Preview
FILED: BRONX COUNTY CLERK 10/17/2023
04/20/2023 05:42
03:49 PM INDEX NO. 805090/2023E
NYSCEF DOC. NO. 30
11 RECEIVED NYSCEF: 10/17/2023
04/20/2023
SUPREME COURT OF THE STATE OF NEW
YORK
COUNTY OF BRONX
-------------------------------------------------------------X
LEEANN F. GIORDANO, Index No.: 805090/2023E
Plaintiff, ANSWER TO VERIFIED
-against- COMPLAINT ON BEHALF OF
DEFENDANTS SCHINDLER
MACY’S EAST INC., MACY’S and SCHINDLER ELEVATOR CORPORATION,
ELEVATOR CORPORATION, MACY’S RETAIL HOLDINGS,
LLC I/P/A MACY’S, AND MACY’S
Defendant(s). EAST INC., SEPARATE
-------------------------------------------------------------X DEFENSES, AND DEMAND FOR
STATEMENT OF DAMAGES
Defendants, SCHINDLER ELEVATOR CORPORATION (“SEC”), MACY’S RETAIL
HOLDINGS, LLC i/p/a MACY’S (“Macy’s Holdings”), and MACY’S EAST INC. (collectively
“Defendants”), by way of Verified Answer to the allegations set forth in plaintiff’s Verified
Complaint, hereby say:
FIRST: Defendants deny the allegations set forth in the FIRST Paragraph of the
Verified Complaint, as Macy’s East Inc. is not a proper defendant.
SECOND: Defendants deny the allegations set forth in the SECOND Paragraph of the
Verified Complaint, as Macy’s East Inc. is not a proper defendant.
THIRD: Defendants deny the allegations set forth in the THIRD Paragraph of the
Verified Complaint, as Macy’s East Inc. is not a proper defendant.
FOURTH: Defendants deny the allegations set forth in the FOURTH Paragraph of the
Verified Complaint, as Macy’s East Inc. is not a proper defendant.
FIFTH: Defendants deny the allegations set forth in the FIFTH Paragraph of the
Verified Complaint, as Macy’s East Inc. is not a proper defendant.
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SIXTH: Defendants deny the allegations set forth in the SIXTH Paragraph of the
Verified Complaint, as Macy’s East Inc. is not a proper defendant.
SEVENTH: Defendants admit Macy’s Holdings is a corporation with a principal place
of business in New York State. Defendants deny all other allegations set forth in the SEVENTH
Paragraph of the Verified Complaint
EIGHTH: Defendants deny the allegations set forth in the EIGHTH Paragraph of the
Verified Complaint.
NINTH: Defendants deny the allegations set forth in the NINTH Paragraph of the
Verified Complaint.
TENTH: Defendants admit the allegations set forth in the TENTH Paragraph of the
Verified Complaint.
ELEVENTH: Defendants admit the allegations set forth in the ELEVENTH Paragraph of
the Verified Complaint.
TWELFTH: Defendants admit that Macy’s Holdings owned and operated a Macy’s at
151 West 34th Street, New York, New York subject to the fact that Macy’s Holdings holds several
service agreements for the subject location. Defendants deny all other allegations set forth in the
TWELFTH Paragraph of the Verified Complaint.
THIRTEENTH: Defendants admit that Macy’s Holdings owned and operated a
Macy’s at 151 West 34th Street, New York, New York subject to the fact that Macy’s Holdings
holds several service agreements for the subject location. Defendants deny all other allegations set
forth in the THIRTEENTH Paragraph of the Verified Complaint.
FOURTEENTH: Defendants deny the allegations set forth in the FOURTEENTH
Paragraph of the Verified Complaint.
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FIFTEENTH: Defendants admit that SEC is a Delaware Corporation. Defendants
deny all other allegations set forth in the FIFTEENTH Paragraph of the Verified Complaint.
SIXTEENTH: Defendants deny the allegations set forth in the SIXTEENTH
Paragraph of the Verified Complaint.
SEVENTEENTH: Defendants deny the allegations set forth in the SEVENTEENTH
Paragraph of the Verified Complaint.
EIGHTEENTH: Defendants admit that, on November 26, 2021, a Vertical
Transportation Agreement was in effect between Macy’s Holdings and SEC which covered the
Macy’s located at 151 West 34th Street, New York, New York. Defendants deny all other
allegations set forth in the EIGHTEENTH Paragraph of the Verified Complaint.
NINETEENTH: Defendants deny the allegations set forth in the NINETEENTH
Paragraph of the Verified Complaint.
TWENTIETH: Defendants deny the allegations set forth in the TWENTIETH
Paragraph of the Verified Complaint.
TWENTY-FIRST: Defendants admit that, on November 26, 2021, a Vertical
Transportation Agreement was in effect between Macy’s Holdings and SEC which covered the
Macy’s located at 151 West 34th Street, New York, New York. Defendants deny all other
allegations set forth in the TWENTY-FIRST Paragraph of the Verified Complaint.
TWENTY-SECOND: Defendants admit that, on November 26, 2021, a Vertical
Transportation Agreement was in effect between Macy’s Holdings and SEC which covered the
Macy’s located at 151 West 34th Street, New York, New York. Defendants deny all other
allegations set forth in the TWENTY-SECOND Paragraph of the Verified Complaint.
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TWENTY-THIRD: Defendants admit that Macy’s Holdings owned and operated a
Macy’s at 151 West 34th Street, New York, New York subject to the fact that Macy’s Holdings
holds several service agreements for the subject location and that on November 26, 2021, a Vertical
Transportation Agreement was in effect between Macy’s Holdings and SEC which covered the
Macy’s located at 151 West 34th Street, New York, New York. Defendants deny all other
allegations set forth in the TWENTY-THIRD Paragraph of the Verified Complaint.
TWENTY-FOURTH: Defendants deny knowledge or information sufficient to form a
belief as to the allegations set forth in the TWENTY-FOURTH Paragraph of the Verified
Complaint.
TWENTY-FIFTH: Defendants deny the allegations set forth in the TWENTY-FIFTH
Paragraph of the Verified Complaint.
TWENTY-SIXTH: Defendants deny the allegations set forth in the TWENTY-SIXTH
Paragraph of the Verified Complaint.
TWENTY-SEVENTH: Defendants aver that the TWENTY-SEVENTH Paragraph
of the Verified Complaint contains conclusions of law to which no response is required. To the
extent a response is required, the allegations are denied.
TWENTY-EIGHTH: Defendants deny the allegations set forth in the TWENTY-
EIGHTH Paragraph of the Verified Complaint.
TWENTY-NINTH: Defendants aver that the TWENTY-NINTH Paragraph of the
Verified Complaint contains conclusions of law to which no response is required. To the extent a
response is required, the allegations are denied.
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WHEREFORE, Defendants, Schindler Elevator Corporation, Macy’s Retail Holdings,
LLC i/p/a Macy’s, and Macy’s East Inc. demand judgment dismissing the Verified Complaint
herein together with interest, costs and disbursements as may be required by law.
SEPARATE DEFENSES
AS AND FOR A FIRST DEFENSE, DEFENDANTS ALLEGE:
The Verified Complaint fails to state a cause of action against Defendants.
AS AND FOR A SECOND DEFENSE, DEFENDANTS ALLEGE:
Defendants demand that liability be apportioned.
AS AND FOR A THIRD DEFENSE, DEFENDANTS ALLEGE:
Upon information and belief, the injuries sustained by plaintiff were not the result of any
culpable conduct of Defendants but were solely the result of the culpable conduct of the plaintiff.
AS AND FOR A FOURTH DEFENSE, DEFENDANTS ALLEGE:
Any past or future costs or expenses incurred or to be incurred by the plaintiff for medical
care, dental care, custodial care, property damage or rehabilitative services, loss of earnings or
other economic loss has been or will with reasonable certainty be replaced or indemnified in whole
or in part from a collateral source as defined in CPLR § 4545.
AS AND FOR A FIFTH DEFENSE, DEFENDANTS ALLEGE:
Plaintiff may not recover all or part of the damages allegedly sustained by virtue of her
failure to mitigate the damages allegedly sustained.
AS AND FOR A SIXTH DEFENSE, DEFENDANTS ALLEGE:
If plaintiff sustained damages as alleged in the Verified Complaint, other than by reason of
her own culpable conduct, then such damages were caused in whole or in part by the culpable
conduct of some third person or persons over whom Defendants neither had nor exercised control.
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AS AND FOR A SEVENTH DEFENSE, DEFENDANTS ALLEGE:
The negligence of those responsible for the accident or the occurrence alleged in the
Verified Complaint constituted a separate, independent, superseding, intervening culpable act or
acts which constitute the sole proximate cause of the accident or occurrence alleged.
AS AND FOR AN EIGHTH DEFENSE, DEFENDANTS ALLEGE:
Plaintiff has failed to state facts sufficient to provide a legal or factual basis to award
compensatory damages to plaintiff under any of the causes of action alleged in the Verified
Complaint on file herein.
AS AND FOR A NINTH DEFENSE, DEFENDANTS ALLEGE:
Other parties not named in the Verified Complaint herein who were neither the agents nor
the employees of Defendants were responsible parties.
AS AND FOR A TENTH DEFENSE, DEFENDANTS ALLEGE:
The incidents and events described in the Verified Complaint were caused in whole or in
part by other persons and/or entities.
AS AND FOR AN ELEVENTH DEFENSE, DEFENDANTS ALLEGE:
Each and every cause of action in the Verified Complaint is barred by the statute of
limitations.
AS AND FOR A TWELVETH DEFENSE, THIS DEFENDANT ALLEGES:
Plaintiff is estopped from recovery on the Verified Complaint on file herein by virtue of
the conduct of plaintiff.
AS AND FOR A THIRTEENTH DEFENSE, DEFENDANTS ALLEGE:
Plaintiff’s Verified Complaint is barred, in whole or in part, because plaintiff did not
exercise ordinary care, caution or prudence to avoid the injuries alleged; and the resulting damages,
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if any, sustained by plaintiff were proximately caused and contributed to by the negligence or
intentional conduct of plaintiff.
AS AND FOR A FOURTEENTH DEFENSE, DEFENDANTS ALLEGE:
Plaintiff is barred from recovery on the Verified Complaint on the grounds that the acts of
plaintiff constitute a waiver of their right to recover damages.
AS AND FOR A FIFTEENTH DEFENSE, DEFENDANTS ALLEGE:
Any alleged damages plaintiff sustained by reason of the matters alleged in the Verified
Complaint, to the extent not caused by the negligence, conduct, omission or fault of plaintiff, her
agents, attorneys, partners and/or employees, were proximately caused by the negligent conduct,
omission or fault of persons or entities other than Defendants, for whose acts and/or omissions
Defendants are not responsible. Should Defendants be found liable to plaintiff for matters alleged
in the Verified Complaint, Defendants are entitled to have a determination of its responsibility and
fault, if any, compared with the responsibility and fault of all other persons and entities who
proximately caused plaintiff’s alleged damages.
AS AND FOR A SIXTEENTH DEFENSE, DEFENDANTS ALLEGE:
The liability of Defendants is limited under the terms of Article 16 of the CPLR.
AS AND FOR A SEVENTEENTH DEFENSE, DEFENDANTS ALLEGE:
Defendants were not the legal or proximate cause of any damages, if any, allegedly suffered
by plaintiff.
AS AND FOR AN EIGHTEENTH DEFENSE, DEFENDANTS ALLEGE:
Plaintiff is not entitled under contract or statute to recover attorneys' fees for the acts
alleged in the Verified Complaint.
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AS AND FOR A NINETEENTH DEFENSE, DEFENDANTS ALLEGE:
Plaintiff is not entitled to recovery for any alleged damages suffered by plaintiff because
plaintiff assumed the risk in acting in the manner which purportedly caused the injury to plaintiff.
AS AND FOR A TWENTIETH DEFENSE, DEFENDANTS ALLEGE:
That all risks and dangers connected with this situation at the time and place mentioned in
the Verified Complaint were open, obvious, and apparent and were known to and assumed by
plaintiff.
AS AND FOR A TWENTY-FIRST DEFENSE, DEFENDANTS ALLEGE:
That any sums or consideration paid or promised to plaintiff by any person(s) or entity(ies)
claimed to be liable for the injuries or damages alleged in the Verified Complaint shall reduce any
judgment rendered in favor of plaintiff as against Defendants to the extent of the greater of either
the sums or consideration paid or promised to plaintiff or the amount of the released tortfeasor’s(s’)
equitable share(s) or the damages in accordance with General Obligation Law Section 15-108.
AS AND FOR A TWENTY-SECOND DEFENSE, DEFENDANTS ALLEGE:
If Defendants are liable to plaintiff, which Defendants expressly deny, then Defendants are
entitled to a set-off for all settlements/benefits received by plaintiff.
AS AND FOR A TWENTY-THIRD DEFENSE, DEFENDANTS ALLEGE:
Defendants were not negligent, careless and/or reckless, in the exercise of any obligation
to plaintiff, if any obligation existed.
AS AND FOR A TWENTY-FOURTH DEFENSE, DEFENDANTS ALLEGE:
Defendants assert all other affirmative defenses to the allegations of the Verified Complaint
on file herein which is available to it under the law and which may arise based upon facts not
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known or not now recognized as operative respective of the legal issues raised by the allegations
of the Verified Complaint on file herein.
WHEREFORE, Defendants, Schindler Elevator Corporation, Macy’s Retail Holdings,
LLC i/p/a Macy’s, and Macy’s East Inc. demand judgment dismissing the Verified Complaint
herein together with interest, costs and disbursements as may be required by law.
DEMAND FOR STATEMENT OF DAMAGES
Pursuant to CPLR § 3017, demand is hereby made that plaintiff serve a supplemental
statement setting forth the total damages to which she deems herself entitled.
WHEREFORE, Defendants, Schindler Elevator Corporation, Macy’s Retail Holdings,
LLC i/p/a Macy’s, and Macy’s East Inc. demand judgment dismissing the Verified Complaint
herein together with interest, costs and disbursements as may be required by law.
DATE: April 20, 2023
CONNELL FOLEY LLP
By: ______________________________
Catherine G. Bryan, Esq.
One Newark Center
1085 Raymond Blvd., 19th Floor
Newark, New Jersey 07102
(973) 436.5800
Attorneys for Defendants,
Schindler Elevator Corporation, Macy’s
Retail Holdings, LLC i/p/a Macy’s, and
Macy’s East Inc.
TO: Peter May, Esq.
Subin Associates, LLP
Attorneys for Plaintiff
Leeann F. Giordano
150 Broadway – 23rd Floor
New York, New York 10038
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ATTORNEY'S VERIFICATION
CATHERINE G. BRYAN, being duly sworn, deposes and says that he is a member of
the firm of Connell Foley LLP, and that she has read the contents of the foregoing and that it is
true to her own knowledge, except as to the matters therein stated to be alleged on information and
belief and that as to those matters deponent believes to be true.
( ) That deponent makes this verification because Plaintiff(s) resides outside of
the county where deponent maintains her office.
( ) That deponent makes this verification because is (are) a corporation(s) and
deponent is their attorneys and deponent’s knowledge is based upon all the facts
and corporation records available and in deponent’s possession.
( X ) That deponent makes this verification because Defendants, Schindler
Elevator Corporation, Macy’s Retail Holdings, LLC i/p/a Macy’s, and Macy’s East
Inc., reside outside of the county where deponent maintains her office.
DATE: April 20, 2023
CONNELL FOLEY LLP
By:
Catherine G. Bryan
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Preview
FILED: BRONX COUNTY CLERK 10/17/2023 04/20/2023 05:42 03:49 PM INDEX NO. 805090/2023E NYSCEF DOC. NO. 30 11 RECEIVED NYSCEF: 10/17/2023 04/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -------------------------------------------------------------X LEEANN F. GIORDANO, Index No.: 805090/2023E Plaintiff, ANSWER TO VERIFIED -against- COMPLAINT ON BEHALF OF DEFENDANTS SCHINDLER MACY’S EAST INC., MACY’S and SCHINDLER ELEVATOR CORPORATION, ELEVATOR CORPORATION, MACY’S RETAIL HOLDINGS, LLC I/P/A MACY’S, AND MACY’S Defendant(s). EAST INC., SEPARATE -------------------------------------------------------------X DEFENSES, AND DEMAND FOR STATEMENT OF DAMAGES Defendants, SCHINDLER ELEVATOR CORPORATION (“SEC”), MACY’S RETAIL HOLDINGS, LLC i/p/a MACY’S (“Macy’s Holdings”), and MACY’S EAST INC. (collectively “Defendants”), by way of Verified Answer to the allegations set forth in plaintiff’s Verified Complaint, hereby say: FIRST: Defendants deny the allegations set forth in the FIRST Paragraph of the Verified Complaint, as Macy’s East Inc. is not a proper defendant. SECOND: Defendants deny the allegations set forth in the SECOND Paragraph of the Verified Complaint, as Macy’s East Inc. is not a proper defendant. THIRD: Defendants deny the allegations set forth in the THIRD Paragraph of the Verified Complaint, as Macy’s East Inc. is not a proper defendant. FOURTH: Defendants deny the allegations set forth in the FOURTH Paragraph of the Verified Complaint, as Macy’s East Inc. is not a proper defendant. FIFTH: Defendants deny the allegations set forth in the FIFTH Paragraph of the Verified Complaint, as Macy’s East Inc. is not a proper defendant. Page 1 of 10 7297141-1 1 of 10 FILED: BRONX COUNTY CLERK 10/17/2023 04/20/2023 05:42 03:49 PM INDEX NO. 805090/2023E NYSCEF DOC. NO. 30 11 RECEIVED NYSCEF: 10/17/2023 04/20/2023 SIXTH: Defendants deny the allegations set forth in the SIXTH Paragraph of the Verified Complaint, as Macy’s East Inc. is not a proper defendant. SEVENTH: Defendants admit Macy’s Holdings is a corporation with a principal place of business in New York State. Defendants deny all other allegations set forth in the SEVENTH Paragraph of the Verified Complaint EIGHTH: Defendants deny the allegations set forth in the EIGHTH Paragraph of the Verified Complaint. NINTH: Defendants deny the allegations set forth in the NINTH Paragraph of the Verified Complaint. TENTH: Defendants admit the allegations set forth in the TENTH Paragraph of the Verified Complaint. ELEVENTH: Defendants admit the allegations set forth in the ELEVENTH Paragraph of the Verified Complaint. TWELFTH: Defendants admit that Macy’s Holdings owned and operated a Macy’s at 151 West 34th Street, New York, New York subject to the fact that Macy’s Holdings holds several service agreements for the subject location. Defendants deny all other allegations set forth in the TWELFTH Paragraph of the Verified Complaint. THIRTEENTH: Defendants admit that Macy’s Holdings owned and operated a Macy’s at 151 West 34th Street, New York, New York subject to the fact that Macy’s Holdings holds several service agreements for the subject location. Defendants deny all other allegations set forth in the THIRTEENTH Paragraph of the Verified Complaint. FOURTEENTH: Defendants deny the allegations set forth in the FOURTEENTH Paragraph of the Verified Complaint. Page 2 of 10 7297141-1 2 of 10 FILED: BRONX COUNTY CLERK 10/17/2023 04/20/2023 05:42 03:49 PM INDEX NO. 805090/2023E NYSCEF DOC. NO. 30 11 RECEIVED NYSCEF: 10/17/2023 04/20/2023 FIFTEENTH: Defendants admit that SEC is a Delaware Corporation. Defendants deny all other allegations set forth in the FIFTEENTH Paragraph of the Verified Complaint. SIXTEENTH: Defendants deny the allegations set forth in the SIXTEENTH Paragraph of the Verified Complaint. SEVENTEENTH: Defendants deny the allegations set forth in the SEVENTEENTH Paragraph of the Verified Complaint. EIGHTEENTH: Defendants admit that, on November 26, 2021, a Vertical Transportation Agreement was in effect between Macy’s Holdings and SEC which covered the Macy’s located at 151 West 34th Street, New York, New York. Defendants deny all other allegations set forth in the EIGHTEENTH Paragraph of the Verified Complaint. NINETEENTH: Defendants deny the allegations set forth in the NINETEENTH Paragraph of the Verified Complaint. TWENTIETH: Defendants deny the allegations set forth in the TWENTIETH Paragraph of the Verified Complaint. TWENTY-FIRST: Defendants admit that, on November 26, 2021, a Vertical Transportation Agreement was in effect between Macy’s Holdings and SEC which covered the Macy’s located at 151 West 34th Street, New York, New York. Defendants deny all other allegations set forth in the TWENTY-FIRST Paragraph of the Verified Complaint. TWENTY-SECOND: Defendants admit that, on November 26, 2021, a Vertical Transportation Agreement was in effect between Macy’s Holdings and SEC which covered the Macy’s located at 151 West 34th Street, New York, New York. Defendants deny all other allegations set forth in the TWENTY-SECOND Paragraph of the Verified Complaint. Page 3 of 10 7297141-1 3 of 10 FILED: BRONX COUNTY CLERK 10/17/2023 04/20/2023 05:42 03:49 PM INDEX NO. 805090/2023E NYSCEF DOC. NO. 30 11 RECEIVED NYSCEF: 10/17/2023 04/20/2023 TWENTY-THIRD: Defendants admit that Macy’s Holdings owned and operated a Macy’s at 151 West 34th Street, New York, New York subject to the fact that Macy’s Holdings holds several service agreements for the subject location and that on November 26, 2021, a Vertical Transportation Agreement was in effect between Macy’s Holdings and SEC which covered the Macy’s located at 151 West 34th Street, New York, New York. Defendants deny all other allegations set forth in the TWENTY-THIRD Paragraph of the Verified Complaint. TWENTY-FOURTH: Defendants deny knowledge or information sufficient to form a belief as to the allegations set forth in the TWENTY-FOURTH Paragraph of the Verified Complaint. TWENTY-FIFTH: Defendants deny the allegations set forth in the TWENTY-FIFTH Paragraph of the Verified Complaint. TWENTY-SIXTH: Defendants deny the allegations set forth in the TWENTY-SIXTH Paragraph of the Verified Complaint. TWENTY-SEVENTH: Defendants aver that the TWENTY-SEVENTH Paragraph of the Verified Complaint contains conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. TWENTY-EIGHTH: Defendants deny the allegations set forth in the TWENTY- EIGHTH Paragraph of the Verified Complaint. TWENTY-NINTH: Defendants aver that the TWENTY-NINTH Paragraph of the Verified Complaint contains conclusions of law to which no response is required. To the extent a response is required, the allegations are denied. Page 4 of 10 7297141-1 4 of 10 FILED: BRONX COUNTY CLERK 10/17/2023 04/20/2023 05:42 03:49 PM INDEX NO. 805090/2023E NYSCEF DOC. NO. 30 11 RECEIVED NYSCEF: 10/17/2023 04/20/2023 WHEREFORE, Defendants, Schindler Elevator Corporation, Macy’s Retail Holdings, LLC i/p/a Macy’s, and Macy’s East Inc. demand judgment dismissing the Verified Complaint herein together with interest, costs and disbursements as may be required by law. SEPARATE DEFENSES AS AND FOR A FIRST DEFENSE, DEFENDANTS ALLEGE: The Verified Complaint fails to state a cause of action against Defendants. AS AND FOR A SECOND DEFENSE, DEFENDANTS ALLEGE: Defendants demand that liability be apportioned. AS AND FOR A THIRD DEFENSE, DEFENDANTS ALLEGE: Upon information and belief, the injuries sustained by plaintiff were not the result of any culpable conduct of Defendants but were solely the result of the culpable conduct of the plaintiff. AS AND FOR A FOURTH DEFENSE, DEFENDANTS ALLEGE: Any past or future costs or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care, property damage or rehabilitative services, loss of earnings or other economic loss has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in CPLR § 4545. AS AND FOR A FIFTH DEFENSE, DEFENDANTS ALLEGE: Plaintiff may not recover all or part of the damages allegedly sustained by virtue of her failure to mitigate the damages allegedly sustained. AS AND FOR A SIXTH DEFENSE, DEFENDANTS ALLEGE: If plaintiff sustained damages as alleged in the Verified Complaint, other than by reason of her own culpable conduct, then such damages were caused in whole or in part by the culpable conduct of some third person or persons over whom Defendants neither had nor exercised control. Page 5 of 10 7297141-1 5 of 10 FILED: BRONX COUNTY CLERK 10/17/2023 04/20/2023 05:42 03:49 PM INDEX NO. 805090/2023E NYSCEF DOC. NO. 30 11 RECEIVED NYSCEF: 10/17/2023 04/20/2023 AS AND FOR A SEVENTH DEFENSE, DEFENDANTS ALLEGE: The negligence of those responsible for the accident or the occurrence alleged in the Verified Complaint constituted a separate, independent, superseding, intervening culpable act or acts which constitute the sole proximate cause of the accident or occurrence alleged. AS AND FOR AN EIGHTH DEFENSE, DEFENDANTS ALLEGE: Plaintiff has failed to state facts sufficient to provide a legal or factual basis to award compensatory damages to plaintiff under any of the causes of action alleged in the Verified Complaint on file herein. AS AND FOR A NINTH DEFENSE, DEFENDANTS ALLEGE: Other parties not named in the Verified Complaint herein who were neither the agents nor the employees of Defendants were responsible parties. AS AND FOR A TENTH DEFENSE, DEFENDANTS ALLEGE: The incidents and events described in the Verified Complaint were caused in whole or in part by other persons and/or entities. AS AND FOR AN ELEVENTH DEFENSE, DEFENDANTS ALLEGE: Each and every cause of action in the Verified Complaint is barred by the statute of limitations. AS AND FOR A TWELVETH DEFENSE, THIS DEFENDANT ALLEGES: Plaintiff is estopped from recovery on the Verified Complaint on file herein by virtue of the conduct of plaintiff. AS AND FOR A THIRTEENTH DEFENSE, DEFENDANTS ALLEGE: Plaintiff’s Verified Complaint is barred, in whole or in part, because plaintiff did not exercise ordinary care, caution or prudence to avoid the injuries alleged; and the resulting damages, Page 6 of 10 7297141-1 6 of 10 FILED: BRONX COUNTY CLERK 10/17/2023 04/20/2023 05:42 03:49 PM INDEX NO. 805090/2023E NYSCEF DOC. NO. 30 11 RECEIVED NYSCEF: 10/17/2023 04/20/2023 if any, sustained by plaintiff were proximately caused and contributed to by the negligence or intentional conduct of plaintiff. AS AND FOR A FOURTEENTH DEFENSE, DEFENDANTS ALLEGE: Plaintiff is barred from recovery on the Verified Complaint on the grounds that the acts of plaintiff constitute a waiver of their right to recover damages. AS AND FOR A FIFTEENTH DEFENSE, DEFENDANTS ALLEGE: Any alleged damages plaintiff sustained by reason of the matters alleged in the Verified Complaint, to the extent not caused by the negligence, conduct, omission or fault of plaintiff, her agents, attorneys, partners and/or employees, were proximately caused by the negligent conduct, omission or fault of persons or entities other than Defendants, for whose acts and/or omissions Defendants are not responsible. Should Defendants be found liable to plaintiff for matters alleged in the Verified Complaint, Defendants are entitled to have a determination of its responsibility and fault, if any, compared with the responsibility and fault of all other persons and entities who proximately caused plaintiff’s alleged damages. AS AND FOR A SIXTEENTH DEFENSE, DEFENDANTS ALLEGE: The liability of Defendants is limited under the terms of Article 16 of the CPLR. AS AND FOR A SEVENTEENTH DEFENSE, DEFENDANTS ALLEGE: Defendants were not the legal or proximate cause of any damages, if any, allegedly suffered by plaintiff. AS AND FOR AN EIGHTEENTH DEFENSE, DEFENDANTS ALLEGE: Plaintiff is not entitled under contract or statute to recover attorneys' fees for the acts alleged in the Verified Complaint. Page 7 of 10 7297141-1 7 of 10 FILED: BRONX COUNTY CLERK 10/17/2023 04/20/2023 05:42 03:49 PM INDEX NO. 805090/2023E NYSCEF DOC. NO. 30 11 RECEIVED NYSCEF: 10/17/2023 04/20/2023 AS AND FOR A NINETEENTH DEFENSE, DEFENDANTS ALLEGE: Plaintiff is not entitled to recovery for any alleged damages suffered by plaintiff because plaintiff assumed the risk in acting in the manner which purportedly caused the injury to plaintiff. AS AND FOR A TWENTIETH DEFENSE, DEFENDANTS ALLEGE: That all risks and dangers connected with this situation at the time and place mentioned in the Verified Complaint were open, obvious, and apparent and were known to and assumed by plaintiff. AS AND FOR A TWENTY-FIRST DEFENSE, DEFENDANTS ALLEGE: That any sums or consideration paid or promised to plaintiff by any person(s) or entity(ies) claimed to be liable for the injuries or damages alleged in the Verified Complaint shall reduce any judgment rendered in favor of plaintiff as against Defendants to the extent of the greater of either the sums or consideration paid or promised to plaintiff or the amount of the released tortfeasor’s(s’) equitable share(s) or the damages in accordance with General Obligation Law Section 15-108. AS AND FOR A TWENTY-SECOND DEFENSE, DEFENDANTS ALLEGE: If Defendants are liable to plaintiff, which Defendants expressly deny, then Defendants are entitled to a set-off for all settlements/benefits received by plaintiff. AS AND FOR A TWENTY-THIRD DEFENSE, DEFENDANTS ALLEGE: Defendants were not negligent, careless and/or reckless, in the exercise of any obligation to plaintiff, if any obligation existed. AS AND FOR A TWENTY-FOURTH DEFENSE, DEFENDANTS ALLEGE: Defendants assert all other affirmative defenses to the allegations of the Verified Complaint on file herein which is available to it under the law and which may arise based upon facts not Page 8 of 10 7297141-1 8 of 10 FILED: BRONX COUNTY CLERK 10/17/2023 04/20/2023 05:42 03:49 PM INDEX NO. 805090/2023E NYSCEF DOC. NO. 30 11 RECEIVED NYSCEF: 10/17/2023 04/20/2023 known or not now recognized as operative respective of the legal issues raised by the allegations of the Verified Complaint on file herein. WHEREFORE, Defendants, Schindler Elevator Corporation, Macy’s Retail Holdings, LLC i/p/a Macy’s, and Macy’s East Inc. demand judgment dismissing the Verified Complaint herein together with interest, costs and disbursements as may be required by law. DEMAND FOR STATEMENT OF DAMAGES Pursuant to CPLR § 3017, demand is hereby made that plaintiff serve a supplemental statement setting forth the total damages to which she deems herself entitled. WHEREFORE, Defendants, Schindler Elevator Corporation, Macy’s Retail Holdings, LLC i/p/a Macy’s, and Macy’s East Inc. demand judgment dismissing the Verified Complaint herein together with interest, costs and disbursements as may be required by law. DATE: April 20, 2023 CONNELL FOLEY LLP By: ______________________________ Catherine G. Bryan, Esq. One Newark Center 1085 Raymond Blvd., 19th Floor Newark, New Jersey 07102 (973) 436.5800 Attorneys for Defendants, Schindler Elevator Corporation, Macy’s Retail Holdings, LLC i/p/a Macy’s, and Macy’s East Inc. TO: Peter May, Esq. Subin Associates, LLP Attorneys for Plaintiff Leeann F. Giordano 150 Broadway – 23rd Floor New York, New York 10038 Page 9 of 10 7297141-1 9 of 10 FILED: BRONX COUNTY CLERK 10/17/2023 04/20/2023 05:42 03:49 PM INDEX NO. 805090/2023E NYSCEF DOC. NO. 30 11 RECEIVED NYSCEF: 10/17/2023 04/20/2023 ATTORNEY'S VERIFICATION CATHERINE G. BRYAN, being duly sworn, deposes and says that he is a member of the firm of Connell Foley LLP, and that she has read the contents of the foregoing and that it is true to her own knowledge, except as to the matters therein stated to be alleged on information and belief and that as to those matters deponent believes to be true. ( ) That deponent makes this verification because Plaintiff(s) resides outside of the county where deponent maintains her office. ( ) That deponent makes this verification because is (are) a corporation(s) and deponent is their attorneys and deponent’s knowledge is based upon all the facts and corporation records available and in deponent’s possession. ( X ) That deponent makes this verification because Defendants, Schindler Elevator Corporation, Macy’s Retail Holdings, LLC i/p/a Macy’s, and Macy’s East Inc., reside outside of the county where deponent maintains her office. DATE: April 20, 2023 CONNELL FOLEY LLP By: Catherine G. Bryan Page 10 of 10 7297141-1 10 of 10