Preview
FILED: BRONX COUNTY CLERK 02/02/2018 12:50 PM INDEX NO. 24105/2013E
NYSCEF DOC. NO. 181 RECEIVED NYSCEF: 02/02/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
----------------------------------------------------------------------X
LAZARO SANCHEZ, Index No.: 24105/2013E
Plaintiff,
SECOND
-against- THIRD-PARTY
ANSWER
EXTRA SPACE STORAGE, INC., GABRIEL
CASTANO, JERILYNN HORTON, CHI HUNG AND
CHAN YING,
Defendants.
----------------------------------------------------------------------X
EXTRA SPACE MANAGEMENT, INC.,
Third-Party Plaintiff, Third-Party
Index No.: 43205/2015E
-against-
JR BUILDING SERVICE, INC.,
Third-Party Defendant,
----------------------------------------------------------------------X
EXTRA SPACE MANAGEMENT, INC.,
Second Third-Party
Plaintiff, Second Third-Party
Index No.:
-against-
LONG ISLAND LANDSCAPES, LTD.,
Second Third-Party
Defendant.
â€â€â€â€â€â€â€â€â€â€â€â€ —â€â€â€â€â€â€â€
-----------------------------------------------------------------------X
Defendants, CHI HUNG and CHAN YING, by and through their attorneys, PENINO
& MOYNIHAN, LLP as and for their Answer to the Second Third-Party Complaint herein, sets
forth the following:
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1. Denies knowledge or information sufficient to form a belief as to the truth of the
"9" "10"
allegations set forth in paragraphs "1", "2", "3", "4", "5", "6", "7", "8", and of the
second third-party complaint and respectfully refers all questions of law and ultimate fact to the
trial court during the course of trial.
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
2. Repeats and reiterates the answers to each and every allegation contained in
"1" "10"
paragraphs through of the second third-party complaint as if more fully set forth at
length herein.
3. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations set forth in paragraphs "12", "13", "14", "15", "16", "17", "18", "19", "20", "21",
"26" "27"
"22", "23", "24", "25", and of the second third-party complaint and respectfully refers
all questions of law and ultimate fact to the trial court during the course of trial.
"WHEREFORE"
4. Denies the allegations contained in the clause of the second
third-party complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
5. The answering defendant owed no duty or responsibility to safeguard the plaintiff
and exercised no control over his activities.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
6. Upon information and belief, the plaintiff, in pursuing a course of conduct ignored
warnings to the contrary and, in doing so, deliberately chose to accept the consequences of his
conduct.
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AS AND FOR A THIRD AFFIRMATIVE DEFENSE
7. At the time of the alleged incident, the plaintiff was engaged in activity which he
knew to be hazardous in nature and, therefore, the plaintiff assumed the risk and consequences
inherent in such activity.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
8. All Labor Law claims are subject to dismissal and improper based upon the one
and two family exemptions to the Labor Law.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
9. Upon information and belief, the answering defendants have no liability to
plaintiff for reason of plaintiff having undertaken conduct such as to have assumed the risk of all
that conduct complained of by plaintiffs having flowed there from.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
10. Upon information and belief, any damage or damages sustained by the plaintiffs
herein were not caused by the wrongdoing on the part of the answering defendants, its servants,
agents or employees, but were caused solely by the wrongdoing of plaintiffs and that such
conduct requires diminution of any award, verdict or judgment that plaintiffs may recover
against said answering defendants.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
11. Pursuant to CPLR 4545, any award to the plaintiffs for economic loss shall be
reduced by the amount of economic loss received by collateral sources.
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AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
12. That one or more of the causes of action are time barred pursuant to the applicable
Statute of Limitations.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
13. Defendants hereby assert any and all defenses which are express or implied within
the alleged contract.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
14. Plaintiffs have failed to take the necessary measures to mitigate the damages
complained of herein.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
15. If the plaintiffs have been damaged as alleged, which is denied, such damage was
caused solely by virtue of the conduct and actions of other over whom these defendants have
exercised no control.
AS AND FOR A TWELFTH AFIRMATIVE DEFENSE
16. The answering defendants are not responsible for any unauthorized alterations or
modifications of the equipment and/or improper, abnormal and unintended use of such
equipment by the acts of plaintiffs or any other person.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
17. The answering defendants were not responsible for providing plaintiff with a safe
place to work.
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AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
18. The risks and dangers, as alleged, were in existence, then they were visible,
notorious, apparent and obvious to any individual including plaintiff.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
19. Upon information and belief, other parties had custody and control over the area
in question.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
20. Upon information and belief, other parties had control over and responsibility for
plaintiff's actions on the day of the alleged incident.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
21. The instant action must be dismissed based upon the applicable provisions of the
Worker's Compensation Law.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
22. The plaintiff received Worker's Compensation benefits.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
23. All Labor Law claims are barred by the Worker's Compensation Law.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
24. Plaintiff's actions constitute the sole proximate cause of the incident and injuries
alleged herein.
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AS AND FOR A FIRST CROSS-CLAIM AGAINST
CO-DEFENDANT EXTRA SPACE STORAGE, INC., GABRIEL CASTANO AND
JERILYN HORTON
25. Although the answering defendant has denied the allegations of the plaintiff with
respect to any wrongdoing on the part of the said defendant, nevertheless, in the event that there
is a verdict or judgment in favor of the plaintiffs against the answering defendant, then, in that
event, the said defendant demand judgment over and against the aforementioned co-defendants
by reason of their wrongful conduct being primary and/or active while any wrongdoing on the
part of the answering defendant, if any, was secondary and/or passive and the indemnity is to be
full and complete.
AS AND FOR A SECOND CROSS-CLAIM AGAINST
CO-DEFENDANT EXTRA SPACE STORAGE, INC., GABRIEL CASTANO AND
JERILYN HORTON
26. That although the answering defendant has denied the allegations of the plaintiff
with respect to any wrongdoing on the part of the said defendants, nevertheless, if itis found that
the answering defendant is liable to the plaintiff and if complete indemnity is not granted in
furtherance of the first cross-claim hereinabove, then the answering defendant is, nevertheless,
entitled to contribution from the co-defendants, above-named in proportion to the relative
degrees of wrongdoing as between the parties.
WHEREFORE, the defendants, CHI HUNG AND CHAN YING demands judgment
dismissing the Complaint herein as to said defendants and further demands that the ultimate
rights of the defendants between themselves be determined in this action and that the answering
defendant has judgment over and against the co-defendants, EXTRA SPACE STORAGE INC.,
GABRIEL CASTANO AND JERILYNN HORTON for all, or alternatively that portion of
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any verdict or judgment which may be obtained by plaintiff against said defendant, to the extent
that the responsibility of the aforesaid co-defendant contributed hereto, together with the costs
and disbursements of this action.
DATED: White Plains, New York
February 2, 2018 Yours, etc.,
PENINO & MOYNIHAN, LLP
BY:c ,
STEPHEN J. PENINO
Attomeys for Defendants
CHI HUNG AND CHAN YING
1025 Westchester Avenue, Suite 403
White Plains, New York 10604
(914) 949-6996
Our File No.: 12-2337
TO: SCOTT H. GOLDSTEIN, ESQ.
BONNER KIERNAN TREBACH
CROCIATA, LLP
Attorneys for Defendant/Third-Party Plaintiff
EXTRA SPACE MANAGEMENT, INC.
59th
Empire State Building, FlOOr
New York, New York 10118
(212) 268-7535
RONEMUS & VILENSKY
Attorneys for Plaintiff
112 Madison Avenue, Second Floor
New York, New York 10016
(212) 779-7070
DEVITT SPELLMAN BARRETT, LLP
Attorneys for Defendant
GABRIEL CASTANO
50 Route 111, Suite 314
Smithtown, New York 11787
(631) 724-8833
LONG ISLAND LANDSCAPES, LTD.
Second Third-Party Defendant
774 Nichols Road
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Hauppauge, New York 11749
JR BUILDING SERVICE, INC.
Third-Party Defendant
571 Halleck Road
Bronx, New York 10474
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Preview
FILED: BRONX COUNTY CLERK 02/02/2018 12:50 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 181 RECEIVED NYSCEF: 02/02/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X LAZARO SANCHEZ, Index No.: 24105/2013E Plaintiff, SECOND -against- THIRD-PARTY ANSWER EXTRA SPACE STORAGE, INC., GABRIEL CASTANO, JERILYNN HORTON, CHI HUNG AND CHAN YING, Defendants. ----------------------------------------------------------------------X EXTRA SPACE MANAGEMENT, INC., Third-Party Plaintiff, Third-Party Index No.: 43205/2015E -against- JR BUILDING SERVICE, INC., Third-Party Defendant, ----------------------------------------------------------------------X EXTRA SPACE MANAGEMENT, INC., Second Third-Party Plaintiff, Second Third-Party Index No.: -against- LONG ISLAND LANDSCAPES, LTD., Second Third-Party Defendant. â€â€â€â€â€â€â€â€â€â€â€â€ —â€â€â€â€â€â€â€ -----------------------------------------------------------------------X Defendants, CHI HUNG and CHAN YING, by and through their attorneys, PENINO & MOYNIHAN, LLP as and for their Answer to the Second Third-Party Complaint herein, sets forth the following: 1 of 8 FILED: BRONX COUNTY CLERK 02/02/2018 12:50 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 181 RECEIVED NYSCEF: 02/02/2018 1. Denies knowledge or information sufficient to form a belief as to the truth of the "9" "10" allegations set forth in paragraphs "1", "2", "3", "4", "5", "6", "7", "8", and of the second third-party complaint and respectfully refers all questions of law and ultimate fact to the trial court during the course of trial. AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION 2. Repeats and reiterates the answers to each and every allegation contained in "1" "10" paragraphs through of the second third-party complaint as if more fully set forth at length herein. 3. Denies knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs "12", "13", "14", "15", "16", "17", "18", "19", "20", "21", "26" "27" "22", "23", "24", "25", and of the second third-party complaint and respectfully refers all questions of law and ultimate fact to the trial court during the course of trial. "WHEREFORE" 4. Denies the allegations contained in the clause of the second third-party complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 5. The answering defendant owed no duty or responsibility to safeguard the plaintiff and exercised no control over his activities. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 6. Upon information and belief, the plaintiff, in pursuing a course of conduct ignored warnings to the contrary and, in doing so, deliberately chose to accept the consequences of his conduct. 2 of 8 FILED: BRONX COUNTY CLERK 02/02/2018 12:50 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 181 RECEIVED NYSCEF: 02/02/2018 AS AND FOR A THIRD AFFIRMATIVE DEFENSE 7. At the time of the alleged incident, the plaintiff was engaged in activity which he knew to be hazardous in nature and, therefore, the plaintiff assumed the risk and consequences inherent in such activity. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 8. All Labor Law claims are subject to dismissal and improper based upon the one and two family exemptions to the Labor Law. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 9. Upon information and belief, the answering defendants have no liability to plaintiff for reason of plaintiff having undertaken conduct such as to have assumed the risk of all that conduct complained of by plaintiffs having flowed there from. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 10. Upon information and belief, any damage or damages sustained by the plaintiffs herein were not caused by the wrongdoing on the part of the answering defendants, its servants, agents or employees, but were caused solely by the wrongdoing of plaintiffs and that such conduct requires diminution of any award, verdict or judgment that plaintiffs may recover against said answering defendants. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 11. Pursuant to CPLR 4545, any award to the plaintiffs for economic loss shall be reduced by the amount of economic loss received by collateral sources. 3 of 8 FILED: BRONX COUNTY CLERK 02/02/2018 12:50 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 181 RECEIVED NYSCEF: 02/02/2018 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 12. That one or more of the causes of action are time barred pursuant to the applicable Statute of Limitations. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 13. Defendants hereby assert any and all defenses which are express or implied within the alleged contract. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 14. Plaintiffs have failed to take the necessary measures to mitigate the damages complained of herein. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 15. If the plaintiffs have been damaged as alleged, which is denied, such damage was caused solely by virtue of the conduct and actions of other over whom these defendants have exercised no control. AS AND FOR A TWELFTH AFIRMATIVE DEFENSE 16. The answering defendants are not responsible for any unauthorized alterations or modifications of the equipment and/or improper, abnormal and unintended use of such equipment by the acts of plaintiffs or any other person. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 17. The answering defendants were not responsible for providing plaintiff with a safe place to work. 4 of 8 FILED: BRONX COUNTY CLERK 02/02/2018 12:50 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 181 RECEIVED NYSCEF: 02/02/2018 AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 18. The risks and dangers, as alleged, were in existence, then they were visible, notorious, apparent and obvious to any individual including plaintiff. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 19. Upon information and belief, other parties had custody and control over the area in question. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 20. Upon information and belief, other parties had control over and responsibility for plaintiff's actions on the day of the alleged incident. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 21. The instant action must be dismissed based upon the applicable provisions of the Worker's Compensation Law. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 22. The plaintiff received Worker's Compensation benefits. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 23. All Labor Law claims are barred by the Worker's Compensation Law. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 24. Plaintiff's actions constitute the sole proximate cause of the incident and injuries alleged herein. 5 of 8 FILED: BRONX COUNTY CLERK 02/02/2018 12:50 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 181 RECEIVED NYSCEF: 02/02/2018 AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANT EXTRA SPACE STORAGE, INC., GABRIEL CASTANO AND JERILYN HORTON 25. Although the answering defendant has denied the allegations of the plaintiff with respect to any wrongdoing on the part of the said defendant, nevertheless, in the event that there is a verdict or judgment in favor of the plaintiffs against the answering defendant, then, in that event, the said defendant demand judgment over and against the aforementioned co-defendants by reason of their wrongful conduct being primary and/or active while any wrongdoing on the part of the answering defendant, if any, was secondary and/or passive and the indemnity is to be full and complete. AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANT EXTRA SPACE STORAGE, INC., GABRIEL CASTANO AND JERILYN HORTON 26. That although the answering defendant has denied the allegations of the plaintiff with respect to any wrongdoing on the part of the said defendants, nevertheless, if itis found that the answering defendant is liable to the plaintiff and if complete indemnity is not granted in furtherance of the first cross-claim hereinabove, then the answering defendant is, nevertheless, entitled to contribution from the co-defendants, above-named in proportion to the relative degrees of wrongdoing as between the parties. WHEREFORE, the defendants, CHI HUNG AND CHAN YING demands judgment dismissing the Complaint herein as to said defendants and further demands that the ultimate rights of the defendants between themselves be determined in this action and that the answering defendant has judgment over and against the co-defendants, EXTRA SPACE STORAGE INC., GABRIEL CASTANO AND JERILYNN HORTON for all, or alternatively that portion of 6 of 8 FILED: BRONX COUNTY CLERK 02/02/2018 12:50 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 181 RECEIVED NYSCEF: 02/02/2018 any verdict or judgment which may be obtained by plaintiff against said defendant, to the extent that the responsibility of the aforesaid co-defendant contributed hereto, together with the costs and disbursements of this action. DATED: White Plains, New York February 2, 2018 Yours, etc., PENINO & MOYNIHAN, LLP BY:c , STEPHEN J. PENINO Attomeys for Defendants CHI HUNG AND CHAN YING 1025 Westchester Avenue, Suite 403 White Plains, New York 10604 (914) 949-6996 Our File No.: 12-2337 TO: SCOTT H. GOLDSTEIN, ESQ. BONNER KIERNAN TREBACH CROCIATA, LLP Attorneys for Defendant/Third-Party Plaintiff EXTRA SPACE MANAGEMENT, INC. 59th Empire State Building, FlOOr New York, New York 10118 (212) 268-7535 RONEMUS & VILENSKY Attorneys for Plaintiff 112 Madison Avenue, Second Floor New York, New York 10016 (212) 779-7070 DEVITT SPELLMAN BARRETT, LLP Attorneys for Defendant GABRIEL CASTANO 50 Route 111, Suite 314 Smithtown, New York 11787 (631) 724-8833 LONG ISLAND LANDSCAPES, LTD. Second Third-Party Defendant 774 Nichols Road 7 of 8 FILED: BRONX COUNTY CLERK 02/02/2018 12:50 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 181 RECEIVED NYSCEF: 02/02/2018 Hauppauge, New York 11749 JR BUILDING SERVICE, INC. Third-Party Defendant 571 Halleck Road Bronx, New York 10474 8 of 8