Preview
FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019
SUPREME COURT OF THE STATE OF NEW YORK
CONTY OF KINGS
---------------------------------------------------
=--,X
YUIE ZHU,
Plaintiff,
Index No. 521502/18
-against-
VERIFIED ANSWER TO
DAVID GRINSTEAD, LAURA MCCALLUM VERIFIED COMPLAINT
GRINSTEAD, CON. STATE MGT. CO. LLC and CITY
OF NEW YORK,
Defendants.
C O U N S E L O R S :
PLEASE TAKE NOTICE, that the Defendant, CON. STATE MGT. CO. LLC,
hereby appears in this action and has retained the Law Office of FERN FLOMENHAFT PLLC as
attorneys and demands that all papers in this action be served upon them at the office at the address
stated below.
PLEASE TAKE FURTHER NOTICE, that the above-named Defendant hereby
interposes the
following Answer to the Complaint herein, upon information and belief:
1. Denies knowledge or information sufficient to form a belief as to each and
"1," "2," "4," "5," "6," "2ªd
every allegaticn set forth in the paragraph of the Complaint designated
6," "8," "9," "15," "16," "17," "18," "19," "20," "21," "22," "23," "24," "25,"
number paragraph
"26," "27," "28," "36," "37," "38," "39," "40," "41," "42," "43," "44," "45," "46," "47," "48,"
"49," "50," "51" "52."
and
"7."
2. There is no paragraph numbered
3. Denies each and every allegatiañ contained in the paragraphs of the
"3," "30," "31," "32," "33" "35"
Complaint designated and and reserves and refers all questions of
law, fact and/or conclusions raised therein to the Trial Court.
1 of 6
FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019
4. Denies each and every anegation contained in the paragraphs of the
"11," "29," "34," "53," "54," "55," "56" "57."
Complaint designated and
AS AND FOR A FIRST SEPARATE
AND DISTINCT AFFIRMATIVE DEFENSE
5. That if plaintiff sustained the injuries and damages alleged in the Verified
Complaint, same were wholly or in part caused by the culpable conduct of plaintiff and the
answering Defendant is entitled to judgmêñt dismissing the Verified Camplaint herein, or in the
alternative, the answering Defendant is entitled to judgment assessing and fixing the culpable
conduct of plaintiff contributing to said injuries and damages.
AS AND FOR A SECOND SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE
6. Upon information and belief, the plaintiff received remuneration and/or
campasation for some or all of its claimed economic loss and, accordingly, the answeriñg
Defedant is entitled to have plaintiffs award, if any, reduced by the amount of that
remuneration and/or compensation pursuant to §4545(c) of the CPLR.
AS AND FOR A THIRD SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE
7. Pursuant to CPLR Article 16, the liability of the answering Defendant, if
any, to the plaintiff for plaintifPs non-economic loss, if any, is limited to and does not exceed
said answering Defendant's equitable share of liability, determined according to the relative
culpability of all paraons or entities contributing to the total liability for non-ecanomic loss,
including named parties and others over whom the plaintiff could have obtained personal
jurisdiction with the exercise of due diligence.
2 of 6
FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019
AS AND FOR A FOURTH SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE
8. That by entering into the activity in which the plaintiff was engaged at the
time of the occurreñce set forth in the Complaint, said plaintiff knew the hazards thereof and the
inherent risks incident thereto and had full knowledge of the dangers thereof; that whatever
injuries and damages were sustained by the plaintiff herein as alleged in the Camplent arose
from and were caused by reason of such risks were assumed and accepted by plainitff in
performing and engaging in said activities.
AS AND FOR A FIFTH SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE
9. That the plaintiff failed to state a cause of action.
AS AND FOR A SIXTH SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE
10. That the applicable Statute of Limitations expired prior to the
commcñcement of the within action and that, as a result, the action is now time-barred.
AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANTS,
DAVID GRINSTEAD, LAURA MCCALLUM GRINSTEAD, and CITY OF NEW YORK,
DEFENDANT CON. STATE MGT. CO. LLC, ALLEGES UPON
EORMATION AND BELIEF AS FOLLOWS:
You are hereby summoned to answer the Cross-Claims below and to serve
a copy of your Answer within twenty (20) days from the date of service
herein. In case of your failure to answer the Cross-Claims below,
judgment will be taken against you on the Cross-Claims by default for the
reliefdemanded in the Cross-Claims herein.
11. If the plaintiff sustained injuries and damages alleged, such injuries and
damages were caused entirely by reason of the culpable conduct of Defendants, DAVID
GRINSTEAD, LAURA MCCALLUM GRINSTEAD, and CITY OF NEW YORK, there being
no active or primary wrong-doing on the part of the answering Defendant contributing thereto.
3 of 6
FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019
12. By reason of the foregoing, the answering Defendant is entitled to full
indemnity and/or contribution from and judgment over and against Defendants, DAVID
GRINSTEAD, LAURA MCCALLUM GRINSTEAD, and CITY OF NEW YORK, for all or any
verdict or judgment which may be recovered against the answering Defeñdant.
AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANTS, DAVID
GRINSTEAD, LAURA MCCALLUM GRINSTEAD, AND CITY OF NEW YORK,
DEFENDANT CON. STATE MGT. CO. LLC, ALLEGES UPON
INFORMATION AND BELIEF AS FOLLOWS:
13. That if plaintiff sustained the injuries and damages in the manner and at
the time and place and under the circumstances alleged, and if it is found that the answering
Defendant is liable to plaintiff in whole or part herein, then said Defendant- on the
answering
basis of indemnity or apportionment of responsibility for the alleged occurrence, is by reason of
negligence and/or breach of warrañties and/or breach of contract and/or breach of lease and/or
strict in tort entitled to indemnification from and judgment over against the aforemen-
liability
tioned co-defendant, for all or part of any verdict or judgment that plaintiff may recover against
said answering Defendant.
14. That by reason of this action, said answeriñg Defeñdant has been and will
attorneys'
be put to costs and expenses, including fees.
WHEREFORE, Defendant, CON. STATE MGT. CO. LLC, demands judgment
dianissing plaintiffs Complaint, together with the costs and disbursements of this action, and
further demands that in the event said answering Defendant is found liable to plaintiff herein, then
said answering Defendant, on the basis of indemnity or apportionment or respondbility, have
judgment over against the aforementioned co-defendant(s) for all or part of the verdict or judgment
that plaintiff may recover against said answering Defendant, together with the costs and
disbursements of this action, and for any expenses incurred by it in the defense thereof, including
4 of 6
FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019
attorneys'
fees.
Dated: New York, New York
January 28, 2019
LAW OFFICE OF FERN FLOMENHAFT PLLC
Attorneys for Defendant
CON. STATE M . C . LC
By:
FERN FLOME T
26 Broadway, 26th oor
New York, New York 10004
(212) 796-7601
File No.: BR-OT-004
TO:
Greenberg & Stein, Esqs.
Attorneys for Plaintiff
360 Lexington Avenue, Suite 1501
New York, NY 10017
O'Toole Scrivo Fernandez Weiner Van Lieu, L.L.C
Attorneys for Defendant
LAURA MCCALLUM GRINSTEAD
Empire State Building,
350 Fifth Avenue, 59th Floor
New York, NY 10017
-and-
Mailing address
14 Village Park Road
Cedar Grove, NJ 07009
Zachary Catter, Esq.
Corporation Counsel
CITY OF NEW YORK
350 Jay Street, 8th Floor
Brooklyn, NY 11201
5 of 6
FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019
VERIFICATION
I, the undersigned, an attorney duly admitted to practice law before the Courts of the
State of New York, state that I am a member of the Law Office of FERN FLOMENHAFT PLLC,
attorneys of record for the Defendant, CON. STATE MGT. CO. LLC, in the within action; I have
read the foragoing ANSWER and know the contents thereof; the same is true to my own
knowledge, except as to the matters therein stated to be alleged on information and belief and as to
those matters I believe it to be true. The reason this verificatioñ is made by me and not by said party
is that said party is located in a county other than the county in which counsel maintains law offices.
The grounds of my belief as to all matters not stated upon my own knowledge are as
follows:
Investigation and information received dapanant in the course of her duties as an
by
for the said Defendant
attorney
I affirm that the foregoing statements are true, under the penalties of perjury.
Dated: New York, New York
January 28, 2019
FER I FL ENHAFT
6 of 6
Preview
FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019 SUPREME COURT OF THE STATE OF NEW YORK CONTY OF KINGS --------------------------------------------------- =--,X YUIE ZHU, Plaintiff, Index No. 521502/18 -against- VERIFIED ANSWER TO DAVID GRINSTEAD, LAURA MCCALLUM VERIFIED COMPLAINT GRINSTEAD, CON. STATE MGT. CO. LLC and CITY OF NEW YORK, Defendants. C O U N S E L O R S : PLEASE TAKE NOTICE, that the Defendant, CON. STATE MGT. CO. LLC, hereby appears in this action and has retained the Law Office of FERN FLOMENHAFT PLLC as attorneys and demands that all papers in this action be served upon them at the office at the address stated below. PLEASE TAKE FURTHER NOTICE, that the above-named Defendant hereby interposes the following Answer to the Complaint herein, upon information and belief: 1. Denies knowledge or information sufficient to form a belief as to each and "1," "2," "4," "5," "6," "2ªd every allegaticn set forth in the paragraph of the Complaint designated 6," "8," "9," "15," "16," "17," "18," "19," "20," "21," "22," "23," "24," "25," number paragraph "26," "27," "28," "36," "37," "38," "39," "40," "41," "42," "43," "44," "45," "46," "47," "48," "49," "50," "51" "52." and "7." 2. There is no paragraph numbered 3. Denies each and every allegatiañ contained in the paragraphs of the "3," "30," "31," "32," "33" "35" Complaint designated and and reserves and refers all questions of law, fact and/or conclusions raised therein to the Trial Court. 1 of 6 FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019 4. Denies each and every anegation contained in the paragraphs of the "11," "29," "34," "53," "54," "55," "56" "57." Complaint designated and AS AND FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 5. That if plaintiff sustained the injuries and damages alleged in the Verified Complaint, same were wholly or in part caused by the culpable conduct of plaintiff and the answering Defendant is entitled to judgmêñt dismissing the Verified Camplaint herein, or in the alternative, the answering Defendant is entitled to judgment assessing and fixing the culpable conduct of plaintiff contributing to said injuries and damages. AS AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 6. Upon information and belief, the plaintiff received remuneration and/or campasation for some or all of its claimed economic loss and, accordingly, the answeriñg Defedant is entitled to have plaintiffs award, if any, reduced by the amount of that remuneration and/or compensation pursuant to §4545(c) of the CPLR. AS AND FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 7. Pursuant to CPLR Article 16, the liability of the answering Defendant, if any, to the plaintiff for plaintifPs non-economic loss, if any, is limited to and does not exceed said answering Defendant's equitable share of liability, determined according to the relative culpability of all paraons or entities contributing to the total liability for non-ecanomic loss, including named parties and others over whom the plaintiff could have obtained personal jurisdiction with the exercise of due diligence. 2 of 6 FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019 AS AND FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 8. That by entering into the activity in which the plaintiff was engaged at the time of the occurreñce set forth in the Complaint, said plaintiff knew the hazards thereof and the inherent risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries and damages were sustained by the plaintiff herein as alleged in the Camplent arose from and were caused by reason of such risks were assumed and accepted by plainitff in performing and engaging in said activities. AS AND FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 9. That the plaintiff failed to state a cause of action. AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 10. That the applicable Statute of Limitations expired prior to the commcñcement of the within action and that, as a result, the action is now time-barred. AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANTS, DAVID GRINSTEAD, LAURA MCCALLUM GRINSTEAD, and CITY OF NEW YORK, DEFENDANT CON. STATE MGT. CO. LLC, ALLEGES UPON EORMATION AND BELIEF AS FOLLOWS: You are hereby summoned to answer the Cross-Claims below and to serve a copy of your Answer within twenty (20) days from the date of service herein. In case of your failure to answer the Cross-Claims below, judgment will be taken against you on the Cross-Claims by default for the reliefdemanded in the Cross-Claims herein. 11. If the plaintiff sustained injuries and damages alleged, such injuries and damages were caused entirely by reason of the culpable conduct of Defendants, DAVID GRINSTEAD, LAURA MCCALLUM GRINSTEAD, and CITY OF NEW YORK, there being no active or primary wrong-doing on the part of the answering Defendant contributing thereto. 3 of 6 FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019 12. By reason of the foregoing, the answering Defendant is entitled to full indemnity and/or contribution from and judgment over and against Defendants, DAVID GRINSTEAD, LAURA MCCALLUM GRINSTEAD, and CITY OF NEW YORK, for all or any verdict or judgment which may be recovered against the answering Defeñdant. AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANTS, DAVID GRINSTEAD, LAURA MCCALLUM GRINSTEAD, AND CITY OF NEW YORK, DEFENDANT CON. STATE MGT. CO. LLC, ALLEGES UPON INFORMATION AND BELIEF AS FOLLOWS: 13. That if plaintiff sustained the injuries and damages in the manner and at the time and place and under the circumstances alleged, and if it is found that the answering Defendant is liable to plaintiff in whole or part herein, then said Defendant- on the answering basis of indemnity or apportionment of responsibility for the alleged occurrence, is by reason of negligence and/or breach of warrañties and/or breach of contract and/or breach of lease and/or strict in tort entitled to indemnification from and judgment over against the aforemen- liability tioned co-defendant, for all or part of any verdict or judgment that plaintiff may recover against said answering Defendant. 14. That by reason of this action, said answeriñg Defeñdant has been and will attorneys' be put to costs and expenses, including fees. WHEREFORE, Defendant, CON. STATE MGT. CO. LLC, demands judgment dianissing plaintiffs Complaint, together with the costs and disbursements of this action, and further demands that in the event said answering Defendant is found liable to plaintiff herein, then said answering Defendant, on the basis of indemnity or apportionment or respondbility, have judgment over against the aforementioned co-defendant(s) for all or part of the verdict or judgment that plaintiff may recover against said answering Defendant, together with the costs and disbursements of this action, and for any expenses incurred by it in the defense thereof, including 4 of 6 FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019 attorneys' fees. Dated: New York, New York January 28, 2019 LAW OFFICE OF FERN FLOMENHAFT PLLC Attorneys for Defendant CON. STATE M . C . LC By: FERN FLOME T 26 Broadway, 26th oor New York, New York 10004 (212) 796-7601 File No.: BR-OT-004 TO: Greenberg & Stein, Esqs. Attorneys for Plaintiff 360 Lexington Avenue, Suite 1501 New York, NY 10017 O'Toole Scrivo Fernandez Weiner Van Lieu, L.L.C Attorneys for Defendant LAURA MCCALLUM GRINSTEAD Empire State Building, 350 Fifth Avenue, 59th Floor New York, NY 10017 -and- Mailing address 14 Village Park Road Cedar Grove, NJ 07009 Zachary Catter, Esq. Corporation Counsel CITY OF NEW YORK 350 Jay Street, 8th Floor Brooklyn, NY 11201 5 of 6 FILED: KINGS COUNTY CLERK 01/28/2019 07:38 PM INDEX NO. 521502/2018 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/28/2019 VERIFICATION I, the undersigned, an attorney duly admitted to practice law before the Courts of the State of New York, state that I am a member of the Law Office of FERN FLOMENHAFT PLLC, attorneys of record for the Defendant, CON. STATE MGT. CO. LLC, in the within action; I have read the foragoing ANSWER and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief and as to those matters I believe it to be true. The reason this verificatioñ is made by me and not by said party is that said party is located in a county other than the county in which counsel maintains law offices. The grounds of my belief as to all matters not stated upon my own knowledge are as follows: Investigation and information received dapanant in the course of her duties as an by for the said Defendant attorney I affirm that the foregoing statements are true, under the penalties of perjury. Dated: New York, New York January 28, 2019 FER I FL ENHAFT 6 of 6