Preview
FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018
L032785101
CM/da
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------x Index No. 154374/2018
YVETTE McCLAMB,
Plaintiff '
ANSWER,
DEMAND FOR VERIFIED
BILL OF PARTICULARS
-against-
AND
COMBINED DEMAND FOR
HOUSING PARTNERSHIP DEVELOPLMENT DISCOVERY AND
INSPECTION
CORPORATION, KALAHARI CONDOMINIUM, THE
BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, WALLACK MANAGEMENT CO.,
INC., RNC INDUSTRIES, LLC and WEST NEW YORK
RESTORATION OF CT, INC.,
Defendants.
------------------------------------------ ------------x
The Defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF
KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC., answering the
complaint, upon information and belief, by the Law Office of MARGARET G. KLEIN &
ASSOCIATES, as attorney:
1. Deny knowledge or information sufficient to form a belief as to the truth of each and
every allegation contained in paragraphs of the complaint numbered "1", "2", "3", "8", "9", "10",
1» cc17» cc18rr cc19» cc2prr cc21rr cc22» cc23» cc24» cc25» cc26rr cc27» cc28» cc29rr cc3prr cc31rr cc32»
"11", "17", "18", "19", "20", r "21", "22", "23", r "24", "25", r "26", "27", "28", "29", "30", "31", "32",
cc33rr cc34rr cc35rr cc36rr cc37rr cc38rr cc39» cc40'» cc41rr cc42rr cc44rr
cc43'r'r cc45rr cc47rr cc48'»
"33", "34", "35", "36", "37", r "38", "39", "40", "41", "42", "43", "44", "45", "47", r and "48".
2. Deny each and every allegation contained in paragraphs of the complaint numbered
"53"
"4", "13", "46", "50", and except these answering defendants respectfully leave allconclusions
of law to determination by the Court.
3. Deny knowledge or information sufficient to form a belief as to the truth of each and
every allegation contained in paragraphs of the complaint numbered "5", "6", "7", "12", "14", "15",
"16", and "52", except these answering defendants respectfully leave all conclusions of law to
determination by the Court.
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4. Deny each and every allegation contained in paragraphs of the complaint numbered
"49" "51"
"49", and "51".
AS A FIRST AFFIRMATIVE DEFENSE:
5. Any damages sustained by the plaintiff were caused by the comparative negligence of
the plaintiff, including breach of contract and not by the negligence of these answering defendants.
If a verdict or judgment is awarded to the plaintiff, then and in that event the damages shall be
reduced in the proportion which the comparative negligence of the plaintiff caused the damages.
AS A SECOND AFFIRMATIVE DEFENSE:
6. Upon information and belief, any past or future costs or expenses incurred or to be
incurred by theplaintiff for medical care, dental care, custodial care or rehabilitative services, loss of
earnings or other economic loss, have been or will be replaced or indemnified with reasonable
Workers'
certainty in whole or in part from insurance benefits, Social Security benefits,
Compensation benefits, disability benefits, employee benefits programs and any other similar source,
related to or occasioned by the injury, disease or condition for which the plaintiff seeks damages in
this action.
7. If any damages are recoverable against the answering defendants, the amount of such
damages shall be diminished by the amount of the funds which plaintiff has or shall receive from
such collateral source.
AS A THIRD AFFIRMATIVE DEFENSE:
8. Whatever injuries and/or damages were sustained by the plaintiff at thetime and place
alleged in the complaint, were due to the acts of parties over whom the answering defendants were
not obligated to exercise any control or supervision.
AS A FOURTH AFFIRMATIVE DEFENSE:
9. Upon information and belief, plaintiff failed to take all steps necessary and proper to
mitigate the damages allegedly suffered.
AS A FIFTH AFFIRMATIVE DEFENSE:
10. If this/these answering defendants are found liable for the occurrence and for damages
alleged in the complaint or any part thereof, and ifthe share of liability of each answering defendant
is 50'/oor less of the total liability assigned to all persons liable,pursuant to Section 1601 of the Civil
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Practice Law and Rules, the liability of each answering defendant, if any, for non-economic loss
shall not exceed the equitable share of answering defendants determined in accordance with the
relative culpability to the total liability for the non-economic loss alleged herein by plaintiff.
AS A SIXTH AFFIRMATIVE DEFENSE:
11. If injuries and damages were sustained by the plaintiff at the time and place and
in the manner alleged in the complaint, third persons are responsible for such injuries and damages.
AS A SEVENTH AFFIRMATIVE DEFENSE
12. That the injuries alleged to have been sustained by the plaintiff at the time and place
mentioned in the complaint were sustained while plaintiff was engaged in an activity into which
plaintiff had entered knowing the hazards thereof and the inherent risks incident to such activity,and
knowing the methods to be used in performance of such activity and the dangers thereof; that such
risks and dangers were accepted and assumed by plaintiff upon entering into and continuing such
activity.
AS AND FOR A FIRST CROSS-COMPLAINT AGAINST HOUSING
PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, AND
WEST NEW YORK RESTORATION OF CT, INC.:
13, Ifthe plaintiff was caused to sustain injuries and damages at the time and place and in
the manner alleged in the complaint through any carelessness, recklessness and negligence other than
the plaintiff s own carelessness, recklessness and negligence, said injuries and damages were caused
by reason of the carelessness, recklessness negligence and/or affirmative acts of omission or
commission by each party against whom this cross-complaint is pleaded and the agents, servants
and/or employees of each such party, and ifany judgment is recovered herein by the plaintiff against
the defendants asserting this cross-complaint, the said defendants will be damaged thereby and each
party against whom this cross-complaint is pleaded is or will be responsible therefor.
14. By reason of the foregoing, each party against whom this cross-complaint is pleaded
will be liable to and bound to indemnify the defendants asserting the same in the event of a recovery
herein by the plaintiff against the defendants asserting this cross-complaint and bound to pay to the
defendants asserting this cross-complaint the full amount of such recovery against the said
attorneys'
defendants asserting this cross-complaint and all fees, costs of investigation and
disbursements.
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15. and reason of the each against whom this cross-
Alternatively by foregoing, party
complaint is pleaded, on the basis of apportionment of responsibility for the alleged occurrence, will
be liable to contribute to the verdict or judgment recovered against the said defendants asserting this
cross-complaint.
AS AND FOR A SECOND CROSS-COMPLAINT AGAINST
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES,
LLC, AND WEST NEW YORK RESTORATION OF CT, INC.:
16. Prior to the date of the occurrence alleged in the complaint of the the cross-
plaintiff,
complaining defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF
KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC., and HOUSING
PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, and WEST NEW
YORK RESTORATION OF CT, INC., entered into a contract for valuable consideration whereby
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, and
WEST NEW YORK RESTORATION OF CT, INC. agreed to indemnify and hold harmless the
cross-complaining defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF
KALAHARI CONDOMINIUM, and WALLACK MANAGEMENT CO., INC., against claims and
causes of action such as the claims and causes of action which are asserted in this action by the
plaintiff(s) and the said agreement was in full force and effect as of the date of the alleged occurrence
which is the subject of the complaint herein.
17. By reason of the foregoing, HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, RNC INDUSTRIES, LLC, and WEST NEW YORK RESTORATION OF CT,
INC., are or will be liable to the cross-complaining defendants, KALAHARI CONDOMINIUM,
THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and WALLACK
MANAGEMENT CO., INC., and bound to indemnify the cross-complaining defendants,
KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM and WALLACK MANAGEMENT CO., INC., for the amount of any judgment
or verdict that may be recovered herein by the plaintiff against the cross-complaining defendants,
KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM and WALLACK MANAGEMENT CO., INC.
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AS AND FOR A THIRD CROSS-COMPLAINT AGAINST
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES,
LLC, AND WEST NEW YORK RESTORATION OF CT, INC.:
18. Prior to the date of the alleged occurrence which is the subject of this action,
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, and
WEST NEW YORK RESTORATION OF CT, INC., agreed to obtain and maintain forthe benefit of
the defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM and WALLACK MANAGEMENT CO., INC., a policy of liability insurance
insuring the said defendants against claims such as that which are asserted in thisaction against said
defendants.
Upon information and belief, HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, RNC INDUSTRIES, LLC, and WEST NEW YORK RESTORATION OF CT,
INC. breached the said agreement by failing to obtain and maintain such a policy of insurance, and if
and to the extent that the plaintiff shall recover against the defendants, KALAHARI
CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, and
WALLACK MANAGEMENT CO., INC., the said defendants have been damaged thereby and is/are
entitled to be indemnified by HOUSING PARTNERSHIP DEVELOPMENT CORPORATION,
RNC 1NDUSTRIES, LLC, and WEST NEW YORK RESTORATION OF CT, INC.
WHEREFORE, the defendants, KALAHARI CONDOMINIUM, THE BOARD OF
MANAGERS OF KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC.,
demand judgment dismissing the complaint herein with costs or, alternatively, ifthe complaint shall
not be dismissed, that the amount of damages otherwise recoverable against said defendants shallbe
diminished in the proportion which the culpable conduct attributable to the plaintiff bears to the
culpable conduct, if any, of said defendants and further demand that the ultimate rights of the
defendants in this action as amongst themselves be determined in this and that the cross-
action,
complaining defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF
KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC., have judgment over
and against HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES,
LLC, and WEST NEW YORK RESTORATION OF CT, INC., for the amount of any verdict or
judgment which may be obtained against said cross-complaining defendants, KALAHARI
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CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and
WALLACK MANAGEMENT CO., INC., or, alternatively, for contribution toward such verdict or
judgment on the basis of apportionment of responsibility, together with the costs and disbursements
attorneys'
of this action plus any and all fees, and allother costs and disbursements in this action.
Dated: New York, New York
July 10, 2018
Yours, etc.
LAW OFFICE OF
MARGARET G. KLEIN & ASSOCIATES
By:
CAROL MORELL
E-Signature Pursuant to STL § 304(2)
Attorney for Defendants
KALAHARI CONDOMINIUM, THE BOARD OF
MANAGERS OF KALAHARI CONDOMINIUM,
and WALLACK MANAGEMENT CO., INC.
Office & P. O. Address
200 Madison Avenue, 2nd Floor
New York, New York 10016
(646) 392-9250
TO: RHEINGOLD GIUFFRA RUFFO &
PLOTKIN, LLP
Attorneys for Plaintiff
551 Fifth Avenue, 29th Fl.
New York, NY 10176
(212) 684-1880
HOUSING PARTNERSHIP
DEVELOPLMENT CORPORATION
242 West 36th Street, 3rd Fl.
New York, NY 10018
RNC INDUSTRIES, LLC
720 Blue Point Road
Holtsville, NY 11742
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WEST NEW YORK RESTORATION
OF CT, INC.
1800 Boston Road
Bronx, NY 10460
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File No.: L032785101
VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
C. . being duly sworn, deposes and says that
(Num
(s)he is the ve of LAHARI CONDOMINIUM the entity
(Dtle)
named in the within entitled action; (s)he has read the foregoing Answer and knows the contents
thereof, and that the same is true to his/her own knowledge, except as to the matters therein
stated to be alleged upon information and belief, and as to those matters (s)he believes them to
be true.
(s
Sworn to before me this
day of 2018.
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OTARY BLI
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Coun fy
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L032785101
CM/da
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------X
YVETTE McCLAMB,
Index No.: 154374/2018
Plaintiff,
-against. NOTICE OF
CERTIFICATION
HOUSING PARTNERSHIP DEVELOPLMENT
CORPORATION, KALAHARI CONDOMINIUM,
THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, WALLACK MANAGEMENT
CO., INC., RNC INDUSTRIES, LLC and WEST
NEW YORK RESTORATION OF CT, INC.,
Defendants.
__--__--------------------- ____----___________________----------X
PLEASE TAKE NOTICE, that pursuant to 22 NYCRR Section 130-1.1-a(a), to the best of the
undersigned's knowledge, information and belief, the following papers:
• Verified answer, (cross-complaint)
• Demand for verified bill of particulars and combined demand for 4
discovery
inspection
• Demand for disclosure as to Medicare pursuant to the SCHIP EXTENSION ACT OF
2007
• Demand for prior or subsequent injury
• Demand for pleadings and in this action and all other actions to this
discovery relating
accident
• Notice to take deposition
• Notice to inspect premises and/or damaged property
• Notice of intent to conduct physical/mental examination
• Notice service means of electronic or facsimile transmittal,
declining by
• Notice to preserve evidence
• Demand pursuant to Rule CPLR
2103(e)
• Demand pursuant to Rule 3120 CPLR
• Request for supplemental demand for relief
and/or contentions contained therein, are in accordance with the Rules pertaining to this certification.
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Dated: New York, New York
July 10, 2018
Yours, etc.
LAW OFFICE OF
MARGARET G. KLEIN & ASSOCIATES
By:
CAROL MORELL
E-Signature Pursuant to STL § 304(2)
Attorney for Defendants
KALAHARI CONDOMINIUM, THE BOARD OF
MANAGERS OF KALAHARI CONDOMINIUM,
and WALLACK MANAGEMENT CO., INC.
Office & P. O. Address
200 Madison Avenue, 2nd Floor
New York, New York 10016
(646) 392-9250
TO: RHEINGOLD GIUFFRA RUFFO 4
PLOTKIN, LLP
Attorneys for Plaintiff
551 Fifth Avenue, 29th Fl.
New York, NY 10176
(212) 684-1880
HOUSING PARTNERSHIP
DEVELOPLMENT CORPORATION
242 West 36th Street, 3rd Fl.
New York, NY 10018
RNC INDUSTRIES, LLC
720 Blue Point Road
Holtsville, NY 11742
WEST NEW YORK RESTORATION
OF CT, INC.
1800 Boston Road
Bronx, NY 10460
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LO32785101
CM/da
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-____________________________________--------------------------------X
YVETTE McCLAMB, Index No. 154374/2018
Plaintiff,
-against- DEMAND FOR VERIFIED
BILL OF PARTICULARS
HOUSING PARTNERSHIP DEVELOPLMENT
CORPORATION, KALAHARI CONDOMINIUM, THE
BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, WALLACK MANAGEMENT CO.,
INC., RNC INDUSTRIES, LLC and WEST NEW YORK
RESTORATION OF CT, INC.,
Defendants.
---------------------------------------------------------------------x
C O U N S E L:
PLEASE TAKE NOTICE, that in accordance with Section 3041, Rules 3042 and 3043
and Section 3044 of the CPLR, you are hereby required to serve upon the Law Office of
Margaret G. Klein 4 Associates, located at 200 Madison Avenue, New York, NY 10016 on
August 10, 2018 at 10:00 a.m., a Verified Bill of Particulars pursuant to the following demands:
1. State the date and time of day of the occurrence.
2. State the location of the occurrence, giving its address (by number, street, city or
town or if the place of the occurrence had no address, describing its location from
fixed geographical sites):
(a) if within a building, give the floor number and the location thereon; street
floor or ground floor to be considered as the first floor;
(b) if upon a stairway, set forth the location of the stairway in the premises,
stating between what floors itis situated; also the particular step on said stairway,
counting from the bottom;
(c) if on the sidewalk, the distance from the nearest intersection and from the curb
and building lines;
(d) if within an elevator, describe the elevator sufficiently to differentiate itfrom
other elevators in the building.
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3. If the plaintiff claims a dangerous, unsafe, or defective condition was the cause of
the occurrence:
(a) describe that condition;
(b) set forth in what manner the condition described was dangerous, defective
and/or unsafe;
(c) specify the date and time when the condition was caused or created;
(d) set forth the identity of the person or entity who caused or created the
condition.
4. State the manner in which itis claimed the alleged accident occurred.
5. State the acts or omissions constituting the negligence claimed, specifying the
exact date or dates when the alleged acts were committed and, if there is more
than one defendant, the acts or omissions of each defendant constituting the
alleged negligence.
6. If actual notice is claimed, set forth:
(a) the name(s) of the person(s) who is/are claimed to have given such notice;
(b) the name(s) of the person(s) to whom notice is claimed to have been given;
(c) whether the notice was written or oral;
(d) the date the notice was given; and
(e) if in writing, provide a true copy thereof.
7. If constructive notice is claimed, set forth the length of time itwill be claimed the
alleged condition existed.
8. State the injuries claimed, giving the location, duration and extent of each and
specifying those claimed to be permanent.
9. State the length of time plaintiff was confined:
(a) to hospital;
(b) to bed;
(c) to house.
10. The names and addresses of doctors, hospitals and any other medical
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providers and dates treatment was rendered.
11. State the length of time plaintiff(s) will claim incapacity from employment.
12. State the following:
(a) vocation of plaintiff(s) at time of alleged occurrence;
(b) name and address of employer;
(c) average weekly earnings;
(d) if self-employed, a detailed statement of how alleged loss of earnings or
income is calculated.
13. If the plaintiff attended school at the time of this incident, provide:
(a) the name of the school;
(b) the plaintiff's grade;
(c) the amount of time missed from school due to the occurrence.
14. Set forth a detailed statement of amounts claimed as special damages, if any, for:
(a) physician's services;
(b) hospital expenses;
nurses'
(c) services;
(d) medical supplies;
(e) loss of earnings;
(f) any additional or other special damages.
15. Set forth a true copy of any contract, lease or express warranty referred to in the
complaint; if an oral contract, express warranty or lease is claimed, state the
names of the persons who allegedly entered into the same, the date and place the
same was allegedly entered and the substance thereof.
16. If violation of any rule, regulation, code, ordinance, law or statute is claimed,
specify the Chapter, Article, Section and Paragraph of same allegedly violated by
each defendant.
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17. With respect to each plaintiff, separately, state:
(a) residence address at time of the alleged occurrence;
(b) residence address at present time;
(c) date of birth;
(d) social security number.
18. Ifloss or diminution of services, society and/or consortium is claimed, specify
precisely the services, society and/or consortium claimed to have been lost or
diminished, the dates between which loss or diminution is claimed and the manner
in which the damages claimed have been computed.
IN THE EVENT THAT THE WITHIN CLAIM INCLUDES A CLAIM FOR
VICARIOUS LIABILITY
19. State the basis upon which itis claimed that defendant is vicariously liable.
20. Specify the acts or omissions of the individual(s) or entity(ies) upon which you
base your claim of vicarious liability.
21. Specify whether or not it isclaimed that defendant(s) and said individual(s) or
entity(ies) had:
a) an employer-employee relationship;
b) a principal-agent relationship;
c) an employer-independent contractor relationship;
d) If none of the above, state the nature of the relationship between defendant
and the said individual(s) or entity(ies) allegedly giving rise to vicarious
liability on the part of defendant(s).
22. Specify all acts or omissions of the said individual(s) or entity(ies) which
allegedly caused or contributed to the injury complained of herein.
23. Do you claim that the defendant(s) had notice, either actual or constructive, of any
facts indicating that the defendant(s) knew or should have known that the said
individual(s) or entity(ies) had engaged in acts or omissions of the same type as
alleged herein prior to the date of the subject occurrence? Ifso, state whether such
notice is actual and/or constructive. If actual notice is claimed, identify the
person(s) by name, title and/or job description, who possessed such actual notice.
If constructive notice is alleged, state the facts upon which such claim is
predicated.
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24. Specify any policies and/or provisions allegedly violated which caused and/or
contributed to the injury complained of in connection with the claim of vicarious
liability.
25. Specify any statutes, rules, regulations and/or ordinances allegedly violated in
connection with the claim of vicarious liability.
PLEASE TAKE FURTHER NOTICE, that unless the above demand is complied with
within thirty (30) days, an application will be made to preclude the plaintiff(s) from giving any
evidence in accordance with the aforementioned rules.
Dated: New York, New York
July10, 2018
Yours, etc.
LAW OFFICE OF
MARGARET G. KLEIN & ASSOCIATES
By:
CAROL MORELL
E-Signature Pursuant to STL § 304(2)
Attorney for De
Preview
FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 L032785101 CM/da SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------x Index No. 154374/2018 YVETTE McCLAMB, Plaintiff ' ANSWER, DEMAND FOR VERIFIED BILL OF PARTICULARS -against- AND COMBINED DEMAND FOR HOUSING PARTNERSHIP DEVELOPLMENT DISCOVERY AND INSPECTION CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC., RNC INDUSTRIES, LLC and WEST NEW YORK RESTORATION OF CT, INC., Defendants. ------------------------------------------ ------------x The Defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC., answering the complaint, upon information and belief, by the Law Office of MARGARET G. KLEIN & ASSOCIATES, as attorney: 1. Deny knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs of the complaint numbered "1", "2", "3", "8", "9", "10", 1» cc17» cc18rr cc19» cc2prr cc21rr cc22» cc23» cc24» cc25» cc26rr cc27» cc28» cc29rr cc3prr cc31rr cc32» "11", "17", "18", "19", "20", r "21", "22", "23", r "24", "25", r "26", "27", "28", "29", "30", "31", "32", cc33rr cc34rr cc35rr cc36rr cc37rr cc38rr cc39» cc40'» cc41rr cc42rr cc44rr cc43'r'r cc45rr cc47rr cc48'» "33", "34", "35", "36", "37", r "38", "39", "40", "41", "42", "43", "44", "45", "47", r and "48". 2. Deny each and every allegation contained in paragraphs of the complaint numbered "53" "4", "13", "46", "50", and except these answering defendants respectfully leave allconclusions of law to determination by the Court. 3. Deny knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs of the complaint numbered "5", "6", "7", "12", "14", "15", "16", and "52", except these answering defendants respectfully leave all conclusions of law to determination by the Court. 1 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 4. Deny each and every allegation contained in paragraphs of the complaint numbered "49" "51" "49", and "51". AS A FIRST AFFIRMATIVE DEFENSE: 5. Any damages sustained by the plaintiff were caused by the comparative negligence of the plaintiff, including breach of contract and not by the negligence of these answering defendants. If a verdict or judgment is awarded to the plaintiff, then and in that event the damages shall be reduced in the proportion which the comparative negligence of the plaintiff caused the damages. AS A SECOND AFFIRMATIVE DEFENSE: 6. Upon information and belief, any past or future costs or expenses incurred or to be incurred by theplaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings or other economic loss, have been or will be replaced or indemnified with reasonable Workers' certainty in whole or in part from insurance benefits, Social Security benefits, Compensation benefits, disability benefits, employee benefits programs and any other similar source, related to or occasioned by the injury, disease or condition for which the plaintiff seeks damages in this action. 7. If any damages are recoverable against the answering defendants, the amount of such damages shall be diminished by the amount of the funds which plaintiff has or shall receive from such collateral source. AS A THIRD AFFIRMATIVE DEFENSE: 8. Whatever injuries and/or damages were sustained by the plaintiff at thetime and place alleged in the complaint, were due to the acts of parties over whom the answering defendants were not obligated to exercise any control or supervision. AS A FOURTH AFFIRMATIVE DEFENSE: 9. Upon information and belief, plaintiff failed to take all steps necessary and proper to mitigate the damages allegedly suffered. AS A FIFTH AFFIRMATIVE DEFENSE: 10. If this/these answering defendants are found liable for the occurrence and for damages alleged in the complaint or any part thereof, and ifthe share of liability of each answering defendant is 50'/oor less of the total liability assigned to all persons liable,pursuant to Section 1601 of the Civil 2 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 Practice Law and Rules, the liability of each answering defendant, if any, for non-economic loss shall not exceed the equitable share of answering defendants determined in accordance with the relative culpability to the total liability for the non-economic loss alleged herein by plaintiff. AS A SIXTH AFFIRMATIVE DEFENSE: 11. If injuries and damages were sustained by the plaintiff at the time and place and in the manner alleged in the complaint, third persons are responsible for such injuries and damages. AS A SEVENTH AFFIRMATIVE DEFENSE 12. That the injuries alleged to have been sustained by the plaintiff at the time and place mentioned in the complaint were sustained while plaintiff was engaged in an activity into which plaintiff had entered knowing the hazards thereof and the inherent risks incident to such activity,and knowing the methods to be used in performance of such activity and the dangers thereof; that such risks and dangers were accepted and assumed by plaintiff upon entering into and continuing such activity. AS AND FOR A FIRST CROSS-COMPLAINT AGAINST HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, AND WEST NEW YORK RESTORATION OF CT, INC.: 13, Ifthe plaintiff was caused to sustain injuries and damages at the time and place and in the manner alleged in the complaint through any carelessness, recklessness and negligence other than the plaintiff s own carelessness, recklessness and negligence, said injuries and damages were caused by reason of the carelessness, recklessness negligence and/or affirmative acts of omission or commission by each party against whom this cross-complaint is pleaded and the agents, servants and/or employees of each such party, and ifany judgment is recovered herein by the plaintiff against the defendants asserting this cross-complaint, the said defendants will be damaged thereby and each party against whom this cross-complaint is pleaded is or will be responsible therefor. 14. By reason of the foregoing, each party against whom this cross-complaint is pleaded will be liable to and bound to indemnify the defendants asserting the same in the event of a recovery herein by the plaintiff against the defendants asserting this cross-complaint and bound to pay to the defendants asserting this cross-complaint the full amount of such recovery against the said attorneys' defendants asserting this cross-complaint and all fees, costs of investigation and disbursements. 3 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 15. and reason of the each against whom this cross- Alternatively by foregoing, party complaint is pleaded, on the basis of apportionment of responsibility for the alleged occurrence, will be liable to contribute to the verdict or judgment recovered against the said defendants asserting this cross-complaint. AS AND FOR A SECOND CROSS-COMPLAINT AGAINST HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, AND WEST NEW YORK RESTORATION OF CT, INC.: 16. Prior to the date of the occurrence alleged in the complaint of the the cross- plaintiff, complaining defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC., and HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, and WEST NEW YORK RESTORATION OF CT, INC., entered into a contract for valuable consideration whereby HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, and WEST NEW YORK RESTORATION OF CT, INC. agreed to indemnify and hold harmless the cross-complaining defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, and WALLACK MANAGEMENT CO., INC., against claims and causes of action such as the claims and causes of action which are asserted in this action by the plaintiff(s) and the said agreement was in full force and effect as of the date of the alleged occurrence which is the subject of the complaint herein. 17. By reason of the foregoing, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, and WEST NEW YORK RESTORATION OF CT, INC., are or will be liable to the cross-complaining defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC., and bound to indemnify the cross-complaining defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC., for the amount of any judgment or verdict that may be recovered herein by the plaintiff against the cross-complaining defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC. 4 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 AS AND FOR A THIRD CROSS-COMPLAINT AGAINST HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, AND WEST NEW YORK RESTORATION OF CT, INC.: 18. Prior to the date of the alleged occurrence which is the subject of this action, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, and WEST NEW YORK RESTORATION OF CT, INC., agreed to obtain and maintain forthe benefit of the defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC., a policy of liability insurance insuring the said defendants against claims such as that which are asserted in thisaction against said defendants. Upon information and belief, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, and WEST NEW YORK RESTORATION OF CT, INC. breached the said agreement by failing to obtain and maintain such a policy of insurance, and if and to the extent that the plaintiff shall recover against the defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, and WALLACK MANAGEMENT CO., INC., the said defendants have been damaged thereby and is/are entitled to be indemnified by HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC 1NDUSTRIES, LLC, and WEST NEW YORK RESTORATION OF CT, INC. WHEREFORE, the defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC., demand judgment dismissing the complaint herein with costs or, alternatively, ifthe complaint shall not be dismissed, that the amount of damages otherwise recoverable against said defendants shallbe diminished in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct, if any, of said defendants and further demand that the ultimate rights of the defendants in this action as amongst themselves be determined in this and that the cross- action, complaining defendants, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC., have judgment over and against HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, RNC INDUSTRIES, LLC, and WEST NEW YORK RESTORATION OF CT, INC., for the amount of any verdict or judgment which may be obtained against said cross-complaining defendants, KALAHARI 5 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and WALLACK MANAGEMENT CO., INC., or, alternatively, for contribution toward such verdict or judgment on the basis of apportionment of responsibility, together with the costs and disbursements attorneys' of this action plus any and all fees, and allother costs and disbursements in this action. Dated: New York, New York July 10, 2018 Yours, etc. LAW OFFICE OF MARGARET G. KLEIN & ASSOCIATES By: CAROL MORELL E-Signature Pursuant to STL § 304(2) Attorney for Defendants KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, and WALLACK MANAGEMENT CO., INC. Office & P. O. Address 200 Madison Avenue, 2nd Floor New York, New York 10016 (646) 392-9250 TO: RHEINGOLD GIUFFRA RUFFO & PLOTKIN, LLP Attorneys for Plaintiff 551 Fifth Avenue, 29th Fl. New York, NY 10176 (212) 684-1880 HOUSING PARTNERSHIP DEVELOPLMENT CORPORATION 242 West 36th Street, 3rd Fl. New York, NY 10018 RNC INDUSTRIES, LLC 720 Blue Point Road Holtsville, NY 11742 6 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 WEST NEW YORK RESTORATION OF CT, INC. 1800 Boston Road Bronx, NY 10460 7 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 File No.: L032785101 VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) C. . being duly sworn, deposes and says that (Num (s)he is the ve of LAHARI CONDOMINIUM the entity (Dtle) named in the within entitled action; (s)he has read the foregoing Answer and knows the contents thereof, and that the same is true to his/her own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters (s)he believes them to be true. (s Sworn to before me this day of 2018. |O «Y«Jtt[~ OTARY BLI ~~ p„~ ~>®OoCouto ~ 01KO637t g ts ~ ~ltltad Qgttttts~~ ~~ lti Coun fy 8 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 L032785101 CM/da SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------X YVETTE McCLAMB, Index No.: 154374/2018 Plaintiff, -against. NOTICE OF CERTIFICATION HOUSING PARTNERSHIP DEVELOPLMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC., RNC INDUSTRIES, LLC and WEST NEW YORK RESTORATION OF CT, INC., Defendants. __--__--------------------- ____----___________________----------X PLEASE TAKE NOTICE, that pursuant to 22 NYCRR Section 130-1.1-a(a), to the best of the undersigned's knowledge, information and belief, the following papers: • Verified answer, (cross-complaint) • Demand for verified bill of particulars and combined demand for 4 discovery inspection • Demand for disclosure as to Medicare pursuant to the SCHIP EXTENSION ACT OF 2007 • Demand for prior or subsequent injury • Demand for pleadings and in this action and all other actions to this discovery relating accident • Notice to take deposition • Notice to inspect premises and/or damaged property • Notice of intent to conduct physical/mental examination • Notice service means of electronic or facsimile transmittal, declining by • Notice to preserve evidence • Demand pursuant to Rule CPLR 2103(e) • Demand pursuant to Rule 3120 CPLR • Request for supplemental demand for relief and/or contentions contained therein, are in accordance with the Rules pertaining to this certification. 9 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 Dated: New York, New York July 10, 2018 Yours, etc. LAW OFFICE OF MARGARET G. KLEIN & ASSOCIATES By: CAROL MORELL E-Signature Pursuant to STL § 304(2) Attorney for Defendants KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, and WALLACK MANAGEMENT CO., INC. Office & P. O. Address 200 Madison Avenue, 2nd Floor New York, New York 10016 (646) 392-9250 TO: RHEINGOLD GIUFFRA RUFFO 4 PLOTKIN, LLP Attorneys for Plaintiff 551 Fifth Avenue, 29th Fl. New York, NY 10176 (212) 684-1880 HOUSING PARTNERSHIP DEVELOPLMENT CORPORATION 242 West 36th Street, 3rd Fl. New York, NY 10018 RNC INDUSTRIES, LLC 720 Blue Point Road Holtsville, NY 11742 WEST NEW YORK RESTORATION OF CT, INC. 1800 Boston Road Bronx, NY 10460 10 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 LO32785101 CM/da SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -____________________________________--------------------------------X YVETTE McCLAMB, Index No. 154374/2018 Plaintiff, -against- DEMAND FOR VERIFIED BILL OF PARTICULARS HOUSING PARTNERSHIP DEVELOPLMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC., RNC INDUSTRIES, LLC and WEST NEW YORK RESTORATION OF CT, INC., Defendants. ---------------------------------------------------------------------x C O U N S E L: PLEASE TAKE NOTICE, that in accordance with Section 3041, Rules 3042 and 3043 and Section 3044 of the CPLR, you are hereby required to serve upon the Law Office of Margaret G. Klein 4 Associates, located at 200 Madison Avenue, New York, NY 10016 on August 10, 2018 at 10:00 a.m., a Verified Bill of Particulars pursuant to the following demands: 1. State the date and time of day of the occurrence. 2. State the location of the occurrence, giving its address (by number, street, city or town or if the place of the occurrence had no address, describing its location from fixed geographical sites): (a) if within a building, give the floor number and the location thereon; street floor or ground floor to be considered as the first floor; (b) if upon a stairway, set forth the location of the stairway in the premises, stating between what floors itis situated; also the particular step on said stairway, counting from the bottom; (c) if on the sidewalk, the distance from the nearest intersection and from the curb and building lines; (d) if within an elevator, describe the elevator sufficiently to differentiate itfrom other elevators in the building. 11 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 3. If the plaintiff claims a dangerous, unsafe, or defective condition was the cause of the occurrence: (a) describe that condition; (b) set forth in what manner the condition described was dangerous, defective and/or unsafe; (c) specify the date and time when the condition was caused or created; (d) set forth the identity of the person or entity who caused or created the condition. 4. State the manner in which itis claimed the alleged accident occurred. 5. State the acts or omissions constituting the negligence claimed, specifying the exact date or dates when the alleged acts were committed and, if there is more than one defendant, the acts or omissions of each defendant constituting the alleged negligence. 6. If actual notice is claimed, set forth: (a) the name(s) of the person(s) who is/are claimed to have given such notice; (b) the name(s) of the person(s) to whom notice is claimed to have been given; (c) whether the notice was written or oral; (d) the date the notice was given; and (e) if in writing, provide a true copy thereof. 7. If constructive notice is claimed, set forth the length of time itwill be claimed the alleged condition existed. 8. State the injuries claimed, giving the location, duration and extent of each and specifying those claimed to be permanent. 9. State the length of time plaintiff was confined: (a) to hospital; (b) to bed; (c) to house. 10. The names and addresses of doctors, hospitals and any other medical 12 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 providers and dates treatment was rendered. 11. State the length of time plaintiff(s) will claim incapacity from employment. 12. State the following: (a) vocation of plaintiff(s) at time of alleged occurrence; (b) name and address of employer; (c) average weekly earnings; (d) if self-employed, a detailed statement of how alleged loss of earnings or income is calculated. 13. If the plaintiff attended school at the time of this incident, provide: (a) the name of the school; (b) the plaintiff's grade; (c) the amount of time missed from school due to the occurrence. 14. Set forth a detailed statement of amounts claimed as special damages, if any, for: (a) physician's services; (b) hospital expenses; nurses' (c) services; (d) medical supplies; (e) loss of earnings; (f) any additional or other special damages. 15. Set forth a true copy of any contract, lease or express warranty referred to in the complaint; if an oral contract, express warranty or lease is claimed, state the names of the persons who allegedly entered into the same, the date and place the same was allegedly entered and the substance thereof. 16. If violation of any rule, regulation, code, ordinance, law or statute is claimed, specify the Chapter, Article, Section and Paragraph of same allegedly violated by each defendant. 13 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 17. With respect to each plaintiff, separately, state: (a) residence address at time of the alleged occurrence; (b) residence address at present time; (c) date of birth; (d) social security number. 18. Ifloss or diminution of services, society and/or consortium is claimed, specify precisely the services, society and/or consortium claimed to have been lost or diminished, the dates between which loss or diminution is claimed and the manner in which the damages claimed have been computed. IN THE EVENT THAT THE WITHIN CLAIM INCLUDES A CLAIM FOR VICARIOUS LIABILITY 19. State the basis upon which itis claimed that defendant is vicariously liable. 20. Specify the acts or omissions of the individual(s) or entity(ies) upon which you base your claim of vicarious liability. 21. Specify whether or not it isclaimed that defendant(s) and said individual(s) or entity(ies) had: a) an employer-employee relationship; b) a principal-agent relationship; c) an employer-independent contractor relationship; d) If none of the above, state the nature of the relationship between defendant and the said individual(s) or entity(ies) allegedly giving rise to vicarious liability on the part of defendant(s). 22. Specify all acts or omissions of the said individual(s) or entity(ies) which allegedly caused or contributed to the injury complained of herein. 23. Do you claim that the defendant(s) had notice, either actual or constructive, of any facts indicating that the defendant(s) knew or should have known that the said individual(s) or entity(ies) had engaged in acts or omissions of the same type as alleged herein prior to the date of the subject occurrence? Ifso, state whether such notice is actual and/or constructive. If actual notice is claimed, identify the person(s) by name, title and/or job description, who possessed such actual notice. If constructive notice is alleged, state the facts upon which such claim is predicated. 14 of 48 FILED: NEW YORK COUNTY CLERK 07/11/2018 03:10 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 07/11/2018 24. Specify any policies and/or provisions allegedly violated which caused and/or contributed to the injury complained of in connection with the claim of vicarious liability. 25. Specify any statutes, rules, regulations and/or ordinances allegedly violated in connection with the claim of vicarious liability. PLEASE TAKE FURTHER NOTICE, that unless the above demand is complied with within thirty (30) days, an application will be made to preclude the plaintiff(s) from giving any evidence in accordance with the aforementioned rules. Dated: New York, New York July10, 2018 Yours, etc. LAW OFFICE OF MARGARET G. KLEIN & ASSOCIATES By: CAROL MORELL E-Signature Pursuant to STL § 304(2) Attorney for De