Preview
FILED: KINGS COUNTY CLERK 08/17/2015 05:29 PM INDEX NO. 503785/2015
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/17/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
WILMER CABRERA, as Administrator of the Estate Index No.: 503785/2015
of HENRY ESTEBAN SALINAS CERRATO,
Deceased, VERIFIED ANSWER AND
CROSS-CLAIMS OF
Plaintiff, DEFENDANT UNITED
PARCEL SERVICE, INC. TO
- against - PLAINTIFF’S AMENDED
VERIFIED COMPLAINT
UNITED PARCEL SERVICE, INC., ROBERT A.
KREITZER, JR., CREATIVE CHRISTMAS, INC.,
LINCOLN SQUARE CONDOMINIUM and
ALTITUDE EQUIPMENT RENTALS, LLC,
Defendants.
UNITED PARCEL SERVICE, INC. and ROBERT A.
KREITZER, JR.,
Third-Party Plaintiffs,
- against -
ALTITUDE EQUIPMENT RENTALS, LLC,
Third-Party Defendant.
Defendant United Parcel Service, Inc. (“UPS”), by its attorneys, Ansa Assuncao, LLP,
answering the Amended Verified Complaint (the “Amended Complaint”) of Plaintiff Wilmer
Cabrera, as Administrator of the Estate of Henry Esteban Salinas Cerrato, respectfully states and
alleges as follows:
AS AND TO A FIRST CAUSE OF ACTION
ON BEHALF OF PLAINTIFF WILMER CABRERA, AS ADMINISTRATOR
OF THE ESTATE OF HENRY ESTEBAN SALINAS CERRATO
1. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 1 of the Amended Complaint.
2. UPS denies the allegations contained in paragraph 2 of the Amended Complaint,
except admits that it is an Ohio corporation that transacts business in the State of New York.
3. UPS admits the allegations contained in paragraph 3 of the Amended Complaint.
4. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 4 of the Amended Complaint.
5. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 5 of the Amended Complaint.
6. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 6 of the Amended Complaint.
7. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 7 of the Amended Complaint, except admits that it rented a
motor vehicle bearing Pennsylvania State license plate number AG13858 (the “Vehicle”) from
Five Star International LLC.
8. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 8 of the Amended Complaint.
9. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 9 of the Amended Complaint.
10. UPS admits the allegations contained in paragraph 10 of the Amended Complaint.
11. UPS admits the allegations contained in paragraph 11 of the Amended Complaint.
12. UPS denies the allegations contained in paragraph 12 of the Amended Complaint,
except admits that it rented the Vehicle from Five Star International LLC.
13. UPS denies the allegations contained in paragraph 13 of the Amended Complaint,
except admits that it rented the Vehicle from Five Star International LLC.
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14. UPS admits the allegations contained in paragraph 14 of the Amended Complaint.
15. UPS admits the allegations contained in paragraph 15 of the Amended Complaint.
16. UPS admits the allegations contained in paragraph 16 of the Amended Complaint
upon information and belief.
17. UPS admits the allegations contained in paragraph 17 of the Amended Complaint
upon information and belief.
18. UPS admits the allegations contained in paragraph 18 of the Amended Complaint
upon information and belief.
19. UPS admits the allegations contained in paragraph 19 of the Amended Complaint
upon information and belief.
20. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 20 of the Amended Complaint.
21. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 21 of the Amended Complaint.
22. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 22 of the Amended Complaint.
23. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 23 of the Amended Complaint.
24. UPS admits the allegations contained in paragraph 24 of the Amended Complaint
upon information and belief.
25. UPS admits the allegations contained in paragraph 25 of the Amended Complaint
upon information and belief.
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26. UPS admits the allegations contained in paragraph 26 of the Amended Complaint
upon information and belief.
27. UPS admits the allegations contained in paragraph 27 of the Amended Complaint
upon information and belief.
28. UPS admits the allegations contained in paragraph 28 of the Amended Complaint
upon information and belief.
29. UPS admits the allegations contained in paragraph 29 of the Amended Complaint
upon information and belief.
30. UPS admits the allegations contained in paragraph 30 of the Amended Complaint
upon information and belief.
31. UPS admits the allegations contained in paragraph 31 of the Amended Complaint
upon information and belief.
32. UPS admits the allegations contained in paragraph 32 of the Amended Complaint
upon information and belief.
33. UPS admits the allegations contained in paragraph 33 of the Amended Complaint
upon information and belief.
34. UPS admits the allegations contained in paragraph 34 of the Amended Complaint
upon information and belief.
35. UPS admits the allegations contained in paragraph 35 of the Amended Complaint
upon information and belief.
36. UPS admits the allegations contained in paragraph 36 of the Amended Complaint
upon information and belief.
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37. UPS admits the allegations contained in paragraph 37 of the Amended Complaint
upon information and belief.
38. UPS admits the allegations contained in paragraph 38 of the Amended Complaint.
39. UPS denies the allegations contained in paragraph 39 of the Amended Complaint
upon information and belief.
40. UPS admits the allegations contained in paragraph 40 of the Amended Complaint.
41. UPS denies the allegations contained in paragraph 41 of the Amended Complaint,
except admits that on November 5, 2013, Defendant Robert Kreitzer, Jr. (“Kreitzer”) properly
operated a motor vehicle in the rightmost travel lane of Columbus Avenue.
42. UPS denies the allegations contained in paragraph 42 of the Amended Complaint.
43. UPS denies the allegations contained in paragraph 43 of the Amended Complaint
to the extent they are directed to UPS. UPS makes no response to allegations directed to any
other defendant.
44. The allegations contained in paragraph 44 of the Amended Complaint state legal
conclusions as to which no responsive pleading is required. To the extent a response is required,
UPS denies the allegations contained in paragraph 44 of the Amended Complaint and refers all
questions of law to the Court.
45. The allegations contained in paragraph 45 of the Amended Complaint state legal
conclusions as to which no responsive pleading is required. To the extent a response is required,
UPS denies the allegations contained in paragraph 45 of the Amended Complaint and refers all
questions of law to the Court.
46. UPS denies the allegations contained in paragraph 46 of the Amended Complaint.
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47. The allegations contained in paragraph 47 of the Amended Complaint state legal
conclusions as to which no responsive pleading is required. To the extent a response is required,
UPS denies the allegations contained in paragraph 47 of the Amended Complaint and refers all
questions of law to the Court.
AS AND TO A SECOND CAUSE OF ACTION
FOR THE WRONGFUL DEATH OF PLAINTIFF’S
DECEDENT HENRY ESTEBAN SALINAS CERRATO
48. UPS incorporates its responses to paragraphs 1 through 47 of the Amended
Complaint as though set forth fully herein.
49. UPS denies the allegations contained in paragraph 49 of the Amended Complaint
to the extent they are directed to UPS. UPS makes no response to allegations directed to any
other defendant.
50. UPS denies knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 50 of the Amended Complaint.
51. The allegations contained in paragraph 51 of the Amended Complaint state legal
conclusions as to which no responsive pleading is required. To the extent a response is required,
UPS denies the allegations contained in paragraph 51 of the Amended Complaint and refers all
questions of law to the Court.
52. UPS denies the allegations contained in paragraph 52 of the Amended Complaint.
AS AND TO A THIRD CAUSE OF ACTION
FOR THE PUNITIVE DAMAGES
53. UPS incorporates its responses to paragraphs 1 through 52 of the Amended
Complaint as though set forth fully herein.
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54. UPS denies the allegations contained in paragraph 54 of the Amended Complaint
to the extent they are directed to UPS. UPS makes no response to allegations directed to any
other defendant.
55. UPS denies the allegations contained in paragraph 55 of the Amended Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
The Complaint fails to state a cause of action against UPS upon which relief may be
granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
Any injuries and/or damages sustained by Plaintiff and/or Henry Esteban Salinas Cerrato
(“Salinas”) as alleged in the Amended Complaint were caused in whole or in part by the
negligence, acts, omissions and/or culpable conduct of Salinas, and not as a result of any
negligence, acts, omissions and/or culpable conduct on the part of UPS and any damages which
may be recovered by Plaintiff shall be diminished in proportion to which the culpable conduct of
Salinas, caused such damages, pursuant to CPLR § 1411.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
Any injuries to Plaintiff and/or Salinas were caused by the negligence, acts, omissions
and/or culpable conduct of third-parties over which UPS has no control and for whom UPS was
in no way responsible.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
Plaintiff fails to name all necessary parties to this action.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
The liability of UPS, if any, to Plaintiff is limited to its equitable share, determined in
accordance with the relative culpability of all persons or entities contributing to the total liability
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for any alleged loss, including others over whom Plaintiff could have obtained personal
jurisdiction with due diligence.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
In the event Plaintiff receives a verdict or judgment against UPS, then said verdict or
judgment must be reduced and UPS is entitled to the appropriate set-off.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
The claims asserted in the Amended Complaint are barred by the doctrines of waiver and
laches.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
While UPS denies Plaintiff’s allegations of negligence and liability, injury and damages,
if proven, were the result of intervening and/or interceding acts of superseding negligence and
liability on the part of others that UPS neither controls, nor has the right to control, and for
whose acts or omissions UPS is not legally responsible.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
At all times alleged herein, UPS exercised reasonable care and took reasonable safety
measures.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
Plaintiff has failed to mitigate his claimed damages, if any, as required by law.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
The claims and causes of action asserted against UPS may be barred due to the spoliation
of evidence.
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AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
The injuries said to have been sustained by Plaintiff and/or Salinas, arose out of certain
risks, dangers and hazards which were open and notorious and which Salinas, appreciated and
understood, and Salinas, voluntarily exposed himself to and assumed said risks.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
In the event Plaintiff recovers a verdict or judgment against UPS, then said verdict or
judgment must be reduced pursuant to CPLR § 4545(a) by those amounts which have been, or
will, with reasonable certainty, replace or indemnify Plaintiff and/or Salinas, in whole or in part,
for any past or future claimed expenses or other such economic loss, paid from any collateral
source such as insurance, social security, workers compensation and/or employee benefit
programs.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred or otherwise limited for lack of standing.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred or limited by the unavoidable accident doctrine.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred or limited by the last clear chance doctrine.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred or limited by the emergency doctrine.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
Kreitzer was suddenly confronted with, and was called upon to act in, an emergency
situation not created by his own acts.
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UPS hereby gives notice that it intends to rely on any additional affirmative defenses that
become available or apparent during discovery and thus reserves the right to amend its Answer
to assert such additional defenses.
CROSS-CLAIMS
UPS through its undersigned counsel, as and for its cross-claims against Defendants
Creative Christmas, Inc. (“Creative Christmas”) and Lincoln Square Condominium (“Lincoln
Square”), alleges and states the following upon information and belief:
PARTIES
1. UPS is a corporation formed under the laws of the State of Ohio, with a principal
place of business in Atlanta, Georgia.
2. At all relevant times hereinafter mentioned, Creative Christmas was and still is a
corporation authorized and existing under the laws of the State of New York.
3. At all relevant times hereinafter mentioned, Lincoln Square was and still is a
condominium created pursuant to Article 9-B of the Real Property Law of the State of New York
FACTS
4. Lincoln Square owns, manages and/or controls the building known as 1992
Broadway, New York, New York, with an entrance located at 111 West 67th Street, New York,
New York (the “Building”).
5. The Building encompasses the entire block from Broadway to Columbus Avenue
and West 67th Street to West 68th Street in New York, New York.
6. Lincoln Square entered into a contract with Creative Christmas to have Christmas
lights affixed to the trees in front of and around the Building.
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7. In said contract, Lincoln Square agreed to provide the location for Creative
Christmas and/or its agents to park a construction boom lift during the installation and removal
of the lights.
8. At all times mentioned herein, Salinas was an employee of Creative Christmas.
9. On November 5, 2013, Salinas, along with his co-worker, Cristian Baquedano
(“Baquedano”), was using a telescopic boom lift (the “Boom Lift”) to affix Christmas lights to
the trees in front of the Building on and around Columbus Avenue between West 67th Street and
West 68th Street, in the course and scope of his employment with Creative Christmas.
10. Creative Christmas supplied the Boom Lift and any equipment used by Salinas.
11. Creative Christmas and/or Lincoln Square directed the positioning of the Boom
Lift and any equipment used by Salinas.
12. Salinas received direction and instructions from Creative Christmas and Lincoln
Square regarding his work on November 5, 2013.
13. Creative Christmas and Lincoln Square supervised, directed and controlled the
manner and method of the work Salinas was performing on November 5, 2013.
14. Creative Christmas and Lincoln Square were responsible for training Salinas on
how to perform the work and providing him with proper equipment on November 5, 2013.
15. Creative Christmas and Lincoln Square had a duty to provide a safe workplace to
Salinas on November 5, 2013.
16. At approximately 1:27 a.m. on November 5, 2013, Salinas and Baquedano were
situated on or about the Boom Lift’s bucket, affixing lights to the upper tree branches.
17. The Boom Lift was positioned so that its bucket was located above the rightmost
travel lane of Columbus Avenue, hidden from view, but situated in the path of traffic.
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18. At approximately 1:27 a.m. on November 5, 2013, Krietzer was driving a tractor
with two semi-trailers (the “UPS Vehicle”) in the rightmost travel lane of Columbus Avenue.
19. As a result of the Boom Lift’s bucket being positioned in the path of traffic, it was
struck by the top of the tractor-trailer driven by Kreitzer (the “Incident”).
20. Plaintiff’s Amended Complaint alleges that Salinas was injured as a result of the
Incident.
21. Creative Christmas failed to secure workers’ compensation coverage for Salinas
prior to the Incident.
22. The impact caused significant damage to the UPS Vehicle.
23. Creative Christmas and Lincoln Square are liable for damages pursuant to
common law and various statutes, including, but not limited to, Vehicle and Traffic Law § 388
and Labor Law § 200, respectively.
AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANTS
CREATIVE CHRISTMAS, INC. AND LINCOLN SQUARE CONDOMINIUM
24. UPS repeats, reiterates and realleges each and every allegation as stated above
with the same force and effect as if fully set forth at length herein.
25. As a result of Creative Christmas and Lincoln Square’s negligence, wrongful
conduct, and/or omissions, including the failure to properly train, supervise, and oversee the
work of its employees, the UPS Vehicle was damaged in an amount exceeding $100,000.
WHEREFORE, UPS demands judgment against Creative Christmas and Lincoln Square
for an amount in excess of $100,000, together with interest, the costs of this action, and such
other, further, and different relief which this Court deems just and proper under the
circumstances.
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AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANTS
CREATIVE CHRISTMAS, INC. AND LINCOLN SQUARE CONDOMINIUM
26. UPS repeats, reiterates, and realleges each and every allegation as stated above
with the same force and effect as if fully set forth at length herein.
27. If the allegations of the Amended Complaint be established and Plaintiff’s
damages were caused other than by Salinas’s negligence, Plaintiff’s damages arose out of or
resulted from the acts, omissions, negligence, culpable or wrongful conduct, failure to properly
train, instruct, supervise, direct or equip employees in the performance of their work, of Creative
Christmas and Lincoln Square and their respective agents, servants and/or employees, and not
through any conduct of UPS.
28. If UPS is held liable for any or all of the damages alleged to have been sustained
by Plaintiff, which liability is expressly denied, UPS is entitled to recover from Creative
Christmas and Lincoln Square, under the doctrines of apportionment and contribution, the full
amount of any recovery, judgment or verdict, or a proportionate share thereof, including costs
and disbursements, together with the expenses incurred thereon, including attorneys’ fees.
WHEREFORE, UPS demands judgment dismissing the Amended Complaint, granting
its cross-claims in their entirety and awarding UPS the costs and disbursements of this action and
such other and further relief as this Court deems just and proper.
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Dated: White Plains, New York
August 17, 2015
ANSA ASSUNCAO, LLP
Attorneys for Defendants/Third-Party
Plaintiffs United Parcel Service, Inc.
and Robert A. Kreitzer, Jr.
By:
Thomas O. O’Connor
707 Westchester Avenue, Suite 309
White Plains, New York 10604
(914) 298-2260
TO: Raymond Maceira, Esq.
Salvatore Aspromonte, Esq.
DANSKER & ASPROMONTE ASSOCIATES
30 Vesey Street, 16th Floor
New York, New York 10007
(212) 732-2929
Attorneys for Plaintiff Wilmer Cabrera,
as Administrator of The Estate of
Henry Esteban Salinas Cerrato
Joseph R. Crafa, Esq.
CRAFA & SOFIELD, P.C.
840 Franklin Avenue
Garden City, New York 11530
(516) 766-6200
Attorneys for Defendant Lincoln Square Condominium
Marina A. Spinner, Esq.
NICOLETTI GONSON SPINNER LLP
555 Fifth Avenue, 8th Floor
New York, New York 10017
(212) 730-7750
Attorneys for Defendant/Third-Party Defendant
Altitude Equipment Rentals, LLC
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VERIFICATION
The undersigned affirms the truth of the following statements to be true under penalties
of perjury pursuant to Rule 2106 of the Civil Practice Law and Rules.
1. He is a member of the law firm Ansa Assuncao, LLP, counsel for Defendants
United Parcel Service, Inc. (“UPS”) and Robert Kreitzer, Jr.
2. He has read the foregoing Answer and knows the contents thereof, and that the
same is true to the knowledge of deponent except as to the matters therein alleged upon
information and belief and as to those matters he believes them to be true.
3. The reason this affirmation is being made by deponent and not by UPS is that
UPS does not reside in the county in which deponent’s firm maintains its offices.
4. The source of deponent’s information and the grounds of his belief as to all the
matters therein are reports from and communications had with representatives of UPS.
Dated: White Plains, New York
August 17, 2015
Thomas O. O’Connor
Index No.: 503785/2015
SUPREME COURT THE STATE OF NEW YORK
COUNTY OF KINGS
WILMER CABRERA, as Administrator of the Estate of
HENRY ESTEBAN SALINAS CERRATO, Deceased,
Plaintiff,
- against -
UNITED PARCEL SERVICE, INC., ROBERT A. KREITZER, JR.
CREATIVE CHRISTMAS, INC., LINCOLN SQUARE CONDOMINIUM and
ALTITUDE EQUIPMENT RENTALS, LLC,
Defendants.
___________________________________________________________________
UNITED PARCEL SERVICE, INC., and ROBERT A. KREITZER, JR.,
Third-Party Plaintiffs,
-against-
ALTITUDE EQUIPMENT RENTALS, LLC,
Third-party Defendant.
VERIFIED ANSWER AND CROSS-CLAIMS OF
DEFENDANT UNITED PARCEL SERVICE, INC. TO
PLAINTIFF’S AMENDED VERIFIED COMPLAINT
ANSA ASSUNCAO, LLP
Attorneys for Defendants/Third-Party Plaintiffs
United Parcel Service, Inc. and Robert A. Kreitzer, Jr.
707 Westchester Avenue, Suite 309
White Plains, New York 10604
(914) 298-2260
All communications should be referred to
THOMAS O. O’CONNOR, Esquire
Preview
FILED: KINGS COUNTY CLERK 08/17/2015 05:29 PM INDEX NO. 503785/2015 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/17/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS WILMER CABRERA, as Administrator of the Estate Index No.: 503785/2015 of HENRY ESTEBAN SALINAS CERRATO, Deceased, VERIFIED ANSWER AND CROSS-CLAIMS OF Plaintiff, DEFENDANT UNITED PARCEL SERVICE, INC. TO - against - PLAINTIFF’S AMENDED VERIFIED COMPLAINT UNITED PARCEL SERVICE, INC., ROBERT A. KREITZER, JR., CREATIVE CHRISTMAS, INC., LINCOLN SQUARE CONDOMINIUM and ALTITUDE EQUIPMENT RENTALS, LLC, Defendants. UNITED PARCEL SERVICE, INC. and ROBERT A. KREITZER, JR., Third-Party Plaintiffs, - against - ALTITUDE EQUIPMENT RENTALS, LLC, Third-Party Defendant. Defendant United Parcel Service, Inc. (“UPS”), by its attorneys, Ansa Assuncao, LLP, answering the Amended Verified Complaint (the “Amended Complaint”) of Plaintiff Wilmer Cabrera, as Administrator of the Estate of Henry Esteban Salinas Cerrato, respectfully states and alleges as follows: AS AND TO A FIRST CAUSE OF ACTION ON BEHALF OF PLAINTIFF WILMER CABRERA, AS ADMINISTRATOR OF THE ESTATE OF HENRY ESTEBAN SALINAS CERRATO 1. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 1 of the Amended Complaint. 2. UPS denies the allegations contained in paragraph 2 of the Amended Complaint, except admits that it is an Ohio corporation that transacts business in the State of New York. 3. UPS admits the allegations contained in paragraph 3 of the Amended Complaint. 4. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 4 of the Amended Complaint. 5. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 5 of the Amended Complaint. 6. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 6 of the Amended Complaint. 7. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 7 of the Amended Complaint, except admits that it rented a motor vehicle bearing Pennsylvania State license plate number AG13858 (the “Vehicle”) from Five Star International LLC. 8. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 8 of the Amended Complaint. 9. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 9 of the Amended Complaint. 10. UPS admits the allegations contained in paragraph 10 of the Amended Complaint. 11. UPS admits the allegations contained in paragraph 11 of the Amended Complaint. 12. UPS denies the allegations contained in paragraph 12 of the Amended Complaint, except admits that it rented the Vehicle from Five Star International LLC. 13. UPS denies the allegations contained in paragraph 13 of the Amended Complaint, except admits that it rented the Vehicle from Five Star International LLC. 2 14. UPS admits the allegations contained in paragraph 14 of the Amended Complaint. 15. UPS admits the allegations contained in paragraph 15 of the Amended Complaint. 16. UPS admits the allegations contained in paragraph 16 of the Amended Complaint upon information and belief. 17. UPS admits the allegations contained in paragraph 17 of the Amended Complaint upon information and belief. 18. UPS admits the allegations contained in paragraph 18 of the Amended Complaint upon information and belief. 19. UPS admits the allegations contained in paragraph 19 of the Amended Complaint upon information and belief. 20. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 20 of the Amended Complaint. 21. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 21 of the Amended Complaint. 22. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 22 of the Amended Complaint. 23. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 23 of the Amended Complaint. 24. UPS admits the allegations contained in paragraph 24 of the Amended Complaint upon information and belief. 25. UPS admits the allegations contained in paragraph 25 of the Amended Complaint upon information and belief. 3 26. UPS admits the allegations contained in paragraph 26 of the Amended Complaint upon information and belief. 27. UPS admits the allegations contained in paragraph 27 of the Amended Complaint upon information and belief. 28. UPS admits the allegations contained in paragraph 28 of the Amended Complaint upon information and belief. 29. UPS admits the allegations contained in paragraph 29 of the Amended Complaint upon information and belief. 30. UPS admits the allegations contained in paragraph 30 of the Amended Complaint upon information and belief. 31. UPS admits the allegations contained in paragraph 31 of the Amended Complaint upon information and belief. 32. UPS admits the allegations contained in paragraph 32 of the Amended Complaint upon information and belief. 33. UPS admits the allegations contained in paragraph 33 of the Amended Complaint upon information and belief. 34. UPS admits the allegations contained in paragraph 34 of the Amended Complaint upon information and belief. 35. UPS admits the allegations contained in paragraph 35 of the Amended Complaint upon information and belief. 36. UPS admits the allegations contained in paragraph 36 of the Amended Complaint upon information and belief. 4 37. UPS admits the allegations contained in paragraph 37 of the Amended Complaint upon information and belief. 38. UPS admits the allegations contained in paragraph 38 of the Amended Complaint. 39. UPS denies the allegations contained in paragraph 39 of the Amended Complaint upon information and belief. 40. UPS admits the allegations contained in paragraph 40 of the Amended Complaint. 41. UPS denies the allegations contained in paragraph 41 of the Amended Complaint, except admits that on November 5, 2013, Defendant Robert Kreitzer, Jr. (“Kreitzer”) properly operated a motor vehicle in the rightmost travel lane of Columbus Avenue. 42. UPS denies the allegations contained in paragraph 42 of the Amended Complaint. 43. UPS denies the allegations contained in paragraph 43 of the Amended Complaint to the extent they are directed to UPS. UPS makes no response to allegations directed to any other defendant. 44. The allegations contained in paragraph 44 of the Amended Complaint state legal conclusions as to which no responsive pleading is required. To the extent a response is required, UPS denies the allegations contained in paragraph 44 of the Amended Complaint and refers all questions of law to the Court. 45. The allegations contained in paragraph 45 of the Amended Complaint state legal conclusions as to which no responsive pleading is required. To the extent a response is required, UPS denies the allegations contained in paragraph 45 of the Amended Complaint and refers all questions of law to the Court. 46. UPS denies the allegations contained in paragraph 46 of the Amended Complaint. 5 47. The allegations contained in paragraph 47 of the Amended Complaint state legal conclusions as to which no responsive pleading is required. To the extent a response is required, UPS denies the allegations contained in paragraph 47 of the Amended Complaint and refers all questions of law to the Court. AS AND TO A SECOND CAUSE OF ACTION FOR THE WRONGFUL DEATH OF PLAINTIFF’S DECEDENT HENRY ESTEBAN SALINAS CERRATO 48. UPS incorporates its responses to paragraphs 1 through 47 of the Amended Complaint as though set forth fully herein. 49. UPS denies the allegations contained in paragraph 49 of the Amended Complaint to the extent they are directed to UPS. UPS makes no response to allegations directed to any other defendant. 50. UPS denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph 50 of the Amended Complaint. 51. The allegations contained in paragraph 51 of the Amended Complaint state legal conclusions as to which no responsive pleading is required. To the extent a response is required, UPS denies the allegations contained in paragraph 51 of the Amended Complaint and refers all questions of law to the Court. 52. UPS denies the allegations contained in paragraph 52 of the Amended Complaint. AS AND TO A THIRD CAUSE OF ACTION FOR THE PUNITIVE DAMAGES 53. UPS incorporates its responses to paragraphs 1 through 52 of the Amended Complaint as though set forth fully herein. 6 54. UPS denies the allegations contained in paragraph 54 of the Amended Complaint to the extent they are directed to UPS. UPS makes no response to allegations directed to any other defendant. 55. UPS denies the allegations contained in paragraph 55 of the Amended Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE The Complaint fails to state a cause of action against UPS upon which relief may be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE Any injuries and/or damages sustained by Plaintiff and/or Henry Esteban Salinas Cerrato (“Salinas”) as alleged in the Amended Complaint were caused in whole or in part by the negligence, acts, omissions and/or culpable conduct of Salinas, and not as a result of any negligence, acts, omissions and/or culpable conduct on the part of UPS and any damages which may be recovered by Plaintiff shall be diminished in proportion to which the culpable conduct of Salinas, caused such damages, pursuant to CPLR § 1411. AS AND FOR A THIRD AFFIRMATIVE DEFENSE Any injuries to Plaintiff and/or Salinas were caused by the negligence, acts, omissions and/or culpable conduct of third-parties over which UPS has no control and for whom UPS was in no way responsible. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Plaintiff fails to name all necessary parties to this action. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE The liability of UPS, if any, to Plaintiff is limited to its equitable share, determined in accordance with the relative culpability of all persons or entities contributing to the total liability 7 for any alleged loss, including others over whom Plaintiff could have obtained personal jurisdiction with due diligence. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE In the event Plaintiff receives a verdict or judgment against UPS, then said verdict or judgment must be reduced and UPS is entitled to the appropriate set-off. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE The claims asserted in the Amended Complaint are barred by the doctrines of waiver and laches. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE While UPS denies Plaintiff’s allegations of negligence and liability, injury and damages, if proven, were the result of intervening and/or interceding acts of superseding negligence and liability on the part of others that UPS neither controls, nor has the right to control, and for whose acts or omissions UPS is not legally responsible. AS AND FOR A NINTH AFFIRMATIVE DEFENSE At all times alleged herein, UPS exercised reasonable care and took reasonable safety measures. AS AND FOR A TENTH AFFIRMATIVE DEFENSE Plaintiff has failed to mitigate his claimed damages, if any, as required by law. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE The claims and causes of action asserted against UPS may be barred due to the spoliation of evidence. 8 AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE The injuries said to have been sustained by Plaintiff and/or Salinas, arose out of certain risks, dangers and hazards which were open and notorious and which Salinas, appreciated and understood, and Salinas, voluntarily exposed himself to and assumed said risks. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE In the event Plaintiff recovers a verdict or judgment against UPS, then said verdict or judgment must be reduced pursuant to CPLR § 4545(a) by those amounts which have been, or will, with reasonable certainty, replace or indemnify Plaintiff and/or Salinas, in whole or in part, for any past or future claimed expenses or other such economic loss, paid from any collateral source such as insurance, social security, workers compensation and/or employee benefit programs. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred or otherwise limited for lack of standing. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred or limited by the unavoidable accident doctrine. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred or limited by the last clear chance doctrine. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE Plaintiff’s claims are barred or limited by the emergency doctrine. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE Kreitzer was suddenly confronted with, and was called upon to act in, an emergency situation not created by his own acts. 9 UPS hereby gives notice that it intends to rely on any additional affirmative defenses that become available or apparent during discovery and thus reserves the right to amend its Answer to assert such additional defenses. CROSS-CLAIMS UPS through its undersigned counsel, as and for its cross-claims against Defendants Creative Christmas, Inc. (“Creative Christmas”) and Lincoln Square Condominium (“Lincoln Square”), alleges and states the following upon information and belief: PARTIES 1. UPS is a corporation formed under the laws of the State of Ohio, with a principal place of business in Atlanta, Georgia. 2. At all relevant times hereinafter mentioned, Creative Christmas was and still is a corporation authorized and existing under the laws of the State of New York. 3. At all relevant times hereinafter mentioned, Lincoln Square was and still is a condominium created pursuant to Article 9-B of the Real Property Law of the State of New York FACTS 4. Lincoln Square owns, manages and/or controls the building known as 1992 Broadway, New York, New York, with an entrance located at 111 West 67th Street, New York, New York (the “Building”). 5. The Building encompasses the entire block from Broadway to Columbus Avenue and West 67th Street to West 68th Street in New York, New York. 6. Lincoln Square entered into a contract with Creative Christmas to have Christmas lights affixed to the trees in front of and around the Building. 10 7. In said contract, Lincoln Square agreed to provide the location for Creative Christmas and/or its agents to park a construction boom lift during the installation and removal of the lights. 8. At all times mentioned herein, Salinas was an employee of Creative Christmas. 9. On November 5, 2013, Salinas, along with his co-worker, Cristian Baquedano (“Baquedano”), was using a telescopic boom lift (the “Boom Lift”) to affix Christmas lights to the trees in front of the Building on and around Columbus Avenue between West 67th Street and West 68th Street, in the course and scope of his employment with Creative Christmas. 10. Creative Christmas supplied the Boom Lift and any equipment used by Salinas. 11. Creative Christmas and/or Lincoln Square directed the positioning of the Boom Lift and any equipment used by Salinas. 12. Salinas received direction and instructions from Creative Christmas and Lincoln Square regarding his work on November 5, 2013. 13. Creative Christmas and Lincoln Square supervised, directed and controlled the manner and method of the work Salinas was performing on November 5, 2013. 14. Creative Christmas and Lincoln Square were responsible for training Salinas on how to perform the work and providing him with proper equipment on November 5, 2013. 15. Creative Christmas and Lincoln Square had a duty to provide a safe workplace to Salinas on November 5, 2013. 16. At approximately 1:27 a.m. on November 5, 2013, Salinas and Baquedano were situated on or about the Boom Lift’s bucket, affixing lights to the upper tree branches. 17. The Boom Lift was positioned so that its bucket was located above the rightmost travel lane of Columbus Avenue, hidden from view, but situated in the path of traffic. 11 18. At approximately 1:27 a.m. on November 5, 2013, Krietzer was driving a tractor with two semi-trailers (the “UPS Vehicle”) in the rightmost travel lane of Columbus Avenue. 19. As a result of the Boom Lift’s bucket being positioned in the path of traffic, it was struck by the top of the tractor-trailer driven by Kreitzer (the “Incident”). 20. Plaintiff’s Amended Complaint alleges that Salinas was injured as a result of the Incident. 21. Creative Christmas failed to secure workers’ compensation coverage for Salinas prior to the Incident. 22. The impact caused significant damage to the UPS Vehicle. 23. Creative Christmas and Lincoln Square are liable for damages pursuant to common law and various statutes, including, but not limited to, Vehicle and Traffic Law § 388 and Labor Law § 200, respectively. AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANTS CREATIVE CHRISTMAS, INC. AND LINCOLN SQUARE CONDOMINIUM 24. UPS repeats, reiterates and realleges each and every allegation as stated above with the same force and effect as if fully set forth at length herein. 25. As a result of Creative Christmas and Lincoln Square’s negligence, wrongful conduct, and/or omissions, including the failure to properly train, supervise, and oversee the work of its employees, the UPS Vehicle was damaged in an amount exceeding $100,000. WHEREFORE, UPS demands judgment against Creative Christmas and Lincoln Square for an amount in excess of $100,000, together with interest, the costs of this action, and such other, further, and different relief which this Court deems just and proper under the circumstances. 12 AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANTS CREATIVE CHRISTMAS, INC. AND LINCOLN SQUARE CONDOMINIUM 26. UPS repeats, reiterates, and realleges each and every allegation as stated above with the same force and effect as if fully set forth at length herein. 27. If the allegations of the Amended Complaint be established and Plaintiff’s damages were caused other than by Salinas’s negligence, Plaintiff’s damages arose out of or resulted from the acts, omissions, negligence, culpable or wrongful conduct, failure to properly train, instruct, supervise, direct or equip employees in the performance of their work, of Creative Christmas and Lincoln Square and their respective agents, servants and/or employees, and not through any conduct of UPS. 28. If UPS is held liable for any or all of the damages alleged to have been sustained by Plaintiff, which liability is expressly denied, UPS is entitled to recover from Creative Christmas and Lincoln Square, under the doctrines of apportionment and contribution, the full amount of any recovery, judgment or verdict, or a proportionate share thereof, including costs and disbursements, together with the expenses incurred thereon, including attorneys’ fees. WHEREFORE, UPS demands judgment dismissing the Amended Complaint, granting its cross-claims in their entirety and awarding UPS the costs and disbursements of this action and such other and further relief as this Court deems just and proper. 13 Dated: White Plains, New York August 17, 2015 ANSA ASSUNCAO, LLP Attorneys for Defendants/Third-Party Plaintiffs United Parcel Service, Inc. and Robert A. Kreitzer, Jr. By: Thomas O. O’Connor 707 Westchester Avenue, Suite 309 White Plains, New York 10604 (914) 298-2260 TO: Raymond Maceira, Esq. Salvatore Aspromonte, Esq. DANSKER & ASPROMONTE ASSOCIATES 30 Vesey Street, 16th Floor New York, New York 10007 (212) 732-2929 Attorneys for Plaintiff Wilmer Cabrera, as Administrator of The Estate of Henry Esteban Salinas Cerrato Joseph R. Crafa, Esq. CRAFA & SOFIELD, P.C. 840 Franklin Avenue Garden City, New York 11530 (516) 766-6200 Attorneys for Defendant Lincoln Square Condominium Marina A. Spinner, Esq. NICOLETTI GONSON SPINNER LLP 555 Fifth Avenue, 8th Floor New York, New York 10017 (212) 730-7750 Attorneys for Defendant/Third-Party Defendant Altitude Equipment Rentals, LLC 14 VERIFICATION The undersigned affirms the truth of the following statements to be true under penalties of perjury pursuant to Rule 2106 of the Civil Practice Law and Rules. 1. He is a member of the law firm Ansa Assuncao, LLP, counsel for Defendants United Parcel Service, Inc. (“UPS”) and Robert Kreitzer, Jr. 2. He has read the foregoing Answer and knows the contents thereof, and that the same is true to the knowledge of deponent except as to the matters therein alleged upon information and belief and as to those matters he believes them to be true. 3. The reason this affirmation is being made by deponent and not by UPS is that UPS does not reside in the county in which deponent’s firm maintains its offices. 4. The source of deponent’s information and the grounds of his belief as to all the matters therein are reports from and communications had with representatives of UPS. Dated: White Plains, New York August 17, 2015 Thomas O. O’Connor Index No.: 503785/2015 SUPREME COURT THE STATE OF NEW YORK COUNTY OF KINGS WILMER CABRERA, as Administrator of the Estate of HENRY ESTEBAN SALINAS CERRATO, Deceased, Plaintiff, - against - UNITED PARCEL SERVICE, INC., ROBERT A. KREITZER, JR. CREATIVE CHRISTMAS, INC., LINCOLN SQUARE CONDOMINIUM and ALTITUDE EQUIPMENT RENTALS, LLC, Defendants. ___________________________________________________________________ UNITED PARCEL SERVICE, INC., and ROBERT A. KREITZER, JR., Third-Party Plaintiffs, -against- ALTITUDE EQUIPMENT RENTALS, LLC, Third-party Defendant. VERIFIED ANSWER AND CROSS-CLAIMS OF DEFENDANT UNITED PARCEL SERVICE, INC. TO PLAINTIFF’S AMENDED VERIFIED COMPLAINT ANSA ASSUNCAO, LLP Attorneys for Defendants/Third-Party Plaintiffs United Parcel Service, Inc. and Robert A. Kreitzer, Jr. 707 Westchester Avenue, Suite 309 White Plains, New York 10604 (914) 298-2260 All communications should be referred to THOMAS O. O’CONNOR, Esquire