Preview
FILED: NEW YORK COUNTY CLERK 06/23/2020 04:49 PM INDEX NO. 157046/2019
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 06/23/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
LUCAS EISELE,
Plaintiff, Index No.: 157046/2019
-against- ANSWER TO AMENDED
COMPLAINT WITH
92 LUDLOW OWNERS, LLC., THE AMBER AVALON CROSS-CLAIMS
CORP. d/b/a HOTEL CHANTELLE and JOHN DOE
#1 THOUGH #10 and AJ MELINO & ASSOCIATES, INC.
Defendants.
X
92 LUDLOW OWNERS, LLC., THE AMBER AVALON
CORP. d/b/a HOTEL CHANTELLE,
Third-Party Plaintiffs
-against-
AJ MELINO & ASSOCIATES, INC.
Third-Party Defendant.
X
Defendants, 92 LUDLOW OWNERS, LLC., and THE AMBER AVALON CORP. d/b/a
HOTEL CHANTELLE, by their attorneys, FLEISCHNER POTASH LLP, as and for their
answer to the plaintiff's “,amended complaint, respectfully allege(s):
AS AND FOR A FIRST CAUSE OF ACTION
1. Admit as to those allegations set forth in paragraphs numbered “1”, “3”, “5”, “108”,
“109”, “110”, “111”, “112”, 114”, “126”, “140”, “141”,, “142”, “143”, “155”, “156”, “157” and
“158”.
2. Deny each and every allegation set forth in paragraphs numbered “2”, 4”, “6”, “7”,
“8”, “9”, “10”, “11”, “12”, “13”, “14”, “15’, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”,
“25”, “26”, “27”, “28”, “29”, “30”, “31”, “32”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40”,
“41”, “42”, “43”, “44”, “45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”, “53”, “54”, “55”, “56”,
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“57”, “58” “59”, “60”, “61”, “62”, “63”, “64”, “65”, “66”, “67”, “68”, “69”, “70”, “71”, “72”, “73”,
“74”, “75”, “76”, “77”, “78”, “79”, “80”, “81”, “82”, “83”, “84”, “85”, “86”, “87”, “88”, “89”,
“90”, “91”, “92”, “93”, “94”, “95”, “96”, “97”, “98”, “99”, “100”, “101”, “102”, “103”, “104”,
“105”, “106”, 107”, “132”, 133”, “134”, 135”, “136”, 137”, 138”, 139”, “145”, “146”, “147”, 148”,
“149”, “150”, “151”, 152”, “153”, 154”, “160”, “161”, 162”, “163”, “164”, “165“, 166”, “167”,
“168”, “169”, “170”, “171”, “172”, “173”, “174”, “175”, “176”, ”177” and “178”.
3. Deny knowledge and information sufficient to form a belief as to those allegations
set forth in paragraphs numbered “113”, “ 115”, “116”, “117”, “118”, “119”, “120”, “121”, “122”,
“123”, “124”, “125”, “127”, “128”, “129”, “130,” “131”, “144”, “145”, “146”, “147”, “148”, 149”,
“150”, “151”, “152”, “153”, “154”, “155”, “156”, “157”, “158” and “159”.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
4. Pursuant to CPLR Article 16, the liability of defendants, 92 LUDLOW OWNERS,
LLC., and THE AMBER AVALON CORP. d/b/a HOTEL CHANTELLE, to the plaintiff herein for
non-economic loss is limited to defendants’, 92 LUDLOW OWNERS, LLC., and THE AMBER
AVALON CORP. d/b/a HOTEL CHANTELLE, equitable share determined in accordance with the
relative culpability of each person causing or contributing to the total liability for non-economic
loss.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
5. That by entering into the activity in which the plaintiff was engaged at the time of
the occurrence set forth in the complaint, said plaintiff knew the hazards thereof and the inherent
risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries and
damages were sustained by the plaintiff herein as alleged in the complaint arose from and were
caused by reason of such risks voluntarily undertaken by the plaintiff in his activities and such risks
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were assumed and accepted by him in performing and engaging in said activities.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
6. The defendants not being fully advised as to all the facts and circumstances
surrounding the incident complained of, hereby assert and reserve unto themselves the defenses of
accord and satisfaction, arbitration and award, assumption of risk, contributory negligence,
discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations,
waiver, and any other matter constituting an avoidance or affirmative defense which the further
investigation of this matter may prove applicable herein.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
7. The defendants plead the defense of collateral estoppel by reason of the fact that
there has been an adjudication and determination of the issues of the plaintiff’s claim prior to the
commencement of this action.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
8. Plaintiff has recovered the costs of medical care, dental care, custodial care,
rehabilitation services, loss of earnings and other economical loss and any future such loss or
expense will, with reasonable certainty, be replaced or indemnified in whole or in part from
collateral sources. Any award made to plaintiff shall be reduced in accordance with the provisions
of CPLR 4545(c).
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
9. Any damages sustained by the plaintiff were caused by the culpable conduct of the
plaintiff, including contributory negligence, assumption of risks, breach of contract and not by the
culpable conduct or negligence of this answering defendant. But if a verdict of judgment is awarded
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to the plaintiff, then and in that event the damages shall be reduced in the proportion which the
culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the
damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
10. The risks and dangers, if any, were open, obvious, notorious, and apparent.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
11. Plaintiff’s claim is barred, in whole or in part, as defendant was faced with an
emergency situation, not of the defendant’s making, which was unavoidable, pursuant to the
emergency doctrine.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
12. The complaint fails to state a claim.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
13. The amounts recoverable by plaintiff are subject to limitation pursuant to Section
1601 of the Civil Practice Law and Rules, by reason of the culpable conduct of other persons
who are, or with reasonable diligence could have been made party defendants to this action, or
pursuant to Section 15-108 of the General Obligations Law, by reason of a prior settlement
between plaintiff and said persons, or pursuant to Section 4545 of the Civil Practice Law and
Rules are subject to reduction by collateral sources received by plaintiff.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
14. The Plaintiff was negligent in failing to mitigate its damages by seeking
appropriate remedial measures after the occurrence of the alleged incident.
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AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
15. That these answering Defendants were without notice of any of the purported
conditions alleged in the various complaints.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
16. The defendants plead the defense of Res Judicata by reason of the fact that there has
been an adjudication and determination of the merits of the plaintiff's claim prior to the
commencement of this action.
AS AND FOR THE FIRST CROSS-CLAIM AGAINST CO-DEFENDANT
AJ MELINO & ASSOCIATES, INC.
17. That if plaintiff was caused to sustain damages by reason of the claims set forth in
the complaint, all of which are specifically denied, such damages were sustained by reason of the
acts, conduct, misfeasance or nonfeasance, of co-defendant AJ MELINO & ASSOCIATES, INC.,
their agents, servants and/or employees, and not by these answering defendants, and if any
judgment is recovered by plaintiff against these answering defendants, such defendants will be
damaged thereby, and co-defendant AJ MELINO & ASSOCIATES, INC. is or will be responsible
therefore in whole or in part. Defendants hereby demand an answer to this cross-claim in
accordance with CPLR §3011.
AS AND FOR THE SECOND CROSS-CLAIM AGAINST CO-DEFENDANT
AJ MELINO & ASSOCIATES, INC.
18. That if plaintiff was caused to sustain damages by reason of the claims set forth in
the complaint, all of which are specifically denied, and if any judgment is recovered by the plaintiff
against these answering defendants, that under a contract entered into between the parties or by
reason of express or implied warranty, the co-defendant, AJ MELINO & ASSOCIATES, INC., will
be liable over to these answering defendants pursuant to the terms of the indemnity agreement in
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said contract or warranty, for the full amount of any verdict or judgment awarded to the plaintiff
against these answering defendants, together with attorneys fees, costs and disbursements.
Defendants hereby demand an answer to this cross-claim in accordance with CPLR §3011.
WHEREFORE, defendants, 92 LUDLOW OWNERS, LLC., and THE AMBER AVALON
CORP. d/b/a HOTEL CHANTELLE demand judgment dismissing the complaint herein together
with the costs and disbursements of this action.
Dated: New York, New York
June 23, 2020
Yours, etc.,
FLEISCHNER POTASH LLP
By:
Kevin J. McArdle
Attorneys for Defendants
92 LUDLOW OWNERS, LLC. and
THE AMBER AVALON CORP.
d/b/a HOTEL CHANTELLE
14 Wall Street, Suite 5C
New York, New York 10005
(646) 520-4200
Our File No.: 386-22176
TO: (See Attached Affidavit)
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AFFIDAVIT OF SERVICE
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss:
Fejzije Avdiu, being duly sworn, deposes and says:
That I am not a party to the within action, am over 18 years of age and reside in Richmond County,
New York.
That on June 23, 2020, deponent served the within ANSWER TO AMENDED COMPLAINT WITH
CROSS-CLAIMS upon the attorneys and parties listed below by ELECTRONIC FILING (ECF).
TO:
Brian Murtha, Esq. – Brian@surislaw.com
Maria Zambrano, Esq. – Maria@surislaw.com
Suris & Associates, P.C.
Attorneys for Plaintiff
395 North Service Road- Suite 302
Melville, New York 11747
631-423-9700
Gloria Djelevic, Esq. -gloria.djelevic@rmkb.com
ROPERS, MAJESKI, KOHN & BENTLEY, P.C.
Attorneys for Third-Party Defendant
AJ MELINO & ASSOCIATES, INC.
750 Third Avenue, 25 FI.
New York, New York 10017
(212) 668-5927
Fejzije Avdiu
Sworn to before me this
23rd day of June, 2020
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Index No.: 157046/2019 Year 2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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LUCAS EISELE,
Plaintiff,
-against-
92 LUDLOW OWNERS, LLC., THE AMBER AVALON
CORP. d/b/a HOTEL CHANTELLE and JOHN DOE
#1 THOUGH #10,
Defendants.
_____________________________________X
(AND OTHER ACTIONS)
══════════════════════════════════════════════════════
ANSWER TO AMENDED COMPLAINT WITH CROSS-CLAIMS
══════════════════════════════════════════════════════
FLEISCHNER POTASH LLP
Attorneys for DEFENDANTS
92 LUDLOW OWNERS, LLC. and
THE AMBER AVALON CORP. d/b/a HOTEL CHANTELLE
14 Wall Street, Suite 5C
New York, New York 10005
(646) 520-4200
══════════════════════════════════════════════════════
To:
Attorney(s) for
══════════════════════════════════════════════════════
Service of a copy of the within is hereby admitted.
Dated:
.........................
Attorney(s) for
══════════════════════════════════════════════════════
PLEASE TAKE NOTICE
┌─┐ that the within is a (certified) true copy of a
└─┘ entered in the office of the clerk of the within named Court on
NOTICE OF
ENTRY
┌─┐ that an Order of which the within is a true copy will be presented for settlement to the
Hon.
└─┘ one of the judges of the within named Court, at , on , at .
NOTICE OF
SETTLEMENT
Dated:
FLEISCHNER POTASH LLP
Attorneys for
14 Wall Street, Suite 5C
New York, New York 10005
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