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FILED: NEW YORK COUNTY CLERK 03/04/2020 01:06 PM INDEX NO. 151657/2020
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/04/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--- ----------------------------------X
NEW YORK MARINE AND GENERAL
INSURANCE COMPANY and CERTAIN
3RD
UNDERWRITERS AT LLYOD'S A/S/O/ 2133
AVENUE CORP., Index No.: 151657/2020
Plaintiff, ANSWER TO
COMPLAINT
- against -
NY FIRETECH INC., NY FIRE SERVICE &
INSTALLATION INC and GLOBAL LUXURY
SERVICES INC.
Defendants.
--------------------------- ¬------------------------X
Defendants, NY FIRETECH INC. and NY FIRE SERVICE & INSTALLATION INC, by and through
their attorneys, Gartner + Bloom, P.C. as and for an Answer to Plaintiff's Complaint, state as follows:
1. Denies knowledge or information sufficient to form a belief as to the truth of the
"3"
allegations contained in paragraphs "1", "2", ,"4", "6", "8", "9", "10", "11", "12", "13", "14",
"15", "18", "22", "24", of the Complaint.
"S"
2. Admits the allegations contained in paragraph and "7"of the Complaint.
3. Denies the allegations contained in paragraphs "16", "17", "19", "20", "21", "23",
"25" "26"
and of the Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
4. Any injuries and/or damages sustained by the plaintiff as alleged in the Verified
Complaint herein were caused in whole or in part by the contributory negligence and/or sole
culpable conduct of said plaintiff and not as a result of any contributory negligence and/or culpable
conduct on the part of the answering defendant.
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AS AND FOR A SECOND AFFIRMATIVE DEFENSE
5. Plaintiff's claim is barred for failure to state a cause of action, and facts in support
thereof, upon which relief can be granted.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
6. Pursuant to CPLR Section 4545, any recovery by plaintiff should be reduced in
whole or in part, by reason of and the amount of plaintiff's indemnification and/or reimbursement
from its insurance company or other collateral sources.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
7. That at all times alleged in the Verified Complaint the plaintiff engaged in an
activity which involved certain risks and hazards; that the plaintiff entered into such activity
knowing the risks, hazards and the possible dangers of injury resulting therefrom, and voluntarily
accepted and assumed the same upon entering into and continuing in said activity.
MAND FOR A FIFTH AFFIRMATIVE DEFENSE
8. If there is any liability as to the answering defendant, Section 1601 of the CPLR
applies as to joint and several liability and limits the liability of the answering defendant and the
answering defendant claims entitlement to the benefits set forth therein.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
9. That the accident and/or injury to the plaintiff, if any, occurred as a result of the
activities and/or acts of omission and/or commission of other parties over whom the answering
defendant had no control.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
10. Plaintiff failed to join necessary and indispensable parties.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
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11. This action is barred by the applicable Statute of Limitations.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
12. The Court lacks jurisdiction over the person and there is insufficiency of process.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
13. Plaintiff failed to mitigate damages.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
14. That the accident and/or injury to the plaintiffs, ifany, occurred as a result of the activities
and/or acts of omission and/or commission of other parties over whom the answering defendants
had no control.
AS AND FOR AN TWELFTH AFFIRMATIVE DEFENSE
15. That all risks and dangers connected with the situation at the time and place mentioned in
plaintiffs'
the Complaint were open, obvious and apparent, and were known to and assumed by
the plaintiffs herein.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
16. Plaintiffs cannot establish the existence of any dangerous or defective condition as alleged
in the Complaint.
AS AND FOR A FIRST CROSS-CLAIM OVER AGAINST ALL CO-DEFENDANTS
(contribution)
17. Upon information and belief, if plaintiff was caused to sustain any of the injuries
claimed or the damages alleged at the time and place set forth in the complaint, liability for which
has been denied by answering defendant, said damages will have been sustained by the reason of
the culpable conduct and negligence of co-defendant(s), in whole or part, and therefore, answering
defendant is entitled to contribution based on factand law from co-defendants, in accordance with
the relative responsibilities of the parties hereto.
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18. reason of the if judgment is recovered in this co-
By foregoing, any action,
defendant(s) will be liable to answering defendant herein, in the proportion of such relative
attorneys'
responsibility, together with the costs and disbursements of this action, including fees.
AS AND FOR A SECOND CROSS-CLAIM AGAINST ALL CO-DEFENDANTS
(contractual indemnification)
19. Upon information and belief, ifplaintiff was caused to sustain any of the injuries
claimed or the damages alleged at the time and place set forth in the complaint, liability for which
has been denied by answering defendant herein, said damages will have been sustained by reason
of the culpable conduct, negligence, and breach of contract of co-defendant(s), and therefore,
answering defendant herein is entitled to contractual indemnification based on fact, law and/or
agreement from co-defendant(s).
20. By reason of the foregoing, if any judgment is recovered in this action against
answering defendant(s) herein, co-defendants will be liable to answering defendant herein for the
amount thereof, together with the costs and disbursements of this action, including attorneys fees.
AS AND FOR A THIRD CROSS-CLAIM AGAINST ALL CO-DEFENDANTS
(common law indemnification)
21. Upon information and belief, if plaintiff was caused to sustain any of the injuries
claimed or the damages alleged at the time and place set forth in the complaint, all of which have
been denied by answering defendant, said damages will have been sustained by the reason of the
culpable conduct and negligence of co-defendant(s), and therefore, answering defendant is entitled
to common law indemnification based on fact and law from co-defendant(s).
22. reason of the if judgment is recovered in this co-
By foregoing, any action,
defendant(s) will be liable to answering defendant herein, for the amount thereof, together with
attorneys'
the costs and disbursements of this action, including fees.
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AS AND FOR A FOURTH CROSS-CLAIM AGAINST ALL CO-DEFENDANTS
(Breach of contract for failure to obtain insurance)
23. Upon information and belief, if plaintiff was caused to sustain any of the injuries
claimed or the damages alleged at the time and place set forth in the complaint, all of which have
been denied by answering defendant, said damages will have been sustained by the reason of the
breach of contract by co-defendants in their failure to obtain liability insurance for the benefit of
answering defendant and, therefore answering defendant is entitled to common law
indemnification based on fact and law from co-defendant(s).
24. reason of the if judgment is recovered in this co-
By foregoing, any action,
defendant(s) will be liable to answering defendant herein, for the amount thereof, together with
attorneys'
the costs and disbursements of this action, including fees.
WHEREFORE, judgment is demanded (1) dismissing the Complaint in its entirety with
prejudice, and (2) awarding such other and further relief, including costs and disbursements, as to
this Court may seem just and proper.
Dated: New York, New York
March 3, 2020
Yours etc.,
+-
G OM, P.C.
Igor ar, Esq.
Attorneys for Defendants
NY FIRETECH INC. and NY FIRE SERVICE &
INSTALLATION INC
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801 Second Avenue, 11th Floor
New York NY 10017
(212) 759-5800
Our File No.: 63481
To: Methfessel & Werbel, Esqs.
Attorneys for Plaintiff
34th 17th
112 West Street, Floor, Room 17089
New York, NY 10120
(212) 947-1999
File No. 88268 JNW
Global Luxury Services Inc.
6539 Grand Ave.
Maspeth, NY 11378
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FILED: NEW YORK COUNTY CLERK 03/04/2020 01:06 PM INDEX NO. 151657/2020 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/04/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --- ----------------------------------X NEW YORK MARINE AND GENERAL INSURANCE COMPANY and CERTAIN 3RD UNDERWRITERS AT LLYOD'S A/S/O/ 2133 AVENUE CORP., Index No.: 151657/2020 Plaintiff, ANSWER TO COMPLAINT - against - NY FIRETECH INC., NY FIRE SERVICE & INSTALLATION INC and GLOBAL LUXURY SERVICES INC. Defendants. --------------------------- ¬------------------------X Defendants, NY FIRETECH INC. and NY FIRE SERVICE & INSTALLATION INC, by and through their attorneys, Gartner + Bloom, P.C. as and for an Answer to Plaintiff's Complaint, state as follows: 1. Denies knowledge or information sufficient to form a belief as to the truth of the "3" allegations contained in paragraphs "1", "2", ,"4", "6", "8", "9", "10", "11", "12", "13", "14", "15", "18", "22", "24", of the Complaint. "S" 2. Admits the allegations contained in paragraph and "7"of the Complaint. 3. Denies the allegations contained in paragraphs "16", "17", "19", "20", "21", "23", "25" "26" and of the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 4. Any injuries and/or damages sustained by the plaintiff as alleged in the Verified Complaint herein were caused in whole or in part by the contributory negligence and/or sole culpable conduct of said plaintiff and not as a result of any contributory negligence and/or culpable conduct on the part of the answering defendant. 1 of 6 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:06 PM INDEX NO. 151657/2020 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/04/2020 AS AND FOR A SECOND AFFIRMATIVE DEFENSE 5. Plaintiff's claim is barred for failure to state a cause of action, and facts in support thereof, upon which relief can be granted. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 6. Pursuant to CPLR Section 4545, any recovery by plaintiff should be reduced in whole or in part, by reason of and the amount of plaintiff's indemnification and/or reimbursement from its insurance company or other collateral sources. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 7. That at all times alleged in the Verified Complaint the plaintiff engaged in an activity which involved certain risks and hazards; that the plaintiff entered into such activity knowing the risks, hazards and the possible dangers of injury resulting therefrom, and voluntarily accepted and assumed the same upon entering into and continuing in said activity. MAND FOR A FIFTH AFFIRMATIVE DEFENSE 8. If there is any liability as to the answering defendant, Section 1601 of the CPLR applies as to joint and several liability and limits the liability of the answering defendant and the answering defendant claims entitlement to the benefits set forth therein. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 9. That the accident and/or injury to the plaintiff, if any, occurred as a result of the activities and/or acts of omission and/or commission of other parties over whom the answering defendant had no control. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 10. Plaintiff failed to join necessary and indispensable parties. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 2 2 of 6 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:06 PM INDEX NO. 151657/2020 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/04/2020 11. This action is barred by the applicable Statute of Limitations. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 12. The Court lacks jurisdiction over the person and there is insufficiency of process. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 13. Plaintiff failed to mitigate damages. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 14. That the accident and/or injury to the plaintiffs, ifany, occurred as a result of the activities and/or acts of omission and/or commission of other parties over whom the answering defendants had no control. AS AND FOR AN TWELFTH AFFIRMATIVE DEFENSE 15. That all risks and dangers connected with the situation at the time and place mentioned in plaintiffs' the Complaint were open, obvious and apparent, and were known to and assumed by the plaintiffs herein. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 16. Plaintiffs cannot establish the existence of any dangerous or defective condition as alleged in the Complaint. AS AND FOR A FIRST CROSS-CLAIM OVER AGAINST ALL CO-DEFENDANTS (contribution) 17. Upon information and belief, if plaintiff was caused to sustain any of the injuries claimed or the damages alleged at the time and place set forth in the complaint, liability for which has been denied by answering defendant, said damages will have been sustained by the reason of the culpable conduct and negligence of co-defendant(s), in whole or part, and therefore, answering defendant is entitled to contribution based on factand law from co-defendants, in accordance with the relative responsibilities of the parties hereto. 3 3 of 6 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:06 PM INDEX NO. 151657/2020 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/04/2020 18. reason of the if judgment is recovered in this co- By foregoing, any action, defendant(s) will be liable to answering defendant herein, in the proportion of such relative attorneys' responsibility, together with the costs and disbursements of this action, including fees. AS AND FOR A SECOND CROSS-CLAIM AGAINST ALL CO-DEFENDANTS (contractual indemnification) 19. Upon information and belief, ifplaintiff was caused to sustain any of the injuries claimed or the damages alleged at the time and place set forth in the complaint, liability for which has been denied by answering defendant herein, said damages will have been sustained by reason of the culpable conduct, negligence, and breach of contract of co-defendant(s), and therefore, answering defendant herein is entitled to contractual indemnification based on fact, law and/or agreement from co-defendant(s). 20. By reason of the foregoing, if any judgment is recovered in this action against answering defendant(s) herein, co-defendants will be liable to answering defendant herein for the amount thereof, together with the costs and disbursements of this action, including attorneys fees. AS AND FOR A THIRD CROSS-CLAIM AGAINST ALL CO-DEFENDANTS (common law indemnification) 21. Upon information and belief, if plaintiff was caused to sustain any of the injuries claimed or the damages alleged at the time and place set forth in the complaint, all of which have been denied by answering defendant, said damages will have been sustained by the reason of the culpable conduct and negligence of co-defendant(s), and therefore, answering defendant is entitled to common law indemnification based on fact and law from co-defendant(s). 22. reason of the if judgment is recovered in this co- By foregoing, any action, defendant(s) will be liable to answering defendant herein, for the amount thereof, together with attorneys' the costs and disbursements of this action, including fees. 4 of 6 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:06 PM INDEX NO. 151657/2020 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/04/2020 AS AND FOR A FOURTH CROSS-CLAIM AGAINST ALL CO-DEFENDANTS (Breach of contract for failure to obtain insurance) 23. Upon information and belief, if plaintiff was caused to sustain any of the injuries claimed or the damages alleged at the time and place set forth in the complaint, all of which have been denied by answering defendant, said damages will have been sustained by the reason of the breach of contract by co-defendants in their failure to obtain liability insurance for the benefit of answering defendant and, therefore answering defendant is entitled to common law indemnification based on fact and law from co-defendant(s). 24. reason of the if judgment is recovered in this co- By foregoing, any action, defendant(s) will be liable to answering defendant herein, for the amount thereof, together with attorneys' the costs and disbursements of this action, including fees. WHEREFORE, judgment is demanded (1) dismissing the Complaint in its entirety with prejudice, and (2) awarding such other and further relief, including costs and disbursements, as to this Court may seem just and proper. Dated: New York, New York March 3, 2020 Yours etc., +- G OM, P.C. Igor ar, Esq. Attorneys for Defendants NY FIRETECH INC. and NY FIRE SERVICE & INSTALLATION INC 5 5 of 6 FILED: NEW YORK COUNTY CLERK 03/04/2020 01:06 PM INDEX NO. 151657/2020 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/04/2020 801 Second Avenue, 11th Floor New York NY 10017 (212) 759-5800 Our File No.: 63481 To: Methfessel & Werbel, Esqs. Attorneys for Plaintiff 34th 17th 112 West Street, Floor, Room 17089 New York, NY 10120 (212) 947-1999 File No. 88268 JNW Global Luxury Services Inc. 6539 Grand Ave. Maspeth, NY 11378 6 6 of 6