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FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 8
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YVETTE MCCLAMB, Index No. 154374/2018
(ECF)
Plaintiff,
v.
HOUSING PARTNERSHIP DEVELOPMENT VERIFIED ANSWER WITH
CORPORATION, KALAHARI CONDOMINIUM, AFFIRMATIVE DEFENSES
THE BOARD OF MANAGERS OF KALAHARI D CROSS-CLAIMS
CONDOMINIUM, WALLACK MANAGEMENT
CO., INC., RNC INDUSTRIES, LLC and WEST
NEW YORK RESTORATION OF CT, INC., Assigned Judge: Lynn R. Kotler
Defendants.
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Cross-Claimant-Defendant West New York Restoration of CT, Inc. ("West New York"),
by and through its undersigned counsel, as and for its Verified Answer with Affirmative
Defenses and Cross-Claims to the Verified Complaint filed by plaintiff Yvette McClamb
("Plaintiff") states as follows:
1. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 1 of the Verified Complaint.
2. West New York is without knowledge or information sufficient to form a belief
as to the truth of the allegations contained in paragraph 2 of the Verified Complaint.
3. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 3 of the Verified Complaint.
4. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 4 of the Verified Complaint.
5. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 5 of the Verified Complaint.
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6. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 6 of the Verified Complaint.
7. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 7 of the Verified Complaint.
8. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 8 of the Verified Complaint.
9. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 9 of the Verified Complaint.
10. West New York admits that Wallack Management Co., Inc. is a domestic
business corporation organized and existing under the laws of the State of New York. West New
York denies any remaining allegations contained in paragraph 10 of the Verified Complaint.
11. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 11 of the Verified Complaint.
12. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 12 of the Verified Complaint.
13. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 13 of the Verified Complaint.
14. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 14 of the Verified Complaint.
15. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 15 of the Verified Complaint.
16. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 16 of the Verified Complaint.
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17. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 17 of the Verified Complaint.
18. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 18 of the Verified Complaint.
19. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 19 of the Verified Complaint.
20. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 20 of the Verified Complaint.
21. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 21 of the Verified Complaint.
22. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 22 of the Verified Complaint.
23. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 23 of the Verified Complaint.
24. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 24 of the Verified Complaint.
25. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 25 of the Verified Complaint.
26. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 26 of the Verified Complaint.
27. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 27 of the Verified Complaint.
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28. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 28 of the Verified Complaint.
29. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 29 of the Verified Complaint.
30. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 30 of the Verified Complaint.
31. West New York denies the allegations contained in paragraph 31 of the Verified
Complaint as stated. Rather, West New York is a foreign business corporation that is authorized
to do business within the State of New York and denies any remaining allegations contained in
paragraph 31 of the Verified Complaint.
32. The allegations contained in paragraph 32 of the Verified Complaint constitute
conclusions of law to which no response is required. To the extent a response is required, West
New York states as follows: Denied.
33. West New York denies the allegations contained in paragraph 33 of the Verified
Complaint as stated. Rather, West New York provides high-quality contracting services in the
fields of exterior restoration, roof-mg and waterproofing, and denies any remaining allegations
contained in paragraph 33 of the Verified Complaint.
34. West New York denies the allegations contained in paragraph 34 of the Verified
Complaint. Responding further, West New York states the applicant of record for the permits
obtained in connection with itswork at the building commonly known by the street address of 40
116th
West Street, New York, New York was Anthony M. Monaco, P.E. and copies of such
permits may be obtained from the New York City Department of Buildings.
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35. West New York denies the allegations contained in paragraph 35 of the Verified
Complaint. Responding further, West New York states the applicant of record for the permits
obtained in connection with its work at the building commonly known by the street address of 40
West 116 Street, New York, New York was Anthony M. Monaco, P.E. and copies of such
permits may be obtained from the New York City Department of Buildings.
36. West New York denies the allegations contained in paragraph 36 of the Verified
Complaint as stated. Rather, West New York performed facade restoration and related work
including the erection of a sidewalk bridge and scaffolding at the building commonly known by
the street address of 40 West 116 Street, New York, New York and denies any remaining
allegations contained in paragraph 36 of the Verified Complaint. Responding further, West New
York had no responsibility for the maintenance of the sidewalk abutting the building commonly
116th
known by the street address of 40 West Street, New York, New York.
37. West New York denies the allegations contained in paragraph 37 of the Verified
Complaint as stated. Rather, West New York performed facade restoration and related work
including the erection of a sidewalk bridge and scaffolding at the building commonly known by
the street address of 40 West 116 Street, New York, New York and denies any remaining
allegations in paragraph 37 of the Verified Complaint. Responding further, West New York had
no responsibility for the maintenance of the sidewalk abutting the building commonly known by
the street address of 40 West 116 Street, New York, New York.
38. West New York denies the allegations contained in paragraph 38 of the Verified
Complaint.
39. West New York denies the allegations contained in paragraph 39 of the Verified
Complaint.
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40. West New York denies the allegations contained in paragraph 40 of the Verified
Complaint.
41. West New York denies the allegations contained in paragraph 41 of the Verified
Complaint.
42. West New York denies the allegations contained in paragraph 42 of the Verified
Complaint.
43. West New York denies the allegations contained in paragraph 43 of the Verified
Complaint.
44. West New York denies the allegations contained in paragraph 44 of the Verified
Complaint as stated. Rather, West New York admits to entering into an AIA agreement with
Kalahari Condominium, which is a document that speaks for itself and denies any remaining
allegations in paragraph 44 of the Verified Complaint.
45. West New York denies the allegations contained in paragraph 45 of the Verified
Complaint.
46. The allegations contained in paragraph 46 of the Verified Complaint constitute
conclusions of law to which no response is required. To the extent a response is required, West
New York states as follows: Denied.
47. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 47 of the Verified Complaint.
48. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 48 of the Verified Complaint.
49. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 49 of the Verified Complaint.
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50. The allegations contained in paragraph 50 of the Verified Complaint constitute
conclusions of law to which no response is required. To the extent a response is required, West
New York states as follows: Denied.
51. West New York is without knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph 51 of the Verified Complaint.
52. The allegations contained in paragraph 52 of the Verified Complaint constitute
conclusions of law to which no response is required. To the extent a response is required, West
New York states as follows: Denied.
53. The allegations contained in paragraph 53 of the Verified Complaint constitute
conclusions of law to which no response is required. To the extent a response is required, West
New York states as follows: Denied.
AS AND FOR FIRST AFFIRMATIVE DEFENSE
54. That the culpable conduct of Plaintiff, including comparative negligence and
assumption of risk, caused in whole or in part, the damages claimed herein, and pursuant to
CPLR Rule 1411, said damages should be diminished in the proportion which the culpable
conduct attributable to the Plaintiff bears to the culpable conduct which caused such damages.
AS AND FOR THE SECOND AFFIRMATIVE DEFENSE
55. That, if at the time of trial,any of the issues herein have finally been determined
solely or partially against the Plaintiff, or any other adverse party, by a tribunal, forum or court
of component jurisdiction, then in that event, the Plaintiff, or any other adverse party will be
estopped from re-litigating such issue or issues
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AS AND FOR THE THIRD AFFIRMATIVE DEFENSE
56. The Verified Complaint fails to state a cause of action upon which relief may be
granted against West New York and is thus fatally defective.
AS AND FOR THE FOURTH AFFIRMATIVE DEFENSE
57. That if any liability is found against West New York, then said liability will
constitute 50 percent or less of the total liability assigned to all persons liable, and as such, the
liability of West New York to Plaintiff, and/or adverse defendants, for non-economic loss shall
be limited and shall not exceed the answering defendant's equitable share as provided in Article
16 of the CPLR.
AS AND FOR THE FIFTH AFFIRMATIVE DEFENSE
58. That all dangers and risks incident to the situation mentioned in the Verified
Plaintiff were patent, open, obvious and apparent and were known and assumed by Plaintiff.
AS AND FOR THE SIXTH AFFIRMATIVE DEFENSE
59. That Plaintiff had failed to take any or sufficient action, or such action as was
necessary, to mitigate or minimize the injuries and damages alleged or the conditions that
allegedly rise to those purported injuries or damages.
AS AND FOR THE SEVENTH AFFIRMATIVE DEFENSE
60. That in event of any judgment or verdict on behalf of Plaintiff, West New York is
entitled to a set-off against the judgment or verdict with respect to the amounts of any and all
collateral payments and/or reimbursements made to the Plaintiff, from whatever source, whether
Workers'
itbe insurance, social security payments, Compensation, employee benefits or other
such programs prior thereto, or for amounts of any payments to be received by Plaintiff in the
future, in accordance with the provisions of CPLR § 4545.
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AS AND FOR THE EIGHTH AFFIRMATIVE DEFENSE
61. That in the event of future settlements between the Plaintiff and any other party or
entity, West New York is entitled to application of and set-off pursuant to General Obligation
Law § 15-108.
AS AND FOR THE NINTH AFFIRMATIVF DEFENSE
62. 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 West New York did not
exercise direction and/or control or have the right to exercise such direction and/or control.
AS AND FOR THE TENTH AFFIRMATIVE DEFENSE
63. 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 West
New York did not exercise direction and/or control or have the right to exercise such direction
and/or control.
AS AND FOR THE ELEVENTH AFFIRMATIVE DEFENSE
64. That upon information and belief, the injuries allegedly sustained by Plaintiff
were the result of superseding and/or intervening acts of negligence by persons or entities over
whom West New York had neither control nor the right to control.
AS AND FOR THE TWELFT_H AFFIRMATIVE DEFENSE
65. West New York did not take part in or direct any of the acts complained of which
resulted in Plaintiff's alleged injuries.
AS AND FOR THE THIRTEENTH AFFIRMATIVE DEFENSE
66. West New York has complied with all applicable laws, regulations and standards
at allrelevant times.
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AS AND FOR THE FOURTEEN AFFIRMATIVE DEFENSE
67. West New York did not owe Plaintiff a legal duty.
AS AND FOR THE FIFTEEN_TH AFFIRMATIVE DEFENSE
68. The Plaintiff's own actions or failure to act were/was the sole approximate cause
of the Plaintiff's alleged injuries.
AS AND FOR THE SIXTEENTH AFFIRMATIVE DEFENSE
69. West New York reserves its 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, West New York 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
such additional defenses and affirmative defenses. Further, to the extent that any of the separate
affirmative defenses to the allegations of the Plaintiff's verified Complaint asserted herein on
behalf of West New York are deemed to be defenses, they are specifically alleged, reiterated and
incorporated herein as such.
AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANTS,
RNC INDUSTRIES LLC, HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS
OF KALAHARI CONDOMINIUM. AND_WALLACK MANAGEMENT CO.. INC.
[COMMON LAW INDEMNITYl
70. That, although defendant West New York has generally denied the allegations of
wrongdoing asserted against it,nevertheless, should said defendant West New York be found to
be liable to the Plaintiff, then such liability shall derive from the active and affirmative
wrongdoing of defendants RNC Industries, LLC, Housing Partnership Development
Corporation, Kalahari Condominium, the Board of Managers of Kalahari Condominium, and
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Wallack Management Co., Inc., their agents, servants, employees and/or subcontractors while
any wrongdoing of defendant, West New York, will have been passive and secondary only by
reason of which West New York will be entitled to complete indemnity from defendants RNC
Industries, LLC, Housing Partnership Development Corporation, Kalahari Condominium, the
Board of Managers of Kalahari Condominium, and Wallack Management Co., Inc.
71. That, by reason thereof, defendant West New York is entitled to a full and
complete indemnity from defendants RNC Industries, LLC, Housing Partnership Development
Corporation, Kalahari Condominium, the Board of Managers of Kalahari Condominium, and
Wallack Management Co., Inc.
AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANTS, RNC
INDUSTRIES LLC, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION,
KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM. AND WALLACK MANAGEMENT CO.. INC.
ICONTRIBUTIONI
72. Defendant West New York repeats and re-alleges each and every allegation
contained in paragraphs 70 through 71 as if more fully set forth at length herein.
73. That, although defendant West New York has generally denied the allegations of
wrongdoing asserted against it, nevertheless, if defendant West New York is found liable to
Plaintiff, and if complete indemnity is not granted in furtherance of the first cause of action
hereinabove, then defendant West New York is nevertheless entitled to contribution from
defendants RNC Industries, LLC, Housing Partnership Development Corporation, Kalahari
Condominium, the Board of Managers of Kalahari Condominium, and Wallack Management
Co., Inc. in proportion to the relative degrees of wrongdoing as between defendant West New
York on the one part and defendants RNC Industries, LLC, Housing Partnership Development
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Corporation, Kalahari Condominium, the Board of Managers of Kalahari Condominium, and
Wallack Management Co., Inc. on the other part.
74. That, by reason thereof, defendant West New York is entitled to an allocation of
any damages by reason of verdict or judgment in proportion to the degrees of wrongdoing.
AS AND FOR A THIRD CROSS-CLAIM AGAINST DEFENDANTS,
RNC INDUSTRIES LLC, HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF
KALAHARI CONDOMINIUM. AND WALLACK MANAGEMENT CO.. INC.
[CONTRACTUAL DEFENSE AND INDEMNITY]
75. Defendant West New York repeats and re-alleges each and every allegation
contained in paragraphs 70 through 74 as if more fully set forth at length herein.
76. That an agreement was made by defendant RNC Industries, LLC, and/or
defendant Housing Partnership Development Corporation and/or defendant Kalahari
Condominium and/or the defendant Board of Managers of Kalahari Condominium and/or
defendant Wallack Management Co., Inc. pursuant to which defendant RNC Industries, LLC,
and/or defendant Housing Partnership Development Corporation and/or defendant Kalahari
Condominium and/or the defendant Board of Managers of Kalahari Condominium and/or
defendant Wallack Management Co., Inc. undertook to indemnify defendant West New York for
loss or damage sustained by defendant West New York arising out of the scope of the
undertaking of defendant RNC Industries, LLC, and/or defendant Housing Partnership
Development Corporation and/or defendant Kalahari Condominium and/or the defendant Board
of Managers of Kalahari Condominium and/or defendant Wallack Management Co., Inc.
77. That demand has been made upon defendants RNC Industries, LLC, Housing
Partnership Development Corporation, Kalahari Condominium, Board of Managers of Kalahari
Condominium, and Wallack Management Co., Inc. or their representatives to undertake the
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defense and indemnity of defendant West New York but such defense and indemnity has not
been undertaken.
78. That, by reason thereof, defendant West New York is entitled to judgment against
defendants RNC Industries, LLC, Housing Partnership Development Corporation, Kalahari
Condominium, Board of Managers of Kalahari Condominium, and Wallack Management Co.,
Inc. for full indemnity together with those costs incurred by West New York in defense of the
within action, including, but not limited, to counsel fees and expenses.
79. That, by reason thereof, defendant West New York is entitled to full and complete
indemnity from defendants RNC Industries, LLC, Housing Partnership Development
Corporation, Kalahari Condominium, Board of Managers of Kalahari Condominium, and
Wallack Management Co., Inc.
AS AND FOR A FOURTH CROSS-CLAIM AGAINST DEFENDANTS,
RNC INDUSTRIES LLC, HOUSING PARTNERSHIP DEVELOPMENT
CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF
KALAHARI CONDOMINIUM, AND WALLACK MANAGEMENT CO.. INC.
[BREACH OF AGREEMENT TO SECURE LIABILITY INSURANCE]
80. Defendant West New York repeats and re-alleges each and every allegation
contained in paragraphs 70 through 79 as if more fully set forth at length herein.
81. Defendants RNC Industries, LLC, Housing Partnership Development
Corporation, Kalahari Condominium, Board of Managers of Kalahari Condominium, and
Wallack Management Co., Inc. agreed to secure liability insurance in favor of or for the benefit
of defendant West New York for such liabilities as may be rendered against Defendant West
New York because of the actions and/or inactions of RNC Industries, LLC, Housing Partnership
Development Corporation, Kalahari Condominium, Board of Managers of Kalahari
Condominium, and/or Wallack Management Co., Inc.
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82. That, heretofore, defendant West New York made demands that a liability insurer
undertake the defense and indemnity of defendant West New York with respect to the within
action, but no liability insurer has done so.
83. That, upon information and belief, defendant RNC Industries, LLC and/or
defendant Housing Partnership Development Corporation and/or defendant Kalahari
Condominium and/or defendant Board of Managers of Kalahari Condominium and/or defendant
Wallack Management Co., Inc. has breached their agreement.
84. That, by reason thereof, defendant West New York is entitled to full indemnity
from defendant RNC Industries, LLC and/or defendant Housing Partnership Development
Corporation and/or defendant Kalahari Condominium and/or defendant Board of Managers of
Kalahari Condominium and/or defendant Wallack Management Co., Inc. together with the costs
and expenses incurred in the defense of the within action.
WHEREFORE, Cross-Claimant-Defendant West New York Restoration of CT, Inc.
demands judgment dismissing Plaintiff's Verified Complaint and/or as follows: (1) for
indemnity on the first cross-claim; (2) for contribution on the second cross-claim; (3) for
contractual indemnity on the third-cross-claim; (4) for breach of agreement to procure insurance
on the fourth cross-claim; and (5) for full indemnity, together with the costs and expenses,
inclusive of counsel fees and, on the first,third and fourth cross-claims, all together with costs
and disbursements of this and such other and further relief in favor of Cross-Claimant-
action,
Defendant West New York Restoration of CT, Inc. as the Court may deem just and proper.
ATTORNEY'S CERTIFICATION
The undersigned, an attorney admitted to practice in the courts of the State of New York,
hereby certifies that, to the best of the undersigned's knowledge, information and belief, formed
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after a reasonable inquiry under the circumstances, the presentation of the within Verified
Answer with Affirmative Defenses and Cross-Claims or the contentions raised herein are not
frivolous as defined in 22 NYCRR § 130-1.1(c).
Dated: New York, New York
January 2, 2019 Yours, etc.,
Scott H. Bernstein, Esq.
STRADLEY RONON STEVENS & YOUNG, LLP
ATTORNEYS FOR CROSS-CLAIMANT DEFENDANT
WEST NEW YORK RESTORATION OF CT, INC.
100 Park Avenue, Suite 2000
New York, New York 10017
Telephone: (212) 812-4132
Facsimile: (646) 682-7180
sbernstein(dlstradley.com
TO:
RHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP
ATTORNEYS FOR PLAINTIFF YVETTE MCCLAMB
Jeremy A. Hellman, Esq.
29th
551 Fifth Avenue, FlOOr
New York, New York 10176
PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP
ATTORNEYS FOR DEFENDANT/CROSS-CLAIMANT
RNC INDUSTRIES, LLC
Kenneth J. Kutner, Esq.
60 Broad Street, Suite 3600A
New York, New York 10004
MARGARET G. KLEIN & ASSOCIATES
ATTORNEYS FOR DEFENDANTS/CROSS-CLAIMANTS
KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI
CONDOMINIUM, AND WALLACK MANAGEMENT CO.
Preview
FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 8 --------------------------------------------- -------x YVETTE MCCLAMB, Index No. 154374/2018 (ECF) Plaintiff, v. HOUSING PARTNERSHIP DEVELOPMENT VERIFIED ANSWER WITH CORPORATION, KALAHARI CONDOMINIUM, AFFIRMATIVE DEFENSES THE BOARD OF MANAGERS OF KALAHARI D CROSS-CLAIMS CONDOMINIUM, WALLACK MANAGEMENT CO., INC., RNC INDUSTRIES, LLC and WEST NEW YORK RESTORATION OF CT, INC., Assigned Judge: Lynn R. Kotler Defendants. --------------------------------------------------------------x Cross-Claimant-Defendant West New York Restoration of CT, Inc. ("West New York"), by and through its undersigned counsel, as and for its Verified Answer with Affirmative Defenses and Cross-Claims to the Verified Complaint filed by plaintiff Yvette McClamb ("Plaintiff") states as follows: 1. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 of the Verified Complaint. 2. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the Verified Complaint. 3. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 3 of the Verified Complaint. 4. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 4 of the Verified Complaint. 5. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 5 of the Verified Complaint. 1 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 6. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 6 of the Verified Complaint. 7. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 7 of the Verified Complaint. 8. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 of the Verified Complaint. 9. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 9 of the Verified Complaint. 10. West New York admits that Wallack Management Co., Inc. is a domestic business corporation organized and existing under the laws of the State of New York. West New York denies any remaining allegations contained in paragraph 10 of the Verified Complaint. 11. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 11 of the Verified Complaint. 12. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 12 of the Verified Complaint. 13. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 13 of the Verified Complaint. 14. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 14 of the Verified Complaint. 15. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 15 of the Verified Complaint. 16. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 16 of the Verified Complaint. 2 2 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 17. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 17 of the Verified Complaint. 18. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 18 of the Verified Complaint. 19. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 19 of the Verified Complaint. 20. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 20 of the Verified Complaint. 21. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 21 of the Verified Complaint. 22. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 22 of the Verified Complaint. 23. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 23 of the Verified Complaint. 24. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 24 of the Verified Complaint. 25. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 25 of the Verified Complaint. 26. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 26 of the Verified Complaint. 27. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 27 of the Verified Complaint. 3 3 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 28. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 28 of the Verified Complaint. 29. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 29 of the Verified Complaint. 30. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 30 of the Verified Complaint. 31. West New York denies the allegations contained in paragraph 31 of the Verified Complaint as stated. Rather, West New York is a foreign business corporation that is authorized to do business within the State of New York and denies any remaining allegations contained in paragraph 31 of the Verified Complaint. 32. The allegations contained in paragraph 32 of the Verified Complaint constitute conclusions of law to which no response is required. To the extent a response is required, West New York states as follows: Denied. 33. West New York denies the allegations contained in paragraph 33 of the Verified Complaint as stated. Rather, West New York provides high-quality contracting services in the fields of exterior restoration, roof-mg and waterproofing, and denies any remaining allegations contained in paragraph 33 of the Verified Complaint. 34. West New York denies the allegations contained in paragraph 34 of the Verified Complaint. Responding further, West New York states the applicant of record for the permits obtained in connection with itswork at the building commonly known by the street address of 40 116th West Street, New York, New York was Anthony M. Monaco, P.E. and copies of such permits may be obtained from the New York City Department of Buildings. 4 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 35. West New York denies the allegations contained in paragraph 35 of the Verified Complaint. Responding further, West New York states the applicant of record for the permits obtained in connection with its work at the building commonly known by the street address of 40 West 116 Street, New York, New York was Anthony M. Monaco, P.E. and copies of such permits may be obtained from the New York City Department of Buildings. 36. West New York denies the allegations contained in paragraph 36 of the Verified Complaint as stated. Rather, West New York performed facade restoration and related work including the erection of a sidewalk bridge and scaffolding at the building commonly known by the street address of 40 West 116 Street, New York, New York and denies any remaining allegations contained in paragraph 36 of the Verified Complaint. Responding further, West New York had no responsibility for the maintenance of the sidewalk abutting the building commonly 116th known by the street address of 40 West Street, New York, New York. 37. West New York denies the allegations contained in paragraph 37 of the Verified Complaint as stated. Rather, West New York performed facade restoration and related work including the erection of a sidewalk bridge and scaffolding at the building commonly known by the street address of 40 West 116 Street, New York, New York and denies any remaining allegations in paragraph 37 of the Verified Complaint. Responding further, West New York had no responsibility for the maintenance of the sidewalk abutting the building commonly known by the street address of 40 West 116 Street, New York, New York. 38. West New York denies the allegations contained in paragraph 38 of the Verified Complaint. 39. West New York denies the allegations contained in paragraph 39 of the Verified Complaint. 5 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 40. West New York denies the allegations contained in paragraph 40 of the Verified Complaint. 41. West New York denies the allegations contained in paragraph 41 of the Verified Complaint. 42. West New York denies the allegations contained in paragraph 42 of the Verified Complaint. 43. West New York denies the allegations contained in paragraph 43 of the Verified Complaint. 44. West New York denies the allegations contained in paragraph 44 of the Verified Complaint as stated. Rather, West New York admits to entering into an AIA agreement with Kalahari Condominium, which is a document that speaks for itself and denies any remaining allegations in paragraph 44 of the Verified Complaint. 45. West New York denies the allegations contained in paragraph 45 of the Verified Complaint. 46. The allegations contained in paragraph 46 of the Verified Complaint constitute conclusions of law to which no response is required. To the extent a response is required, West New York states as follows: Denied. 47. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 47 of the Verified Complaint. 48. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 48 of the Verified Complaint. 49. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 49 of the Verified Complaint. 6 6 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 50. The allegations contained in paragraph 50 of the Verified Complaint constitute conclusions of law to which no response is required. To the extent a response is required, West New York states as follows: Denied. 51. West New York is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 51 of the Verified Complaint. 52. The allegations contained in paragraph 52 of the Verified Complaint constitute conclusions of law to which no response is required. To the extent a response is required, West New York states as follows: Denied. 53. The allegations contained in paragraph 53 of the Verified Complaint constitute conclusions of law to which no response is required. To the extent a response is required, West New York states as follows: Denied. AS AND FOR FIRST AFFIRMATIVE DEFENSE 54. That the culpable conduct of Plaintiff, including comparative negligence and assumption of risk, caused in whole or in part, the damages claimed herein, and pursuant to CPLR Rule 1411, said damages should be diminished in the proportion which the culpable conduct attributable to the Plaintiff bears to the culpable conduct which caused such damages. AS AND FOR THE SECOND AFFIRMATIVE DEFENSE 55. That, if at the time of trial,any of the issues herein have finally been determined solely or partially against the Plaintiff, or any other adverse party, by a tribunal, forum or court of component jurisdiction, then in that event, the Plaintiff, or any other adverse party will be estopped from re-litigating such issue or issues 7 7 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 AS AND FOR THE THIRD AFFIRMATIVE DEFENSE 56. The Verified Complaint fails to state a cause of action upon which relief may be granted against West New York and is thus fatally defective. AS AND FOR THE FOURTH AFFIRMATIVE DEFENSE 57. That if any liability is found against West New York, then said liability will constitute 50 percent or less of the total liability assigned to all persons liable, and as such, the liability of West New York to Plaintiff, and/or adverse defendants, for non-economic loss shall be limited and shall not exceed the answering defendant's equitable share as provided in Article 16 of the CPLR. AS AND FOR THE FIFTH AFFIRMATIVE DEFENSE 58. That all dangers and risks incident to the situation mentioned in the Verified Plaintiff were patent, open, obvious and apparent and were known and assumed by Plaintiff. AS AND FOR THE SIXTH AFFIRMATIVE DEFENSE 59. That Plaintiff had failed to take any or sufficient action, or such action as was necessary, to mitigate or minimize the injuries and damages alleged or the conditions that allegedly rise to those purported injuries or damages. AS AND FOR THE SEVENTH AFFIRMATIVE DEFENSE 60. That in event of any judgment or verdict on behalf of Plaintiff, West New York is entitled to a set-off against the judgment or verdict with respect to the amounts of any and all collateral payments and/or reimbursements made to the Plaintiff, from whatever source, whether Workers' itbe insurance, social security payments, Compensation, employee benefits or other such programs prior thereto, or for amounts of any payments to be received by Plaintiff in the future, in accordance with the provisions of CPLR § 4545. 8 8 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 AS AND FOR THE EIGHTH AFFIRMATIVE DEFENSE 61. That in the event of future settlements between the Plaintiff and any other party or entity, West New York is entitled to application of and set-off pursuant to General Obligation Law § 15-108. AS AND FOR THE NINTH AFFIRMATIVF DEFENSE 62. 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 West New York did not exercise direction and/or control or have the right to exercise such direction and/or control. AS AND FOR THE TENTH AFFIRMATIVE DEFENSE 63. 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 West New York did not exercise direction and/or control or have the right to exercise such direction and/or control. AS AND FOR THE ELEVENTH AFFIRMATIVE DEFENSE 64. That upon information and belief, the injuries allegedly sustained by Plaintiff were the result of superseding and/or intervening acts of negligence by persons or entities over whom West New York had neither control nor the right to control. AS AND FOR THE TWELFT_H AFFIRMATIVE DEFENSE 65. West New York did not take part in or direct any of the acts complained of which resulted in Plaintiff's alleged injuries. AS AND FOR THE THIRTEENTH AFFIRMATIVE DEFENSE 66. West New York has complied with all applicable laws, regulations and standards at allrelevant times. 9 9 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 AS AND FOR THE FOURTEEN AFFIRMATIVE DEFENSE 67. West New York did not owe Plaintiff a legal duty. AS AND FOR THE FIFTEEN_TH AFFIRMATIVE DEFENSE 68. The Plaintiff's own actions or failure to act were/was the sole approximate cause of the Plaintiff's alleged injuries. AS AND FOR THE SIXTEENTH AFFIRMATIVE DEFENSE 69. West New York reserves its 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, West New York 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 such additional defenses and affirmative defenses. Further, to the extent that any of the separate affirmative defenses to the allegations of the Plaintiff's verified Complaint asserted herein on behalf of West New York are deemed to be defenses, they are specifically alleged, reiterated and incorporated herein as such. AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANTS, RNC INDUSTRIES LLC, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM. AND_WALLACK MANAGEMENT CO.. INC. [COMMON LAW INDEMNITYl 70. That, although defendant West New York has generally denied the allegations of wrongdoing asserted against it,nevertheless, should said defendant West New York be found to be liable to the Plaintiff, then such liability shall derive from the active and affirmative wrongdoing of defendants RNC Industries, LLC, Housing Partnership Development Corporation, Kalahari Condominium, the Board of Managers of Kalahari Condominium, and 10 10 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 Wallack Management Co., Inc., their agents, servants, employees and/or subcontractors while any wrongdoing of defendant, West New York, will have been passive and secondary only by reason of which West New York will be entitled to complete indemnity from defendants RNC Industries, LLC, Housing Partnership Development Corporation, Kalahari Condominium, the Board of Managers of Kalahari Condominium, and Wallack Management Co., Inc. 71. That, by reason thereof, defendant West New York is entitled to a full and complete indemnity from defendants RNC Industries, LLC, Housing Partnership Development Corporation, Kalahari Condominium, the Board of Managers of Kalahari Condominium, and Wallack Management Co., Inc. AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANTS, RNC INDUSTRIES LLC, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM. AND WALLACK MANAGEMENT CO.. INC. ICONTRIBUTIONI 72. Defendant West New York repeats and re-alleges each and every allegation contained in paragraphs 70 through 71 as if more fully set forth at length herein. 73. That, although defendant West New York has generally denied the allegations of wrongdoing asserted against it, nevertheless, if defendant West New York is found liable to Plaintiff, and if complete indemnity is not granted in furtherance of the first cause of action hereinabove, then defendant West New York is nevertheless entitled to contribution from defendants RNC Industries, LLC, Housing Partnership Development Corporation, Kalahari Condominium, the Board of Managers of Kalahari Condominium, and Wallack Management Co., Inc. in proportion to the relative degrees of wrongdoing as between defendant West New York on the one part and defendants RNC Industries, LLC, Housing Partnership Development 11 11 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 Corporation, Kalahari Condominium, the Board of Managers of Kalahari Condominium, and Wallack Management Co., Inc. on the other part. 74. That, by reason thereof, defendant West New York is entitled to an allocation of any damages by reason of verdict or judgment in proportion to the degrees of wrongdoing. AS AND FOR A THIRD CROSS-CLAIM AGAINST DEFENDANTS, RNC INDUSTRIES LLC, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM. AND WALLACK MANAGEMENT CO.. INC. [CONTRACTUAL DEFENSE AND INDEMNITY] 75. Defendant West New York repeats and re-alleges each and every allegation contained in paragraphs 70 through 74 as if more fully set forth at length herein. 76. That an agreement was made by defendant RNC Industries, LLC, and/or defendant Housing Partnership Development Corporation and/or defendant Kalahari Condominium and/or the defendant Board of Managers of Kalahari Condominium and/or defendant Wallack Management Co., Inc. pursuant to which defendant RNC Industries, LLC, and/or defendant Housing Partnership Development Corporation and/or defendant Kalahari Condominium and/or the defendant Board of Managers of Kalahari Condominium and/or defendant Wallack Management Co., Inc. undertook to indemnify defendant West New York for loss or damage sustained by defendant West New York arising out of the scope of the undertaking of defendant RNC Industries, LLC, and/or defendant Housing Partnership Development Corporation and/or defendant Kalahari Condominium and/or the defendant Board of Managers of Kalahari Condominium and/or defendant Wallack Management Co., Inc. 77. That demand has been made upon defendants RNC Industries, LLC, Housing Partnership Development Corporation, Kalahari Condominium, Board of Managers of Kalahari Condominium, and Wallack Management Co., Inc. or their representatives to undertake the 12 12 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 defense and indemnity of defendant West New York but such defense and indemnity has not been undertaken. 78. That, by reason thereof, defendant West New York is entitled to judgment against defendants RNC Industries, LLC, Housing Partnership Development Corporation, Kalahari Condominium, Board of Managers of Kalahari Condominium, and Wallack Management Co., Inc. for full indemnity together with those costs incurred by West New York in defense of the within action, including, but not limited, to counsel fees and expenses. 79. That, by reason thereof, defendant West New York is entitled to full and complete indemnity from defendants RNC Industries, LLC, Housing Partnership Development Corporation, Kalahari Condominium, Board of Managers of Kalahari Condominium, and Wallack Management Co., Inc. AS AND FOR A FOURTH CROSS-CLAIM AGAINST DEFENDANTS, RNC INDUSTRIES LLC, HOUSING PARTNERSHIP DEVELOPMENT CORPORATION, KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, AND WALLACK MANAGEMENT CO.. INC. [BREACH OF AGREEMENT TO SECURE LIABILITY INSURANCE] 80. Defendant West New York repeats and re-alleges each and every allegation contained in paragraphs 70 through 79 as if more fully set forth at length herein. 81. Defendants RNC Industries, LLC, Housing Partnership Development Corporation, Kalahari Condominium, Board of Managers of Kalahari Condominium, and Wallack Management Co., Inc. agreed to secure liability insurance in favor of or for the benefit of defendant West New York for such liabilities as may be rendered against Defendant West New York because of the actions and/or inactions of RNC Industries, LLC, Housing Partnership Development Corporation, Kalahari Condominium, Board of Managers of Kalahari Condominium, and/or Wallack Management Co., Inc. 13 13 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 82. That, heretofore, defendant West New York made demands that a liability insurer undertake the defense and indemnity of defendant West New York with respect to the within action, but no liability insurer has done so. 83. That, upon information and belief, defendant RNC Industries, LLC and/or defendant Housing Partnership Development Corporation and/or defendant Kalahari Condominium and/or defendant Board of Managers of Kalahari Condominium and/or defendant Wallack Management Co., Inc. has breached their agreement. 84. That, by reason thereof, defendant West New York is entitled to full indemnity from defendant RNC Industries, LLC and/or defendant Housing Partnership Development Corporation and/or defendant Kalahari Condominium and/or defendant Board of Managers of Kalahari Condominium and/or defendant Wallack Management Co., Inc. together with the costs and expenses incurred in the defense of the within action. WHEREFORE, Cross-Claimant-Defendant West New York Restoration of CT, Inc. demands judgment dismissing Plaintiff's Verified Complaint and/or as follows: (1) for indemnity on the first cross-claim; (2) for contribution on the second cross-claim; (3) for contractual indemnity on the third-cross-claim; (4) for breach of agreement to procure insurance on the fourth cross-claim; and (5) for full indemnity, together with the costs and expenses, inclusive of counsel fees and, on the first,third and fourth cross-claims, all together with costs and disbursements of this and such other and further relief in favor of Cross-Claimant- action, Defendant West New York Restoration of CT, Inc. as the Court may deem just and proper. ATTORNEY'S CERTIFICATION The undersigned, an attorney admitted to practice in the courts of the State of New York, hereby certifies that, to the best of the undersigned's knowledge, information and belief, formed 14 14 of 18 FILED: NEW YORK COUNTY CLERK 01/02/2019 11:53 AM INDEX NO. 154374/2018 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 01/02/2019 after a reasonable inquiry under the circumstances, the presentation of the within Verified Answer with Affirmative Defenses and Cross-Claims or the contentions raised herein are not frivolous as defined in 22 NYCRR § 130-1.1(c). Dated: New York, New York January 2, 2019 Yours, etc., Scott H. Bernstein, Esq. STRADLEY RONON STEVENS & YOUNG, LLP ATTORNEYS FOR CROSS-CLAIMANT DEFENDANT WEST NEW YORK RESTORATION OF CT, INC. 100 Park Avenue, Suite 2000 New York, New York 10017 Telephone: (212) 812-4132 Facsimile: (646) 682-7180 sbernstein(dlstradley.com TO: RHEINGOLD GIUFFRA RUFFO & PLOTKIN LLP ATTORNEYS FOR PLAINTIFF YVETTE MCCLAMB Jeremy A. Hellman, Esq. 29th 551 Fifth Avenue, FlOOr New York, New York 10176 PERRY, VAN ETTEN, ROZANSKI & PRIMAVERA, LLP ATTORNEYS FOR DEFENDANT/CROSS-CLAIMANT RNC INDUSTRIES, LLC Kenneth J. Kutner, Esq. 60 Broad Street, Suite 3600A New York, New York 10004 MARGARET G. KLEIN & ASSOCIATES ATTORNEYS FOR DEFENDANTS/CROSS-CLAIMANTS KALAHARI CONDOMINIUM, THE BOARD OF MANAGERS OF KALAHARI CONDOMINIUM, AND WALLACK MANAGEMENT CO.