refers all questions of law raised therein to the trial court 3. Admits each and every allegation contained in the paragraphs of the Amended. Verified Complaint designated as follows: “7 and “13” 4. Denies each and every allegation contained in the contained in the paragraphs of the Amended Verified Complaint designated as follows: “19", “20", “27”, "2B", “32”, "33" “F", "36", "38", 40", “42”, “43” and “44” and respectfully refers all questions of law raised therein to the trial court. AS ANDFOR A FIRST SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 5. That any damages, injury and/or injuries sustained by plaintiff was caused in whole or part by the culpable conduct and fault attributable to the plaintiff, including, but not limited to, contributory negligence and/or want of care, and/or the plaintiff's assumption of the tisk, and the amount recovered, if any, should be diminished pursuant to CPLR 1412 by the proportion which the culpable conduct attributed to the plaintiff bearto the culpable conduct which caused the damages, if any. {M0236921.1} INDEX NO. 532721/2021 FILED: KINGS COUNTY CLERK 0272372023 09:37 AM NYSCEF DOC. NO. 40 RECEIVED NYSCEF 02/23/2023 AS AND FOR A SECOND SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 6. The Amended Verified Complaint fails to state a cause of action upon which relief can be founded. AS AND FOR A THIRD SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 7. The present action is time barred by the operation of the Statute of Limitations applicable pursuant to the CPLR. AS AND FOR A FOURTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 8. If plaintiff was causedto sustain damages at the time and place set forth in the plaintiffs Amended Verified Complaint it was due to the culpable conduct of person or persons presently unknown. AS ANDFOR A FIFTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 9. This Court has no jurisdiction over the persons of the defendants/Third- Party Plaintiffs and such defect has not been waived by defendants/Third-Party Plaintiffs and is preserved. AS AND FOR A SIXTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 10. The Worker's Compensation Law Sec. 10 and 11 provides the exclusive remedy herein and the action at law is statutorily barred. {M0236921.1} INDEX NO. 532721/2021 FILED: KINGS COUNTY CLERK 0272372023 09:37 AM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/23/2023 AS AND FOR A SEVENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 11. The liability of this answering defendants/Third- Party Plaintiffs are limited by law under the terms of Article Sixteenof the CPLR. AS AND FOR AN EIGHTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 12. That any and all risks, hazards and dangers were open, obvious and apparent, Natural and inherent and known or should have been known by the plaintiff herein and that Plaintiff assumed all such risks, hazards and defects. AS AND FOR A NINTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 13. That if the plaintiff sustained the injuries complained of in the manner alleged, said injuries were caused by the negligence of parties over whom the answering defendant was not obligated to exercise supervision or control. AS AND FOR A TENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 14. That any award recovered by plaintiff must be reduced by the receipt of collateral source payments. AS AND FOR AN ELEVENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 15. That plaintiff failed to mitigate damages. AS AND FOR A TWELFTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 16. The condition which allegedly caused Plaintiff's accident was de minimis and/or transient in nature and is, therefore, non-actionable as a matter of law. {M0236921.1} INDEX NO. 532721/2021 FILED: KINGS COUNTY CLERK 0272372023 09:37 AM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/23/2023 AS AND FOR A THIRTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 17. The action is devoid of merit because Plaintiff has no basis for recovery against Defendants/Third-Party Plaintiffs. ASAND FOR A FOURTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 18. To the extent the damages set forth in plaintiff's Complaint could have been wholly orin part avoided by reasonable effort of the plaintiff, and without undue burden, risk or expense, said damages were the result of plaintiff's failure to mitigate and may not be recovered. from this answering Defendants/Third-Party Plaintiffs. AS AND FOR A FIFTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 19. This action is barred by laches, estoppel and/or waiver. AS AND FOR A SIXTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 20. Defendants/Third- Party Plaintiffs reserves the right to assert additional defenses that may be applicable and to more specifically assert affirmative defenses once the precise nature of the claims are ascertained through discovery and investigation. AS AND FOR A SEVENTEENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE: 21. The complaint must be dismissed pursuant to CPLR §3211(a)(4) upon the grounds that there is another action pending in this court between the same parties for the same causes of action. WHEREFORE, Defendants/Third-Party Plaintiffs, ITA SHIMON AND JACOB SHIMON, demand judgment against the Plaintiff as follows: (a) dismissing Plaintiff's Amended Verified Complaint, together with the costs and disbursements of this action; {M0236921.1} INDEX NO. 532721/2021 FILED: KINGS COUNTY CLERK 0272372023 09:37 AM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/23/2023 (b) in the altemative, and in the event that Plaintiff prevails, the Defendants/Third-Party Plaintiffs, ITA SHIMON AND JACOB SHIMON, demand judgment determining the respective percentages of fault on the part of the Third-Party Defendant CITY SCAPE BUILDERS, LLC and Plaintiff, thereby reducing the amount of damages as against the answering Defendants/Third- Party Plaintiffs, ITA SHIMON AND JACOB SHIMON, by the respective percentage of fault of the Plaintiff. Dated: New Y ork, New Y ork September 15, 2022 Maria Pattatos MARIA PAVLATOS MARKS, O'NEILL, O’ BRIEN, DOHERTY & KELLY, P.C. Attomeys for Defendants/Third- Party Plaintiffs ITA SHIMON AND JACOB SHIMON 600 Third Avenue, Suite 1501 New York, NY 10017 (212) 967-0080 File No.: 1929.110986 TO: MICHAEL M. GOLDBERG Attomeys for Plaintiff CAROLINE RULLAN 265 Sunrise Highway, Suite 32 Rockville Centre, New Y ork 11570 (212) 481-0011 CITYSCAPE BUILDERS LLC 5314 16th Ave, suite 166 Brooklyn, New Y ork 11204 {M0236921.1} INDEX NO. 532721/2021 FILED: KINGS COUNTY CLERK 0272372023 09:37 AM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/23/2023 ATTORNEY VERIFICATION The undersigned, under the penalties of perjury, affirms: That he is MARIA PAVLATOS, a partner of the firm of MARKS, O’NEILL, O'BRIEN, DOHERTY & KELLY, P.C., that she has read the foregoing papers and the same are true to her knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters, she believes them to be true; that the grounds and sources of such belief are matters contained in this firm's file, as well as conferences had between. this affirmant and representatives of the defendant(s); and that the reason this affirmation is not made by the party is that said party is not in the county where affirmant has his office. Dated: New Y ork, New York September 15, 2022 Maria Pattatos MARIA PAVLATOS {M0236921.1}