Preview
FILED: KINGS COUNTY CLERK 02/21/2019 02:59 PM INDEX NO. 521833/2018
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/21/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
______________ -------X
JULISSA ESCANO
Index No. 521833/2018
Plaintiff,
AMENDED
-against- VERIFIED ANSWER TO
AMENDED COMPLAINT
5223 3 AVE LLC, BEST WORK INC., WITH AFFIRMATIVE
and MENDIETA CONSTRUCTION INC., DEFENSES AND
CROSSCLAIMS
Defendants.
__________ x
5223 3 AVE LLC, by their attorneys Law Office of Yang & Partners answering the
Amended Complaint herein, respectfully allege:
1. Denies sufficient knowledge or information to form a belief as to the allegations in
paragraphs 1, 3-7, 17, 24-31, 33-37, 39-45 and 47-50 of the Amended Complaint.
2. Denies the allegations in paragraphs 8, 10-16, 18-23, 32, 46 and 51 of the Amended
Complaint.
3. Admits the allegations in paragraphs 2 and 9 of the Amended Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
4. Any alleged injuries and/or damages sustained by plaintiff JULIE ESCHANO as set
forth in the Verified Complaint were due in whole or in part to her own culpable conduct.
Accordingly, the amount of any such damages shall be diminished in proportion to which plaintiff
JULIE ESCHANO's culpable conduct attributable to plaintiff bears to the culpable conduct of the
defendant herein.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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5. The Complaint herein fails to state a cause of action because any alleged defect alleged
to have caused the accident herein was open, obvious and apparent to the plaintiff, nor did it
constitute a hazard since it was diilliilliiius in nature.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
6. Plaintiff's complaint fails to state a cause of action agaiiist this defendant who was
not in privity with plaintiff and who bears no respoilsibility for any alleged injuries in the alleged
accident.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
7. Plaintiff's complaint must be dismissed as it is barred by the Omnibus Worker's
Compensation Act and plaintiff ESCANO didn't sustain a grave injury herein and is barred by the
Omnibus Worker's Compensation Act Sections 11 and 29(6).
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
8. Upon information and belief, any past or future costs or expenses incurred or to be
incurred by the plaintiff for medical care, dental care, custodial care of rehabilitative services, loss
of earnings or other economic loss, have been or will with reasonable certainty be replaced or
indemnified in whole or in part from a collateral source as defined in Section 4545 (c) of the New
York Civil Practice Law and Rules.
9. If any damages are recoverable against the answering defendant, the amount of such
damages shall be diminished by the amount of the funds which plaintiff has or shall receive from
such collateral source.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
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10. If the answering defendant is found liable, such liability is less than or equal to 50% of
the total liability of all persons who may be found liable and therefore this defendant's liability shall
be limited to its equitable share pursuant to CPLR Article 16.
AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE
11. Plaintiff didn't utilize proper safety devices and was otherwise negligent and solely
responsible for any injuries he sustained.
AS AND FOR A FIRST CROSS CLAIM
AGAINST BEST WORK INC.
12. If Plaintiff sustained damages as alleged in the Amended Complaint through any fault
other than the plaintiff's own fault, and such damages were sustained due to sole fault of this
answering defendant above named, and if the plaintiff should obtain and recover judgment against
this answering defendant, then the above named defendant shall be liable for the full amount of said
judgment or for any part thereof obtained and/or recovered on the basis of apportionment of
responsibility for the alleged occurrence as found by the Court and/or jury.
AS AND FOR A SECOND CROSS CLAIM
AGAINST BEST WORK INC.
13. If Plaintiff sustained damages as alleged in the Amended Complaint through any fault
other than the plaintiff's own fault, and such damages were sustained due to sole fault of the
defendant above named, and if the plaintiff should obtain and recover judgment against this
answering defendant, then the above named defendant shall be liable pursuant to common law for
the full indemnification of this answering defendant, 5223 3 AVE LLC.
AS AND FOR A THIRD CROSS CLAIM
AGAIN_ST BEST WORK INC.
14. Defendant 5223 3 AVE LLC is entitled to contractual indemnification against BEST
WORK INC. pursuant to an agreement between the parties.
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AS AND FOR A FIRST CROSS CLAIM AGAINST
MENDIETA CONSTRUCTION INC.
15. If Plaintiff sustained damages as alleged in the Amended Complaint through any fault
other than the plaintiff's own fault, and such damages were sustained due to sole fault of this
answering defendant above named, and if the plaintiff should obtain and recover judgment against
this answering defendant then the above named defendant shall be liable for the full amount of said
judgment or for any part thereof obtained and/or recovered on the basis of apportionment of
responsibility for the alleged occurrence as found by the Court and/or jury.
AS AND FOR A SECOND CROSS CLAIM AGAINST
MENDIETA CONSTRUCTION INC.
15. If Plaintiff sustained damages as alleged in the Amended Complaint through any fault
other than the plaintiff's own fault, and such damages were sustained due to sole fault of the
defendant above named, and if the plaintiff should obtain and recover judgment against this
answering defendant then the above named defendant shall be liable pursuant to common law for
the full indemnification of this answering defendant, 5223 3 AVE LLC.
AS AND FOR A THIRD CROSS CLAIM AGAINST
MENDIETA CONSTRUCTION INC.
16. Defendant 5223 3 AVE LLC is entitled to contractual indemnification against
MENDIETA CONSTRUCTION INC. pursuant to an agreement between the parties.
WHEREFORE, this answering defendant, 5223 3 AVE LLC demands judgment dismissing
the Amended Complaint herein; granting this answering defendant judgment against defendants
BEST WORK INC. and MENDIETA CONSTRUCTION INC. on the cross claims together with
the costs and disbursements of this action.
Dated: Brooklyn, New York
February 18, 2019
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Yours, etc.
Law Firm of Yang & Partners
Attorneys for Defendant
5223 3 AVE LLC
9 East Broadway, Ste. 302
New York, New York 10038
Ph: (212) 608-3888
Fax: (212) 608-3999
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VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF )
Jin Fa Bao, being duly sworn, deposes and says:
3rd
I am the member of 5223 Avenue LLC., one of the Defendants in the within action: I
have read the foregoing Verified Answer To Amended Complaint With Affirmative Defenses And
Crossclaims, and know the contents thereof; and 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 it to be true. This verification is made by me because the above party is a company, and I
am an officer thereof. The grounds of my belief as to all matters not stated upon my own
knowledge are as follows: information received.
JlN FA BAO
Sworn to before me this
day of .. 2019
YUE HE
New York
Notary Public, State of
NO. 02HE6326877
Qualified in Queens County
Certificate Filed in New York Count
Commission Expires June 29, 20
Notary Public
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Preview
FILED: KINGS COUNTY CLERK 02/21/2019 02:59 PM INDEX NO. 521833/2018 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/21/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ______________ -------X JULISSA ESCANO Index No. 521833/2018 Plaintiff, AMENDED -against- VERIFIED ANSWER TO AMENDED COMPLAINT 5223 3 AVE LLC, BEST WORK INC., WITH AFFIRMATIVE and MENDIETA CONSTRUCTION INC., DEFENSES AND CROSSCLAIMS Defendants. __________ x 5223 3 AVE LLC, by their attorneys Law Office of Yang & Partners answering the Amended Complaint herein, respectfully allege: 1. Denies sufficient knowledge or information to form a belief as to the allegations in paragraphs 1, 3-7, 17, 24-31, 33-37, 39-45 and 47-50 of the Amended Complaint. 2. Denies the allegations in paragraphs 8, 10-16, 18-23, 32, 46 and 51 of the Amended Complaint. 3. Admits the allegations in paragraphs 2 and 9 of the Amended Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 4. Any alleged injuries and/or damages sustained by plaintiff JULIE ESCHANO as set forth in the Verified Complaint were due in whole or in part to her own culpable conduct. Accordingly, the amount of any such damages shall be diminished in proportion to which plaintiff JULIE ESCHANO's culpable conduct attributable to plaintiff bears to the culpable conduct of the defendant herein. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 1 1 of 6 FILED: KINGS COUNTY CLERK 02/21/2019 02:59 PM INDEX NO. 521833/2018 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/21/2019 5. The Complaint herein fails to state a cause of action because any alleged defect alleged to have caused the accident herein was open, obvious and apparent to the plaintiff, nor did it constitute a hazard since it was diilliilliiius in nature. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 6. Plaintiff's complaint fails to state a cause of action agaiiist this defendant who was not in privity with plaintiff and who bears no respoilsibility for any alleged injuries in the alleged accident. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 7. Plaintiff's complaint must be dismissed as it is barred by the Omnibus Worker's Compensation Act and plaintiff ESCANO didn't sustain a grave injury herein and is barred by the Omnibus Worker's Compensation Act Sections 11 and 29(6). AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 8. Upon information and belief, any past or future costs or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care of rehabilitative services, loss of earnings or other economic loss, have been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in Section 4545 (c) of the New York Civil Practice Law and Rules. 9. If any damages are recoverable against the answering defendant, the amount of such damages shall be diminished by the amount of the funds which plaintiff has or shall receive from such collateral source. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 2 2 of 6 FILED: KINGS COUNTY CLERK 02/21/2019 02:59 PM INDEX NO. 521833/2018 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/21/2019 10. If the answering defendant is found liable, such liability is less than or equal to 50% of the total liability of all persons who may be found liable and therefore this defendant's liability shall be limited to its equitable share pursuant to CPLR Article 16. AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE 11. Plaintiff didn't utilize proper safety devices and was otherwise negligent and solely responsible for any injuries he sustained. AS AND FOR A FIRST CROSS CLAIM AGAINST BEST WORK INC. 12. If Plaintiff sustained damages as alleged in the Amended Complaint through any fault other than the plaintiff's own fault, and such damages were sustained due to sole fault of this answering defendant above named, and if the plaintiff should obtain and recover judgment against this answering defendant, then the above named defendant shall be liable for the full amount of said judgment or for any part thereof obtained and/or recovered on the basis of apportionment of responsibility for the alleged occurrence as found by the Court and/or jury. AS AND FOR A SECOND CROSS CLAIM AGAINST BEST WORK INC. 13. If Plaintiff sustained damages as alleged in the Amended Complaint through any fault other than the plaintiff's own fault, and such damages were sustained due to sole fault of the defendant above named, and if the plaintiff should obtain and recover judgment against this answering defendant, then the above named defendant shall be liable pursuant to common law for the full indemnification of this answering defendant, 5223 3 AVE LLC. AS AND FOR A THIRD CROSS CLAIM AGAIN_ST BEST WORK INC. 14. Defendant 5223 3 AVE LLC is entitled to contractual indemnification against BEST WORK INC. pursuant to an agreement between the parties. 3 3 of 6 FILED: KINGS COUNTY CLERK 02/21/2019 02:59 PM INDEX NO. 521833/2018 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/21/2019 AS AND FOR A FIRST CROSS CLAIM AGAINST MENDIETA CONSTRUCTION INC. 15. If Plaintiff sustained damages as alleged in the Amended Complaint through any fault other than the plaintiff's own fault, and such damages were sustained due to sole fault of this answering defendant above named, and if the plaintiff should obtain and recover judgment against this answering defendant then the above named defendant shall be liable for the full amount of said judgment or for any part thereof obtained and/or recovered on the basis of apportionment of responsibility for the alleged occurrence as found by the Court and/or jury. AS AND FOR A SECOND CROSS CLAIM AGAINST MENDIETA CONSTRUCTION INC. 15. If Plaintiff sustained damages as alleged in the Amended Complaint through any fault other than the plaintiff's own fault, and such damages were sustained due to sole fault of the defendant above named, and if the plaintiff should obtain and recover judgment against this answering defendant then the above named defendant shall be liable pursuant to common law for the full indemnification of this answering defendant, 5223 3 AVE LLC. AS AND FOR A THIRD CROSS CLAIM AGAINST MENDIETA CONSTRUCTION INC. 16. Defendant 5223 3 AVE LLC is entitled to contractual indemnification against MENDIETA CONSTRUCTION INC. pursuant to an agreement between the parties. WHEREFORE, this answering defendant, 5223 3 AVE LLC demands judgment dismissing the Amended Complaint herein; granting this answering defendant judgment against defendants BEST WORK INC. and MENDIETA CONSTRUCTION INC. on the cross claims together with the costs and disbursements of this action. Dated: Brooklyn, New York February 18, 2019 4 4 of 6 FILED: KINGS COUNTY CLERK 02/21/2019 02:59 PM INDEX NO. 521833/2018 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/21/2019 Yours, etc. Law Firm of Yang & Partners Attorneys for Defendant 5223 3 AVE LLC 9 East Broadway, Ste. 302 New York, New York 10038 Ph: (212) 608-3888 Fax: (212) 608-3999 5 5 of 6 FILED: KINGS COUNTY CLERK 02/21/2019 02:59 PM INDEX NO. 521833/2018 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 02/21/2019 VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF ) Jin Fa Bao, being duly sworn, deposes and says: 3rd I am the member of 5223 Avenue LLC., one of the Defendants in the within action: I have read the foregoing Verified Answer To Amended Complaint With Affirmative Defenses And Crossclaims, and know the contents thereof; and 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 it to be true. This verification is made by me because the above party is a company, and I am an officer thereof. The grounds of my belief as to all matters not stated upon my own knowledge are as follows: information received. JlN FA BAO Sworn to before me this day of .. 2019 YUE HE New York Notary Public, State of NO. 02HE6326877 Qualified in Queens County Certificate Filed in New York Count Commission Expires June 29, 20 Notary Public 6 of 6