Preview
FILED: NEW YORK COUNTY CLERK 09/10/2012 INDEX NO. 153806/2012
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/10/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
BRENT DALRYMPLE,
Plaintiff, : Index No.: 153806/12
- against - : VERIFIED ANSWER
76TH AND BROADWAY OWNER, LLC and
CAULDWELL-WINGATE COMPANY, LLC,
Defendants.
X
Defendants, 76 1h and Broadway Owner, LLC and Cauldwell-Wingate Company, LLC
(collectively "Defendants"), by their attorneys Ingram Yuzek Gainen Carroll & Bertolotti, LLP,
as and for their verified answer (the "Verified Answer") to the verified complaint (the "Verified
Complaint") of plaintiff, Brent Dalrymple ("Plaintiff"), dated June 19, 2012, allege as follows:
1. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations of paragraph 1 of the Verified Complaint.
2. Deny the allegations of paragraph 2 of the Verified Complaint and refer all
questions of law to the Court for determination.
3. Admit the allegations of paragraphs 3, 4, 5 and 6 of the Verified Complaint.
4. Deny the allegations of paragraphs 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the
Verified Complaint, in the form alleged, and except admits that 76 th and Broadway Owner, LLC
is the owner of the property located at '76 th and Broadway, LLC.
5. Deny the allegations of paragraphs 16, 17, 18 and 19 of the Verified Complaint,
in the form alleged, allege that 76 th and Broadway Owner, LLC hired Cauldwell-Wingate
Company, LLC for the performance of certain construction management services in cormection
with the demolition of the site and the construction of a new 18-story residential condominium
416436_1/00926-0071
building at 2148 Broadway, New York, New York (the "Project") and refer the Court to
Cauldwell-Wingate Company, LLC's contract for the Project for a complete statement of its
terms and conditions.
6. Deny the allegations of paragraphs 20 and 21 of the Verified Complaint and refer
all questions of law to the Court for determination.
7. Deny the allegations of paragraphs 22, 23 24, 25, 26, 27 and 28 of the Verified
Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
8. The Verified Complaint fails to state a cause of action against Defendants.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
9. Any damages sustained by Plaintiff were caused in whole or in part by Plaintiff's
own negligence and/or recklessness and any recovery by Plaintiff herein must be diminished in
proportion to the part of its damages attributable to its own negligence and/or recklessness or that
of others for which he is responsible.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
10. The damages allegedly sustained by Plaintiff were not caused by any negligence,
carelessness, recklessness or culpable conduct on the part of Defendants, but were caused by
reason of the negligence, carelessness, recklessness or culpable conduct of others who are not yet
named in this action.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
11. The damages allegedly sustained by Plaintiff were not caused by any negligence,
carelessness, recklessness or culpable conduct on the part of Defendants, but were caused by
416436_1/00926-0071
reason of the negligence, carelessness, recklessness or culpable conduct of others over whom
Defendants did not exercise any supervision or control.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
12. Any recovery by Plaintiff herein should be reduced by any amounts reimbursed or
indemnified by collateral sources pursuant to CPLR § 4545.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
13. Plaintiff's exclusive recovery for the injuries alleged is under the Workers
Compensation Law.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
14. Plaintiff is not a protected person within the meaning of the Labor Law.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
15. Neither 76th and Broadway Owner, LLC nor Cauldwell-Wingate Company, LLC
directed or controlled Plaintiff's work on the Project.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
16. Neither 76th and Broadway Owner, LLC nor Cauldwell-Wingate Company, LLC
owed any duty to Plaintiff.
AS AND FOR TENTH AFFIRMATIVE DEFENSE
17. Plaintiff failed to use or misused the available, safe and appropriate safety devices
and equipment.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
18. Plaintiff's own conduct was the sole proximate cause of his injuries.
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WHEREFORE, defendants, 76 th and Broadway Owner, LLC and Cauldwell-Wingate
Company, LLC, respectfully request judgment dismissing the Verified Complaint, awarding
them the costs and disbursements of this action and such other and further relief as this Court
deems just and proper.
Dated: New York, New York
August 31, 2012
INGRAM YUZE AINEN CARROLL
& BERTO T,LLP
By:
essica L. Rothman
Attorneys for Defendants
76th and Broadway Owner, LLC and
Cauldwell-Wingate Company, LLC
250 Park Avenue
New York, New York 10177
(212) 907-9600
To: Donald D. Casale, Esq.
Mark E. Seitelman Law Offices, P.C.
111 Broadway, 9th Floor
New York, New York 10006-1901
416436_1/00926-0071
VERIFICATION
STATE OF NEW YORK
: S s.:
COUNTY OF NEW YORK
CHRIS HA RCROVE, being duly sworn, deposes and says:
I am an Executive Vice President of defendant Cauldwell-Wingate Company, LLC.
have read the foregoing Answer to the Verified Complaint of plaintiff Brent Dalrymple and
know the contents thereof. The same are true to my knowledge, except as to those matters
therein stated to be alleged on information and belief, and as to those matters, I believe them to
be true.
CHRIS TARGROVE
Sworn to before me this
day of A tgust, 2012
KAREN L. KRUGMAN
NOTARY PUBLIC, STATE OF NEW YORK
No.01KR6218800
QUALIFIED IN NEW YORK COUNTY
Nofary Public COMMISSION EXPIRES MARCH 15, 2014
Preview
FILED: NEW YORK COUNTY CLERK 09/10/2012 INDEX NO. 153806/2012 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/10/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X BRENT DALRYMPLE, Plaintiff, : Index No.: 153806/12 - against - : VERIFIED ANSWER 76TH AND BROADWAY OWNER, LLC and CAULDWELL-WINGATE COMPANY, LLC, Defendants. X Defendants, 76 1h and Broadway Owner, LLC and Cauldwell-Wingate Company, LLC (collectively "Defendants"), by their attorneys Ingram Yuzek Gainen Carroll & Bertolotti, LLP, as and for their verified answer (the "Verified Answer") to the verified complaint (the "Verified Complaint") of plaintiff, Brent Dalrymple ("Plaintiff"), dated June 19, 2012, allege as follows: 1. Deny knowledge or information sufficient to form a belief as to the truth of the allegations of paragraph 1 of the Verified Complaint. 2. Deny the allegations of paragraph 2 of the Verified Complaint and refer all questions of law to the Court for determination. 3. Admit the allegations of paragraphs 3, 4, 5 and 6 of the Verified Complaint. 4. Deny the allegations of paragraphs 7, 8, 9, 10, 11, 12, 13, 14 and 15 of the Verified Complaint, in the form alleged, and except admits that 76 th and Broadway Owner, LLC is the owner of the property located at '76 th and Broadway, LLC. 5. Deny the allegations of paragraphs 16, 17, 18 and 19 of the Verified Complaint, in the form alleged, allege that 76 th and Broadway Owner, LLC hired Cauldwell-Wingate Company, LLC for the performance of certain construction management services in cormection with the demolition of the site and the construction of a new 18-story residential condominium 416436_1/00926-0071 building at 2148 Broadway, New York, New York (the "Project") and refer the Court to Cauldwell-Wingate Company, LLC's contract for the Project for a complete statement of its terms and conditions. 6. Deny the allegations of paragraphs 20 and 21 of the Verified Complaint and refer all questions of law to the Court for determination. 7. Deny the allegations of paragraphs 22, 23 24, 25, 26, 27 and 28 of the Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 8. The Verified Complaint fails to state a cause of action against Defendants. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 9. Any damages sustained by Plaintiff were caused in whole or in part by Plaintiff's own negligence and/or recklessness and any recovery by Plaintiff herein must be diminished in proportion to the part of its damages attributable to its own negligence and/or recklessness or that of others for which he is responsible. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 10. The damages allegedly sustained by Plaintiff were not caused by any negligence, carelessness, recklessness or culpable conduct on the part of Defendants, but were caused by reason of the negligence, carelessness, recklessness or culpable conduct of others who are not yet named in this action. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 11. The damages allegedly sustained by Plaintiff were not caused by any negligence, carelessness, recklessness or culpable conduct on the part of Defendants, but were caused by 416436_1/00926-0071 reason of the negligence, carelessness, recklessness or culpable conduct of others over whom Defendants did not exercise any supervision or control. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 12. Any recovery by Plaintiff herein should be reduced by any amounts reimbursed or indemnified by collateral sources pursuant to CPLR § 4545. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 13. Plaintiff's exclusive recovery for the injuries alleged is under the Workers Compensation Law. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 14. Plaintiff is not a protected person within the meaning of the Labor Law. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 15. Neither 76th and Broadway Owner, LLC nor Cauldwell-Wingate Company, LLC directed or controlled Plaintiff's work on the Project. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 16. Neither 76th and Broadway Owner, LLC nor Cauldwell-Wingate Company, LLC owed any duty to Plaintiff. AS AND FOR TENTH AFFIRMATIVE DEFENSE 17. Plaintiff failed to use or misused the available, safe and appropriate safety devices and equipment. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 18. Plaintiff's own conduct was the sole proximate cause of his injuries. 416436_1/00926-0071 WHEREFORE, defendants, 76 th and Broadway Owner, LLC and Cauldwell-Wingate Company, LLC, respectfully request judgment dismissing the Verified Complaint, awarding them the costs and disbursements of this action and such other and further relief as this Court deems just and proper. Dated: New York, New York August 31, 2012 INGRAM YUZE AINEN CARROLL & BERTO T,LLP By: essica L. Rothman Attorneys for Defendants 76th and Broadway Owner, LLC and Cauldwell-Wingate Company, LLC 250 Park Avenue New York, New York 10177 (212) 907-9600 To: Donald D. Casale, Esq. Mark E. Seitelman Law Offices, P.C. 111 Broadway, 9th Floor New York, New York 10006-1901 416436_1/00926-0071 VERIFICATION STATE OF NEW YORK : S s.: COUNTY OF NEW YORK CHRIS HA RCROVE, being duly sworn, deposes and says: I am an Executive Vice President of defendant Cauldwell-Wingate Company, LLC. have read the foregoing Answer to the Verified Complaint of plaintiff Brent Dalrymple and know the contents thereof. The same are true to my knowledge, except as to those matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. CHRIS TARGROVE Sworn to before me this day of A tgust, 2012 KAREN L. KRUGMAN NOTARY PUBLIC, STATE OF NEW YORK No.01KR6218800 QUALIFIED IN NEW YORK COUNTY Nofary Public COMMISSION EXPIRES MARCH 15, 2014