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FILED: ERIE COUNTY CLERK 05/14/2014 INDEX NO. 804908/2013
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/14/2014
STATE OF NEW YORK
SUPREME COURT :COUNTY OF ERIE
KEVIN MEEGAN
Plaintiff
vs. ANSWER
MAIN AND CATHEDRAL DEVELOPMENT,
LLC,THE KISSLING INTERESTS,LLC, Index No.804908/2013
BEAUTIFUL HOMES BY THOMAS,INC.
and TOWER APARTMENTS,INC.
Defendants
The defendants, MAIN AND CATHEDRAL DEVELOPMENT,LLC and THE
KISSLING INTERESTS,INC., by their attorneys, O'NEILL GROSSO,for their Answer to the
Complaint of the plaintiff herein allege:
1. ADMIT the allegations contained in paragraphs numbered "1"and "2" of plaintiffls
Complaint.
2. DENY each and every allegation contained in paragraphs numbered "5","6","7",
"8","9", and "10" of plaintiffls Complaint.
3. DENY knowledge or information sufficient to form a belief as to plaintiff's
allegations contained in paragraphs numbered "3","4" and "11" of the plaintiff's Complaint
herein.
4. DENY each and every other allegation contained in plaintiffls Complaint not
hereinbefore specifically admitted or denied.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
5. The culpable conduct of the plaintiff, if not the sole cause of the damages alleged in
the Complaint, contributed to such damages, and any damages recoverable shall be diminished
in the proportion which the said culpable conduct bears to the culpable conduct alleged to have
caused the said damages.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
6. That whatever injuries and/or damages were sustained by the plaintiff at the time and
place alleged in the Complaint were the result of the plaintiff's assumption of risk, in realizing
and knowing the hazard and dangers thereof and that he assumed all the risks necessarily
incidental to such an undertaking.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
7. Although this answering defendant specifically denies liability for the occurrence
and damages complained of, if this defendant is found liable for such occurrence and damages,
this defendant's share of liability is fifty percent or less ofthe total liability assigned to all
persons or entities liable and, pursuant to §1604 of the Civil Practice Law and Rules, the
liability of this answering defendant to the claimant for non-economic loss shall not exceed this
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
8. In the event that the plaintiff recovers damages which have been paid or are payable
by a collateral source, these defendants will seek an offset to such damages pursuant to CPLR
§4545.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
9. That if the plaintiff sustained any damages as alleged in the Complaint, such
damages were caused, in whole or in part, by plaintiff's failure to mitigate damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
10. The plaintiff's Complaint fails to state a cause of action as against these answering
defendants.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
11. Plaintiff's injuries were caused by the superseding and intervening acts or the fault
of other parties over whom MAIN AND CATHEDRAL DEVELOPMENT,LLC and THE
KISSLING INTERESTS, LLC had no control, and for whose actions MAIN AND
CATHEDRAL DEVELOPMENT,LLC and THE KISSLING INTERESTS,LLC are not
liable.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
12. Upon information and belief, plaintiff had available proper and adequate safety
equipment which he failed and refused to properly and adequately utilize, and the claim herein
is therefore barred because plaintiff is a recalcitrant worker.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
13. Plaintiff cannot recover because his negligent conduct was the sole proximate cause
of the accident.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
14. At all times relevant, there was in full force and effect a written agreement between
defendants, MAIN AND CATHEDRAL DEVELOPMENT,LLC and THE KISSLING
INTERESTS,LLC,and co-defendant, BEAUTIFUL HOMES BY THOMAS,INC. Pursuant
to the written agreement, BEAUTIFUL HOMES BY THOMAS,INC. agreed to defend,
indemnify and hold landlord harmless from and against any and all liability,judgments, costs,
damages and expenses arising from or related to the design and construction of the premises.
In the event judgment is rendered against MAIN AND CATHEDRAL DEVELOPMENT,
LLC and THE KISSLING INTERESTS,LLC,the said defendants, MAIN AND
CATHEDRAL DEVELOPMENT,LLC and THE KISSLING INTERESTS,LLC, will be
entitled to be indemnified by co-defendant, BEAUTIFUL HOMES BY THOMAS,INC., in the
full amount of said judgment, together with interest, costs and attorney fees. MAIN AND
CATHEDRAL DEVELOPMENT,LLC and THE KISSLING INTERESTS, LLC will also be
entitled to a declaration of its rights under the written agreement, and a judgment declaring its
right to be defended and indemnified by BEAUTIFUL HOMES BY THOMAS,INC.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
AND FOR ACROSS-CLAIM AGAINST THE CO-DEFENDANT,
BEAUTIFUL HOMES BY THOMAS,INC.,THE DEFENDANTS,
MAIN AND CATHEDRAL DEVELOPMENT,LLC and THE KISSLING
INTERESTS,LLC,ALLEGE UPON INFORMATION AND BELIEF:
15. If these defendants are found to be liable along with another defendant, or
defendants, it is requested that relative liability be determined and thatjudgment over be
granted in accordance with that determination; in the event these defendants are found liable by
reason ofthe act or omission of another defendant, it is requested thatjudgment over for full
indemnity be granted.
AS AND FOR AN TWELVETH AFFIRMATIVE DEFENSE
16. Upon information and belief, plaintiff had available proper and adequate safety
equipment which he failed and refused to utilize, and was given proper and adequate safety
instructions which he failed and refused to follow, and the claim herein is therefore barred
because plaintiff is a recalcitrant worker.
WHEREFORE,defendants demand judgment dismissing the Complaint with costs, or
in the event defendants are found liable, demand that the damages be diminished in proportion
to the culpable conduct of the plaintiff, and in the event defendants are found liable along with
another defendant or defendants, demand judgment over in accordance with that determination.
Dated: Williamsville, New York
May 14, 2014
O'NE LL GROSSO
,~ ~
evin M. O' eill, of Counsel
Attorneys for Defendants
MAIN AND CATHEDRAL DEVELOPMENT,
LLC and THE KISSLING INTERESTS,INC.
550 Essjay Road
Williamsville, New York 14221
TO: SABLES,FREY &JOSEPH
Gary A. Joseph, of Counsel
Attorneys for Plaintiff
KEVIN MEEGAN
5800 Main Street
Williamsville, New York 14221
LIPPMAN O'CONNOR
Robert H. Flynn, of Counsel
Attorneys for Defendant
BEAUTIFUL HOMES BY THOMAS,INC.
300 Olympic Towers
300 Pearl Street
Buffalo, New York 14202
ATTORNEYS FOR DEFENDANT
TOWER APARTMENTS,INC.
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FILED: ERIE COUNTY CLERK 05/14/2014 INDEX NO. 804908/2013 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/14/2014 STATE OF NEW YORK SUPREME COURT :COUNTY OF ERIE KEVIN MEEGAN Plaintiff vs. ANSWER MAIN AND CATHEDRAL DEVELOPMENT, LLC,THE KISSLING INTERESTS,LLC, Index No.804908/2013 BEAUTIFUL HOMES BY THOMAS,INC. and TOWER APARTMENTS,INC. Defendants The defendants, MAIN AND CATHEDRAL DEVELOPMENT,LLC and THE KISSLING INTERESTS,INC., by their attorneys, O'NEILL GROSSO,for their Answer to the Complaint of the plaintiff herein allege: 1. ADMIT the allegations contained in paragraphs numbered "1"and "2" of plaintiffls Complaint. 2. DENY each and every allegation contained in paragraphs numbered "5","6","7", "8","9", and "10" of plaintiffls Complaint. 3. DENY knowledge or information sufficient to form a belief as to plaintiff's allegations contained in paragraphs numbered "3","4" and "11" of the plaintiff's Complaint herein. 4. DENY each and every other allegation contained in plaintiffls Complaint not hereinbefore specifically admitted or denied. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 5. The culpable conduct of the plaintiff, if not the sole cause of the damages alleged in the Complaint, contributed to such damages, and any damages recoverable shall be diminished in the proportion which the said culpable conduct bears to the culpable conduct alleged to have caused the said damages. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 6. That whatever injuries and/or damages were sustained by the plaintiff at the time and place alleged in the Complaint were the result of the plaintiff's assumption of risk, in realizing and knowing the hazard and dangers thereof and that he assumed all the risks necessarily incidental to such an undertaking. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 7. Although this answering defendant specifically denies liability for the occurrence and damages complained of, if this defendant is found liable for such occurrence and damages, this defendant's share of liability is fifty percent or less ofthe total liability assigned to all persons or entities liable and, pursuant to §1604 of the Civil Practice Law and Rules, the liability of this answering defendant to the claimant for non-economic loss shall not exceed this 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 8. In the event that the plaintiff recovers damages which have been paid or are payable by a collateral source, these defendants will seek an offset to such damages pursuant to CPLR §4545. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 9. That if the plaintiff sustained any damages as alleged in the Complaint, such damages were caused, in whole or in part, by plaintiff's failure to mitigate damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 10. The plaintiff's Complaint fails to state a cause of action as against these answering defendants. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 11. Plaintiff's injuries were caused by the superseding and intervening acts or the fault of other parties over whom MAIN AND CATHEDRAL DEVELOPMENT,LLC and THE KISSLING INTERESTS, LLC had no control, and for whose actions MAIN AND CATHEDRAL DEVELOPMENT,LLC and THE KISSLING INTERESTS,LLC are not liable. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 12. Upon information and belief, plaintiff had available proper and adequate safety equipment which he failed and refused to properly and adequately utilize, and the claim herein is therefore barred because plaintiff is a recalcitrant worker. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 13. Plaintiff cannot recover because his negligent conduct was the sole proximate cause of the accident. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 14. At all times relevant, there was in full force and effect a written agreement between defendants, MAIN AND CATHEDRAL DEVELOPMENT,LLC and THE KISSLING INTERESTS,LLC,and co-defendant, BEAUTIFUL HOMES BY THOMAS,INC. Pursuant to the written agreement, BEAUTIFUL HOMES BY THOMAS,INC. agreed to defend, indemnify and hold landlord harmless from and against any and all liability,judgments, costs, damages and expenses arising from or related to the design and construction of the premises. In the event judgment is rendered against MAIN AND CATHEDRAL DEVELOPMENT, LLC and THE KISSLING INTERESTS,LLC,the said defendants, MAIN AND CATHEDRAL DEVELOPMENT,LLC and THE KISSLING INTERESTS,LLC, will be entitled to be indemnified by co-defendant, BEAUTIFUL HOMES BY THOMAS,INC., in the full amount of said judgment, together with interest, costs and attorney fees. MAIN AND CATHEDRAL DEVELOPMENT,LLC and THE KISSLING INTERESTS, LLC will also be entitled to a declaration of its rights under the written agreement, and a judgment declaring its right to be defended and indemnified by BEAUTIFUL HOMES BY THOMAS,INC. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE AND FOR ACROSS-CLAIM AGAINST THE CO-DEFENDANT, BEAUTIFUL HOMES BY THOMAS,INC.,THE DEFENDANTS, MAIN AND CATHEDRAL DEVELOPMENT,LLC and THE KISSLING INTERESTS,LLC,ALLEGE UPON INFORMATION AND BELIEF: 15. If these defendants are found to be liable along with another defendant, or defendants, it is requested that relative liability be determined and thatjudgment over be granted in accordance with that determination; in the event these defendants are found liable by reason ofthe act or omission of another defendant, it is requested thatjudgment over for full indemnity be granted. AS AND FOR AN TWELVETH AFFIRMATIVE DEFENSE 16. Upon information and belief, plaintiff had available proper and adequate safety equipment which he failed and refused to utilize, and was given proper and adequate safety instructions which he failed and refused to follow, and the claim herein is therefore barred because plaintiff is a recalcitrant worker. WHEREFORE,defendants demand judgment dismissing the Complaint with costs, or in the event defendants are found liable, demand that the damages be diminished in proportion to the culpable conduct of the plaintiff, and in the event defendants are found liable along with another defendant or defendants, demand judgment over in accordance with that determination. Dated: Williamsville, New York May 14, 2014 O'NE LL GROSSO ,~ ~ evin M. O' eill, of Counsel Attorneys for Defendants MAIN AND CATHEDRAL DEVELOPMENT, LLC and THE KISSLING INTERESTS,INC. 550 Essjay Road Williamsville, New York 14221 TO: SABLES,FREY &JOSEPH Gary A. Joseph, of Counsel Attorneys for Plaintiff KEVIN MEEGAN 5800 Main Street Williamsville, New York 14221 LIPPMAN O'CONNOR Robert H. Flynn, of Counsel Attorneys for Defendant BEAUTIFUL HOMES BY THOMAS,INC. 300 Olympic Towers 300 Pearl Street Buffalo, New York 14202 ATTORNEYS FOR DEFENDANT TOWER APARTMENTS,INC.