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FILED: NEW YORK COUNTY CLERK 11/03/2021 05:54 PM INDEX NO. 152948/2020
NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 11/03/2021
EXHIBIT “B”
EXHIBIT “B”
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
JOSEPH ITARA ANd TABETHA ITARA, Index No. 15294812020
Plaintiffss, VERIFIED ANSWER
-against -
MASARYK TOWERS CORPORATION d/b/a
MASARYK TOWERS MANAGEMENT,
Defendant.
X
Defendant, MASARYK TOWERS CORPORATION ilslWa MASARYK TOWERS
CORPORATION d/b/a MASARYK TOWERS MANAGEMENT (hereinafter "MASARYK"), by
its attorneys Milber Makris Plousadis & Seiden, LLP, as and for its Verified Answer to Verified
Complaint dated March 19,2020, allege upon information and belief as follows:
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
ON BEHALF OF S.IOSEPH ITARA
1. Admits each and every allegation set forth in paragraph
(I') of the Verified
Complaint.
o'2" and"3" of the Verified
2. Denies each and every allegation set forth in paragraphs
Complaint.
3. Denies each and every allegation set forth in paragraph 44)' of the Verified
Complaint, except admits that, on August 13,2019, Defendant MASARYK had a place of business
located at 65 Columbia Street, New York, New York 10002.
4. Denies each and every allegation set forth in paragraph 6c5" of the Verified
Complaint, except admits that, on August L3,2019, Defendant MASARYK had a place of business
located at77 Columbia Street, New York, New York 10002.
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5. Denies each and every allegation set forth in paragraph *6" of the Verified
Complaint, except admits that, on August 13,2019, Defendant MASARYK was the owner of the
premises located 65 Columbia Street, New York, New York 10002.
c(7)'
6. Denies each and every allegation set forth in paragraph of the Verified
Complaint, except admits that the premises located 65 Columbia Street, New York, New York
10002 is a co-op apartment building.
('8" of the Verified
7. Denies each and every allegation set forth in paragraph
Complaint, and respectfully refers all questions of law to this Honorable Court.
8. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "9" of the Verified Complaint, and respectfully refers all
questions of law to this Honorable Court.
9. Denies each and every allegation set forth in paragraphs "10" and "l1" of the
Verified Complaint, and respectfully refers all questions of law to this Honorable Court.
10. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "I2" of the Verified Complaint, and respectfully refers all
questions of law to this Honorable Court.
11. Denies each and every allegation set forth in paragraphs "l3" ard"l4" of the
Verified Complaint.
12. Denies each and every allegation contained inparagtaphs'015," "16," "17," "18,"
and'019" of the Verified Complaint, and respectfully refers all questions of law to this Honorable
Court.
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13. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in parugraph "20" of the Verified Complaint, and respectfully refers all
questions of law to this Honorable Court.
14. Denies each and every allegation set forth in paragraph'02I" of the Verified
Complaint.
AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
ON BEHALF OF PLAINTIFFS TABETHA ITARA
15. With respect to the allegations contained in paragraph "22" of the Verified
Complaint, the answering Defendant repeats and realleges each and every denial contained in
paragraphs " 1 " through "2l" thereof, as if fully set forth at length herein.
16. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "23" of the Verified Complaint, and respectfully refers all
questions of law to this Honorable Court.
u24" of the Verified
17. Denies each and every allegation set forth in paragraph
Complaint.
AS AND F'OR A FIRST TIVE DEFENSE
18. If the plaintiffs have sustained any damages as alleged, which damages are
expressly denied, then all such damages will have been caused or brought about in whole or in part
by the afhrmative wrongdoing, fault, negligence and failure of due care (hereinafter "culpable
conduct") of the plaintiffs and any recovery should be thereby diminished in the proportion which
the plaintiffs' culpable conduct bears to the conduct which caused the alleged damages, pursuant
to CPLRRuIe 1411.
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AS AND FOR A SECOND AFFIRMATIVE DEFENSE
19. Upon information and belief, any past or future costs or expenses incurred or to be
incurred by the plaintiffs for medical care, dental care, custodial care, or rehabilitative service, 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 Section 4545 of the New
York Civil Practice Laws & Rules. If any damages are recoverable against the undersigned
Defendant, the amount of such damages shall be diminished by the amount of the funds which the
plaintiffs have received or shall receive from such collateral sources.
AS AND FOR A THIRI) TIVE DEFENSE
20. If it should be found after trial that the Defendant is liable to the plaintiffs in the
amount of 50o/o or less of the total liability assigned to all persons liable, the liability of Defendant
to the plaintiffs for non-economic loss shall not exceed the Defendant's equitable share determined
in accordance with the relative culpability of each person causing or contributing to the total
liability for non-economic loss in accordance with Article 16 of the CPLR.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
21. The injuries and damages allegedly sustained by plaintiffs were not caused by any
negligence, carelessness, culpable conduct or breach of duty on the part of the Defendant, its
servants, agents or employees, but were caused by reason of the carelessness, negligence culpable
conduct and/or breach of duty of some third parlies, their servants, agents or employees over whom
the Defendant had no control.
AS AND FOR A FIFTH AF'FIRMATIVE DEFENSE
22. The Defendant had no prior notice of the alleged dangerous condition, either actual
or constructive.
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
23 The Defendant did not cause or create any alleged dangerous condition.
AS AND FOR A SEVENTH AF'F'IRMATIVE DEFENSE
24. The action is barred by plaintiffs' implied assumption of the risk for the activity
plaintiffs was doing at the time of the occurrsnce in that said risks and danger were open, obvious
and apparent and known to the plaintiffs.
AS AND FOR AN EIGHTH AF'F'IRMATIVE DEFENSE
25. That the Complaint fails to state a cause of action.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
26. The liability of the Defendant, if any, to the plaintiffs for non-economic loss is
limited to their equitable share, determined in accordance with the relative culpability of all
persons or entities contributing to the total liability for non-economic loss, including named parties
and others over whom plaintiffs could have obtained personal jurisdiction with due diligence.
AS AND FOR A TENTH F'F'IRM A TIVE DE,X'ENSE
27 . The action is barred by plaintiffs' express assumption of the risk for the activity
plaintiffs was doing at the time of the occunence.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
28. Plaintiffs failed to mitigate their damages pursuant to Law, Statute and Agreement
and therefore, have sustained no damages.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
29. All claims raised and causes of action asserted in the Verified Complaint against
the Answering Defendants are barred by laches ot waiver, and plaintiffs is equitably estopped from
asserting such claims or causes of action against the Defendants.
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AS AND F'OR A THIRTEE AF'F'IRMATIVE DEF'ENSE
30. Plaintiffs have failed to join and include in this action all identifiable and
indispensable parties without whorn, in equity and fairness, this action should not proceed.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
31. The Defendant alleges that plaintiffs' alleged injuries and damages were solely
and proximately caused by the intervening negligence, carelessness, gross negligence, willfulness,
wantonness, recklessness, and/or intentional conduct of an independent third party.
AS AND FOR F'IF'TEENTH AFFIRMATIVE DE F'ENSE
32. If Plaintiffs sustained any injury or incurred any loss or damages as alleged in the
Verified Complaint, the same were caused in whole or in part by actions or omissions of another
or others over whom the Defendant is not responsible, and whose conduct the Defendant had no
duty or reason to anticipate or control.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
33. The Defendant alleges that plaintiffs' injuries, if any, were proximately caused by
an unforeseeable, unanticipated, independent, intervening andlor superseding event beyond the
control, and unrelated to any conduct of the Defendant.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
34, The Defendant alleges that, to the extent that plaintiffs' injuries were caused
directly, solely, and proximately by allergies, sensitivities, medical conditions and idiosyncracies
peculiar to plaintiffs and not found in the general public, they are unknown, unknowable or not
reasonably foreseeable to Defendant.
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WHEREFORE, the Defendant, MASARYK TOWERS CORPORATION ilslWa
MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, dEMANdS
judgment:
(A) Dismissing the Verified Complaint in its entirety;
(B) Awarding MASARYK the costs and disbursements of this action; and
(C) Awarding MASARYK such other and further relief as this Court may deem
just and proper.
Dated: Woodbury, New York
August 7,2020
MILBER MAKRIS PLOUSADIS
& SEIDEN, LLP
Susan J
MILBER SPL IS
& SEID , LLP
Attomeys for Defendant
MASARYK TOWERS CORPORATION
ilslWa MASARYK TOWERS
CORPORATION d/b/a MASARYK TOWERS
MANAGEMENT,
1000 Woodbury Road, Suite 402
Woodbury, New York 11797
(s16) 712-4000
File No.: 667-19159
TO Brett J. Nomberg, Esq.
BRAND BRAND NOMBERG &
ROSENBAUM, LLP
Attorney for Plaintiffss
JOSEPH ITARA ANd TABETHA ITARA
622 3RD Avenue, 7rH Floor
New York, New York 10017
(212) 808-0448
7
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss.:
COLINTY OF NASSAU )
SUSAN J. STROMBERG, being duly sworn, deposes and says that she is a Partner with
the law firm of MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, counsel for Defendant,
MASARYK TOWERS CORPORATION ilslh/a MASARYK TOWERS CORPORATION d/b/a
MASARYK TOWERS MANAGEMENT, in the within action, and makes this verification
pursuant to CPLR 3020(d)(3). Defendant is not within the county where deponent has her office.
Deponent has read the foregoing VERIFIED ANSWER and knows the contents thereof; that the
same is true on the basis of information and belief, based upon books and records in the possession
of deponent and conversations with Defendant.
Dated: Woodbury, New York
August 7,2020
SUSAN J.
8
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SUPREME COURT OF THE CITY OF NEW YORK
COLINTY OF NEW YORK
X
JOSEPH ITARA ANd TABETHA ITARA, Index No. 15294812020
Plaintiffs,
-against -
MASARYK TOWERS CORPORATION d/b/a
MASARYK TOWERS MANAGEMENT,
Defendant.
VERIFIED ANSI'I/ER
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
ATTORNEYS AT LAW
Attorneys for Defendant, MASARYK TOWERS CORPORATION i/s/h/a
MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT
Of/ice and Post Office Address, Telephone
1000 Woodbury Road, Suite 402
Woodbury, NY I1797
(s16) 712-4000
MMPS File No.: 532-19159
To Signatule (Rule 130-1. 1-a)
Print name beneath
Attorney(s) for
Service of a copy of the within is hereby admitted.
Dated,
Attorney(s) for
Please take notice
N NOTICE OF ENTRY
that the within is a (certiJieQ true copy of a
duly entered in the office of the clerk of the within named coud on
I NOTICE OF SETTLEMENT
order
that an of which the within is a true copy will be presented for settlement to the
HON. one of the judges of the within named court, at
Dated, Yours, etc.
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
ATTORNEYS AT LAW
At t orneys for Defe ndant
To 1000 Woodbury Road, Suite 402
Woodbury, New York 11797
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------- --X
JOSEPH ITARA and TABETHA ITARA,
Index No.: 152948/2020
Plaintiffs,
NOTICE TO TAKE
-against - DEPOSITION UPON
ORAL EXAMINATION
MASARYK TOWERS CORPORATION d/b/a
MASARYK TOWERS MANAGEMENT,
Defendant.
-----------X
PLEASE TAKE NOTICE that, pursuant to Article 31 of the Civil Practice Law and Rules,
the testimony upon oral examination of all parties will be taken before a notary public who is not
an attorney, or employee of an attorney, for any party or prospective party herein and is not a
person who would be disqualified to act as a juror because of interest or because of consanguinity
or affinity to any party herein, at the New York County Supreme Court, located at 60 Center Street,
19th
New York, New York, on the day of October, 2020, at 10:00 o'clock in the forenoon of that
day with respect to evidence material and necessary in the defense of this action.
That the said persons to be examined are required to produce at such examination the
following:
All books, papers and other things in their possession, custody or control relating to this
action to be marked as exhibits and used at the examination.
Dated: Woodbury, New York
August 7, 2020
MILBER M P DIS & SEIDEN, LLP
Susan J. Stromber
MILBER MAKRI OUSAD & S IDEN, LLP
Attorneys for Defendant
MASARYK TOWERS CORP ION i/s/h/a
MASARYK TOWERS CORPORATION d/b/a
MASARYK TOWERS MANAGEMENT,
1000 Woodbury Road, Suite 402
Woodbury, New York 11797
(516) 712-4000
File No.: 667-19159
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NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 11/03/2021
TO: Brett J. Nomberg, Esq.
BRAND BRAND NOMBERG &
ROSENBAUM, LLP
Attorney for Plaintiffs
JOSEPH ITARA and TABETHA ITARA
622
3RD 7™
Avenue, Floor
New York, New York 10017
(212) 808-0448
2
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AFFIDAVIT OF SERVICE BY MAIL AND EMAIL
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
I, ANNE AMATULLI, being sworn, say, I am not a party to this action, am over 18 years
of age, and reside in Nassau County, New York.
7th
On the day of August, 2020, I served a true copy of the within NOTICE TO TAKE
DEPOSITION UPON ORAL EXAMINATION upon:
Brett J. Nomberg, Esq.
BRAND BRAND NOMBERG &
ROSENBAUM, LLP
Attomeys for Plaintiffs
3rd 7th
622 Avenue, FlOOr
New York, New York 10017
(212) 808-0448
bnomberg@bbnrlaw.com
dszybisty@bbnrlaw.com.
the attorney(s) for the respective parties in this action, at the above address(es) designated by said
attorney(s) for that purpose by depositing same enclosed in a postpaid, properly addressed
wrapper, in an official depository under the exclusive care and custody of the United States Post
Office within the State of New York.
.
ANNI AMATULLI
Swo before me th
7th
f August 0.
A P C
= z : Auget2.
. No.01 JO S
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SUPREME COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
----------......-----..____..------------------------------X
JOSEPH ITARA and TABETHA ITARA, Index No. 152948/2020
Plaintiffs,
-against -
MASARYK TOWERS CORPORATION d/b/a
MASARYK TOWERS MANAGEMENT,
- _ - -
Defendant.
. _.. - .---. __
.. _.. ___ ---.
NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
ATTORNEYS AT LAW
Attorneys for Defendant, MASARYK TOWERS CORPORATION i/s/h/a
MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT
Office and Post Office Address, Telephone
1000 Woodbury Road, Suite 402
Woodbury, NY 11797
(516) 712-4000
MMPS File No.: 532-19159
To Signature (Rule 130-1.1-a)
.................................................................
Print name beneath
Attorney(s) for
Service of a copy of the within is hereby admitted.
Dated,
.................................................................
Attorney(s) for
Please take notice
O NOTICE OF ENTRY
that the within is a (certified) true copy of a
duly entered in the office of the clerk of the within named court on
O NOTICE OF SETTLEMENT
that an order of which the within is a true copy will be presented for settlement to the
HON. one of the judges of the within named court, at
Dated, Yours, etc.
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
ATTORNEYS AT LAW
Attorneys for Defendant
To 1000 Woodbury Road, Suite 402
Woodbury, New York 11797
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------¬---------------------------X
JOSEPH ITARA and TABETHA ITARA,
Index No.: 152948/2020
Plaintiffs,
DEMAND FOR VERIFIED
-against - BILL OF PARTICULARS
MASARYK TOWERS CORPORATION d/b/a
MASARYK TOWERS MANAGEMENT,
Defendant.
-- ¬-------------------------- === X
PLEASE TAKE NOTICE that, pursuant CPLR §§3041 through 3044, the Plaintiffs are
hereby required to serve a Verified Bill of Particulars upon the undersigned within thirty (30)
days after the receipt of this demand, setting forth, in detail, the following information:
1. Set forth each Plaintiff's present residence address(es).
2. Set forth the date of birth and social security number of each Plaintiff.
3. Set forth each Plaintiff's address(es) at the time of alleged accident.
Plaintiffs'
4. Set forth the date and location of marriage.
5. Set forth the exact date and approximate time of the occurrence.
6. Set forth the location of the happening of the occurrence in sufficient detail so as
to permit accurate identification.
7. State the direction in which the Plaintiff, JOSEPH ITARA, was traversing
immediately prior to the alleged occurrence (up or down the stairs).
8. State how it is claimed the occurrence happened.
9. State whether actual or constructive notice is claimed.
10. If actual notice is claimed, set forth the following:
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a. The names and addresses of any person(s) by whom notice was
given/supplied;
b. By whom it will be claimed that said actual notice was given on each
occasion aforesaid;
c. The date or dates of each said notice aforesaid; and
d. The place said actual notice was given.
11. If constructive notice is claimed, set forth the length of time said condition is
alleged to have existed prior to the happening of the alleged accident.
12. Set forth a complete and detailed statement of each and every injury claimed to
have been sustained by each Plaintiff as a result of the alleged occurrence, and further set forth
which of said injuries are alleged to be permanent in nature.
12. If it is claimed that the incident in question exacerbated and/or aggravated any
condition of Plaintiff, JOSEPH ITARA, set forth specifically each and every condition it is
claimed was exacerbated and/or aggravated, and set forth the names and addresses of each and
every physician who treated or examined Plaintiff, JOSEPH ITARA, for such condition prior to
the date of the alleged accident herein.
13. State whether Plaintiff, JOSEPH ITARA, claims any limitation of motion, loss of
use, or loss of function as a result of the injuries alleged, and if so state the nature, extent and
degree of permanency thereof.
14. Set forth the length of time Plaintiff, JOSEPH ITARA, was confined to:
a. Hospital;
b. Bed;
c. Home.
15. Set forth the
Preview
FILED: NEW YORK COUNTY CLERK 11/03/2021 05:54 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 11/03/2021 EXHIBIT “B” EXHIBIT “B” 08/07/2020 05:54 FILED: NEW YORK COUNTY CLERK 11/03/2021 11:51 PM AM INDEX NO. 152948/2020 3 NYSCEF DOC. NO. 141 08/07/2020 RECEIVED NYSCEF: 11/03/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X JOSEPH ITARA ANd TABETHA ITARA, Index No. 15294812020 Plaintiffss, VERIFIED ANSWER -against - MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, Defendant. X Defendant, MASARYK TOWERS CORPORATION ilslWa MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT (hereinafter "MASARYK"), by its attorneys Milber Makris Plousadis & Seiden, LLP, as and for its Verified Answer to Verified Complaint dated March 19,2020, allege upon information and belief as follows: AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION ON BEHALF OF S.IOSEPH ITARA 1. Admits each and every allegation set forth in paragraph (I') of the Verified Complaint. o'2" and"3" of the Verified 2. Denies each and every allegation set forth in paragraphs Complaint. 3. Denies each and every allegation set forth in paragraph 44)' of the Verified Complaint, except admits that, on August 13,2019, Defendant MASARYK had a place of business located at 65 Columbia Street, New York, New York 10002. 4. Denies each and every allegation set forth in paragraph 6c5" of the Verified Complaint, except admits that, on August L3,2019, Defendant MASARYK had a place of business located at77 Columbia Street, New York, New York 10002. 1 of 9 08/07/2020 05:54 FILED: NEW YORK COUNTY CLERK 11/03/2021 11:51 PM AM INDEX NO. 152948/2020 3 NYSCEF DOC. NO. 141 08/07/2020 RECEIVED NYSCEF: 11/03/2021 5. Denies each and every allegation set forth in paragraph *6" of the Verified Complaint, except admits that, on August 13,2019, Defendant MASARYK was the owner of the premises located 65 Columbia Street, New York, New York 10002. c(7)' 6. Denies each and every allegation set forth in paragraph of the Verified Complaint, except admits that the premises located 65 Columbia Street, New York, New York 10002 is a co-op apartment building. ('8" of the Verified 7. Denies each and every allegation set forth in paragraph Complaint, and respectfully refers all questions of law to this Honorable Court. 8. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "9" of the Verified Complaint, and respectfully refers all questions of law to this Honorable Court. 9. Denies each and every allegation set forth in paragraphs "10" and "l1" of the Verified Complaint, and respectfully refers all questions of law to this Honorable Court. 10. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "I2" of the Verified Complaint, and respectfully refers all questions of law to this Honorable Court. 11. Denies each and every allegation set forth in paragraphs "l3" ard"l4" of the Verified Complaint. 12. Denies each and every allegation contained inparagtaphs'015," "16," "17," "18," and'019" of the Verified Complaint, and respectfully refers all questions of law to this Honorable Court. 2 2 of 9 08/07/2020 05:54 FILED: NEW YORK COUNTY CLERK 11/03/2021 11:51 PM AM INDEX NO. 152948/2020 3 NYSCEF DOC. NO. 141 08/07/2020 RECEIVED NYSCEF: 11/03/2021 13. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in parugraph "20" of the Verified Complaint, and respectfully refers all questions of law to this Honorable Court. 14. Denies each and every allegation set forth in paragraph'02I" of the Verified Complaint. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION ON BEHALF OF PLAINTIFFS TABETHA ITARA 15. With respect to the allegations contained in paragraph "22" of the Verified Complaint, the answering Defendant repeats and realleges each and every denial contained in paragraphs " 1 " through "2l" thereof, as if fully set forth at length herein. 16. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "23" of the Verified Complaint, and respectfully refers all questions of law to this Honorable Court. u24" of the Verified 17. Denies each and every allegation set forth in paragraph Complaint. AS AND F'OR A FIRST TIVE DEFENSE 18. If the plaintiffs have sustained any damages as alleged, which damages are expressly denied, then all such damages will have been caused or brought about in whole or in part by the afhrmative wrongdoing, fault, negligence and failure of due care (hereinafter "culpable conduct") of the plaintiffs and any recovery should be thereby diminished in the proportion which the plaintiffs' culpable conduct bears to the conduct which caused the alleged damages, pursuant to CPLRRuIe 1411. 3 3 of 9 08/07/2020 05:54 FILED: NEW YORK COUNTY CLERK 11/03/2021 11:51 PM AM INDEX NO. 152948/2020 3 NYSCEF DOC. NO. 141 08/07/2020 RECEIVED NYSCEF: 11/03/2021 AS AND FOR A SECOND AFFIRMATIVE DEFENSE 19. Upon information and belief, any past or future costs or expenses incurred or to be incurred by the plaintiffs for medical care, dental care, custodial care, or rehabilitative service, 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 Section 4545 of the New York Civil Practice Laws & Rules. If any damages are recoverable against the undersigned Defendant, the amount of such damages shall be diminished by the amount of the funds which the plaintiffs have received or shall receive from such collateral sources. AS AND FOR A THIRI) TIVE DEFENSE 20. If it should be found after trial that the Defendant is liable to the plaintiffs in the amount of 50o/o or less of the total liability assigned to all persons liable, the liability of Defendant to the plaintiffs for non-economic loss shall not exceed the Defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss in accordance with Article 16 of the CPLR. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 21. The injuries and damages allegedly sustained by plaintiffs were not caused by any negligence, carelessness, culpable conduct or breach of duty on the part of the Defendant, its servants, agents or employees, but were caused by reason of the carelessness, negligence culpable conduct and/or breach of duty of some third parlies, their servants, agents or employees over whom the Defendant had no control. AS AND FOR A FIFTH AF'FIRMATIVE DEFENSE 22. The Defendant had no prior notice of the alleged dangerous condition, either actual or constructive. 4 4 of 9 08/07/2020 05:54 FILED: NEW YORK COUNTY CLERK 11/03/2021 11:51 PM AM INDEX NO. 152948/2020 3 NYSCEF DOC. NO. 141 08/07/2020 RECEIVED NYSCEF: 11/03/2021 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 23 The Defendant did not cause or create any alleged dangerous condition. AS AND FOR A SEVENTH AF'F'IRMATIVE DEFENSE 24. The action is barred by plaintiffs' implied assumption of the risk for the activity plaintiffs was doing at the time of the occurrsnce in that said risks and danger were open, obvious and apparent and known to the plaintiffs. AS AND FOR AN EIGHTH AF'F'IRMATIVE DEFENSE 25. That the Complaint fails to state a cause of action. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 26. The liability of the Defendant, if any, to the plaintiffs for non-economic loss is limited to their equitable share, determined in accordance with the relative culpability of all persons or entities contributing to the total liability for non-economic loss, including named parties and others over whom plaintiffs could have obtained personal jurisdiction with due diligence. AS AND FOR A TENTH F'F'IRM A TIVE DE,X'ENSE 27 . The action is barred by plaintiffs' express assumption of the risk for the activity plaintiffs was doing at the time of the occunence. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 28. Plaintiffs failed to mitigate their damages pursuant to Law, Statute and Agreement and therefore, have sustained no damages. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 29. All claims raised and causes of action asserted in the Verified Complaint against the Answering Defendants are barred by laches ot waiver, and plaintiffs is equitably estopped from asserting such claims or causes of action against the Defendants. 5 5 of 9 08/07/2020 05:54 FILED: NEW YORK COUNTY CLERK 11/03/2021 11:51 PM AM INDEX NO. 152948/2020 3 NYSCEF DOC. NO. 141 08/07/2020 RECEIVED NYSCEF: 11/03/2021 AS AND F'OR A THIRTEE AF'F'IRMATIVE DEF'ENSE 30. Plaintiffs have failed to join and include in this action all identifiable and indispensable parties without whorn, in equity and fairness, this action should not proceed. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 31. The Defendant alleges that plaintiffs' alleged injuries and damages were solely and proximately caused by the intervening negligence, carelessness, gross negligence, willfulness, wantonness, recklessness, and/or intentional conduct of an independent third party. AS AND FOR F'IF'TEENTH AFFIRMATIVE DE F'ENSE 32. If Plaintiffs sustained any injury or incurred any loss or damages as alleged in the Verified Complaint, the same were caused in whole or in part by actions or omissions of another or others over whom the Defendant is not responsible, and whose conduct the Defendant had no duty or reason to anticipate or control. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 33. The Defendant alleges that plaintiffs' injuries, if any, were proximately caused by an unforeseeable, unanticipated, independent, intervening andlor superseding event beyond the control, and unrelated to any conduct of the Defendant. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 34, The Defendant alleges that, to the extent that plaintiffs' injuries were caused directly, solely, and proximately by allergies, sensitivities, medical conditions and idiosyncracies peculiar to plaintiffs and not found in the general public, they are unknown, unknowable or not reasonably foreseeable to Defendant. 6 6 of 9 08/07/2020 05:54 FILED: NEW YORK COUNTY CLERK 11/03/2021 11:51 PM AM INDEX NO. 152948/2020 3 NYSCEF DOC. NO. 141 08/07/2020 RECEIVED NYSCEF: 11/03/2021 WHEREFORE, the Defendant, MASARYK TOWERS CORPORATION ilslWa MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, dEMANdS judgment: (A) Dismissing the Verified Complaint in its entirety; (B) Awarding MASARYK the costs and disbursements of this action; and (C) Awarding MASARYK such other and further relief as this Court may deem just and proper. Dated: Woodbury, New York August 7,2020 MILBER MAKRIS PLOUSADIS & SEIDEN, LLP Susan J MILBER SPL IS & SEID , LLP Attomeys for Defendant MASARYK TOWERS CORPORATION ilslWa MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, 1000 Woodbury Road, Suite 402 Woodbury, New York 11797 (s16) 712-4000 File No.: 667-19159 TO Brett J. Nomberg, Esq. BRAND BRAND NOMBERG & ROSENBAUM, LLP Attorney for Plaintiffss JOSEPH ITARA ANd TABETHA ITARA 622 3RD Avenue, 7rH Floor New York, New York 10017 (212) 808-0448 7 7 of 9 08/07/2020 05:54 FILED: NEW YORK COUNTY CLERK 11/03/2021 11:51 PM AM INDEX NO. 152948/2020 3 NYSCEF DOC. NO. 141 08/07/2020 RECEIVED NYSCEF: 11/03/2021 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss.: COLINTY OF NASSAU ) SUSAN J. STROMBERG, being duly sworn, deposes and says that she is a Partner with the law firm of MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, counsel for Defendant, MASARYK TOWERS CORPORATION ilslh/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, in the within action, and makes this verification pursuant to CPLR 3020(d)(3). Defendant is not within the county where deponent has her office. Deponent has read the foregoing VERIFIED ANSWER and knows the contents thereof; that the same is true on the basis of information and belief, based upon books and records in the possession of deponent and conversations with Defendant. Dated: Woodbury, New York August 7,2020 SUSAN J. 8 8 of 9 08/07/2020 05:54 FILED: NEW YORK COUNTY CLERK 11/03/2021 11:51 PM AM INDEX NO. 152948/2020 3 NYSCEF DOC. NO. 141 08/07/2020 RECEIVED NYSCEF: 11/03/2021 SUPREME COURT OF THE CITY OF NEW YORK COLINTY OF NEW YORK X JOSEPH ITARA ANd TABETHA ITARA, Index No. 15294812020 Plaintiffs, -against - MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, Defendant. VERIFIED ANSI'I/ER MILBER MAKRIS PLOUSADIS & SEIDEN, LLP ATTORNEYS AT LAW Attorneys for Defendant, MASARYK TOWERS CORPORATION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT Of/ice and Post Office Address, Telephone 1000 Woodbury Road, Suite 402 Woodbury, NY I1797 (s16) 712-4000 MMPS File No.: 532-19159 To Signatule (Rule 130-1. 1-a) Print name beneath Attorney(s) for Service of a copy of the within is hereby admitted. Dated, Attorney(s) for Please take notice N NOTICE OF ENTRY that the within is a (certiJieQ true copy of a duly entered in the office of the clerk of the within named coud on I NOTICE OF SETTLEMENT order that an of which the within is a true copy will be presented for settlement to the HON. one of the judges of the within named court, at Dated, Yours, etc. MILBER MAKRIS PLOUSADIS & SEIDEN, LLP ATTORNEYS AT LAW At t orneys for Defe ndant To 1000 Woodbury Road, Suite 402 Woodbury, New York 11797 9 of 9 FILED: NEW YORK COUNTY CLERK 11/03/2021 05:54 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 11/03/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------- --X JOSEPH ITARA and TABETHA ITARA, Index No.: 152948/2020 Plaintiffs, NOTICE TO TAKE -against - DEPOSITION UPON ORAL EXAMINATION MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, Defendant. -----------X PLEASE TAKE NOTICE that, pursuant to Article 31 of the Civil Practice Law and Rules, the testimony upon oral examination of all parties will be taken before a notary public who is not an attorney, or employee of an attorney, for any party or prospective party herein and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity or affinity to any party herein, at the New York County Supreme Court, located at 60 Center Street, 19th New York, New York, on the day of October, 2020, at 10:00 o'clock in the forenoon of that day with respect to evidence material and necessary in the defense of this action. That the said persons to be examined are required to produce at such examination the following: All books, papers and other things in their possession, custody or control relating to this action to be marked as exhibits and used at the examination. Dated: Woodbury, New York August 7, 2020 MILBER M P DIS & SEIDEN, LLP Susan J. Stromber MILBER MAKRI OUSAD & S IDEN, LLP Attorneys for Defendant MASARYK TOWERS CORP ION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, 1000 Woodbury Road, Suite 402 Woodbury, New York 11797 (516) 712-4000 File No.: 667-19159 FILED: NEW YORK COUNTY CLERK 11/03/2021 05:54 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 11/03/2021 TO: Brett J. Nomberg, Esq. BRAND BRAND NOMBERG & ROSENBAUM, LLP Attorney for Plaintiffs JOSEPH ITARA and TABETHA ITARA 622 3RD 7™ Avenue, Floor New York, New York 10017 (212) 808-0448 2 FILED: NEW YORK COUNTY CLERK 11/03/2021 05:54 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 11/03/2021 AFFIDAVIT OF SERVICE BY MAIL AND EMAIL STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) I, ANNE AMATULLI, being sworn, say, I am not a party to this action, am over 18 years of age, and reside in Nassau County, New York. 7th On the day of August, 2020, I served a true copy of the within NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION upon: Brett J. Nomberg, Esq. BRAND BRAND NOMBERG & ROSENBAUM, LLP Attomeys for Plaintiffs 3rd 7th 622 Avenue, FlOOr New York, New York 10017 (212) 808-0448 bnomberg@bbnrlaw.com dszybisty@bbnrlaw.com. the attorney(s) for the respective parties in this action, at the above address(es) designated by said attorney(s) for that purpose by depositing same enclosed in a postpaid, properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Post Office within the State of New York. . ANNI AMATULLI Swo before me th 7th f August 0. A P C = z : Auget2. . No.01 JO S FILED: NEW YORK COUNTY CLERK 11/03/2021 05:54 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 11/03/2021 SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK ----------......-----..____..------------------------------X JOSEPH ITARA and TABETHA ITARA, Index No. 152948/2020 Plaintiffs, -against - MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, - _ - - Defendant. . _.. - .---. __ .. _.. ___ ---. NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION MILBER MAKRIS PLOUSADIS & SEIDEN, LLP ATTORNEYS AT LAW Attorneys for Defendant, MASARYK TOWERS CORPORATION i/s/h/a MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT Office and Post Office Address, Telephone 1000 Woodbury Road, Suite 402 Woodbury, NY 11797 (516) 712-4000 MMPS File No.: 532-19159 To Signature (Rule 130-1.1-a) ................................................................. Print name beneath Attorney(s) for Service of a copy of the within is hereby admitted. Dated, ................................................................. Attorney(s) for Please take notice O NOTICE OF ENTRY that the within is a (certified) true copy of a duly entered in the office of the clerk of the within named court on O NOTICE OF SETTLEMENT that an order of which the within is a true copy will be presented for settlement to the HON. one of the judges of the within named court, at Dated, Yours, etc. MILBER MAKRIS PLOUSADIS & SEIDEN, LLP ATTORNEYS AT LAW Attorneys for Defendant To 1000 Woodbury Road, Suite 402 Woodbury, New York 11797 FILED: NEW YORK COUNTY CLERK 11/03/2021 05:54 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 11/03/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------¬---------------------------X JOSEPH ITARA and TABETHA ITARA, Index No.: 152948/2020 Plaintiffs, DEMAND FOR VERIFIED -against - BILL OF PARTICULARS MASARYK TOWERS CORPORATION d/b/a MASARYK TOWERS MANAGEMENT, Defendant. -- ¬-------------------------- === X PLEASE TAKE NOTICE that, pursuant CPLR §§3041 through 3044, the Plaintiffs are hereby required to serve a Verified Bill of Particulars upon the undersigned within thirty (30) days after the receipt of this demand, setting forth, in detail, the following information: 1. Set forth each Plaintiff's present residence address(es). 2. Set forth the date of birth and social security number of each Plaintiff. 3. Set forth each Plaintiff's address(es) at the time of alleged accident. Plaintiffs' 4. Set forth the date and location of marriage. 5. Set forth the exact date and approximate time of the occurrence. 6. Set forth the location of the happening of the occurrence in sufficient detail so as to permit accurate identification. 7. State the direction in which the Plaintiff, JOSEPH ITARA, was traversing immediately prior to the alleged occurrence (up or down the stairs). 8. State how it is claimed the occurrence happened. 9. State whether actual or constructive notice is claimed. 10. If actual notice is claimed, set forth the following: FILED: NEW YORK COUNTY CLERK 11/03/2021 05:54 PM INDEX NO. 152948/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 11/03/2021 a. The names and addresses of any person(s) by whom notice was given/supplied; b. By whom it will be claimed that said actual notice was given on each occasion aforesaid; c. The date or dates of each said notice aforesaid; and d. The place said actual notice was given. 11. If constructive notice is claimed, set forth the length of time said condition is alleged to have existed prior to the happening of the alleged accident. 12. Set forth a complete and detailed statement of each and every injury claimed to have been sustained by each Plaintiff as a result of the alleged occurrence, and further set forth which of said injuries are alleged to be permanent in nature. 12. If it is claimed that the incident in question exacerbated and/or aggravated any condition of Plaintiff, JOSEPH ITARA, set forth specifically each and every condition it is claimed was exacerbated and/or aggravated, and set forth the names and addresses of each and every physician who treated or examined Plaintiff, JOSEPH ITARA, for such condition prior to the date of the alleged accident herein. 13. State whether Plaintiff, JOSEPH ITARA, claims any limitation of motion, loss of use, or loss of function as a result of the injuries alleged, and if so state the nature, extent and degree of permanency thereof. 14. Set forth the length of time Plaintiff, JOSEPH ITARA, was confined to: a. Hospital; b. Bed; c. Home. 15. Set forth the