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FILED: NEW YORK COUNTY CLERK 08/15/2020 11:54 AM INDEX NO. 151440/2020
NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 08/15/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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CHARLES WAISBREN and BENJAMIN WAISBREN
as co-administrators of the goods, chattels and credits Index No.: 151440/2020
of SAMUEL WAISBREN, deceased,
TYLER HARTSFIELD, MEGAN FORSTER,
KEVIN O’SHEA, BRITTANY FALLON, VERIFIED ANSWER
MICHAEL FALLON, MADISON ARMSTON, to CROSS CLAIMS
VIVEK SHAHANI, JASON CARETSKY of Defendant
and LAUREN CARETSKY, L.C.D. ELEVATOR
REPAIR, INC.
Plaintiffs,
-against-
MANHATTAN PROMENADE LLC,
ATA ENTERPRISES MANAGEMENT INC.,
FUJITEC AMERICA INC., SERGE ELEVATOR CO. INC.,
AMERICAN ELEVATOR & MACHINE
CORPORATION, L.C.D. ELEVATOR REPAIR INC.
and LIFT TECH LTD,
Defendants.
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Defendant, FUJITEC AMERICA, INC. (“FAI” or “answering defendant”),
by its attorneys, SWARTZ LAW OFFICES, as and for its answer to the cross-claims
in the answer of defendant L.C.D. ELEVATOR REPAIR, INC., respectfully alleges,
upon information and belief, as follows:
AS TO THE FIRST CROSS-CLAIM
1. Denies each and every allegation contained in paragraph 49 thereof to
the extent asserted against this answering defendant.
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AS TO THE SECOND CROSS-CLAIM
2. Denies each and every allegation contained in paragraph 50 thereof to
the extent asserted against this answering defendant.
AS TO THE THIRD CROSS-CLAIM
3. Denies each and every allegation contained in paragraph 51 thereof to
the extent asserted against this answering defendant.
AS TO THE FOURTH CROSS-CLAIM
4. Denies each and every allegation contained in paragraph 52 thereof to
the extent asserted against this answering defendant, and begs leave to refer, at the
trial of this action, to all writings comprising the alleged contract for all terms and
conditions applicable thereto as if same were fully set forth herein.
AS TO THE FIFTH CROSS-CLAIM
5. Denies each and every allegation contained in paragraph 53 thereof to
the extent asserted against this answering defendant, and begs leave to refer, at the
trial of this action, to all writings comprising the alleged contract for all terms and
conditions applicable thereto as if same were fully set forth herein.
AS TO THE SIXTH CROSS-CLAIM
6. Denies each and every allegation contained in paragraphs 54 and 55
thereof to the extent asserted against this answering defendant.
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE,
ANSWERING DEFENDANT ALLEGES:
7. That to the extent the cross-claims asserted herein against FAI are based
upon causes of action or recovery by the plaintiffs in this action, those cross-claims
are subject to the same affirmative defenses asserted by FAI in its answer to the
complaint of the plaintiffs, which affirmative defenses are specifically incorporated
herein by reference.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE,
ANSWERING DEFENDANT ALLEGES:
8. That to the extent the cross-claims asserted herein against FAI seek
indemnification or contribution, no such recovery may be had for punitive damages,
as it would be against the public policy of the State of New York.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE,
ANSWERING DEFENDANT ALLEGES:
9. That the cross-claims fail to state a cause of action against FAI, upon
which there can be a recovery.
AS FOR A FOURTH AFFIRMATIVE DEFENSE,
ANSWERING DEFENDANT ALLEGES:
10. That the cross-claims are barred by failure to preserve the evidence or
by spoliation of the evidence.
WHEREFORE, the answering defendant demands judgment dismissing the
cross-claims asserted against this answering defendant, together with all costs,
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interest, disbursements and other expenses incurred in this action, including
attorney’s fees.
Dated: New York, New York
August 15, 2020
___________________________
GERALD NEAL SWARTZ
SWARTZ LAW OFFICES
Attorneys for Defendant
FUJITEC AMERICA, INC.
475 Park Avenue South
27TH Floor
New York, New York 10016
Tel. (212) 725-7070
TO:
GAIR, GAIR, CONASON, RUBINOWITZ, BLOOM,
HERSHENHORN, STEIGMAN & MACKAUF
Attorneys for Plaintiffs
CHARLES WAISBREN, et al.
80 Pine Street, 34th Floor
New York, New York 10005
(212) 943-1090
PERRY, VAN ETTEN, ROZANSKI
& KUTNER, LLP
Attorneys for Defendant
MANHATTAN PROMENADE LLC and
ATA ENTERPRISES MANAGEMENT INC.
60 Broad Street, Suite 3600A
New York, New York 10004
(212) 406-9710
File No.: 129003
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GOTTLIEB, SIEGEL & SCHWARTZ, LLP
Attorneys for Defendant
AMERICAN ELEVATOR & MACHINE
CORPORATION
207 East 94th Street, Mezzanine Level
New York, New York 10128
(646) 449-8141
GALLO VITUCCI KLAR, LLP
Attorneys for Defendant
L.C.D. ELEVATOR REPAIR INC.
90 Broad Street
New York, New York 10004
GOETZ SCHENKER BLEE & WIEDERHORN
Attorneys for Defendant
LIFT TECH LTD
101 Greenwich Street, 20th Floor
New York, New York 10006
(212) 363-6900
File No.: 16949-NA
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Re: Waisbren v Fujitec
ATTORNEY'S VERIFICATION
GERALD NEAL SWARTZ, an attorney-at-law duly admitted to practice
before the Courts in the State of New York, affirms the following under penalties of
perjury, pursuant to CPLR §2106:
I am the attorney for answering defendant FUJITEC AMERICA, INC. in the
within action. I have read the foregoing answer to cross claims of defendant L.C.D.
ELEVATOR REPAIR, INC. and know the contents thereof to be true to my own
knowledge, except as to those matters stated to be upon information and belief; and
as to those matters, I believe them to be true.
This verification is made by the undersigned attorney, because upon
information and belief, FUJITEC AMERICA, INC. is a foreign corporation.
The grounds as to all matters not stated upon the undersigned's own
knowledge are investigations and information received by the undersigned in the
course of his duties as the attorney for answering defendant.
Dated: New York, New York
August 15, 2020
________________________
GERALD NEAL SWARTZ
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FILED: NEW YORK COUNTY CLERK 08/15/2020 11:54 AM INDEX NO. 151440/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 08/15/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x CHARLES WAISBREN and BENJAMIN WAISBREN as co-administrators of the goods, chattels and credits Index No.: 151440/2020 of SAMUEL WAISBREN, deceased, TYLER HARTSFIELD, MEGAN FORSTER, KEVIN O’SHEA, BRITTANY FALLON, VERIFIED ANSWER MICHAEL FALLON, MADISON ARMSTON, to CROSS CLAIMS VIVEK SHAHANI, JASON CARETSKY of Defendant and LAUREN CARETSKY, L.C.D. ELEVATOR REPAIR, INC. Plaintiffs, -against- MANHATTAN PROMENADE LLC, ATA ENTERPRISES MANAGEMENT INC., FUJITEC AMERICA INC., SERGE ELEVATOR CO. INC., AMERICAN ELEVATOR & MACHINE CORPORATION, L.C.D. ELEVATOR REPAIR INC. and LIFT TECH LTD, Defendants. --------------------------------------------------------------------x Defendant, FUJITEC AMERICA, INC. (“FAI” or “answering defendant”), by its attorneys, SWARTZ LAW OFFICES, as and for its answer to the cross-claims in the answer of defendant L.C.D. ELEVATOR REPAIR, INC., respectfully alleges, upon information and belief, as follows: AS TO THE FIRST CROSS-CLAIM 1. Denies each and every allegation contained in paragraph 49 thereof to the extent asserted against this answering defendant. 1 of 6 FILED: NEW YORK COUNTY CLERK 08/15/2020 11:54 AM INDEX NO. 151440/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 08/15/2020 AS TO THE SECOND CROSS-CLAIM 2. Denies each and every allegation contained in paragraph 50 thereof to the extent asserted against this answering defendant. AS TO THE THIRD CROSS-CLAIM 3. Denies each and every allegation contained in paragraph 51 thereof to the extent asserted against this answering defendant. AS TO THE FOURTH CROSS-CLAIM 4. Denies each and every allegation contained in paragraph 52 thereof to the extent asserted against this answering defendant, and begs leave to refer, at the trial of this action, to all writings comprising the alleged contract for all terms and conditions applicable thereto as if same were fully set forth herein. AS TO THE FIFTH CROSS-CLAIM 5. Denies each and every allegation contained in paragraph 53 thereof to the extent asserted against this answering defendant, and begs leave to refer, at the trial of this action, to all writings comprising the alleged contract for all terms and conditions applicable thereto as if same were fully set forth herein. AS TO THE SIXTH CROSS-CLAIM 6. Denies each and every allegation contained in paragraphs 54 and 55 thereof to the extent asserted against this answering defendant. 2 of 6 FILED: NEW YORK COUNTY CLERK 08/15/2020 11:54 AM INDEX NO. 151440/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 08/15/2020 AS AND FOR A FIRST AFFIRMATIVE DEFENSE, ANSWERING DEFENDANT ALLEGES: 7. That to the extent the cross-claims asserted herein against FAI are based upon causes of action or recovery by the plaintiffs in this action, those cross-claims are subject to the same affirmative defenses asserted by FAI in its answer to the complaint of the plaintiffs, which affirmative defenses are specifically incorporated herein by reference. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, ANSWERING DEFENDANT ALLEGES: 8. That to the extent the cross-claims asserted herein against FAI seek indemnification or contribution, no such recovery may be had for punitive damages, as it would be against the public policy of the State of New York. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, ANSWERING DEFENDANT ALLEGES: 9. That the cross-claims fail to state a cause of action against FAI, upon which there can be a recovery. AS FOR A FOURTH AFFIRMATIVE DEFENSE, ANSWERING DEFENDANT ALLEGES: 10. That the cross-claims are barred by failure to preserve the evidence or by spoliation of the evidence. WHEREFORE, the answering defendant demands judgment dismissing the cross-claims asserted against this answering defendant, together with all costs, 3 of 6 FILED: NEW YORK COUNTY CLERK 08/15/2020 11:54 AM INDEX NO. 151440/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 08/15/2020 interest, disbursements and other expenses incurred in this action, including attorney’s fees. Dated: New York, New York August 15, 2020 ___________________________ GERALD NEAL SWARTZ SWARTZ LAW OFFICES Attorneys for Defendant FUJITEC AMERICA, INC. 475 Park Avenue South 27TH Floor New York, New York 10016 Tel. (212) 725-7070 TO: GAIR, GAIR, CONASON, RUBINOWITZ, BLOOM, HERSHENHORN, STEIGMAN & MACKAUF Attorneys for Plaintiffs CHARLES WAISBREN, et al. 80 Pine Street, 34th Floor New York, New York 10005 (212) 943-1090 PERRY, VAN ETTEN, ROZANSKI & KUTNER, LLP Attorneys for Defendant MANHATTAN PROMENADE LLC and ATA ENTERPRISES MANAGEMENT INC. 60 Broad Street, Suite 3600A New York, New York 10004 (212) 406-9710 File No.: 129003 4 of 6 FILED: NEW YORK COUNTY CLERK 08/15/2020 11:54 AM INDEX NO. 151440/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 08/15/2020 GOTTLIEB, SIEGEL & SCHWARTZ, LLP Attorneys for Defendant AMERICAN ELEVATOR & MACHINE CORPORATION 207 East 94th Street, Mezzanine Level New York, New York 10128 (646) 449-8141 GALLO VITUCCI KLAR, LLP Attorneys for Defendant L.C.D. ELEVATOR REPAIR INC. 90 Broad Street New York, New York 10004 GOETZ SCHENKER BLEE & WIEDERHORN Attorneys for Defendant LIFT TECH LTD 101 Greenwich Street, 20th Floor New York, New York 10006 (212) 363-6900 File No.: 16949-NA 5 of 6 FILED: NEW YORK COUNTY CLERK 08/15/2020 11:54 AM INDEX NO. 151440/2020 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 08/15/2020 Re: Waisbren v Fujitec ATTORNEY'S VERIFICATION GERALD NEAL SWARTZ, an attorney-at-law duly admitted to practice before the Courts in the State of New York, affirms the following under penalties of perjury, pursuant to CPLR §2106: I am the attorney for answering defendant FUJITEC AMERICA, INC. in the within action. I have read the foregoing answer to cross claims of defendant L.C.D. ELEVATOR REPAIR, INC. and know the contents thereof to be true to my own knowledge, except as to those matters stated to be upon information and belief; and as to those matters, I believe them to be true. This verification is made by the undersigned attorney, because upon information and belief, FUJITEC AMERICA, INC. is a foreign corporation. The grounds as to all matters not stated upon the undersigned's own knowledge are investigations and information received by the undersigned in the course of his duties as the attorney for answering defendant. Dated: New York, New York August 15, 2020 ________________________ GERALD NEAL SWARTZ 6 of 6