Preview
FILED: KINGS COUNTY CLERK 09/30/2020 07:10 PM INDEX NO. 512147/2020
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------- X
LUIS ALBERTO HERRERA, Index No.: 512147/2020
Plaintiff,
-against- VERIFIED ANSWER TO
PLAINTIFF'S VERIFIED
THE CITY OF NEWYORK, BELMONT RE, LLC COMPLAINT
and SUTTER AVENUE REALTY CO. LLC,
Defendants.
___________ _..---- ... .. ....------------------- X
Defendant, BELMONT RE. LLC, by its attorneys, NEWMAN LAW ASSOCIATES
PLLC, answers Plaintiffs Verified Complaint dated June 8, 2020 as follows:
AS AND FOR A RESPONSE TO FIRST CAUSE OF ACTION
1. Denies knowledge or sufficient information to form a belief as to the truth of the
"1"
allegations as set forth in paragraph of the Complaint;
2. Denies knowledge or sufficient information to form a belief as to the truth of the
"2"
allegations as set forth in paragraph of the Complaint;
3. Denies knowledge or sufficient information to form a belief as to the truth of the
"3"
allegations as set forth in paragraph of the Complaint;
4. Denies knowledge or sufficient information to form a belief as to the truth of the
"4"
allegations as set forth in paragraph of the Complaint;
5. Denies knowledge or sufficient information to form a belief as to the truth of the
"5"
allegations as set forth in paragraph of the Complaint;
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6. Denies knowledge or sufficient information to form a belief as to the truth of the
"6"
allegations as set forth in paragraph of the Complaint;
7. Denies knowledge or sufficient information to form a belief as to the truth of the
"7"
allegations as set forth in paragraph of the Complaint;
8. Denies knowledge or sufficient information to form a belief as to the truth of the
"8"
allegations as set forth in paragraph of the Complaint;
9. Denies knowledge or sufficient information to form a belief as to the truth of the
"9"
allegations as set forth in paragraph of the Complaint;
10. Denies knowledge or sufficient information to form a belief as to the truth of the
"10"
allegations as set forth in paragraph of the Complaint;
11. Denies knowledge or sufficient information to form a belief as to the truth of the
"11"
allegations as set forth in paragraph of the Complaint;
12. Denies knowledge or sufficient information to form a belief as to the truth of the
"12"
allegations as set forth in paragraph of the Complaint;
"13"
13. Denies each and every allegation as set forth in paragraph of the Complaint
as it applies to Answering Defendant;
"14"
14. Denies each and every allegation as set forth in paragraph of the Complaint;
"15"
15. Denies each and every allegation as set forth in paragraph of the Complaint;
"16"
16. Denies each and every allegation as set forth in paragraph of the Complaint;
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"17"
17. Denies each and every allegation as set forth in paragraph of the Complaint;
"18"
18. Denies each and every allegation as set forth in paragraph of the Complaint.
AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION
"19"
19. In response to the allegations contained in paragraph of the Complaint,
Answering Defendant repeats, reiterates and realleges each and every response contained in
"1" "18"
paragraphs through of this Verified Answer to the Complaint with the same force and
effect as if more fully set forth at length herein;
20. Denies in the form alleged each and every allegation as set forth in paragraph
"20"
of the Complaint except admits that Belmont Re. LLC was a domestic entity authorized to
do business in the State of New York;
21. Denies in the form alleged each and every allegation as set forth in paragraph
"21"
of the Complaint except admits that Belmont Re. LLC was the owner of the building
located at 222 Belmont Avenue in Brooklyn;
"22"
22. Denies each and every allegation as set forth in paragraph of the Complaint;
23. Denies in the form alleged each and every allegation as set forth in paragraph
"23"
of the Complaint except admits that Belmont Re. LLC was the owner of the building
located at 222 Belmont Avenue in Brooklyn;
24. Denies in the form alleged each and every allegation as set forth in paragraph
"24"
of the Complaint except admits that Belmont Re. LLC was the owner of the building
located at 222 Belmont Avenue in Brooklyn;
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25. Denies in the form alleged each and every allegation as set forth in paragraph
"25"
of the Complaint except admits that Belmont Re. LLC was the owner of the building
located at 222 Belmont Avenue in Brooklyn;
26. Denies in the form alleged each and every allegation as set forth in paragraph
"26"
of the Complaint except admits that Belmont Re. LLC was the owner of the building
located at 222 Belmont Avenue in Brooklyn;
"27"
27. Denies each and every allegation as set forth in paragraph of the Coiñplaint;
"28"
28. Denies each and every allegation as set forth in paragraph of the Complaint;
"29"
29. Denies each and every allegation as set forth in paragraph of the Complaint;
"30"
30. Denies each and every allegation as set forth in paragraph of the Complaint;
"31"
31. Denies each and every allegation as set forth in paragraph of the Complaint;
"32"
32. Denies each and every allegation as set forth in paragraph of the Complaint;
"33"
33. Denies each and every allegation as set forth in paragraph of the Complaint;
"34"
34. Denies each and every allegation as set forth in paragraph of the Complaint
as it applies to Answering Defendant;
"35"
35. Denies each and every allegation as set forth in paragraph of the Complaint;
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"36"
36. Denies each and every allegation as set forth in paragraph of the Complaint;
"37"
37. Denies each and every allegation as set forth in paragraph of the Complaint;
"38"
38. Denies each and every allegation as set forth in paragraph of the Complaint;
FIRST AFFIRMATIVE DEFENSE
The injuries and damages, if any, alleged to have been sustained by Plaintiff were caused
in whole or in part by the culpable conduct and/or contributory negligence of the Plaintiff and
Plaintiffs damages, if any, should be barred or diminished in the proportion which such conduct
bears to the culpable conduct that caused said injuries and damages.
SECOND AFFIRMATIVE DEFENSE
Upon information and belief, the injuries and damages, if any, alleged to have been
sustained by Plaintiff were caused in whole or in part by the acts, omissions, or other conduct of
individuals or entities over which the Answering Defendant had no control and had no duty to
control.
THIRD AFFIRMATIVE DEFENSE
The injured Plaintiff assumed a known or an open or obvious risk for which Plaintiff may
not recover any damages, or Plaintiff s damages must be reduced accordingly.
FOURTH AFFIRMATIVE DEFENSE
The injuries and damages allegedly sustained by Plaintiff were not reasonably
foreseeable.
FIFTH AFFIRMATIVE DEFENSE
The Answering Defendant owes no legal duty to Plaintiff.
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SIXTH AFFIRMATIVE DEFENSE
Plaintiffs injuries, if any, were uâused by intervening and/or superseding factors which
relieves the Answering Defendant from any liability in this action.
SEVENTH AFFIRMATIVE DEFENSE
In accordance with CPLR §1601 et seq., the liability of Answering Defendant if any, to
Plaintiff for non-economic loss is limited to each defendant's equitable share, determined in
accordance with relative culpability of all persons and/or entities contributing to the total liability
for non-economic loss, parties and others over whom Plaintiff could have obtained
including
personal jurisdiction with due diligence.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff has failed to join necessary and essential parties to this litigation.
NINTH AFFIRMATIVE DEFENSE
Upon information and belief, any costs, loss or expenses incurred or to be incurred by the
Plaintiff for medical care, custodial care or rehabilitative services, loss of earnings or other
economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or
in part from a collateral source as defined in CPLR 4545 (c).
TENTH AFFIRMATIVE DEFENSE
Plaintiff s dainages must be diminished in proportion to culpable conduct in accordance
with CPLR 1411 and 1412.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiff's Complaint fails to state a cause of action upon which relief can be granted as a
matter of law.
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TWELFTH AFFIRMATIVE DEFENSE
This action is barred by the applicable statute of limitations.
AS AND FOR A FIRST CROSS-CLAIM AGAINST
CO-DEFENDANTS
If Plaintiff was caused to sustain injuries and/or damages at the time and place and in the
manner set forth in this action through any carelessness, recklessness, or negligence, other than
Plaintiff's own carelessness, recklessness, or negligence, then the injuries and damages were
caused and sustained by reason of the sole active and primary carelessness, recklessness,
negligence, and/or acts or omissions of CO-DEFENDANTS, and ANSWERING DEFENDANT
is entitled to indemnification, and thereby CO-DEFENDANTS are primarily liable.
AS AND FOR A SECOND CROSS-CLAIM AGAINST
CO-DEFENDANTS
If Plaintiff sustained the injuries and/or damages in the manner and at the time and place
alleged, and it is found that ANSWERING DEFENDANT is liable herein, all of which is
specifically denied, then ANSWERING DEFENDANT, on the basis of apportionment of
responsibility and/or contractual responsibility for the alleged occurrence, is entitled to
contractual indemnification from and judgment over and against CO-DEFENDANTS.
By reason of the foregoing, ANSWERING DEFENDANT is entitled to have judgment
over and against CO-DEFENDANTS as to any sum awarded against ANSWERING
attorneys'
DEFENDANT, including costs, expenses, and fees.
AS AND FOR A THIRD CROSS-CLAIM AGAINST
CO-DEFEN_D_ANTS
If Plaintiff sustained the injuries and damages in the manner and at the time and place
alleged, and it is found that ANSWERING DEFENDANT is liable herein, all of which is
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specifically denied, then ANSWERING DEFENDANT, on the basis of apportionment of
responsibility and/or contractual responsibility for the alleged occurrence, is entitled to
contribution from and judgment over and against CO-DEFENDANTS.
By reason of the foregoing, ANSWERING DEFENDANT is entitled to contribution and
judgment over and against CO-DEFENDANTS.
Dated: New York, New York
September 30, 2020
NEWMAN LAW ASSOCIATES PLLC
Jaso . Warsfaw, Esq.
orneys for Defendant
BELMONT RE. LLC
111 John Street, Suite 1500
New York, New York 10038
(212) 945-1010
TO:
SUBIN ASSOCIATES, LLP
Attorneys for Plaintiff
LUIS ALBERTO HERRERA
23rd
150 Broadway, FlOOr
New York, New York 10038
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant
SUTTER AVENUE REALTY CO. LLC
2862
55 Water Street, Floor
New York, New York 10041
CORPORATION COUNSEL
Attorneys for Defendant
THE CITY OF NEW YORK
100 Church Street
New York, New York 10007
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ATTORNEY VERIFICATION
Jason Warshaw, Esq. affirms the following under the penalties of perjury:
I am an attorney duly admitted to practice in the courts of the State of New York, and I
am an attorney with the firm of NEWMAN LAW ASSOCIATES PLLC, the attorneys of record
for Defendant, BELMONT RE. LLC, in the within action. I have read the foregoing Verified
Answer to the Colliplaiiit and know the contents thereof. The same is true to my own
knowledge, except as to the matters therein stated to be alleged upon information and belief, and
as to those matters, I believe them to be true. The basis for my belief is: review of files,
investigations and conversations with clients.
Dated: New York, New York
September 30, 2020
Jason D. Warshaw, Esq.
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Preview
FILED: KINGS COUNTY CLERK 09/30/2020 07:10 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------- X LUIS ALBERTO HERRERA, Index No.: 512147/2020 Plaintiff, -against- VERIFIED ANSWER TO PLAINTIFF'S VERIFIED THE CITY OF NEWYORK, BELMONT RE, LLC COMPLAINT and SUTTER AVENUE REALTY CO. LLC, Defendants. ___________ _..---- ... .. ....------------------- X Defendant, BELMONT RE. LLC, by its attorneys, NEWMAN LAW ASSOCIATES PLLC, answers Plaintiffs Verified Complaint dated June 8, 2020 as follows: AS AND FOR A RESPONSE TO FIRST CAUSE OF ACTION 1. Denies knowledge or sufficient information to form a belief as to the truth of the "1" allegations as set forth in paragraph of the Complaint; 2. Denies knowledge or sufficient information to form a belief as to the truth of the "2" allegations as set forth in paragraph of the Complaint; 3. Denies knowledge or sufficient information to form a belief as to the truth of the "3" allegations as set forth in paragraph of the Complaint; 4. Denies knowledge or sufficient information to form a belief as to the truth of the "4" allegations as set forth in paragraph of the Complaint; 5. Denies knowledge or sufficient information to form a belief as to the truth of the "5" allegations as set forth in paragraph of the Complaint; 1 of 9 FILED: KINGS COUNTY CLERK 09/30/2020 07:10 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2020 6. Denies knowledge or sufficient information to form a belief as to the truth of the "6" allegations as set forth in paragraph of the Complaint; 7. Denies knowledge or sufficient information to form a belief as to the truth of the "7" allegations as set forth in paragraph of the Complaint; 8. Denies knowledge or sufficient information to form a belief as to the truth of the "8" allegations as set forth in paragraph of the Complaint; 9. Denies knowledge or sufficient information to form a belief as to the truth of the "9" allegations as set forth in paragraph of the Complaint; 10. Denies knowledge or sufficient information to form a belief as to the truth of the "10" allegations as set forth in paragraph of the Complaint; 11. Denies knowledge or sufficient information to form a belief as to the truth of the "11" allegations as set forth in paragraph of the Complaint; 12. Denies knowledge or sufficient information to form a belief as to the truth of the "12" allegations as set forth in paragraph of the Complaint; "13" 13. Denies each and every allegation as set forth in paragraph of the Complaint as it applies to Answering Defendant; "14" 14. Denies each and every allegation as set forth in paragraph of the Complaint; "15" 15. Denies each and every allegation as set forth in paragraph of the Complaint; "16" 16. Denies each and every allegation as set forth in paragraph of the Complaint; 2 2 of 9 FILED: KINGS COUNTY CLERK 09/30/2020 07:10 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2020 "17" 17. Denies each and every allegation as set forth in paragraph of the Complaint; "18" 18. Denies each and every allegation as set forth in paragraph of the Complaint. AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION "19" 19. In response to the allegations contained in paragraph of the Complaint, Answering Defendant repeats, reiterates and realleges each and every response contained in "1" "18" paragraphs through of this Verified Answer to the Complaint with the same force and effect as if more fully set forth at length herein; 20. Denies in the form alleged each and every allegation as set forth in paragraph "20" of the Complaint except admits that Belmont Re. LLC was a domestic entity authorized to do business in the State of New York; 21. Denies in the form alleged each and every allegation as set forth in paragraph "21" of the Complaint except admits that Belmont Re. LLC was the owner of the building located at 222 Belmont Avenue in Brooklyn; "22" 22. Denies each and every allegation as set forth in paragraph of the Complaint; 23. Denies in the form alleged each and every allegation as set forth in paragraph "23" of the Complaint except admits that Belmont Re. LLC was the owner of the building located at 222 Belmont Avenue in Brooklyn; 24. Denies in the form alleged each and every allegation as set forth in paragraph "24" of the Complaint except admits that Belmont Re. LLC was the owner of the building located at 222 Belmont Avenue in Brooklyn; 3 3 of 9 FILED: KINGS COUNTY CLERK 09/30/2020 07:10 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2020 25. Denies in the form alleged each and every allegation as set forth in paragraph "25" of the Complaint except admits that Belmont Re. LLC was the owner of the building located at 222 Belmont Avenue in Brooklyn; 26. Denies in the form alleged each and every allegation as set forth in paragraph "26" of the Complaint except admits that Belmont Re. LLC was the owner of the building located at 222 Belmont Avenue in Brooklyn; "27" 27. Denies each and every allegation as set forth in paragraph of the Coiñplaint; "28" 28. Denies each and every allegation as set forth in paragraph of the Complaint; "29" 29. Denies each and every allegation as set forth in paragraph of the Complaint; "30" 30. Denies each and every allegation as set forth in paragraph of the Complaint; "31" 31. Denies each and every allegation as set forth in paragraph of the Complaint; "32" 32. Denies each and every allegation as set forth in paragraph of the Complaint; "33" 33. Denies each and every allegation as set forth in paragraph of the Complaint; "34" 34. Denies each and every allegation as set forth in paragraph of the Complaint as it applies to Answering Defendant; "35" 35. Denies each and every allegation as set forth in paragraph of the Complaint; 4 4 of 9 FILED: KINGS COUNTY CLERK 09/30/2020 07:10 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2020 "36" 36. Denies each and every allegation as set forth in paragraph of the Complaint; "37" 37. Denies each and every allegation as set forth in paragraph of the Complaint; "38" 38. Denies each and every allegation as set forth in paragraph of the Complaint; FIRST AFFIRMATIVE DEFENSE The injuries and damages, if any, alleged to have been sustained by Plaintiff were caused in whole or in part by the culpable conduct and/or contributory negligence of the Plaintiff and Plaintiffs damages, if any, should be barred or diminished in the proportion which such conduct bears to the culpable conduct that caused said injuries and damages. SECOND AFFIRMATIVE DEFENSE Upon information and belief, the injuries and damages, if any, alleged to have been sustained by Plaintiff were caused in whole or in part by the acts, omissions, or other conduct of individuals or entities over which the Answering Defendant had no control and had no duty to control. THIRD AFFIRMATIVE DEFENSE The injured Plaintiff assumed a known or an open or obvious risk for which Plaintiff may not recover any damages, or Plaintiff s damages must be reduced accordingly. FOURTH AFFIRMATIVE DEFENSE The injuries and damages allegedly sustained by Plaintiff were not reasonably foreseeable. FIFTH AFFIRMATIVE DEFENSE The Answering Defendant owes no legal duty to Plaintiff. 5 5 of 9 FILED: KINGS COUNTY CLERK 09/30/2020 07:10 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2020 SIXTH AFFIRMATIVE DEFENSE Plaintiffs injuries, if any, were uâused by intervening and/or superseding factors which relieves the Answering Defendant from any liability in this action. SEVENTH AFFIRMATIVE DEFENSE In accordance with CPLR §1601 et seq., the liability of Answering Defendant if any, to Plaintiff for non-economic loss is limited to each defendant's equitable share, determined in accordance with relative culpability of all persons and/or entities contributing to the total liability for non-economic loss, parties and others over whom Plaintiff could have obtained including personal jurisdiction with due diligence. EIGHTH AFFIRMATIVE DEFENSE Plaintiff has failed to join necessary and essential parties to this litigation. NINTH AFFIRMATIVE DEFENSE Upon information and belief, any costs, loss or expenses incurred or to be incurred by the Plaintiff for medical care, custodial care or rehabilitative services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in CPLR 4545 (c). TENTH AFFIRMATIVE DEFENSE Plaintiff s dainages must be diminished in proportion to culpable conduct in accordance with CPLR 1411 and 1412. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff's Complaint fails to state a cause of action upon which relief can be granted as a matter of law. 6 6 of 9 FILED: KINGS COUNTY CLERK 09/30/2020 07:10 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2020 TWELFTH AFFIRMATIVE DEFENSE This action is barred by the applicable statute of limitations. AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANTS If Plaintiff was caused to sustain injuries and/or damages at the time and place and in the manner set forth in this action through any carelessness, recklessness, or negligence, other than Plaintiff's own carelessness, recklessness, or negligence, then the injuries and damages were caused and sustained by reason of the sole active and primary carelessness, recklessness, negligence, and/or acts or omissions of CO-DEFENDANTS, and ANSWERING DEFENDANT is entitled to indemnification, and thereby CO-DEFENDANTS are primarily liable. AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANTS If Plaintiff sustained the injuries and/or damages in the manner and at the time and place alleged, and it is found that ANSWERING DEFENDANT is liable herein, all of which is specifically denied, then ANSWERING DEFENDANT, on the basis of apportionment of responsibility and/or contractual responsibility for the alleged occurrence, is entitled to contractual indemnification from and judgment over and against CO-DEFENDANTS. By reason of the foregoing, ANSWERING DEFENDANT is entitled to have judgment over and against CO-DEFENDANTS as to any sum awarded against ANSWERING attorneys' DEFENDANT, including costs, expenses, and fees. AS AND FOR A THIRD CROSS-CLAIM AGAINST CO-DEFEN_D_ANTS If Plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and it is found that ANSWERING DEFENDANT is liable herein, all of which is 7 7 of 9 FILED: KINGS COUNTY CLERK 09/30/2020 07:10 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2020 specifically denied, then ANSWERING DEFENDANT, on the basis of apportionment of responsibility and/or contractual responsibility for the alleged occurrence, is entitled to contribution from and judgment over and against CO-DEFENDANTS. By reason of the foregoing, ANSWERING DEFENDANT is entitled to contribution and judgment over and against CO-DEFENDANTS. Dated: New York, New York September 30, 2020 NEWMAN LAW ASSOCIATES PLLC Jaso . Warsfaw, Esq. orneys for Defendant BELMONT RE. LLC 111 John Street, Suite 1500 New York, New York 10038 (212) 945-1010 TO: SUBIN ASSOCIATES, LLP Attorneys for Plaintiff LUIS ALBERTO HERRERA 23rd 150 Broadway, FlOOr New York, New York 10038 EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant SUTTER AVENUE REALTY CO. LLC 2862 55 Water Street, Floor New York, New York 10041 CORPORATION COUNSEL Attorneys for Defendant THE CITY OF NEW YORK 100 Church Street New York, New York 10007 8 8 of 9 FILED: KINGS COUNTY CLERK 09/30/2020 07:10 PM INDEX NO. 512147/2020 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 09/30/2020 ATTORNEY VERIFICATION Jason Warshaw, Esq. affirms the following under the penalties of perjury: I am an attorney duly admitted to practice in the courts of the State of New York, and I am an attorney with the firm of NEWMAN LAW ASSOCIATES PLLC, the attorneys of record for Defendant, BELMONT RE. LLC, in the within action. I have read the foregoing Verified Answer to the Colliplaiiit and know the contents thereof. The same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true. The basis for my belief is: review of files, investigations and conversations with clients. Dated: New York, New York September 30, 2020 Jason D. Warshaw, Esq. 9 9 of 9