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FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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YVETTE MCCLAMB, VERIFIED ANSWER
Plaintiff,
-against-
HOUSING PARTNERSHIP DEVELOPMENT Index No. 154374/18
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.
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Defendant, RNC INDUSTRIES, LLC, by its attorneys PERRY, VAN ETTEN,
ROZANSKI & PRIMAVERA, LLP, answering the Verified Complaint of plaintiff herein, set
forth the following upon information and belief:
FIRST: Deny knowledge or information sufficient to form a belief as to
each and every allegation set forth in paragraphs designated "1", "2", "3", "4", "5", "6", "7",
castt ca9tt ca]0tt ca]]tt ca]2tt ca]3tt ca]4tt ca]5tt cc]6tt aa3]tt ac32tt cc33tt cc34tt cc35tt aa36tt ca37tt
"8", "9",t "10", 't "11", "12", t "13",t "14", t "15", "16", "31", t "32",t "33", t "34", "35", t "36", "37", t
"44"
"38", "39", "40", "41", "42", "43", and "45"of the plaintiff's Verified Complaint.
"17"
SECOND: Deny each and every allegation contained in paragraph of the
Verified Complaint except admits that on August 22, 2017, the defendant RNC INDUSTRIES,
LLC was a domestic limited liability company duly organized and existing under and by virtue
of the laws of the State of New York.
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THIRD: Deny in the form alleged the allegations contained in paragraph
"18"
of the plaintiff's Verified Complaint and respectfully refer all questions of law to the
determination of the Trial Court.
"19"
FOURTH: Deny each and every allegation contained in paragraph of the
Verified Complaint except admits that sometime prior to August 22, 2017, Defendant RNC
INDUSTRIES, LLC entered into an agreement pursuant to which itagreed to perform certain
116th
services at the location described in the Complaint as 40 West Street, County, City and ~
State of New York and begs leave to refer to all relevant agreements and documents ~
contracts,
for their terms and conditions and refers all questions of law to the determination of the Trial
Court.
FIFTH: Deny knowledge or information sufficient to form a belief as to
"48"
each and every allegation set forth in paragraphs designated "20", "47"and of the plaintiff's
Verified Complaint and refer allquestions of law to the determination of the Trial Court.
"46"
SIXTH: Deny each and every allegation contained in paragraphs "21",
"52"
and of the Verified Complaint and respectfully refer all questions of law to the
determination of the Trial Court.
SEVENTH: Deny each and every allegation set forth in paragraphs designated
n cc23c cc24cc 25to cc2+v cc27n c28n cc29' cc30tc '49m t "51" "53" plaintiff'
"22", "23", "24", "25", "26", "27", "28", "29", "30", "49", "50", cc5] and of plaintiff's
Verified Complaint.
AS AND FOR A FIRST DEFENSE
EIGHTH: That to the extent plaintiff recovers any damages for the cost of
medical care, dental care, custodial care or rehabilitation services, loss of earnings and/or other
economic loss, the amount of the award shall be reduced by the sum total of all collateral
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reimbursements, from whatever source, whether it be insurance, social security payments,
Workers'
Compensation, employee benefits or other such programs, in accordance with the
provisions of the CPLR §4545.
AS AND FOR A SECOND DEFENSE
NINTH: That all risks and alleged dangers, if any, alleged in the Verified
Complaint were patent, open, obvious and apparent.
AS AND FOR A THIRD DEFENSE
TENTH: That upon information and belief, the injuries allegedly
sustained by plaintiff were the result of the actions or failure to act by another over whom the
answering defendants did not exercise direction and/or control or have the right to exercise such
direction and/or control.
AS AND FOR A FOURTH DEFENSE
ELEVENTH: That upon information and belief, the injuries allegedly
sustained by plaintiff were the result of the actions or failure to act by independent contractors
over whose work the answering defendants did not exercise direction and/or control or have the
right to exercise such direction and/or control.
AS AND FOR A FIFTH DEFENSE
TWELFTH: The Verified Complaint fails to state a cause of action upon
which relief can be granted.
AS AND FOR A SIXTH DEFNSE
THIRTEENTH: That upon information and belief, the injuries allegedly
sustained by plaintiff were the result of superseding and/or intervening acts of negligence by
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persons or entities over whom the answering defendant had neither control nor the right to
control.
AS AND FOR A SEVENTH DEFENSE
FOURTEENTH: The plaintiff's if as alleged in the Verified ~
damages, any,
Complaint were caused and brought about by plaintiff's use of, or misuse of, or refusal to use the
available safe and appropriate safety equipment.
AS AND FOR AN EIGHTH DEFENSE
FIFTEENTH: The answering defendants, their agents, servants and/or
employees did not take part in or direct any of the acts complained of which resulted in
plaintiff's alleged injuries.
AS AND FOR A NINTH DEFENSE
SIXTEENTH: The answering defendants have complied with all
applicable laws, regulations and standards at allrelevant times.
ASANDFORANTENTHDEFENSE
SEVENTEENTH: Plaintiff failed to exercise ordinary care to affect a cure and
prevent aggravation of the alleged injuries and damages.
ASANDFORAELEVENTHDEFENSE
EIGHTEENTH: The answering defendant, their agents, servants and/or
employees did not supervise, direct and/or control plaintiA's work.
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AS AND FOR A TWELFTH DEFENSE
NINETEENTH: Plaintiff's damages, as alleged in the Verified
Complaint, were caused and brought about solely by plaintiffs refusal to heed proper safety
warnings, safety instructions, and directions from supervisors and/or safety training.
AS AND FOR A THIRTEENTH DEFENSE
TWENTIETH: The plaintiff's own actions or failure to act were/was the
sole proximate cause of the alleged injuries.
ASANDFORAFOURTEENTHDEFENSE
TWENTY-FIRST: Answering defendant did not owe plaintiff a legal duty.
AS AND FOR A FIFTEENTH DEFENSE
TWENTY-SECOND: To the extent that any of the separate defenses to the
allegations of the plaintiffs Verified Complaint asserted herein on behalf of the answering
defendants are deemed to be affirmative defenses, they are specifically realleged, reiterated, and
incorporated herein as such.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
TWENTY-THIRD: Upon information and belief, any injuries and/or
damages sustained by the plaintiff herein were not caused by any negligence or culpable conduct
on the part of the answering defendants, its servants, agents or employees, but were caused solely
by the negligence and/or culpable conduct of the plaintiff. The amount of damages recovered, if
any, shall therefore be diminished in the proportion to which said negligence and/or culpable
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conduct, attributable to plaintiff, bears to the entire negligence and/or culpable conduct which
caused said damages and/or injuries.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
TWENTY-FOURTH: Notwithstanding that the answering defendant has
denied liability herein, in the event that liability is found and such liability of the answering
defendants are found to be 50% or less of the total liability assigned to all parties liable, then,
defendants' non-
pursuant to CPLR §l601 et seq., such answering liability to plaintiff for
defendants'
economic loss shall be limited to said answering equitable share determined in
accordance with the relative culpability ofeach party causing or contributing to the total liability
for plaintiff's non-economic loss.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
TWENTY-FIFTH: The plaintiffs own actions or failure to act was the sole
proximate cause ofhis alleged injuries.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
TWENTY-SIXTH: To the extent the damages set forth in plaintiffs Verified
Complaint could have been wholly or in part avoided by reasonable effort of the plaintiff, his
agents, servants and/or employees and without undue burden, risk or expense, said damages were
the result of plaintiffs failure to mitigate and may not be recovered from the answering
defendants.
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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
TWENTY-SEVENTH: If the damages and/or injuries were sustained by the
plaintiff at the time and place and in the manner alleged in the plaintiff's Verified Complaint,
such damages and/or injuries are attributable, in whole or in part, to the negligence and/or
culpable conduct of third parties, and if any damages are recoverable against the answering
defendants, the amount of such damages shall be diminished in the proportion that the
negligence and/or culpable conduct attributable to third-parties bears to the entire negligence
and/or culpable conduct that caused the damages and/or injuries.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
TWENTY-EIGHTH: Upon information and belief, plaintiff failed to take
reasonable measures to mitigate, obviate and diminish or otherwise act to lessen or reduce the
injuries and/or damages alleged in the plaintiff's Verified Complaint.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
TWENTY-NINTH: That by entering into the activity in which plaintiff
was engaged at the time of the occurrence set forth in the plaintiff's Verified Complaint, 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 plaintiff's Verified Complaint arose from and were caused by reason of such risks
voluntarily undertaken by the plaintiff in his activities and such risks were assumed and accepted
by him in performing and engaging in said activities.
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AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
THIRTIETH: Any injuries or damages claimed were caused, in whole or
in part, by the negligence and/or other culpable conduct of third parties over which the answering
defendants had no control or right to exercise such control.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
THIRTY-FIRST: The plaintiff, a recalcitrant worker, is barred from
seeking relief as claimed in the plaintiff's Verified Complaint.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
THIRTY-SECOND: If itis determined that the plaintiff assumed the risk,
the answering defendants plead said facts in diminution of damages in the proportion that the
culpable conduct attributable to the plaintiff bears to the culpable conduct that caused the
damages.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
THIRTY-THIRD: That if the plaintiff has released any person liable or
claimed to be liable in tort for the subject occurrence, then the plaintiff's claim herein must be
reduced pursuant to General Obligations Law Section 15-108.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
THIRTY-FOURTH: The plaintiff's Verified Complaint fails to join a
proper or essential party.
AS AND FOR THIRTEENTH AFFIRMATIVE DEFENSE
THIRTY-FIFTH: Answering defendant did not owe plaintiff a legal
duty.
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AS AND FOR FOURTEENTH AFFIRMATIVE DEFENSE
THIRTY-SIXTH: The answering defendants reserve their right to
amend its Verified Answer and adopt additional defenses and affirmative defenses that have
been or will be served by other defendants in this action. In addition, the answering defendants
will rely upon further defenses and affirmative defenses that become available or appear during
the discovery proceedings in this action and hereby specifically reserves the right to amend the
Verified Answer for the purposes of asserting any such additional defenses and affirmative
defenses. Further, to the extent that any of the separate affirmative defenses to the allegations of
the plaintiffs Verified Complaint asserted herein on behalf of the answering defendants are
deemed to be defenses, they are specifically realleged, reiterated and incorporated herein as such.
AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANTS,
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI
CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM,
WALLACK MANAGEMENT CO.3 INC. and WEST NEW YORK RESTORATION OF
CT3 INC.
[COMMON LAW INDEMNITYl
THIRTY-SEVENTH: That although defendant, RNC INDUSTRIES,
LLC has generally denied the allegations of wrongdoing asserted against them, nevertheless,
should said defendant RNC INDUSTRIES, LLC be found to be liable to plaintiff, then such
liability shall derive from the active and affirmative wrongdoing of defendants HOUSING
PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE
BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK
MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC., their
agents, servants, employees and|or subcontractors while any wrongdoing of defendant RNC
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INDUSTRIES, LLC, will have been passive and secondary only, by reason of which the
defendant RNC INDUSTRIES, LLC shall he entitled to complete indemnity from defendants
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI
CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM,
WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT,
INC.
THIRTY-EIGHTH: That, by reason thereof, defendant RNC INDUSTRIES,
LLC is entitled to full and complete indemnity from defendants HOUSING PARTNERSHIP
DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF
MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC.
and WEST NEW YORK RESTORATION OF CT, INC.
AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANTS,
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI
CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM,
WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF
CT, INC.
ICONTRIBUTIONI
THIRTY-NINTH: Defendant RNC LLC repeats and re-
INDUSTRIES,
"FIRST" "THIRTY-EIGHTH"
alleges each and every allegation contained in Paragraphs through
as if more set forth at length herein. 0
fully
FORTIETH: That although defendant RNC INDUSTRIES, LLC has generally
denied the allegations of wrongdoing asserted against them, nevertheless, if defendant RNC
INDUSTRIES, LLC is found to be liable to the plaintiff, and ifcomplete indemnity isnot granted
in furtherance of the first cause of action hereinabove, then defendant RNC INDUSTRIES,
LLC is nevertheless, entitled to contribution from defendants HOUSING PARTNERSHIP
DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF
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MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC.
and WEST NEW YORK RESTORATION OF CT, INC. in proportion to the relative degrees of
wrongdoing as between defendant, RNC INDUSTRIES, LLC on the one part and defendants
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI
CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM,
WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT,
INC. on the other part.
FORTY-FIRST: That, by reason thereof, defendant RNC INDUSTRIES,
LLC is entitled to an allocation of any damages by reason ofverdict orjudgment in proportion to
thedegreesofwrongdoing.
AS AND FOR A THIRD CROSS-CLAIM AGAINST DEFENDANTS,
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI
CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM,
WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF
CT, INC.
FORTY SECOND: Defendant RNC LLC repeats and re-
INDUSTRIES,
"FIRST" "FORTY-FIRST"
alleges each and every allegation contained in paragraphs through
as if more fully set forth at length herein.
FORTY-THIRD: That an agreement was made by defendant HOUSING
PARTNERSHIP DEVELOPMENT CORPORATION and/or KALAHARI CONDOMINIUM
and/or THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and/or
WALLACK MANAGEMENT CO., INC. and/or WEST NEW YORK RESTORATION OF
CT, INC. pursuant to which said defendant HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION and/or KALAHARI CONDOMINIUM and/or THE BOARD OF
MANAGERS OF KALAHARI CONDOMINIUM and/or WALLACK MANAGEMENT CO.,
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! INC. and/or WEST NEW YORK RESTORATION OF CT, INC. undertook to indemnify
defendant RNC INDUSTRIES, LLC for loss or damage sustained by defendant RNC
(
~ INDUSTRIES,
LLC arising out of the scope of the undertaking of defendant HOUSING
, PARTNERSHIP DEVELOPMENT CORPORATION and/or KALAHARI CONDOMINIUM
and/or THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and/or
WALLACK MANAGEMENT CO., INC. and/or WEST NEW YORK RESTORATION OF
CT, INC.
FORTY-FOURTH: That demand has been made upon defendants
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI
1
CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM,
WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT,
INC. or their representatives, to undertake the defense and/or indemnity of defendant RNC
INDUSTRIES, LLC but such has not been undertaken.
FORTY-FIFTH: That by reason thereof, defendant RNC INDUSTRIES,
LLC is entitled to judgment against said defendants HOUSING PARTNERSHIP
DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF
MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC.
and WEST NEW YORK RESTORATION OF CT, INC. for full indemnity together with
those costs incurred by RNC INDUSTRIES, LLC in the defense of the within action,
including, but not limited to, counsel fees and expenses.
FORTY-SlXTH: That by reason thereof, defendant RNC INDUSTRIES,
LLC is entitled to full and complete indemnity from HOUSING PARTNERSHIP
DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF
MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC.
and WEST NEW YORK RESTORATION OF CT, INC.
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AS AND FOR A FOURTH CROSS-CLAIM AGAINST DEFENDANTS,
HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI
CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM,
WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF
CT, INC.
[BREACHOF AGREEMENT TO SECURE LIABILITY INSURANCE]
FORTY-SEVENTH: Defendant RNC INDUSTRIES, LLC repeats and re-alleges
"FIRST" "FORTY-SIXTH"
each and every allegation contained in paragraphs through as if more
fullysetforthatlengthherein.
FORTY-EIGHTH: Defendants HOUSING PARTNERSHIP
DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF
MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC.
and WEST NEW YORK RESTORATION OF CT, INC. agreed to secure liability insurancein
favor ofor for the benefit of defendant RNC INDUSTRIES, LLC for such liabilitiesas might be
rendered against defendant RNC INDUSTRIES, LLC arising out of services to be rendered by
defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION and/or
KALAHARI CONDOMINIUM and/or THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM and/or WALLACK MANAGEMENT CO., INC. and/or WEST NEW
YORK RESTORATIONOF CT, INC.
FORTY-NINTH: That, heretofore, defendant RNC INDUSTRIES, LLC
made demands that a liability insurer undertake the defense and indemnity ofdefendant RNC
INDUSTRIES, LLC, withrespect to the withinaction,butnoliabilityinsurerhas done so.
FIFTIETH: That, upon information and belief, defendants HOUSING
PARTNERSHIP DEVELOPMENT CORPORATION and/or KALAHARI CONDOMINIUM
and/or THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and/or
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C
WALLACK MANAGEMENT CO., INC. and/or WEST NEW YORK RESTORATION OF
CT, INC. has breached their agreement.
FIFTY-FIRST: That, by reason thereof, defendant RNC INDUSTRIES,
LLC isentitled to fullindemnity fromdefendant HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION and/or KALAHARI CONDOMINIUM and/or THE BOARD OF
MANAGERS OF KALAHARI CONDOMINIUM and/or WALLACK MANAGEMENT CO.,
INC. and/or WEST NEW YORK RESTORATION OF CT, INC. together with costs and
expensesincurredinthedefenseofthewithinaction.
I
WHEREFORE, defendant RNC INDUSTRIES, LLC demands judgment
dismissing plaintiff's Verified Complaint and/or as follows:
1. Forindemnityonthefirsteross-claim;
2. For contributiononthesecondcross-claim;
3. For contractual indemnity on third cross-claim;
4. Forbreachofagreementonthefourtheross-claimtoprocureinsurance;and
5. For full indemnity, together with costs and expenses, inclusive of counsel
fees, on the third and fourth cross-claims all together with the costs and disbursements of this
action.
Dated: New York, New York
July 12, 2018
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!
Yours etc.,
PERRY, VAN ETTEN, ROZANSKI &
PRIMAVERA, LLP
Attorneys for Defendant,
RNC INDUSTRIES, LLC
60 Broad Street, Suite 3600A
New York, NY 10004
Tel. No.: (212) 406-9710
Our File No.: 626019K
BY:
KENNETH J.KUTN
TO: RHEINGOLD GIUFFRA RUFFO
& PLOTKIN LLP
Attorneys for Plaintiff
29th
551 Fifth Avenue, Floor
New York, NY 10176
Tel. No.: (212) 684-1880
MARGARET G. KLEIN & ASSOCIATES
Attorneys for Defendants
KALAHARI CONDOMINIUM, THE BOARD
OF MANAGERS OF KALAHARI CONDOMINIUM
AND WALLACK MANAGEMENT CO., INC.
2"d
200 Madison Avenue, Floor
New York, NY 10016
Tel. No.: (646) 392-9250
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NO. 10 RECEIVED NYSCEF: 07/13/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X X YVETTE MCCLAMB, VERIFIED ANSWER Plaintiff, -against- HOUSING PARTNERSHIP DEVELOPMENT Index No. 154374/18 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 Defendant, RNC INDUSTRIES, LLC, by its attorneys PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP, answering the Verified Complaint of plaintiff herein, set forth the following upon information and belief: FIRST: Deny knowledge or information sufficient to form a belief as to each and every allegation set forth in paragraphs designated "1", "2", "3", "4", "5", "6", "7", castt ca9tt ca]0tt ca]]tt ca]2tt ca]3tt ca]4tt ca]5tt cc]6tt aa3]tt ac32tt cc33tt cc34tt cc35tt aa36tt ca37tt "8", "9",t "10", 't "11", "12", t "13",t "14", t "15", "16", "31", t "32",t "33", t "34", "35", t "36", "37", t "44" "38", "39", "40", "41", "42", "43", and "45"of the plaintiff's Verified Complaint. "17" SECOND: Deny each and every allegation contained in paragraph of the Verified Complaint except admits that on August 22, 2017, the defendant RNC INDUSTRIES, LLC was a domestic limited liability company duly organized and existing under and by virtue of the laws of the State of New York. 1 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 THIRD: Deny in the form alleged the allegations contained in paragraph "18" of the plaintiff's Verified Complaint and respectfully refer all questions of law to the determination of the Trial Court. "19" FOURTH: Deny each and every allegation contained in paragraph of the Verified Complaint except admits that sometime prior to August 22, 2017, Defendant RNC INDUSTRIES, LLC entered into an agreement pursuant to which itagreed to perform certain 116th services at the location described in the Complaint as 40 West Street, County, City and ~ State of New York and begs leave to refer to all relevant agreements and documents ~ contracts, for their terms and conditions and refers all questions of law to the determination of the Trial Court. FIFTH: Deny knowledge or information sufficient to form a belief as to "48" each and every allegation set forth in paragraphs designated "20", "47"and of the plaintiff's Verified Complaint and refer allquestions of law to the determination of the Trial Court. "46" SIXTH: Deny each and every allegation contained in paragraphs "21", "52" and of the Verified Complaint and respectfully refer all questions of law to the determination of the Trial Court. SEVENTH: Deny each and every allegation set forth in paragraphs designated n cc23c cc24cc 25to cc2+v cc27n c28n cc29' cc30tc '49m t "51" "53" plaintiff' "22", "23", "24", "25", "26", "27", "28", "29", "30", "49", "50", cc5] and of plaintiff's Verified Complaint. AS AND FOR A FIRST DEFENSE EIGHTH: That to the extent plaintiff recovers any damages for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings and/or other economic loss, the amount of the award shall be reduced by the sum total of all collateral 2 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 reimbursements, from whatever source, whether it be insurance, social security payments, Workers' Compensation, employee benefits or other such programs, in accordance with the provisions of the CPLR §4545. AS AND FOR A SECOND DEFENSE NINTH: That all risks and alleged dangers, if any, alleged in the Verified Complaint were patent, open, obvious and apparent. AS AND FOR A THIRD DEFENSE TENTH: That upon information and belief, the injuries allegedly sustained by plaintiff were the result of the actions or failure to act by another over whom the answering defendants did not exercise direction and/or control or have the right to exercise such direction and/or control. AS AND FOR A FOURTH DEFENSE ELEVENTH: That upon information and belief, the injuries allegedly sustained by plaintiff were the result of the actions or failure to act by independent contractors over whose work the answering defendants did not exercise direction and/or control or have the right to exercise such direction and/or control. AS AND FOR A FIFTH DEFENSE TWELFTH: The Verified Complaint fails to state a cause of action upon which relief can be granted. AS AND FOR A SIXTH DEFNSE THIRTEENTH: That upon information and belief, the injuries allegedly sustained by plaintiff were the result of superseding and/or intervening acts of negligence by 3 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 persons or entities over whom the answering defendant had neither control nor the right to control. AS AND FOR A SEVENTH DEFENSE FOURTEENTH: The plaintiff's if as alleged in the Verified ~ damages, any, Complaint were caused and brought about by plaintiff's use of, or misuse of, or refusal to use the available safe and appropriate safety equipment. AS AND FOR AN EIGHTH DEFENSE FIFTEENTH: The answering defendants, their agents, servants and/or employees did not take part in or direct any of the acts complained of which resulted in plaintiff's alleged injuries. AS AND FOR A NINTH DEFENSE SIXTEENTH: The answering defendants have complied with all applicable laws, regulations and standards at allrelevant times. ASANDFORANTENTHDEFENSE SEVENTEENTH: Plaintiff failed to exercise ordinary care to affect a cure and prevent aggravation of the alleged injuries and damages. ASANDFORAELEVENTHDEFENSE EIGHTEENTH: The answering defendant, their agents, servants and/or employees did not supervise, direct and/or control plaintiA's work. 4 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 AS AND FOR A TWELFTH DEFENSE NINETEENTH: Plaintiff's damages, as alleged in the Verified Complaint, were caused and brought about solely by plaintiffs refusal to heed proper safety warnings, safety instructions, and directions from supervisors and/or safety training. AS AND FOR A THIRTEENTH DEFENSE TWENTIETH: The plaintiff's own actions or failure to act were/was the sole proximate cause of the alleged injuries. ASANDFORAFOURTEENTHDEFENSE TWENTY-FIRST: Answering defendant did not owe plaintiff a legal duty. AS AND FOR A FIFTEENTH DEFENSE TWENTY-SECOND: To the extent that any of the separate defenses to the allegations of the plaintiffs Verified Complaint asserted herein on behalf of the answering defendants are deemed to be affirmative defenses, they are specifically realleged, reiterated, and incorporated herein as such. AS AND FOR A FIRST AFFIRMATIVE DEFENSE TWENTY-THIRD: Upon information and belief, any injuries and/or damages sustained by the plaintiff herein were not caused by any negligence or culpable conduct on the part of the answering defendants, its servants, agents or employees, but were caused solely by the negligence and/or culpable conduct of the plaintiff. The amount of damages recovered, if any, shall therefore be diminished in the proportion to which said negligence and/or culpable 5 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 conduct, attributable to plaintiff, bears to the entire negligence and/or culpable conduct which caused said damages and/or injuries. AS AND FOR A SECOND AFFIRMATIVE DEFENSE TWENTY-FOURTH: Notwithstanding that the answering defendant has denied liability herein, in the event that liability is found and such liability of the answering defendants are found to be 50% or less of the total liability assigned to all parties liable, then, defendants' non- pursuant to CPLR §l601 et seq., such answering liability to plaintiff for defendants' economic loss shall be limited to said answering equitable share determined in accordance with the relative culpability ofeach party causing or contributing to the total liability for plaintiff's non-economic loss. AS AND FOR A THIRD AFFIRMATIVE DEFENSE TWENTY-FIFTH: The plaintiffs own actions or failure to act was the sole proximate cause ofhis alleged injuries. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE TWENTY-SIXTH: To the extent the damages set forth in plaintiffs Verified Complaint could have been wholly or in part avoided by reasonable effort of the plaintiff, his agents, servants and/or employees and without undue burden, risk or expense, said damages were the result of plaintiffs failure to mitigate and may not be recovered from the answering defendants. 6 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE TWENTY-SEVENTH: If the damages and/or injuries were sustained by the plaintiff at the time and place and in the manner alleged in the plaintiff's Verified Complaint, such damages and/or injuries are attributable, in whole or in part, to the negligence and/or culpable conduct of third parties, and if any damages are recoverable against the answering defendants, the amount of such damages shall be diminished in the proportion that the negligence and/or culpable conduct attributable to third-parties bears to the entire negligence and/or culpable conduct that caused the damages and/or injuries. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE TWENTY-EIGHTH: Upon information and belief, plaintiff failed to take reasonable measures to mitigate, obviate and diminish or otherwise act to lessen or reduce the injuries and/or damages alleged in the plaintiff's Verified Complaint. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE TWENTY-NINTH: That by entering into the activity in which plaintiff was engaged at the time of the occurrence set forth in the plaintiff's Verified Complaint, 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 plaintiff's Verified Complaint arose from and were caused by reason of such risks voluntarily undertaken by the plaintiff in his activities and such risks were assumed and accepted by him in performing and engaging in said activities. 7 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE THIRTIETH: Any injuries or damages claimed were caused, in whole or in part, by the negligence and/or other culpable conduct of third parties over which the answering defendants had no control or right to exercise such control. AS AND FOR A NINTH AFFIRMATIVE DEFENSE THIRTY-FIRST: The plaintiff, a recalcitrant worker, is barred from seeking relief as claimed in the plaintiff's Verified Complaint. AS AND FOR A TENTH AFFIRMATIVE DEFENSE THIRTY-SECOND: If itis determined that the plaintiff assumed the risk, the answering defendants plead said facts in diminution of damages in the proportion that the culpable conduct attributable to the plaintiff bears to the culpable conduct that caused the damages. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE THIRTY-THIRD: That if the plaintiff has released any person liable or claimed to be liable in tort for the subject occurrence, then the plaintiff's claim herein must be reduced pursuant to General Obligations Law Section 15-108. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE THIRTY-FOURTH: The plaintiff's Verified Complaint fails to join a proper or essential party. AS AND FOR THIRTEENTH AFFIRMATIVE DEFENSE THIRTY-FIFTH: Answering defendant did not owe plaintiff a legal duty. 8 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 AS AND FOR FOURTEENTH AFFIRMATIVE DEFENSE THIRTY-SIXTH: The answering defendants reserve their right to amend its Verified Answer and adopt additional defenses and affirmative defenses that have been or will be served by other defendants in this action. In addition, the answering defendants will rely upon further defenses and affirmative defenses that become available or appear during the discovery proceedings in this action and hereby specifically reserves the right to amend the Verified Answer for the purposes of asserting any such additional defenses and affirmative defenses. Further, to the extent that any of the separate affirmative defenses to the allegations of the plaintiffs Verified Complaint asserted herein on behalf of the answering defendants are deemed to be defenses, they are specifically realleged, reiterated and incorporated herein as such. AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANTS, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO.3 INC. and WEST NEW YORK RESTORATION OF CT3 INC. [COMMON LAW INDEMNITYl THIRTY-SEVENTH: That although defendant, RNC INDUSTRIES, LLC has generally denied the allegations of wrongdoing asserted against them, nevertheless, should said defendant RNC INDUSTRIES, LLC be found to be liable to plaintiff, then such liability shall derive from the active and affirmative wrongdoing of defendants HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC., their agents, servants, employees and|or subcontractors while any wrongdoing of defendant RNC 9 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 INDUSTRIES, LLC, will have been passive and secondary only, by reason of which the defendant RNC INDUSTRIES, LLC shall he entitled to complete indemnity from defendants HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC. THIRTY-EIGHTH: That, by reason thereof, defendant RNC INDUSTRIES, LLC is entitled to full and complete indemnity from defendants HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC. AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANTS, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC. ICONTRIBUTIONI THIRTY-NINTH: Defendant RNC LLC repeats and re- INDUSTRIES, "FIRST" "THIRTY-EIGHTH" alleges each and every allegation contained in Paragraphs through as if more set forth at length herein. 0 fully FORTIETH: That although defendant RNC INDUSTRIES, LLC has generally denied the allegations of wrongdoing asserted against them, nevertheless, if defendant RNC INDUSTRIES, LLC is found to be liable to the plaintiff, and ifcomplete indemnity isnot granted in furtherance of the first cause of action hereinabove, then defendant RNC INDUSTRIES, LLC is nevertheless, entitled to contribution from defendants HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF 10 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC. in proportion to the relative degrees of wrongdoing as between defendant, RNC INDUSTRIES, LLC on the one part and defendants HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC. on the other part. FORTY-FIRST: That, by reason thereof, defendant RNC INDUSTRIES, LLC is entitled to an allocation of any damages by reason ofverdict orjudgment in proportion to thedegreesofwrongdoing. AS AND FOR A THIRD CROSS-CLAIM AGAINST DEFENDANTS, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC. FORTY SECOND: Defendant RNC LLC repeats and re- INDUSTRIES, "FIRST" "FORTY-FIRST" alleges each and every allegation contained in paragraphs through as if more fully set forth at length herein. FORTY-THIRD: That an agreement was made by defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION and/or KALAHARI CONDOMINIUM and/or THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and/or WALLACK MANAGEMENT CO., INC. and/or WEST NEW YORK RESTORATION OF CT, INC. pursuant to which said defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION and/or KALAHARI CONDOMINIUM and/or THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and/or WALLACK MANAGEMENT CO., 11 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 ! INC. and/or WEST NEW YORK RESTORATION OF CT, INC. undertook to indemnify defendant RNC INDUSTRIES, LLC for loss or damage sustained by defendant RNC ( ~ INDUSTRIES, LLC arising out of the scope of the undertaking of defendant HOUSING , PARTNERSHIP DEVELOPMENT CORPORATION and/or KALAHARI CONDOMINIUM and/or THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and/or WALLACK MANAGEMENT CO., INC. and/or WEST NEW YORK RESTORATION OF CT, INC. FORTY-FOURTH: That demand has been made upon defendants HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI 1 CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC. or their representatives, to undertake the defense and/or indemnity of defendant RNC INDUSTRIES, LLC but such has not been undertaken. FORTY-FIFTH: That by reason thereof, defendant RNC INDUSTRIES, LLC is entitled to judgment against said defendants HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC. for full indemnity together with those costs incurred by RNC INDUSTRIES, LLC in the defense of the within action, including, but not limited to, counsel fees and expenses. FORTY-SlXTH: That by reason thereof, defendant RNC INDUSTRIES, LLC is entitled to full and complete indemnity from HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC. 12 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 AS AND FOR A FOURTH CROSS-CLAIM AGAINST DEFENDANTS, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC. [BREACHOF AGREEMENT TO SECURE LIABILITY INSURANCE] FORTY-SEVENTH: Defendant RNC INDUSTRIES, LLC repeats and re-alleges "FIRST" "FORTY-SIXTH" each and every allegation contained in paragraphs through as if more fullysetforthatlengthherein. FORTY-EIGHTH: Defendants HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, WALLACK MANAGEMENT CO., INC. and WEST NEW YORK RESTORATION OF CT, INC. agreed to secure liability insurancein favor ofor for the benefit of defendant RNC INDUSTRIES, LLC for such liabilitiesas might be rendered against defendant RNC INDUSTRIES, LLC arising out of services to be rendered by defendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION and/or KALAHARI CONDOMINIUM and/or THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and/or WALLACK MANAGEMENT CO., INC. and/or WEST NEW YORK RESTORATIONOF CT, INC. FORTY-NINTH: That, heretofore, defendant RNC INDUSTRIES, LLC made demands that a liability insurer undertake the defense and indemnity ofdefendant RNC INDUSTRIES, LLC, withrespect to the withinaction,butnoliabilityinsurerhas done so. FIFTIETH: That, upon information and belief, defendants HOUSING PARTNERSHIP DEVELOPMENT CORPORATION and/or KALAHARI CONDOMINIUM and/or THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and/or 13 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 C WALLACK MANAGEMENT CO., INC. and/or WEST NEW YORK RESTORATION OF CT, INC. has breached their agreement. FIFTY-FIRST: That, by reason thereof, defendant RNC INDUSTRIES, LLC isentitled to fullindemnity fromdefendant HOUSING PARTNERSHIP DEVELOPMENT CORPORATION and/or KALAHARI CONDOMINIUM and/or THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM and/or WALLACK MANAGEMENT CO., INC. and/or WEST NEW YORK RESTORATION OF CT, INC. together with costs and expensesincurredinthedefenseofthewithinaction. I WHEREFORE, defendant RNC INDUSTRIES, LLC demands judgment dismissing plaintiff's Verified Complaint and/or as follows: 1. Forindemnityonthefirsteross-claim; 2. For contributiononthesecondcross-claim; 3. For contractual indemnity on third cross-claim; 4. Forbreachofagreementonthefourtheross-claimtoprocureinsurance;and 5. For full indemnity, together with costs and expenses, inclusive of counsel fees, on the third and fourth cross-claims all together with the costs and disbursements of this action. Dated: New York, New York July 12, 2018 14 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/13/2018 ! Yours etc., PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP Attorneys for Defendant, RNC INDUSTRIES, LLC 60 Broad Street, Suite 3600A New York, NY 10004 Tel. No.: (212) 406-9710 Our File No.: 626019K BY: KENNETH J.KUTN TO: RHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP Attorneys for Plaintiff 29th 551 Fifth Avenue, Floor New York, NY 10176 Tel. No.: (212) 684-1880 MARGARET G. KLEIN & ASSOCIATES Attorneys for Defendants KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM AND WALLACK MANAGEMENT CO., INC. 2"d 200 Madison Avenue, Floor New York, NY 10016 Tel. No.: (646) 392-9250 15 of 19 FILED: NEW YORK COUNTY CLERK 07/13/2018 04:37 PM INDEX NO. 154374/2018 NYSCEF DOC. NO. 10 RECE