Preview
FILED: KINGS COUNTY CLERK 12/14/2023 03:05 PM INDEX NO. 508174/2023
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 12/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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JAMES GEOFFREY, Index No.: 508174/2023
Plaintiff,
-against- Answer to Second
Third Party Complaint
SMITELL LLC, SMITELL B-1 LLC,
and EXELL DEVELOPMENT COMPANY,
Defendants.
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SMITELL LLC, SMITELL B-1 LLC,
and EXELL DEVELOPMENT COMPANY,
Third-Party Plaintiffs,
-against-
SUNSHINE MF II LLC and SILVERLING
INTERIORS, INC.,
Third-Party Defendants.
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SMITELL LLC, SMITELL B-1 LLC,
and EXELL DEVELOPMENT COMPANY,
Second Third-Party Plaintiffs,
-against-
PREMIUM GRADE MILLWORK CORP.
Second Third-Party Defendant.
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PLEASE TAKE NOTICE that Second Third-Party Defendant, PREMIUM GRADE
MILLWORK. (“PGM”) by and through its attorneys, Fuchs Rosenzweig, PLLC, as and for its
Answer to Defendant/Third-Party Plaintiffs/Second Third-Party Plaintiffs’ Second Third-Party
Complaint sets forth as follows:
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JURISDICTION & PARTIES
1. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the Second Third-Party Complaint.
2. Denies the allegations contained in paragraphs 10, 11 and 12 of the Second Third-
Party Complaint other than to admit that PGM is a domestic business corporation authorized and
existing under the laws of the State of New York. PGM refers all questions of law to this
Honorable Court at the time of trial.
UNDERLYING ACTION AND THIRD-PARTY ACTION
3. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraphs 13, 14, 15 and 16 of the Second Third-Party Complaint and avers that
the pleadings speak for themselves.
LICENSE AGREEMENT BETWEEN SMITELL AND SUNSHINE
4. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraphs 17, 18, 19 and 20 of the Second Third-Party Complaint and avers that
the pleadings speak for themselves.
CONSTRUCTION AGREEMENT BETWEEN SUNSHINE AND SILVERLINING
5. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraphs 21, 22 and 23 of the Second Third-Party Complaint and avers that the
pleadings and contract speak for themselves.
SUBCONTRACT AGREEMENT BETWEEN SILVERLINING AND PGM
6. Denies the allegations in paragraphs 24, 25 and 26 of the Second Third-Party
Complaint, other than to admit that PGM performed certain work and services at the subject
premises pursuant to a written agreement with Silverlining. The agreement between Silverlining
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and PGM speaks for itself.
UNDERLYING CONSTRUCTION PROJECT AND PLAINTIFF’S CLAIMS
7. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraphs 27 and 28 of the Second Third-Party Complaint and avers that the
pleadings and contracts speak for themselves.
8. Denies the allegations in paragraphs 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38 of the
Second Third-Party Complaint in the form alleged and refers all questions of law to his Honorable
Court at the time of trial.
9. Denies the allegations in paragraphs 39 and 40 of the Second Third-Party
Complaint in the form alleged and refers all questions of law to his Honorable Court at the time of
trial.
AS AND FOR AN ANSWER TO SECOND THIRD-PARTY PLAINTIFFS’
FIRST CAUSE OF ACTION
10. In response to paragraph 41, of the Second Third-Party Complaint, Answering
Second Third-Party Defendant repeats, reiterates and realleges each and every response to each
and every allegation contained in the paragraphs designated 1 through and inclusive of 11 of the
Second Third-Party Complaint as if same had been more fully and at length.
11. Denies the allegations contained in paragraphs 42 and 43 of the Second Third-Party
Complaint and refers all questions of law to this Honorable Court at the time of trial.
AS AND FOR AN ANSWER TO SECOND THIRD-PARTY PLAINTIFFS’
SECOND CAUSE OF ACTION
12. In response to paragraph 44, of the Second Third-Party Complaint, Answering
Second Third-Party Defendant repeats, reiterates and realleges each and every response to each
and every allegation contained in the paragraphs designated 1 through and inclusive of 43 of the
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Second Third-Party Complaint as if same had been more fully and at length.
13. Denies the allegations in paragraphs 45, 46 and 47 of the Second Third-Party
Complaint in the form alleged and refers all questions of law to this Honorable Court at the time
of trial.
AS AND FOR AN ANSWER TO SECOND THIRD-PARTY PLAINTIFFS’
THIRD CAUSE OF ACTION
14. In response to paragraph 48, of the Second Third-Party Complaint, Answering
Second Third-Party Defendant repeats, reiterates and realleges each and every response to each
and every allegation contained in the paragraphs designated 1 through and inclusive of 47 of the
Second Third-Party Complaint as if same had been more fully and at length.
15. Denies the allegations in paragraphs 49, 50 and 51 of the Second Third-Party
Complaint and refers all questions of law to this Honorable Court at the time of trial. Defendant
further states that the contract speaks for itself.
AS AND FOR AN ANSWER TO SECOND THIRD-PARTY PLAINTIFFS’
FOURTH CAUSE OF ACTION
16. In response to paragraph 52, of the Second Third-Party Complaint, Answering
Second Third-Party Defendant repeats, reiterates and realleges each and every response to each
and every allegation contained in the paragraphs designated 1 through and inclusive of 51 of the
Second Third-Party Complaint as if same had been more fully and at length.
17. Neither admits nor denies the allegations in paragraph 53 of the Second Third-Party
Complaint as the contract speaks for itself. PGM denies that the insurance provisions in said
contract apply to the allegations contained in plaintiff’s complaint.
18. Denies the allegations in paragraphs 54, 55, 56 and 57 of the Second Third-Party
Complaint and refers all questions of law to this Honorable Court at the time of trial.
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AS AND FOR AN ANSWER TO SECOND THIRD-PARTY PLAINTIFFS’
FIFTH CAUSE OF ACTION
19. In response to paragraph 58, of the Second Third-Party Complaint, Answering
Second Third-Party Defendant repeats, reiterates and realleges each and every response to each
and every allegation contained in the paragraphs designated 1 through and inclusive of 57 of the
Second Third-Party Complaint as if same had been more fully and at length.
20. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraphs 59 of the Second Third-Party Complaint and avers that the pleadings and
contracts speak for themselves.
21. Denies the allegations in paragraphs 60 and 61 the Second Third-Party Complaint
and refers all questions of law to this Honorable Court at the time of trial.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
22. The Second Third-Party Defendant not being fully advised as to all the facts and
circumstances surrounding the incident complained of, hereby asserts and reserves unto itself the
defenses of accord and satisfaction, arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality,
injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of
limitations, waiver, and any other matter constituting an avoidance or affirmative defense which
the further investigation of this matter may prove applicable herein.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
23. The complaint fails to state a claim upon which relief may be granted.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
24. Pursuant to CPLR Article 16, the liability of Second Third-Party Defendant to the
plaintiff and/or defendant/third-party plaintiff herein for non-economic loss is limited to Second
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Third-Party 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.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
25. Plaintiff may have recovered the costs of medical care, dental care, custodial care,
rehabilitation services, loss of earnings and other economic loss and any such future loss or
expense will, with reasonable certainty, be replaced or indemnified in whole or in part from
collateral sources. Any award made to plaintiff shall be reduced in accordance with the provisions
of CPLR 4545(a).
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
26. Any damages sustained by the plaintiff were caused by the culpable conduct of the
plaintiff and/or third-party plaintiff, including comparative negligence, assumption of risks, breach
of contract and not by the culpable conduct or negligence of this answering Second Third-Party
Defendant. But if a verdict of judgment is awarded to the plaintiff and/or third-party plaintiff, then
and in that event the damages shall be reduced in the proportion which the culpable conduct
attributable to the plaintiff and/or third-party plaintiff bears to the culpable conduct which caused
the damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
27. Plaintiff may have failed to mitigate damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
28. Plaintiff's alleged loss and damage, if any, resulted wholly and solely from the fault,
neglect and want of care of the plaintiff and/or third-party plaintiff or persons or parties other than
Second Third-Party Defendant, for whose acts said defendant is not liable or responsible and not
as a result of any negligence of this defendant
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AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
29. This Second Third-Party Defendant re entitled to a set-off if any tortfeasor has or
will settle with plaintiff pursuant to G.O.L. 15-108.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
30. That by entering into the activity in which the plaintiff was engaged at the time of
the occurrence set forth in the complaint, said plaintiff knew the hazards thereof and the inherent
risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries and
damages were sustained by the plaintiff herein as alleged in the complaint arose from and were
caused by reason of such risks voluntarily undertaken by the plaintiff in his activities and such
risks were assumed and accepted by him in performing and engaging in said activities.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
31. Whatever injuries and/or damages sustained by the plaintiff at the time and place
alleged in the complaint were due to the acts of parties over whom this Second Third-Party
Defendant was not obligated to exercise any control or supervision.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
32. The injuries sustained by plaintiff, if any, were not proximately caused by any act
of omission of this Second Third-Party Defendant.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
33. The complaint must be dismissed, as answering Second Third-Party Defendant
owed no duty to plaintiff and/or third-party plaintiff.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
34. Plaintiff’s complaint should be dismissed as he was a recalcitrant worker.
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AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
35. Plaintiff’s complaint should be dismissed as he was the sole proximate cause of his
accident.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
36. Plaintiff may have recovered the costs of medical care, dental care, custodial care,
rehabilitation services other economical loss, and any such future loss or expense will, with
reasonable certainty, be replaced, offset, or indemnified in whole or in part pursuant to the
Affordable Care Act. Any award made to plaintiff shall be reduced in accordance with the
provisions of the Affordable Care Act, Article 50b of the CPLR and section 5-335 of the General
Obligations Law.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
37. Whatever injuries and/or damages sustained by the plaintiff at the time and place
alleged in the complaint, were due to the acts of parties over whom the defendant was not obligated
to exercise any control or supervision.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
38. The injuries sustained by plaintiff, if any, were not proximately caused by any act
of omission of answering Second Third-Party Defendant.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
39. The complaint must be dismissed, as answering Second Third-Party Defendant
owed no duty to plaintiff.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
40. The Second Third-Party Plaintiffs’ claim for contractual indemnification is barred
by G.O.L. 5-322.1.
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DEFENSES RESERVED
41. Second Third-Party Defendant gives notice that it intends to rely upon any other
defenses that may become available or apparent during the discovery proceedings in this matter,
and hereby reserve its right to amend its Second Third-Party Answer and to assert any such
defense.
AS AND FOR A FIRST COUNTER CLAIM AND/OR CROSSCLAIM
AGAINST SMITELL LLC, SMITELL B-1 LLC, EXTELL DEVELOPMENT
COMPANY & SUNSHINE MF II LLC
42. That if plaintiff was caused to sustain damages by reason of the claims set forth in
the complaint, all of which are specifically denied, such damages were sustained by reason of the
acts, conduct, misfeasance or nonfeasance, of Smitell LLC, Smitell B-1 LLC, Extell
Development Company and Sunshine MF II LLC, their agents, servants and/or employees, and
not by this answering defendant, and if any judgment is recovered by plaintiffs against this
answering third- party defendant, such Second Third-Party Defendant will be damaged thereby,
and, Smitell LLC, Smitell B-1 LLC, Extell Development Company and Sunshine MF II LLC,
or will be responsible therefore in whole or in part.
AS AND FOR A SECOND COUNTER CLAIM AND/OR CROSSCLAIM
AGAINST SMITELL LLC, SMITELL B-1 LLC, EXTELL DEVELOPMENT
COMPANY & SUNSHINE MF II LLC
43. That if plaintiff was caused to sustain damages by reason of the claims set forth in
the complaint, all of which are specifically denied, and if any judgment is recovered by the plaintiff
and/or third-party plaintiff against this Third-Party Defendant, that under a contract entered or by
reason of express or implied warranty, Smitell LLC, Smitell B-1 LLC, Extell Development
Company and Sunshine MF II LLC, will be liable over to this answering Third-Party Defendant
pursuant to the terms of the indemnity agreement in said contract or warranty, for the full amount
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of any verdict or judgment awarded to the plaintiff and/or third-party plaintiff against this
answering Third-Party Defendant, together with attorneys’ fees, costs & disbursement.
WHEREFORE, Second Third-Party Defendant demands judgment dismissing the
complaint and Second Third-Party Complaint, judgment on its counter claims and cross-claims
herein together with the costs and disbursements of this action, and for such other and just relief.
Dated: New York, New York
December 14, 2023
FUCHS ROSENZWEIG PLLC
/s/Douglas R. Rosenzweig
By: Douglas R. Rosenzweig, Esq.
Attorneys for Third-Party Defendant
PREMIUM GRADE MILLWORK CORP.
11 Broadway, Suite 570
New York, New York 10004
(646) 760-5445
All Parties via NYSECF
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Preview
FILED: KINGS COUNTY CLERK 12/14/2023 03:05 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 12/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------X JAMES GEOFFREY, Index No.: 508174/2023 Plaintiff, -against- Answer to Second Third Party Complaint SMITELL LLC, SMITELL B-1 LLC, and EXELL DEVELOPMENT COMPANY, Defendants. ------------------------------------------------------------------------X SMITELL LLC, SMITELL B-1 LLC, and EXELL DEVELOPMENT COMPANY, Third-Party Plaintiffs, -against- SUNSHINE MF II LLC and SILVERLING INTERIORS, INC., Third-Party Defendants. ------------------------------------------------------------------------X SMITELL LLC, SMITELL B-1 LLC, and EXELL DEVELOPMENT COMPANY, Second Third-Party Plaintiffs, -against- PREMIUM GRADE MILLWORK CORP. Second Third-Party Defendant. -------------------------------------------------------------------------X PLEASE TAKE NOTICE that Second Third-Party Defendant, PREMIUM GRADE MILLWORK. (“PGM”) by and through its attorneys, Fuchs Rosenzweig, PLLC, as and for its Answer to Defendant/Third-Party Plaintiffs/Second Third-Party Plaintiffs’ Second Third-Party Complaint sets forth as follows: 1 of 10 FILED: KINGS COUNTY CLERK 12/14/2023 03:05 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 12/14/2023 JURISDICTION & PARTIES 1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 1, 2, 3, 4, 5, 6, 7, 8 and 9 of the Second Third-Party Complaint. 2. Denies the allegations contained in paragraphs 10, 11 and 12 of the Second Third- Party Complaint other than to admit that PGM is a domestic business corporation authorized and existing under the laws of the State of New York. PGM refers all questions of law to this Honorable Court at the time of trial. UNDERLYING ACTION AND THIRD-PARTY ACTION 3. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 13, 14, 15 and 16 of the Second Third-Party Complaint and avers that the pleadings speak for themselves. LICENSE AGREEMENT BETWEEN SMITELL AND SUNSHINE 4. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 17, 18, 19 and 20 of the Second Third-Party Complaint and avers that the pleadings speak for themselves. CONSTRUCTION AGREEMENT BETWEEN SUNSHINE AND SILVERLINING 5. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 21, 22 and 23 of the Second Third-Party Complaint and avers that the pleadings and contract speak for themselves. SUBCONTRACT AGREEMENT BETWEEN SILVERLINING AND PGM 6. Denies the allegations in paragraphs 24, 25 and 26 of the Second Third-Party Complaint, other than to admit that PGM performed certain work and services at the subject premises pursuant to a written agreement with Silverlining. The agreement between Silverlining 2 of 10 FILED: KINGS COUNTY CLERK 12/14/2023 03:05 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 12/14/2023 and PGM speaks for itself. UNDERLYING CONSTRUCTION PROJECT AND PLAINTIFF’S CLAIMS 7. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 27 and 28 of the Second Third-Party Complaint and avers that the pleadings and contracts speak for themselves. 8. Denies the allegations in paragraphs 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38 of the Second Third-Party Complaint in the form alleged and refers all questions of law to his Honorable Court at the time of trial. 9. Denies the allegations in paragraphs 39 and 40 of the Second Third-Party Complaint in the form alleged and refers all questions of law to his Honorable Court at the time of trial. AS AND FOR AN ANSWER TO SECOND THIRD-PARTY PLAINTIFFS’ FIRST CAUSE OF ACTION 10. In response to paragraph 41, of the Second Third-Party Complaint, Answering Second Third-Party Defendant repeats, reiterates and realleges each and every response to each and every allegation contained in the paragraphs designated 1 through and inclusive of 11 of the Second Third-Party Complaint as if same had been more fully and at length. 11. Denies the allegations contained in paragraphs 42 and 43 of the Second Third-Party Complaint and refers all questions of law to this Honorable Court at the time of trial. AS AND FOR AN ANSWER TO SECOND THIRD-PARTY PLAINTIFFS’ SECOND CAUSE OF ACTION 12. In response to paragraph 44, of the Second Third-Party Complaint, Answering Second Third-Party Defendant repeats, reiterates and realleges each and every response to each and every allegation contained in the paragraphs designated 1 through and inclusive of 43 of the 3 of 10 FILED: KINGS COUNTY CLERK 12/14/2023 03:05 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 12/14/2023 Second Third-Party Complaint as if same had been more fully and at length. 13. Denies the allegations in paragraphs 45, 46 and 47 of the Second Third-Party Complaint in the form alleged and refers all questions of law to this Honorable Court at the time of trial. AS AND FOR AN ANSWER TO SECOND THIRD-PARTY PLAINTIFFS’ THIRD CAUSE OF ACTION 14. In response to paragraph 48, of the Second Third-Party Complaint, Answering Second Third-Party Defendant repeats, reiterates and realleges each and every response to each and every allegation contained in the paragraphs designated 1 through and inclusive of 47 of the Second Third-Party Complaint as if same had been more fully and at length. 15. Denies the allegations in paragraphs 49, 50 and 51 of the Second Third-Party Complaint and refers all questions of law to this Honorable Court at the time of trial. Defendant further states that the contract speaks for itself. AS AND FOR AN ANSWER TO SECOND THIRD-PARTY PLAINTIFFS’ FOURTH CAUSE OF ACTION 16. In response to paragraph 52, of the Second Third-Party Complaint, Answering Second Third-Party Defendant repeats, reiterates and realleges each and every response to each and every allegation contained in the paragraphs designated 1 through and inclusive of 51 of the Second Third-Party Complaint as if same had been more fully and at length. 17. Neither admits nor denies the allegations in paragraph 53 of the Second Third-Party Complaint as the contract speaks for itself. PGM denies that the insurance provisions in said contract apply to the allegations contained in plaintiff’s complaint. 18. Denies the allegations in paragraphs 54, 55, 56 and 57 of the Second Third-Party Complaint and refers all questions of law to this Honorable Court at the time of trial. 4 of 10 FILED: KINGS COUNTY CLERK 12/14/2023 03:05 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 12/14/2023 AS AND FOR AN ANSWER TO SECOND THIRD-PARTY PLAINTIFFS’ FIFTH CAUSE OF ACTION 19. In response to paragraph 58, of the Second Third-Party Complaint, Answering Second Third-Party Defendant repeats, reiterates and realleges each and every response to each and every allegation contained in the paragraphs designated 1 through and inclusive of 57 of the Second Third-Party Complaint as if same had been more fully and at length. 20. Denies knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 59 of the Second Third-Party Complaint and avers that the pleadings and contracts speak for themselves. 21. Denies the allegations in paragraphs 60 and 61 the Second Third-Party Complaint and refers all questions of law to this Honorable Court at the time of trial. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 22. The Second Third-Party Defendant not being fully advised as to all the facts and circumstances surrounding the incident complained of, hereby asserts and reserves unto itself the defenses of accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense which the further investigation of this matter may prove applicable herein. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 23. The complaint fails to state a claim upon which relief may be granted. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 24. Pursuant to CPLR Article 16, the liability of Second Third-Party Defendant to the plaintiff and/or defendant/third-party plaintiff herein for non-economic loss is limited to Second 5 of 10 FILED: KINGS COUNTY CLERK 12/14/2023 03:05 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 12/14/2023 Third-Party 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. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 25. Plaintiff may have recovered the costs of medical care, dental care, custodial care, rehabilitation services, loss of earnings and other economic loss and any such future loss or expense will, with reasonable certainty, be replaced or indemnified in whole or in part from collateral sources. Any award made to plaintiff shall be reduced in accordance with the provisions of CPLR 4545(a). AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 26. Any damages sustained by the plaintiff were caused by the culpable conduct of the plaintiff and/or third-party plaintiff, including comparative negligence, assumption of risks, breach of contract and not by the culpable conduct or negligence of this answering Second Third-Party Defendant. But if a verdict of judgment is awarded to the plaintiff and/or third-party plaintiff, then and in that event the damages shall be reduced in the proportion which the culpable conduct attributable to the plaintiff and/or third-party plaintiff bears to the culpable conduct which caused the damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 27. Plaintiff may have failed to mitigate damages. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 28. Plaintiff's alleged loss and damage, if any, resulted wholly and solely from the fault, neglect and want of care of the plaintiff and/or third-party plaintiff or persons or parties other than Second Third-Party Defendant, for whose acts said defendant is not liable or responsible and not as a result of any negligence of this defendant 6 of 10 FILED: KINGS COUNTY CLERK 12/14/2023 03:05 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 12/14/2023 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 29. This Second Third-Party Defendant re entitled to a set-off if any tortfeasor has or will settle with plaintiff pursuant to G.O.L. 15-108. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 30. That by entering into the activity in which the plaintiff was engaged at the time of the occurrence set forth in the complaint, said plaintiff knew the hazards thereof and the inherent risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries and damages were sustained by the plaintiff herein as alleged in the complaint arose from and were caused by reason of such risks voluntarily undertaken by the plaintiff in his activities and such risks were assumed and accepted by him in performing and engaging in said activities. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 31. Whatever injuries and/or damages sustained by the plaintiff at the time and place alleged in the complaint were due to the acts of parties over whom this Second Third-Party Defendant was not obligated to exercise any control or supervision. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 32. The injuries sustained by plaintiff, if any, were not proximately caused by any act of omission of this Second Third-Party Defendant. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 33. The complaint must be dismissed, as answering Second Third-Party Defendant owed no duty to plaintiff and/or third-party plaintiff. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 34. Plaintiff’s complaint should be dismissed as he was a recalcitrant worker. 7 of 10 FILED: KINGS COUNTY CLERK 12/14/2023 03:05 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 12/14/2023 AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 35. Plaintiff’s complaint should be dismissed as he was the sole proximate cause of his accident. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 36. Plaintiff may have recovered the costs of medical care, dental care, custodial care, rehabilitation services other economical loss, and any such future loss or expense will, with reasonable certainty, be replaced, offset, or indemnified in whole or in part pursuant to the Affordable Care Act. Any award made to plaintiff shall be reduced in accordance with the provisions of the Affordable Care Act, Article 50b of the CPLR and section 5-335 of the General Obligations Law. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 37. Whatever injuries and/or damages sustained by the plaintiff at the time and place alleged in the complaint, were due to the acts of parties over whom the defendant was not obligated to exercise any control or supervision. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 38. The injuries sustained by plaintiff, if any, were not proximately caused by any act of omission of answering Second Third-Party Defendant. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 39. The complaint must be dismissed, as answering Second Third-Party Defendant owed no duty to plaintiff. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 40. The Second Third-Party Plaintiffs’ claim for contractual indemnification is barred by G.O.L. 5-322.1. 8 of 10 FILED: KINGS COUNTY CLERK 12/14/2023 03:05 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 12/14/2023 DEFENSES RESERVED 41. Second Third-Party Defendant gives notice that it intends to rely upon any other defenses that may become available or apparent during the discovery proceedings in this matter, and hereby reserve its right to amend its Second Third-Party Answer and to assert any such defense. AS AND FOR A FIRST COUNTER CLAIM AND/OR CROSSCLAIM AGAINST SMITELL LLC, SMITELL B-1 LLC, EXTELL DEVELOPMENT COMPANY & SUNSHINE MF II LLC 42. That if plaintiff was caused to sustain damages by reason of the claims set forth in the complaint, all of which are specifically denied, such damages were sustained by reason of the acts, conduct, misfeasance or nonfeasance, of Smitell LLC, Smitell B-1 LLC, Extell Development Company and Sunshine MF II LLC, their agents, servants and/or employees, and not by this answering defendant, and if any judgment is recovered by plaintiffs against this answering third- party defendant, such Second Third-Party Defendant will be damaged thereby, and, Smitell LLC, Smitell B-1 LLC, Extell Development Company and Sunshine MF II LLC, or will be responsible therefore in whole or in part. AS AND FOR A SECOND COUNTER CLAIM AND/OR CROSSCLAIM AGAINST SMITELL LLC, SMITELL B-1 LLC, EXTELL DEVELOPMENT COMPANY & SUNSHINE MF II LLC 43. That if plaintiff was caused to sustain damages by reason of the claims set forth in the complaint, all of which are specifically denied, and if any judgment is recovered by the plaintiff and/or third-party plaintiff against this Third-Party Defendant, that under a contract entered or by reason of express or implied warranty, Smitell LLC, Smitell B-1 LLC, Extell Development Company and Sunshine MF II LLC, will be liable over to this answering Third-Party Defendant pursuant to the terms of the indemnity agreement in said contract or warranty, for the full amount 9 of 10 FILED: KINGS COUNTY CLERK 12/14/2023 03:05 PM INDEX NO. 508174/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 12/14/2023 of any verdict or judgment awarded to the plaintiff and/or third-party plaintiff against this answering Third-Party Defendant, together with attorneys’ fees, costs & disbursement. WHEREFORE, Second Third-Party Defendant demands judgment dismissing the complaint and Second Third-Party Complaint, judgment on its counter claims and cross-claims herein together with the costs and disbursements of this action, and for such other and just relief. Dated: New York, New York December 14, 2023 FUCHS ROSENZWEIG PLLC /s/Douglas R. Rosenzweig By: Douglas R. Rosenzweig, Esq. Attorneys for Third-Party Defendant PREMIUM GRADE MILLWORK CORP. 11 Broadway, Suite 570 New York, New York 10004 (646) 760-5445 All Parties via NYSECF 10 of 10