Preview
FILED: NEW YORK COUNTY CLERK 06/26/2020 11:08 AM INDEX NO. 151860/2020
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/26/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------X
STEPHEN GUARDINO, : Index No.: 151860/2020
:
Plaintiff, :
: VERIFIED ANSWER TO
- against - : THIRD-PARTY SUMMONS
:
AND COMPLAINT
AT&T COMMUNICATIONS OF NEW YORK, INC., :
:
Defendant. :
:
:
-----------------------------------------X
AT&T COMMUNICATIONS OF NEW YORK, INC., : Third-Party Index No.:
:
Third-Party Plaintiff, :
:
- against - :
:
CBRE, INC., :
:
Third-Party Defendant. :
-----------------------------------------X
COUNSEL:
Defendant, CBRE, INC., by its attorneys, SHEELEY, LLP, as and for its Answer to Third
Party Complaint states the following upon information and belief:
FIRST: Denies the allegations in paragraphs 1, 3, 21, 22, 24, 25, 33, 34, 35, 36, 41,
42, 43 and 44 of the Third-Party Complaint.
SECOND: Denies sufficient knowledge and information sufficient to form a belief as
to each allegation in paragraphs 6 of the Third-Party Complaint.
THIRD: Denies upon information and belief as to paragraphs 11, 12, 13, 14, 15, 16,
17, 18, 19, 27, 28, 29, 30, 31, 38, 39 and 40 of the Third Party Complaint except respectfully refers
the parties and the Court to a certain Agreement number 20150305.045.C between CBRE (as an
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assignee of Johnson Controls GWS LLC) and AT&T entered into on August 20, 2015 and any
subsequent amendments and/or riders, for all the relevant obligations and duties as between the
parties.
FOURTH: Denies the allegations in paragraphs 7, 8, 9, 32 of the Third-Party Complaint
except respectfully refers the parties and the Court to the pleading referred to for all the relevant
allegations asserted as between the parties.
FIFTH: Admits the allegations in paragraph 2, 4, 5 and 10 of the Third-Party
Complaint.
SIXTH: As to paragraphs 20, 23, 26 and 37 of the Third-Party Complaint, defendant
repeats and realleges all the responses to the paragraphs heretofore alleged.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
SEVENTH: The Answer to Third Party Complaint fails to state one or more causes of
action upon which relief can be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
EIGHTH: That any of the injuries sustained by the plaintiff as alleged in the Amended
Verified Complaint were caused in whole or in part by the culpable conduct of the plaintiff, and
were not caused or contributed to by the answering defendant, which either bars the claims
completely or else diminishes the damages.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
NINTH: The answering defendant reserves the right to claim the limitations of
liability as set forth in CPLR Article 16, for any recovery herein by the plaintiff for non-economic
loss.
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
TENTH: If plaintiff recovers a verdict or judgment for economic loss against the
answering defendant, pursuant to CPLR 4545, such verdict or judgment must be reduced by those
amounts which have or will replace or indemnify plaintiff in whole or in part from any collateral
source of payment.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
ELEVENTH: If the plaintiff is entitled to recover damages from loss of earnings or
impairment of earning ability as against this answering defendant, by reason of the matters alleged
in the complaint, liability for which is hereby denied, then pursuant to CPLR 4546 the amount of
damages recoverable against this defendant, if any, shall be reduced by the amount of federal, state
and local income taxes by which the plaintiff would have been obligated to pay.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
TWELFTH: The answering defendant reserves the right to claim the benefits and
limitations of liability pursuant to General Obligations Law 15-108.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
THIRTEENTH: The defendant pleads the provisions of Article 50 of the CPLR. That
if plaintiff secures judgment against the answering defendant, then future damages, as defined in
Article 50-B of the CPLR shall be paid out in structured installments pursuant to Article 50-B of
the CPLR.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
FOURTEENTH: That the condition that plaintiff claims he tripped over was open and
obvious.
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AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIRST
COUNTERCLAIM AGAINST ALL OTHER DEFENDANTS, THE ANSWERING
DEFENDANT ALLEGES:
FIFTEENTH: That if the plaintiff sustained the injuries and damages in the manner and in
the time and place alleged and if itis found that the answering defendants is liable to
plaintiff herein, then said answering defendant, on the basis of apportionment of
responsibility for the alleged occurrence, is entitled to indemnification from and judgment
over against the aforementioned co-defendants for all or part of any verdict or judgment
that plaintiff may recover against said answering defendant.
AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SECOND COUNTER
CLAIM AGAINST AT&T THE ANSWERING DEFENDANT CBRE, INC. ALLEGES:
SIXTEENTH: That the said answering defendant entered an agreement with and/or is a
third-party beneficiary to a contract with AT&T., wherein AT&T expressly and/or
impliedly agreed to indemnify and hold harmless the answering defendant CBRE, INC.
from any and all liability, suits, actions or demands on account of injury to persons or
property arising out of or in conjunction with work performed by the answering defendant
or AT&T to the full extent of any verdict or judgment that plaintiff may recover against
said defendants, including reasonable counsel fees together with the costs and
disbursements of this action.
AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A THIRD COUNTER
CLAIM AGAINST AT&T THE ANSWERING DEFENDANT CBRE, INC. ALLEGES:
SEVENTEENTH: That the said answering defendant entered an agreement and/or is a third
party beneficiary to a contract with AT&T wherein AT&T agreed to purchase general
liability insurance and/or make the answering defendant an additional insured on its own
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policy, which insurance would be primary and non-contributing to the answering
defendant’s own insurance.
EIGHTEENTH: That defendant AT&T has breached its contract with the answering
defendant by failing to procure on behalf of the answering defendant the insurance required
by contract.
NINETEENTH: That the answering defendant is entitled to judgment against defendant
AT&T, for its attorneys’ fees, costs and out of pocket damages arising from AT&T’s
breach of its agreement.
WHEREFORE, the answering defendant demands judgment dismissing the Amended
Verified Complaint and the Third Party Complaint herein, together with costs, a judgment of
contractual indemnity and/or breach of contract and further requests that, in the event that the
plaintiff recovers, the relative responsibility of all defendants be apportioned as amongst
themselves.
Dated: New York, NY
June 25, 2020
SHEELEY LLP
By: __________________________________
JON LICHTENSTEIN, ESQ.
Attorneys for Third-Party Defendants
CBRE, INC.
100 Wall Street, 19th Floor
New York, NY 10005
(646) 650-5952
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TO: MARK E. SEITELMAN LAW OFFICES, P.C.
Attorneys for Plaintiff
111 Broadway, 9th Floor
New York, NY 10006
CHARTWELL LAW
Attorneys for Defendant/ Third Party Plaintiffs
AT&T COMMUNICATIONS OF
NEW YORK, INC.
One Battery Park Plaza, 35th Floor
New York, New York 10004
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ATTORNEY’S VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
Jon Lichtenstein, Esq., being duly sworn, deposes and states:
That he is a Partner in the firm of Sheeley LLP, attorneys representing CBRE, INC.
That he has read the attached Verified Answer to Third Party Summons and Complaint and
that the content contained therein is true to his own belief, except as to matters alleged upon
information and belief, and as to those matters he believes them to be true to the best of his
knowledge.
That the deponent’s sources of information include a claims file containing statements,
reports and records of investigation, investigators, parties and witnesses, with which this deponent
is fully familiar.
That this verification is made by this deponent because his client does not reside within the
county where the deponent maintains his office.
__________________________________
JON LICHTENSTEIN, ESQ.
Sworn to before me this
26th day of June, 2020
Notary Public
Yvette La Madrid
Notary Public, State of New York
No.: 01LA6382396
Qualified in New York County
Commission Expires October 22, 2022
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AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Stephanie Vera, being duly sworn, deposes and says: that deponent is not a party to this
action, is over 18 years of age and resides in Brooklyn, New York.
That on, June 26, 2020 deponent served the within VERIFIED ANSWER TO THIRD-
PARTY SUMMONS AND COMPLAINT upon:
MARK E. SEITELMAN LAW OFFICES, CHARTWELL LAW
P.C. Attorneys for Defendant
Attorneys for Plaintiff AT&T COMMUNICATIONS OF
111 Broadway, 9th Floor NEW YORK, INC.
New York, NY 10006 One Battery Park Plaza, 35th Floor
mark@seitelman.com New York, New York 10004
jwarner@chartwelllaw.com
via electronic mail at their respective email address(es) provided for such service.
Stephanie Vera
Sworn to before me this
26th day of June, 2020
Notary Public
Yvette La Madrid
Notary Public, State of New York
No.: 01LA6382396
Qualified in New York County
Commission Expires October 22, 2022
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
STEPHEN GUARDINO, : Index No.: 151860/2020
:
Plaintiff, :
:
- against - :
:
AT&T COMMUNICATIONS OF NEW YORK, INC., :
:
Defendant. :
:
:
-----------------------------------------X
AT&T COMMUNICATIONS OF NEW YORK, INC., :
:
Third-Party Plaintiff, :
:
- against - :
:
CBRE, INC., :
:
Third-Party Defendant. :
VERIFIED ANSWER TO THIRD-PARTY SUMMONS AND COMPLAINT
SHEELEY LLP
Attorneys for Third-Party Defendants
CBRE, INC.
Office and Post Office Address
100 Wall Street, 19th Fl.
New York, New York, 10005
Telephone (646) 650-5952
TO: ALL PARTIES
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Preview
FILED: NEW YORK COUNTY CLERK 06/26/2020 11:08 AM INDEX NO. 151860/2020 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/26/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------X STEPHEN GUARDINO, : Index No.: 151860/2020 : Plaintiff, : : VERIFIED ANSWER TO - against - : THIRD-PARTY SUMMONS : AND COMPLAINT AT&T COMMUNICATIONS OF NEW YORK, INC., : : Defendant. : : : -----------------------------------------X AT&T COMMUNICATIONS OF NEW YORK, INC., : Third-Party Index No.: : Third-Party Plaintiff, : : - against - : : CBRE, INC., : : Third-Party Defendant. : -----------------------------------------X COUNSEL: Defendant, CBRE, INC., by its attorneys, SHEELEY, LLP, as and for its Answer to Third Party Complaint states the following upon information and belief: FIRST: Denies the allegations in paragraphs 1, 3, 21, 22, 24, 25, 33, 34, 35, 36, 41, 42, 43 and 44 of the Third-Party Complaint. SECOND: Denies sufficient knowledge and information sufficient to form a belief as to each allegation in paragraphs 6 of the Third-Party Complaint. THIRD: Denies upon information and belief as to paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 27, 28, 29, 30, 31, 38, 39 and 40 of the Third Party Complaint except respectfully refers the parties and the Court to a certain Agreement number 20150305.045.C between CBRE (as an 1 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2020 11:08 AM INDEX NO. 151860/2020 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/26/2020 assignee of Johnson Controls GWS LLC) and AT&T entered into on August 20, 2015 and any subsequent amendments and/or riders, for all the relevant obligations and duties as between the parties. FOURTH: Denies the allegations in paragraphs 7, 8, 9, 32 of the Third-Party Complaint except respectfully refers the parties and the Court to the pleading referred to for all the relevant allegations asserted as between the parties. FIFTH: Admits the allegations in paragraph 2, 4, 5 and 10 of the Third-Party Complaint. SIXTH: As to paragraphs 20, 23, 26 and 37 of the Third-Party Complaint, defendant repeats and realleges all the responses to the paragraphs heretofore alleged. AS AND FOR A FIRST AFFIRMATIVE DEFENSE SEVENTH: The Answer to Third Party Complaint fails to state one or more causes of action upon which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE EIGHTH: That any of the injuries sustained by the plaintiff as alleged in the Amended Verified Complaint were caused in whole or in part by the culpable conduct of the plaintiff, and were not caused or contributed to by the answering defendant, which either bars the claims completely or else diminishes the damages. AS AND FOR A THIRD AFFIRMATIVE DEFENSE NINTH: The answering defendant reserves the right to claim the limitations of liability as set forth in CPLR Article 16, for any recovery herein by the plaintiff for non-economic loss. 4825-6506-2001, v. 1 2 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2020 11:08 AM INDEX NO. 151860/2020 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/26/2020 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE TENTH: If plaintiff recovers a verdict or judgment for economic loss against the answering defendant, pursuant to CPLR 4545, such verdict or judgment must be reduced by those amounts which have or will replace or indemnify plaintiff in whole or in part from any collateral source of payment. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE ELEVENTH: If the plaintiff is entitled to recover damages from loss of earnings or impairment of earning ability as against this answering defendant, by reason of the matters alleged in the complaint, liability for which is hereby denied, then pursuant to CPLR 4546 the amount of damages recoverable against this defendant, if any, shall be reduced by the amount of federal, state and local income taxes by which the plaintiff would have been obligated to pay. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE TWELFTH: The answering defendant reserves the right to claim the benefits and limitations of liability pursuant to General Obligations Law 15-108. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE THIRTEENTH: The defendant pleads the provisions of Article 50 of the CPLR. That if plaintiff secures judgment against the answering defendant, then future damages, as defined in Article 50-B of the CPLR shall be paid out in structured installments pursuant to Article 50-B of the CPLR. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE FOURTEENTH: That the condition that plaintiff claims he tripped over was open and obvious. 4825-6506-2001, v. 1 3 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2020 11:08 AM INDEX NO. 151860/2020 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/26/2020 AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIRST COUNTERCLAIM AGAINST ALL OTHER DEFENDANTS, THE ANSWERING DEFENDANT ALLEGES: FIFTEENTH: That if the plaintiff sustained the injuries and damages in the manner and in the time and place alleged and if itis found that the answering defendants is liable to plaintiff herein, then said answering defendant, on the basis of apportionment of responsibility for the alleged occurrence, is entitled to indemnification from and judgment over against the aforementioned co-defendants for all or part of any verdict or judgment that plaintiff may recover against said answering defendant. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SECOND COUNTER CLAIM AGAINST AT&T THE ANSWERING DEFENDANT CBRE, INC. ALLEGES: SIXTEENTH: That the said answering defendant entered an agreement with and/or is a third-party beneficiary to a contract with AT&T., wherein AT&T expressly and/or impliedly agreed to indemnify and hold harmless the answering defendant CBRE, INC. from any and all liability, suits, actions or demands on account of injury to persons or property arising out of or in conjunction with work performed by the answering defendant or AT&T to the full extent of any verdict or judgment that plaintiff may recover against said defendants, including reasonable counsel fees together with the costs and disbursements of this action. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A THIRD COUNTER CLAIM AGAINST AT&T THE ANSWERING DEFENDANT CBRE, INC. ALLEGES: SEVENTEENTH: That the said answering defendant entered an agreement and/or is a third party beneficiary to a contract with AT&T wherein AT&T agreed to purchase general liability insurance and/or make the answering defendant an additional insured on its own 4825-6506-2001, v. 1 4 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2020 11:08 AM INDEX NO. 151860/2020 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/26/2020 policy, which insurance would be primary and non-contributing to the answering defendant’s own insurance. EIGHTEENTH: That defendant AT&T has breached its contract with the answering defendant by failing to procure on behalf of the answering defendant the insurance required by contract. NINETEENTH: That the answering defendant is entitled to judgment against defendant AT&T, for its attorneys’ fees, costs and out of pocket damages arising from AT&T’s breach of its agreement. WHEREFORE, the answering defendant demands judgment dismissing the Amended Verified Complaint and the Third Party Complaint herein, together with costs, a judgment of contractual indemnity and/or breach of contract and further requests that, in the event that the plaintiff recovers, the relative responsibility of all defendants be apportioned as amongst themselves. Dated: New York, NY June 25, 2020 SHEELEY LLP By: __________________________________ JON LICHTENSTEIN, ESQ. Attorneys for Third-Party Defendants CBRE, INC. 100 Wall Street, 19th Floor New York, NY 10005 (646) 650-5952 4825-6506-2001, v. 1 5 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2020 11:08 AM INDEX NO. 151860/2020 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/26/2020 TO: MARK E. SEITELMAN LAW OFFICES, P.C. Attorneys for Plaintiff 111 Broadway, 9th Floor New York, NY 10006 CHARTWELL LAW Attorneys for Defendant/ Third Party Plaintiffs AT&T COMMUNICATIONS OF NEW YORK, INC. One Battery Park Plaza, 35th Floor New York, New York 10004 4825-6506-2001, v. 1 6 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2020 11:08 AM INDEX NO. 151860/2020 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/26/2020 ATTORNEY’S VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) Jon Lichtenstein, Esq., being duly sworn, deposes and states: That he is a Partner in the firm of Sheeley LLP, attorneys representing CBRE, INC. That he has read the attached Verified Answer to Third Party Summons and Complaint and that the content contained therein is true to his own belief, except as to matters alleged upon information and belief, and as to those matters he believes them to be true to the best of his knowledge. That the deponent’s sources of information include a claims file containing statements, reports and records of investigation, investigators, parties and witnesses, with which this deponent is fully familiar. That this verification is made by this deponent because his client does not reside within the county where the deponent maintains his office. __________________________________ JON LICHTENSTEIN, ESQ. Sworn to before me this 26th day of June, 2020 Notary Public Yvette La Madrid Notary Public, State of New York No.: 01LA6382396 Qualified in New York County Commission Expires October 22, 2022 4825-6506-2001, v. 1 7 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2020 11:08 AM INDEX NO. 151860/2020 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/26/2020 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) Stephanie Vera, being duly sworn, deposes and says: that deponent is not a party to this action, is over 18 years of age and resides in Brooklyn, New York. That on, June 26, 2020 deponent served the within VERIFIED ANSWER TO THIRD- PARTY SUMMONS AND COMPLAINT upon: MARK E. SEITELMAN LAW OFFICES, CHARTWELL LAW P.C. Attorneys for Defendant Attorneys for Plaintiff AT&T COMMUNICATIONS OF 111 Broadway, 9th Floor NEW YORK, INC. New York, NY 10006 One Battery Park Plaza, 35th Floor mark@seitelman.com New York, New York 10004 jwarner@chartwelllaw.com via electronic mail at their respective email address(es) provided for such service. Stephanie Vera Sworn to before me this 26th day of June, 2020 Notary Public Yvette La Madrid Notary Public, State of New York No.: 01LA6382396 Qualified in New York County Commission Expires October 22, 2022 4825-6506-2001, v. 1 8 of 9 FILED: NEW YORK COUNTY CLERK 06/26/2020 11:08 AM INDEX NO. 151860/2020 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/26/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK STEPHEN GUARDINO, : Index No.: 151860/2020 : Plaintiff, : : - against - : : AT&T COMMUNICATIONS OF NEW YORK, INC., : : Defendant. : : : -----------------------------------------X AT&T COMMUNICATIONS OF NEW YORK, INC., : : Third-Party Plaintiff, : : - against - : : CBRE, INC., : : Third-Party Defendant. : VERIFIED ANSWER TO THIRD-PARTY SUMMONS AND COMPLAINT SHEELEY LLP Attorneys for Third-Party Defendants CBRE, INC. Office and Post Office Address 100 Wall Street, 19th Fl. New York, New York, 10005 Telephone (646) 650-5952 TO: ALL PARTIES 4825-6506-2001, v. 1 9 of 9