Preview
FILED: KINGS COUNTY CLERK 10/20/2023 03:25 PM INDEX NO. 532178/2021
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/20/2023
EXHIBIT
B
FILED: KINGS COUNTY CLERK 10/20/2023
12/08/2022 03:25
04:28 PM INDEX NO. 532178/2021
NYSCEF DOC. NO. 11
5 RECEIVED NYSCEF: 10/20/2023
12/08/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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DAB REALTY CORPORATION,
Index No. 532178/2021
Plaintiff,
-against- NOTICE OF APPEARANCE
AND VERIFIED ANSWER
1001 ROGERS AVE LLC, TO VERIFIED COMPLAINT
Defendant.
COUNSELORS:
PLEASE TAKE NOTICE, that the above-named defendant, Defendant, 1001 ROGERS
AVE LLC (hereinafter, "answering defendant" and/or "defendant"), hereby appears in this action
and that the undersigned has been retained as attorneys for said defendant and demands that you
serve all papers in this proceeding upon them at the address stated below.
PLEASE TAKE FURTHER NOTICE that said defendant hereby interposes the
following Verified Answer to the Plaintiffs Verified Complaint:
AS AND FOR THE PARTIES:
1. Answering defendant denies knowledge or information sufficient to form a belief as to
the allegations contained in paragraph numbered “1”.
2. Answering denies the allegations contained in the paragraph numbered “2” except
admits that 1001 ROGERS AVE LLC is a domestic limited liability company that owns property
located at 1001 Rogers Avenue, Brooklyn, New York.
AS AND FOR JURISDICTION AND VENUE:
3. Answering defendant denies the allegations contained in the paragraphs numbered “4”,
“5” and “6”.
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AS AND FOR FACTUAL BACKGROUND;
4. Answering defendant denies knowledge or information sufficient to form a belief
as to the allegations contained in paragraphs numbered “7”, “8”, “9” and “10”.
5. Answering defendant denies the allegations contained in the paragraphs numbered
11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19” and “20”.
AS AND FOR THE FIRST CAUSE OF ACTION
(TRESPASS/ENCROACHMENT):
6. As and for the defendant’s response to paragraph “21”, defendant repeats, realleges,
and reiterates each and every denial or admission as to paragraphs numbered “1” through “20” as
if more fully set forth herein.
7. Answering defendant denies the allegations contained in the paragraphs numbered
“22”, “23”, “24”, “25”, “26”, “27” and “28”.
AS AND FOR THE SECOND CAUSE OF ACTION
(PRIVATE NUISANCE/ENCROACHMENT);
8. As and for the defendant’s response to paragraph “29”, defendant repeats, realleges,
and reiterates each and every denial or admission as to paragraphs numbered “1” through “28” as
if more fully set forth herein.
9. Answering defendant denies the allegations contained in the paragraphs numbered
“30” and “31”.
AS AND FOR THE THIRD CAUSE OF ACTION
(INJUNCTION AGAINST CONTINUING TRESPASS):
10. As and for the defendant’s response to paragraph “32”, defendant repeats, realleges,
and reiterates each and every denial or admission as to paragraphs numbered “1” through “31” as
if more fully set forth herein.
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11. Answering defendant denies the allegations contained in the paragraphs numbered
33”, “34”, “35”, “36”, “37” and “38”.
AS AND FOR THE FOURTH CAUSE OF ACTION
(INJUNCTION AGAINST CONTINUING NUISANCE):
12. As and for the defendant’s response to paragraph “39”, defendant repeats, realleges,
and reiterates each and every denial or admission as to paragraphs numbered “1” through “38” as
if more fully set forth herein.
13. Answering defendant denies the allegations contained in the paragraphs numbered
“40”, “41”, “42”, “43”, “44” and “45”.
AS AND FOR THE FIFTH CAUSE OF ACTION
(INJUNCTION DIRECTING REMOVAL OF ENCROACHMENT):
14. As and for the defendant’s response to paragraph “46”, defendant repeats, realleges,
and reiterates each and every denial or admission as to paragraphs numbered “1” through “45” as
if more fully set forth herein.
15. Answering defendant denies the allegations contained in the paragraphs numbered
“48”, “49”, “50” and “51”.
16. Answering defendant denies the allegations contained in the paragraphs numbered
“47” and “52” and refers all questions of law to the Court.
AS AND FOR THE SIXTH CAUSE OF ACTION
(STRICT LIABILITY - BUILDING CODE 3309.10):
17. As and for the defendant’s response to paragraph “53”, defendant repeats, realleges,
and reiterates each and every denial or admission as to paragraphs numbered “1” through “52” as
if more fully set forth herein.
18. Answering defendant denies the allegations contained in the paragraphs numbered
“57”, “58” and “60”.
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19. Answering defendant denies the allegations contained in the paragraphs numbered
“54”, “55”, “56”, and “59” and refers all questions of law to the Court.
AS AND FOR THE SEVENTH CAUSE OF ACTION
(NEGLIGENCE):
20. As and for the defendant’s response to paragraph “61 ”, defendant repeats, realleges,
and reiterates each and every denial or admission as to paragraphs numbered “1” through “60” as
if more fully set forth herein.
21. Answering defendant denies the allegations contained in the paragraphs numbered
“62”, “63”, “64”, “65” and “66”.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
The answering defendant was not properly served with the Complaint and therefore the
plaintiff lacks jurisdiction over them.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
The plaintiff herein lacks jurisdiction over the answering defendant.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
That the plaintiff herein is guilty of culpable conduct, including contributory negligence
and comparative negligence, which said conduct bars plaintiffs right of recovery in proportion to
which the said culpable conduct or negligence attributable to plaintiff bears the culpable conduct
or negligence which caused the damages, if any, or the occurrence complained of by plaintiff was
caused in whole or in part by the assumption of risk of the plaintiff.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
The rules of Article 16 apply to this action.
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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
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 the plaintiff
assumed all such risks and hazards.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
Plaintiff failed to state a cause of action.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
While the answering defendant denies the plaintiffs allegations of negligence and liability,
any damages, if proven, were the result of intervening and/or interceding acts of superseding
negligence and liability on the part of parties over which the answering defendant neither has
control nor has the right to control, and for which acts or omissions the answering defendant is not
legally responsible.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
The provisions of C.P.L.R. Article 50-B apply to this action.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
Plaintiff failed to mitigate, obviate, diminish, or otherwise act to lessen or reduce the
injuries, damages and disabilities alleged in the complaint.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
Upon information and belief due to the negligence of one or more parties to the within
action any and all indemnifications agreements are void as against public policy in accordance
with general obligations law 5-322.1.
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AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
The answering defendant had neither actual, nor constructive notice of the allegedly
dangerous conditions plaintiff claims was the cause of the damages alleged in the complaint.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
The answering defendant did not commit any acts of trespass on Plaintiffs property.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
The answering defendant did not commit any acts of nuisance on Plaintiffs property.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
The answering defendant did not cause any damages to Plaintiffs property.
WHEREFORE the answering defendant, 1001 ROGERS AVE LLC, demands judgment
dismissing the complaint against it together with costs and disbursements of this action and
attorneys’ fees.
Dated: New York, New York
December 8, 2022
WEBER GALLAGHER
SIMPSON STAPLETON FIRES
& NEWBY LLP .
By:
LISA M. FITZGERALD, ESQ.
Attorneys for Defendant
1001 Rogers Ave LLC
1500 Broadway, Suite 2401
New York, New York 10036
Tel. No.: (929) 342-6000
TO: THE VALENTINE LAW FIRM, PLLC
Attorneys for Plaintiff
225 Broadway, Suite 1905
New York, New York 10007
Tel No.: (646) 599-2166
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FILED: KINGS COUNTY CLERK 10/20/2023
12/08/2022 03:25
04:28 PM INDEX NO. 532178/2021
NYSCEF DOC. NO. 11
5 RECEIVED NYSCEF: 10/20/2023
12/08/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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DAB REALTY CORPORATION,
Index No. Index No. 532178/2021
Plaintiff,
-against- VERIFICATION
1001 ROGERS AVE LLC,
Defendant.
------------------------------------------------------------------- X
LISA M. FITZGERALD, ESQ., an attorney at law duly admitted to practice before the
courts of the State of New York, affirms the following to be true under the penalties of perjury:
1. That I am a Partner with the law firm of WEBER GALLAGHER SIMPSON
STAPLETON FIRES & NEWBY LLP, attorneys for Defendant, 1001 ROGERS AVE LLC, in
the above-entitled action.
2. That I have read the foregoing Answer and know the contents thereof, and that the
same is true to my own knowledge except as to the matters therein stated to be alleged upon
information and belief, and that as to those matters, I believe to be true.
3. This verification is made by myself and not by the defendant. Defendant, 1001
ROGERS AVE LLC, because the Defendant, 1001 ROGERS AVE LLC is not in the county in
which your deponent maintains her office.
4. The grounds of my belief as to all matters not stated upon my knowledge are based
upon the books, records, and documents in my possession.
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Dated: New York, New York
December 8, 2022
WEBER GALLAGHER
SIMPSON STAPLETON FIRES
& NEWBY LLP
By:
LISA M. FITZGERALD, ESQ.
Attorneys for Defendant
1001 Rogers Ave LLC
1500 Broadway, Suite 2401
New York, New York 10036
Tel. No.: (929) 342-6000
TO: THE VALENTINE LAW FIRM, PLLC
Attorneys for Plaintiff
225 Broadway, Suite 1905
New York, New York 10007
Tel No.: (646) 599-2166
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Preview
FILED: KINGS COUNTY CLERK 10/20/2023 03:25 PM INDEX NO. 532178/2021 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 10/20/2023 EXHIBIT B FILED: KINGS COUNTY CLERK 10/20/2023 12/08/2022 03:25 04:28 PM INDEX NO. 532178/2021 NYSCEF DOC. NO. 11 5 RECEIVED NYSCEF: 10/20/2023 12/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------- X DAB REALTY CORPORATION, Index No. 532178/2021 Plaintiff, -against- NOTICE OF APPEARANCE AND VERIFIED ANSWER 1001 ROGERS AVE LLC, TO VERIFIED COMPLAINT Defendant. COUNSELORS: PLEASE TAKE NOTICE, that the above-named defendant, Defendant, 1001 ROGERS AVE LLC (hereinafter, "answering defendant" and/or "defendant"), hereby appears in this action and that the undersigned has been retained as attorneys for said defendant and demands that you serve all papers in this proceeding upon them at the address stated below. PLEASE TAKE FURTHER NOTICE that said defendant hereby interposes the following Verified Answer to the Plaintiffs Verified Complaint: AS AND FOR THE PARTIES: 1. Answering defendant denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph numbered “1”. 2. Answering denies the allegations contained in the paragraph numbered “2” except admits that 1001 ROGERS AVE LLC is a domestic limited liability company that owns property located at 1001 Rogers Avenue, Brooklyn, New York. AS AND FOR JURISDICTION AND VENUE: 3. Answering defendant denies the allegations contained in the paragraphs numbered “4”, “5” and “6”. 1 1 of 8 FILED: KINGS COUNTY CLERK 10/20/2023 12/08/2022 03:25 04:28 PM INDEX NO. 532178/2021 NYSCEF DOC. NO. 11 5 RECEIVED NYSCEF: 10/20/2023 12/08/2022 AS AND FOR FACTUAL BACKGROUND; 4. Answering defendant denies knowledge or information sufficient to form a belief as to the allegations contained in paragraphs numbered “7”, “8”, “9” and “10”. 5. Answering defendant denies the allegations contained in the paragraphs numbered 11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19” and “20”. AS AND FOR THE FIRST CAUSE OF ACTION (TRESPASS/ENCROACHMENT): 6. As and for the defendant’s response to paragraph “21”, defendant repeats, realleges, and reiterates each and every denial or admission as to paragraphs numbered “1” through “20” as if more fully set forth herein. 7. Answering defendant denies the allegations contained in the paragraphs numbered “22”, “23”, “24”, “25”, “26”, “27” and “28”. AS AND FOR THE SECOND CAUSE OF ACTION (PRIVATE NUISANCE/ENCROACHMENT); 8. As and for the defendant’s response to paragraph “29”, defendant repeats, realleges, and reiterates each and every denial or admission as to paragraphs numbered “1” through “28” as if more fully set forth herein. 9. Answering defendant denies the allegations contained in the paragraphs numbered “30” and “31”. AS AND FOR THE THIRD CAUSE OF ACTION (INJUNCTION AGAINST CONTINUING TRESPASS): 10. As and for the defendant’s response to paragraph “32”, defendant repeats, realleges, and reiterates each and every denial or admission as to paragraphs numbered “1” through “31” as if more fully set forth herein. 2 2 of 8 FILED: KINGS COUNTY CLERK 10/20/2023 12/08/2022 03:25 04:28 PM INDEX NO. 532178/2021 NYSCEF DOC. NO. 11 5 RECEIVED NYSCEF: 10/20/2023 12/08/2022 11. Answering defendant denies the allegations contained in the paragraphs numbered 33”, “34”, “35”, “36”, “37” and “38”. AS AND FOR THE FOURTH CAUSE OF ACTION (INJUNCTION AGAINST CONTINUING NUISANCE): 12. As and for the defendant’s response to paragraph “39”, defendant repeats, realleges, and reiterates each and every denial or admission as to paragraphs numbered “1” through “38” as if more fully set forth herein. 13. Answering defendant denies the allegations contained in the paragraphs numbered “40”, “41”, “42”, “43”, “44” and “45”. AS AND FOR THE FIFTH CAUSE OF ACTION (INJUNCTION DIRECTING REMOVAL OF ENCROACHMENT): 14. As and for the defendant’s response to paragraph “46”, defendant repeats, realleges, and reiterates each and every denial or admission as to paragraphs numbered “1” through “45” as if more fully set forth herein. 15. Answering defendant denies the allegations contained in the paragraphs numbered “48”, “49”, “50” and “51”. 16. Answering defendant denies the allegations contained in the paragraphs numbered “47” and “52” and refers all questions of law to the Court. AS AND FOR THE SIXTH CAUSE OF ACTION (STRICT LIABILITY - BUILDING CODE 3309.10): 17. As and for the defendant’s response to paragraph “53”, defendant repeats, realleges, and reiterates each and every denial or admission as to paragraphs numbered “1” through “52” as if more fully set forth herein. 18. Answering defendant denies the allegations contained in the paragraphs numbered “57”, “58” and “60”. 3 3 of 8 FILED: KINGS COUNTY CLERK 10/20/2023 12/08/2022 03:25 04:28 PM INDEX NO. 532178/2021 NYSCEF DOC. NO. 11 5 RECEIVED NYSCEF: 10/20/2023 12/08/2022 19. Answering defendant denies the allegations contained in the paragraphs numbered “54”, “55”, “56”, and “59” and refers all questions of law to the Court. AS AND FOR THE SEVENTH CAUSE OF ACTION (NEGLIGENCE): 20. As and for the defendant’s response to paragraph “61 ”, defendant repeats, realleges, and reiterates each and every denial or admission as to paragraphs numbered “1” through “60” as if more fully set forth herein. 21. Answering defendant denies the allegations contained in the paragraphs numbered “62”, “63”, “64”, “65” and “66”. AS AND FOR A FIRST AFFIRMATIVE DEFENSE The answering defendant was not properly served with the Complaint and therefore the plaintiff lacks jurisdiction over them. AS AND FOR A SECOND AFFIRMATIVE DEFENSE The plaintiff herein lacks jurisdiction over the answering defendant. AS AND FOR A THIRD AFFIRMATIVE DEFENSE That the plaintiff herein is guilty of culpable conduct, including contributory negligence and comparative negligence, which said conduct bars plaintiffs right of recovery in proportion to which the said culpable conduct or negligence attributable to plaintiff bears the culpable conduct or negligence which caused the damages, if any, or the occurrence complained of by plaintiff was caused in whole or in part by the assumption of risk of the plaintiff. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE The rules of Article 16 apply to this action. 4 4 of 8 FILED: KINGS COUNTY CLERK 10/20/2023 12/08/2022 03:25 04:28 PM INDEX NO. 532178/2021 NYSCEF DOC. NO. 11 5 RECEIVED NYSCEF: 10/20/2023 12/08/2022 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 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 the plaintiff assumed all such risks and hazards. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Plaintiff failed to state a cause of action. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE While the answering defendant denies the plaintiffs allegations of negligence and liability, any damages, if proven, were the result of intervening and/or interceding acts of superseding negligence and liability on the part of parties over which the answering defendant neither has control nor has the right to control, and for which acts or omissions the answering defendant is not legally responsible. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE The provisions of C.P.L.R. Article 50-B apply to this action. AS AND FOR A NINTH AFFIRMATIVE DEFENSE Plaintiff failed to mitigate, obviate, diminish, or otherwise act to lessen or reduce the injuries, damages and disabilities alleged in the complaint. AS AND FOR A TENTH AFFIRMATIVE DEFENSE Upon information and belief due to the negligence of one or more parties to the within action any and all indemnifications agreements are void as against public policy in accordance with general obligations law 5-322.1. 5 5 of 8 FILED: KINGS COUNTY CLERK 10/20/2023 12/08/2022 03:25 04:28 PM INDEX NO. 532178/2021 NYSCEF DOC. NO. 11 5 RECEIVED NYSCEF: 10/20/2023 12/08/2022 AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE The answering defendant had neither actual, nor constructive notice of the allegedly dangerous conditions plaintiff claims was the cause of the damages alleged in the complaint. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE The answering defendant did not commit any acts of trespass on Plaintiffs property. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE The answering defendant did not commit any acts of nuisance on Plaintiffs property. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE The answering defendant did not cause any damages to Plaintiffs property. WHEREFORE the answering defendant, 1001 ROGERS AVE LLC, demands judgment dismissing the complaint against it together with costs and disbursements of this action and attorneys’ fees. Dated: New York, New York December 8, 2022 WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP . By: LISA M. FITZGERALD, ESQ. Attorneys for Defendant 1001 Rogers Ave LLC 1500 Broadway, Suite 2401 New York, New York 10036 Tel. No.: (929) 342-6000 TO: THE VALENTINE LAW FIRM, PLLC Attorneys for Plaintiff 225 Broadway, Suite 1905 New York, New York 10007 Tel No.: (646) 599-2166 6 6 of 8 FILED: KINGS COUNTY CLERK 10/20/2023 12/08/2022 03:25 04:28 PM INDEX NO. 532178/2021 NYSCEF DOC. NO. 11 5 RECEIVED NYSCEF: 10/20/2023 12/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------ X DAB REALTY CORPORATION, Index No. Index No. 532178/2021 Plaintiff, -against- VERIFICATION 1001 ROGERS AVE LLC, Defendant. ------------------------------------------------------------------- X LISA M. FITZGERALD, ESQ., an attorney at law duly admitted to practice before the courts of the State of New York, affirms the following to be true under the penalties of perjury: 1. That I am a Partner with the law firm of WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP, attorneys for Defendant, 1001 ROGERS AVE LLC, in the above-entitled action. 2. That I have read the foregoing Answer and know the contents thereof, and that the same is true to my own knowledge except as to the matters therein stated to be alleged upon information and belief, and that as to those matters, I believe to be true. 3. This verification is made by myself and not by the defendant. Defendant, 1001 ROGERS AVE LLC, because the Defendant, 1001 ROGERS AVE LLC is not in the county in which your deponent maintains her office. 4. The grounds of my belief as to all matters not stated upon my knowledge are based upon the books, records, and documents in my possession. 7 7 of 8 FILED: KINGS COUNTY CLERK 10/20/2023 12/08/2022 03:25 04:28 PM INDEX NO. 532178/2021 NYSCEF DOC. NO. 11 5 RECEIVED NYSCEF: 10/20/2023 12/08/2022 Dated: New York, New York December 8, 2022 WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY LLP By: LISA M. FITZGERALD, ESQ. Attorneys for Defendant 1001 Rogers Ave LLC 1500 Broadway, Suite 2401 New York, New York 10036 Tel. No.: (929) 342-6000 TO: THE VALENTINE LAW FIRM, PLLC Attorneys for Plaintiff 225 Broadway, Suite 1905 New York, New York 10007 Tel No.: (646) 599-2166 8 8 of 8