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FILED: NEW YORK COUNTY CLERK 03/26/2021 04:38 PM INDEX NO. 151690/2020
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/26/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ERIC HIRSCH,
Index No. 151690/2020
Plaintiff,
VERIFIED ANSWER
-against-
PASHMAN STEIN WALDER HAYDEN, P.C. and
DAVID G. WHITE,
Defendants.
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Defendants, PASHMAN STEIN WALDER HAYDEN, P.C. and DAVID G. WHITE
(collectively the “Defendants”), by their attorneys, RIVKIN RADLER LLP, state upon information
and belief for their answer to plaintiff’s verified complaint (the “Complaint”):
AS AND FOR A RESPONSE TO BACKGROUND
FIRST: The Defendants deny having knowledge or information sufficient to form a belief
as to each and every allegation contained in paragraphs “1” and “2” of the plaintiff’s Complaint.
SECOND: The Defendants deny each and every allegation contained in paragraph “3” of
the plaintiff’s Complaint, except admit that plaintiff retained Defendants in April 2016, and refer
the Court to the document referenced therein for its true, accurate, and complete contents.
THIRD: The Defendants deny having knowledge or information sufficient to form a belief
as to each and every allegation contained in paragraph “4” of the plaintiff’s Complaint and refer the
Court to the document referenced therein for its true, accurate, and complete contents.
FOURTH: The Defendants deny each and every allegation contained in paragraphs “5”,
“6”, and “7” of the plaintiff’s Complaint and refer all questions of fact and law to the Court and
trier of fact at the time of trial and deny having knowledge or information sufficient to form a
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belief as to when plaintiff made the purported discoveries alleged therein.
FIFTH: The Defendants deny having knowledge or information sufficient to form a belief
as to each and every allegation contained in paragraphs “8”, “9”, “10”, “11”, and “12” of the
plaintiff’s Complaint and refer the Court to the documents referenced therein for their true,
accurate, and complete contents.
SIXTH: The Defendants deny each and every allegation contained in paragraph “13” of the
plaintiff’s Complaint.
SEVENTH: The Defendants admit the allegations contained in paragraph “14” of the
plaintiff’s Complaint.
EIGHTH: The Defendants deny having knowledge and information sufficient to form a
belief as to each and every allegation contained in paragraph “15” of the plaintiff’s Complaint,
except admit that David G. White is an attorney duly admitted to practice law in the State of New
York.
NINTH: The Defendants deny having knowledge and information sufficient to form a
belief as to each and every allegation contained in paragraph “16” of the plaintiff’s Complaint,
except admit that David G. White is an attorney at Pashman Stein Walder Hayden, P.C. and
represented plaintiff on behalf of Pashman Stein Walder Hayden, P.C.
TENTH: The Defendants deny each and every allegation contained in paragraph “17” of
the plaintiff’s Complaint except admit that Defendants entered into an attorney-client relationship
with the plaintiff and refer the Court to the retainer annexed to the Complaint for its true, accurate,
and complete contents.
ELEVENTH: The Defendants deny each and every allegation contained in paragraphs
“18”, “19”, and “20” of the plaintiff’s Complaint and refer all questions of fact and law to the
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Court and trier of fact at the time of trial.
AS AND FOR A RESPONSE TO JURISDICTION AND VENUE
TWELFTH: The Defendants deny having knowledge and information sufficient to form a
belief as to each and every allegation contained in paragraphs “21” and “22” of the plaintiff’s
Complaint and refer all questions of fact and law to the Court and trier of fact at the time or trial.
AS AND FOR A RESPONSE TO THE PARTIES
THIRTEENTH: The Defendants deny having knowledge and information sufficient to
form a belief as to each and every allegation contained in paragraph “23” of the plaintiff’s
Complaint.
FOURTEENTH: The Defendants admit the allegations contained in paragraphs “24” and
“25” of the plaintiff’s Complaint.
AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION
(Legal Malpractice)
FIFTEENTH: Answering paragraph “26” of the plaintiff’s Complaint, the Defendants
repeat and reiterate each and every denial heretofore made in regard to each and every paragraph of
plaintiff’s Complaint, designated “1” through “25” inclusive, with the same force and effect as
though more fully set forth at length herein.
SIXTEENTH: The Defendants deny each and every allegation contained in paragraph “27”
of the plaintiff’s Complaint except admit plaintiff and Defendants entered into an attorney-client
relationship, and refer the Court to the retainer referenced therein for its true, accurate, and
complete contents.
SEVENTEENTH: The Defendants deny having knowledge or information sufficient to
form a belief as to each and every allegation contained in paragraph “28” of the plaintiff’s
Complaint and refer all questions of fact and law to the Court and trier of fact at the time of trial.
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EIGHTEENTH: Defendants deny each and every allegation contained in paragraph 29 of
the plaintiff’s Complaint as New York lawyers’ duties are governed by the Rules of Professional
Conduct (R.P.C.) since 2009 and refer all issues of law to the Court.
NINETEENTH: The Defendants deny each and every allegation contained in paragraph
“30” of the plaintiff’s Complaint and refer the Court to the retainer annexed to the Complaint for
its true, accurate, and complete contents.
TWENTIETH: The Defendants deny having knowledge and information sufficient to form
a belief as to each and every allegation contained in paragraph “31” of the plaintiff’s Complaint
and refer all questions of fact and law to the Court and trier of fact at the time of trial.
TWENTY-FIRST: The Defendants deny each and every allegation contained in paragraphs
“32”, “33”, and “34” of the plaintiff’s Complaint and refer all questions of fact and law to the
Court and trier of fact at the time of trial.
TWENTY-SECOND: The Defendants deny having knowledge and information sufficient
to form a belief as to each and every allegation contained in paragraph “35” of the plaintiff’s
Complaint and refer all questions of fact and law to the Court and trier of fact at the time of trial.
TWENTY-THIRD: The Defendants deny each and every allegation contained in
paragraphs “36”, “37”, “38”, and “39” of the plaintiff’s Complaint and refer all questions of fact
and law to the Court and trier of fact at the time of trial.
AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION
(Negligence and/or Gross Negligence)
TWENTY-FOURTH: Answering paragraph “40” of the plaintiff’s Complaint, the
Defendants repeat and reiterate each and every denial heretofore made in regard to each and every
paragraph of plaintiff’s Complaint, designated “1” through “39” inclusive, with the same force and
effect as though more fully set forth at length herein.
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TWENTY-FIFTH: The Defendants admit the allegations contained in paragraph “41” of
the plaintiff’s Complaint and refer the Court to the document referenced therein for its true,
accurate, and complete contents.
TWENTY-SIXTH: The Defendants deny each and every allegation contained in
paragraphs “42” and “43” of the plaintiff’s Complaint.
TWENTY-SEVENTH: The Defendants deny having knowledge and information sufficient
to form a belief as to each and every allegation contained in paragraph “44” of the plaintiff’s
Complaint and refer the Court to the document referenced therein for its true, accurate, and
complete contents.
TWENTY-EIGHTH: The Defendants deny each and every allegation contained in
paragraphs “45”, “46”, “47”, and “48” of the plaintiff’s Complaint and refer the Court to the
documents referenced therein for their true, accurate, and complete contents.
AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION
(Breach of Contract)
This cause of action was dismissed by Decision and Order on Motion, dated March 1, 2021,
and therefore no response to paragraphs 49, 50, 51, 52, 53, and 54 of the plaintiff’s Complaint is
required.
AS AND FOR A RESPONSE TO THE FOURTH CAUSE OF ACTION
(Breach of Fiduciary Duty and Duty of Care)
This cause of action was dismissed by Decision and Order on Motion, dated March 1, 2021,
and therefore no response to paragraphs 55, 56, 57, 58, 59, 60, 61, and 62 of the plaintiff’s
Complaint is required.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
TWENTY-NINTH: If the plaintiff has been injured and damaged as alleged in plaintiff’s
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Complaint, upon information and belief, such injuries and damages were caused, in whole or in
part, or were contributed to by reason of the carelessness, negligence or want of care on the part of
the plaintiff and not by any carelessness, negligence or want of care on the part of the Defendants
and if any carelessness, negligence or want of care other than that of the plaintiff caused or
contributed to said alleged injuries and damages, it was the carelessness, negligence or want of care
on the part of some other party or persons, firm or corporation, his, its or their agents, servants or
employees over whom the Defendants had no control and for whose, carelessness, negligence or
want of care Defendants were not and are not responsible or liable.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
THIRTIETH: That whatever injuries and/or damages were sustained by the plaintiff at the
time and place alleged in the Complaint were in whole or in part the result of the plaintiff’s own
culpable conduct.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
THIRTY-FIRST: That whatever injuries and/or damages were sustained by the plaintiff at
the time and place alleged in the complaint were the result of the plaintiff’s assumption of risk, in
realizing and knowing the hazards and dangers thereof, and that plaintiff assumed all the risks
necessarily incidental to such an undertaking.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
THIRTY-SECOND: Plaintiff’s injuries or damages were caused, in whole or part, by
external intervening or superseding acts of third-parties outside the control of the Defendants.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
THIRTY-THIRD: Plaintiff cannot establish legal malpractice as a matter of law because
plaintiff would not have been successful in any action against Kemper Insurance Company because
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there is no coverage available to plaintiff under the Kemper policy for the alleged loss and
therefore plaintiff has not sustained proximately caused damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
THIRTY-FOURTH: Plaintiff has failed to mitigate his damages, if any.
AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE
THIRTY-FIFTH: The plaintiff’s Complaint is subject to dismissal and defendants have a
defense based upon documentary evidence.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
THIRTY-SIXTH: The plaintiff’s Complaint fails to state a cause of action as against the
Defendants.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
THIRTY-SEVENTH: As per the terms of the Kemper insurance policy, coverage to
plaintiff under the Kemper policy is excess over any other insurance which provides coverage for
the property.
THIRTY-EIGHTH: Upon information and belief the condominium has sufficient insurance
coverage to cover the damages alleged by plaintiff herein.
THIRTY-NINTH: Therefore there would be no coverage available under the Kemper
policy and plaintiff has not sustained any actual and ascertainable damages proximately caused by
Defendants alleged conduct.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
FORTIETH: The applicable Kemper insurance policy contains a sublimit of liability for
water damage resulting from sewer backup and/or sump pump overflow which limits coverage to
$10,000.
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FORTY-FIRST: The damages to plaintiff’s condo unit alleged in the Complaint were
caused by water overflow from sewer backup and/or sump pump overflow.
FORTY-SECOND: By reason of the foregoing, any coverage available to plaintiff under
the Kemper policy for the damages alleged herein was limited to $10,000 and plaintiff’s claims
against Defendants in this action are similarly limited.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
FORTY-THIRD: The claims alleged herein are premature and not ripe for adjudication as
any and all damages are speculative and contingent on the outcome of plaintiff’s pending action
against Morningside Park Condominium, et al.
WHEREFORE, the Defendants demand judgment dismissing the plaintiff’s Complaint
herein, together with the costs and disbursements of this action.
DATED: Uniondale, New York
March 26, 2021 Yours, etc.,
RIVKIN RADLER LLP
Attorneys for Defendants
By: /s/ Janice J. DiGennaro
JANICE J. DIGENNARO, ESQ.
AMANDA GURMAN, ESQ.
926 RXR Plaza
Uniondale, New York 11556-0926
(516) 357-3000
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VERIFICATION
JANICE J. DIGENNARO, ESQ., an attorney admitted to practice in the Courts of the State
of New York, affirms that the following statements are true under penalties of perjury:
Deponent is the attorney of record for the answering defendants, PASHMAN STEIN
WALDER HAYDEN, P.C. and DAVID G. WHITE, in the within action. Deponent has read the
foregoing Answer, knows the contents thereof, and that the same is true to deponent’s own
knowledge, except as to those matters therein stated to be alleged upon information and belief, and
that those matters deponent believes it to be true.
This verification is made by deponent and not by the answering defendants, because
answering defendants, PASHMAN STEIN WALDER HAYDEN, P.C. and DAVID G. WHITE,
are not located in the county wherein your deponent maintains an office.
The grounds of deponent’s belief as to all matters not stated upon deponent’s knowledge
are as follows: Statements of said answering defendants, office records, and deponent’s general
investigation into the facts of this case.
DATED: Uniondale, New York
March 26, 2021
/s/ Janice J. DiGennaro
JANICE J. DIGENNARO, ESQ.
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FILED: NEW YORK COUNTY CLERK 03/26/2021 04:38 PM INDEX NO. 151690/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/26/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------X ERIC HIRSCH, Index No. 151690/2020 Plaintiff, VERIFIED ANSWER -against- PASHMAN STEIN WALDER HAYDEN, P.C. and DAVID G. WHITE, Defendants. ---------------------------------------------------------------------X Defendants, PASHMAN STEIN WALDER HAYDEN, P.C. and DAVID G. WHITE (collectively the “Defendants”), by their attorneys, RIVKIN RADLER LLP, state upon information and belief for their answer to plaintiff’s verified complaint (the “Complaint”): AS AND FOR A RESPONSE TO BACKGROUND FIRST: The Defendants deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs “1” and “2” of the plaintiff’s Complaint. SECOND: The Defendants deny each and every allegation contained in paragraph “3” of the plaintiff’s Complaint, except admit that plaintiff retained Defendants in April 2016, and refer the Court to the document referenced therein for its true, accurate, and complete contents. THIRD: The Defendants deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph “4” of the plaintiff’s Complaint and refer the Court to the document referenced therein for its true, accurate, and complete contents. FOURTH: The Defendants deny each and every allegation contained in paragraphs “5”, “6”, and “7” of the plaintiff’s Complaint and refer all questions of fact and law to the Court and trier of fact at the time of trial and deny having knowledge or information sufficient to form a 1 of 9 FILED: NEW YORK COUNTY CLERK 03/26/2021 04:38 PM INDEX NO. 151690/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/26/2021 belief as to when plaintiff made the purported discoveries alleged therein. FIFTH: The Defendants deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs “8”, “9”, “10”, “11”, and “12” of the plaintiff’s Complaint and refer the Court to the documents referenced therein for their true, accurate, and complete contents. SIXTH: The Defendants deny each and every allegation contained in paragraph “13” of the plaintiff’s Complaint. SEVENTH: The Defendants admit the allegations contained in paragraph “14” of the plaintiff’s Complaint. EIGHTH: The Defendants deny having knowledge and information sufficient to form a belief as to each and every allegation contained in paragraph “15” of the plaintiff’s Complaint, except admit that David G. White is an attorney duly admitted to practice law in the State of New York. NINTH: The Defendants deny having knowledge and information sufficient to form a belief as to each and every allegation contained in paragraph “16” of the plaintiff’s Complaint, except admit that David G. White is an attorney at Pashman Stein Walder Hayden, P.C. and represented plaintiff on behalf of Pashman Stein Walder Hayden, P.C. TENTH: The Defendants deny each and every allegation contained in paragraph “17” of the plaintiff’s Complaint except admit that Defendants entered into an attorney-client relationship with the plaintiff and refer the Court to the retainer annexed to the Complaint for its true, accurate, and complete contents. ELEVENTH: The Defendants deny each and every allegation contained in paragraphs “18”, “19”, and “20” of the plaintiff’s Complaint and refer all questions of fact and law to the 2 2 of 9 FILED: NEW YORK COUNTY CLERK 03/26/2021 04:38 PM INDEX NO. 151690/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/26/2021 Court and trier of fact at the time of trial. AS AND FOR A RESPONSE TO JURISDICTION AND VENUE TWELFTH: The Defendants deny having knowledge and information sufficient to form a belief as to each and every allegation contained in paragraphs “21” and “22” of the plaintiff’s Complaint and refer all questions of fact and law to the Court and trier of fact at the time or trial. AS AND FOR A RESPONSE TO THE PARTIES THIRTEENTH: The Defendants deny having knowledge and information sufficient to form a belief as to each and every allegation contained in paragraph “23” of the plaintiff’s Complaint. FOURTEENTH: The Defendants admit the allegations contained in paragraphs “24” and “25” of the plaintiff’s Complaint. AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION (Legal Malpractice) FIFTEENTH: Answering paragraph “26” of the plaintiff’s Complaint, the Defendants repeat and reiterate each and every denial heretofore made in regard to each and every paragraph of plaintiff’s Complaint, designated “1” through “25” inclusive, with the same force and effect as though more fully set forth at length herein. SIXTEENTH: The Defendants deny each and every allegation contained in paragraph “27” of the plaintiff’s Complaint except admit plaintiff and Defendants entered into an attorney-client relationship, and refer the Court to the retainer referenced therein for its true, accurate, and complete contents. SEVENTEENTH: The Defendants deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph “28” of the plaintiff’s Complaint and refer all questions of fact and law to the Court and trier of fact at the time of trial. 3 3 of 9 FILED: NEW YORK COUNTY CLERK 03/26/2021 04:38 PM INDEX NO. 151690/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/26/2021 EIGHTEENTH: Defendants deny each and every allegation contained in paragraph 29 of the plaintiff’s Complaint as New York lawyers’ duties are governed by the Rules of Professional Conduct (R.P.C.) since 2009 and refer all issues of law to the Court. NINETEENTH: The Defendants deny each and every allegation contained in paragraph “30” of the plaintiff’s Complaint and refer the Court to the retainer annexed to the Complaint for its true, accurate, and complete contents. TWENTIETH: The Defendants deny having knowledge and information sufficient to form a belief as to each and every allegation contained in paragraph “31” of the plaintiff’s Complaint and refer all questions of fact and law to the Court and trier of fact at the time of trial. TWENTY-FIRST: The Defendants deny each and every allegation contained in paragraphs “32”, “33”, and “34” of the plaintiff’s Complaint and refer all questions of fact and law to the Court and trier of fact at the time of trial. TWENTY-SECOND: The Defendants deny having knowledge and information sufficient to form a belief as to each and every allegation contained in paragraph “35” of the plaintiff’s Complaint and refer all questions of fact and law to the Court and trier of fact at the time of trial. TWENTY-THIRD: The Defendants deny each and every allegation contained in paragraphs “36”, “37”, “38”, and “39” of the plaintiff’s Complaint and refer all questions of fact and law to the Court and trier of fact at the time of trial. AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION (Negligence and/or Gross Negligence) TWENTY-FOURTH: Answering paragraph “40” of the plaintiff’s Complaint, the Defendants repeat and reiterate each and every denial heretofore made in regard to each and every paragraph of plaintiff’s Complaint, designated “1” through “39” inclusive, with the same force and effect as though more fully set forth at length herein. 4 4 of 9 FILED: NEW YORK COUNTY CLERK 03/26/2021 04:38 PM INDEX NO. 151690/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/26/2021 TWENTY-FIFTH: The Defendants admit the allegations contained in paragraph “41” of the plaintiff’s Complaint and refer the Court to the document referenced therein for its true, accurate, and complete contents. TWENTY-SIXTH: The Defendants deny each and every allegation contained in paragraphs “42” and “43” of the plaintiff’s Complaint. TWENTY-SEVENTH: The Defendants deny having knowledge and information sufficient to form a belief as to each and every allegation contained in paragraph “44” of the plaintiff’s Complaint and refer the Court to the document referenced therein for its true, accurate, and complete contents. TWENTY-EIGHTH: The Defendants deny each and every allegation contained in paragraphs “45”, “46”, “47”, and “48” of the plaintiff’s Complaint and refer the Court to the documents referenced therein for their true, accurate, and complete contents. AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION (Breach of Contract) This cause of action was dismissed by Decision and Order on Motion, dated March 1, 2021, and therefore no response to paragraphs 49, 50, 51, 52, 53, and 54 of the plaintiff’s Complaint is required. AS AND FOR A RESPONSE TO THE FOURTH CAUSE OF ACTION (Breach of Fiduciary Duty and Duty of Care) This cause of action was dismissed by Decision and Order on Motion, dated March 1, 2021, and therefore no response to paragraphs 55, 56, 57, 58, 59, 60, 61, and 62 of the plaintiff’s Complaint is required. AS AND FOR A FIRST AFFIRMATIVE DEFENSE TWENTY-NINTH: If the plaintiff has been injured and damaged as alleged in plaintiff’s 5 5 of 9 FILED: NEW YORK COUNTY CLERK 03/26/2021 04:38 PM INDEX NO. 151690/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/26/2021 Complaint, upon information and belief, such injuries and damages were caused, in whole or in part, or were contributed to by reason of the carelessness, negligence or want of care on the part of the plaintiff and not by any carelessness, negligence or want of care on the part of the Defendants and if any carelessness, negligence or want of care other than that of the plaintiff caused or contributed to said alleged injuries and damages, it was the carelessness, negligence or want of care on the part of some other party or persons, firm or corporation, his, its or their agents, servants or employees over whom the Defendants had no control and for whose, carelessness, negligence or want of care Defendants were not and are not responsible or liable. AS AND FOR A SECOND AFFIRMATIVE DEFENSE THIRTIETH: That whatever injuries and/or damages were sustained by the plaintiff at the time and place alleged in the Complaint were in whole or in part the result of the plaintiff’s own culpable conduct. AS AND FOR A THIRD AFFIRMATIVE DEFENSE THIRTY-FIRST: That whatever injuries and/or damages were sustained by the plaintiff at the time and place alleged in the complaint were the result of the plaintiff’s assumption of risk, in realizing and knowing the hazards and dangers thereof, and that plaintiff assumed all the risks necessarily incidental to such an undertaking. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THIRTY-SECOND: Plaintiff’s injuries or damages were caused, in whole or part, by external intervening or superseding acts of third-parties outside the control of the Defendants. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE THIRTY-THIRD: Plaintiff cannot establish legal malpractice as a matter of law because plaintiff would not have been successful in any action against Kemper Insurance Company because 6 6 of 9 FILED: NEW YORK COUNTY CLERK 03/26/2021 04:38 PM INDEX NO. 151690/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/26/2021 there is no coverage available to plaintiff under the Kemper policy for the alleged loss and therefore plaintiff has not sustained proximately caused damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE THIRTY-FOURTH: Plaintiff has failed to mitigate his damages, if any. AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE THIRTY-FIFTH: The plaintiff’s Complaint is subject to dismissal and defendants have a defense based upon documentary evidence. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE THIRTY-SIXTH: The plaintiff’s Complaint fails to state a cause of action as against the Defendants. AS AND FOR A NINTH AFFIRMATIVE DEFENSE THIRTY-SEVENTH: As per the terms of the Kemper insurance policy, coverage to plaintiff under the Kemper policy is excess over any other insurance which provides coverage for the property. THIRTY-EIGHTH: Upon information and belief the condominium has sufficient insurance coverage to cover the damages alleged by plaintiff herein. THIRTY-NINTH: Therefore there would be no coverage available under the Kemper policy and plaintiff has not sustained any actual and ascertainable damages proximately caused by Defendants alleged conduct. AS AND FOR A TENTH AFFIRMATIVE DEFENSE FORTIETH: The applicable Kemper insurance policy contains a sublimit of liability for water damage resulting from sewer backup and/or sump pump overflow which limits coverage to $10,000. 7 7 of 9 FILED: NEW YORK COUNTY CLERK 03/26/2021 04:38 PM INDEX NO. 151690/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/26/2021 FORTY-FIRST: The damages to plaintiff’s condo unit alleged in the Complaint were caused by water overflow from sewer backup and/or sump pump overflow. FORTY-SECOND: By reason of the foregoing, any coverage available to plaintiff under the Kemper policy for the damages alleged herein was limited to $10,000 and plaintiff’s claims against Defendants in this action are similarly limited. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE FORTY-THIRD: The claims alleged herein are premature and not ripe for adjudication as any and all damages are speculative and contingent on the outcome of plaintiff’s pending action against Morningside Park Condominium, et al. WHEREFORE, the Defendants demand judgment dismissing the plaintiff’s Complaint herein, together with the costs and disbursements of this action. DATED: Uniondale, New York March 26, 2021 Yours, etc., RIVKIN RADLER LLP Attorneys for Defendants By: /s/ Janice J. DiGennaro JANICE J. DIGENNARO, ESQ. AMANDA GURMAN, ESQ. 926 RXR Plaza Uniondale, New York 11556-0926 (516) 357-3000 8 8 of 9 FILED: NEW YORK COUNTY CLERK 03/26/2021 04:38 PM INDEX NO. 151690/2020 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/26/2021 VERIFICATION JANICE J. DIGENNARO, ESQ., an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury: Deponent is the attorney of record for the answering defendants, PASHMAN STEIN WALDER HAYDEN, P.C. and DAVID G. WHITE, in the within action. Deponent has read the foregoing Answer, knows the contents thereof, and that the same is true to deponent’s own knowledge, except as to those matters therein stated to be alleged upon information and belief, and that those matters deponent believes it to be true. This verification is made by deponent and not by the answering defendants, because answering defendants, PASHMAN STEIN WALDER HAYDEN, P.C. and DAVID G. WHITE, are not located in the county wherein your deponent maintains an office. The grounds of deponent’s belief as to all matters not stated upon deponent’s knowledge are as follows: Statements of said answering defendants, office records, and deponent’s general investigation into the facts of this case. DATED: Uniondale, New York March 26, 2021 /s/ Janice J. DiGennaro JANICE J. DIGENNARO, ESQ. 9 of 9