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FILED: KINGS COUNTY CLERK 11/19/2018 03:29 PM INDEX NO. 519872/2018
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/19/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------ X
MICHAEL VINDIGNI, Index No.:519872/2018
Plaintiffs, VERIFIED ANSWER
-against-
JOSEPH A. BRIZZI & SONS, INC. and
FLEMINGTON ELECTRICAL MA1NTENANCE INC.,
Defendants.
---------------------- ----------------------------------X
Defendants JOSEPH A. BRIZZI & SONS, INC. by Their Attorneys GOLD BENES,
LLP, for Its Verified Answer to the Complaint, alleges as follows:
1. Denies knowledge and information sufficient to form a belief as to the truth of the
"23"
allegations of Paragraph "1", "12", "13", "14", "15", "16", "20", "21", "22", "26", and "27".
"3"
2. Admits the Allegations of Paragraph "2", ,"4", "5", "17", "18", "19", "24", and
"25".
3. Denies the Allegations of Paragraph "6", "7", "8", "9", "10", and "11", because the
"operated"
terms "controlled", "managed", "maintained","supervised", "inspected", and as used
therein are vague, ambiguous and over broad when applied to a property owned by an absentee
property owner, and their use herein.
4. Denies the Allegations of Paragraph "28", "29", "30", and "31".
As And To The Second Cause of Action
"32" "1"
5. Answers Paragraph by repeating and reasserting its Answers to Paragraphs
through "31".
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6. Denies the Allegations of Paragraphs "33", "35", and "36".
"34"
7. Answers Paragraph by Denying all allegations of negligence and referring all
questions of law to Court.
As and for a First Affirmative Defense
8. Upon information and belief, that if the Plaintiff sustained damages as alleged,
which allegations are denied, such damages were caused or contributed to, in whole or in part, by
the culpable conduct, breach of duty and carelessness on the part of the Plaintiff and/or other
persons over whom Answering Defendant had no duty to supervise or control, without
negligence or fault on the part of said Defendant contributing thereto, which requires a dismissal
of all claims against the Answering Defendant, or a proportionate diminution in any recovery to
which Plaintiff might otherwise be entitled.
As and for a Second Affirmative Defense
9. Upon information and belief, Plaintiff's recovery, if any, must be reduced by the
amount of collateral payments received in accordance with CPLR § 4545.
As and for a Third Affirmative Defense
10. Upon information and belief, if the Plaintiff sustained damages as alleged, which
allegations are denied, such damages were solely caused by Plaintiff's own negligence, and/or
other conduct.
As and for a Fourth Affirmative Defense
11. Answering Defendant had no duty with respect to the location where Plaintiff
claims to have fallen.
As and for a Fifth Affirmative Defense
12. Answering Defendant lacked knowledge, constructive or otherwise of the alleged
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defect or condition that Plaintiff claims caused him to fall, and Answering Defendant did not
create or cause the alleged defect or condition.
As and for a Sixth Affirmative Defense
13, If the Plaintiff sustained injuries as alleged in the Verified Complaint, said injuries
were proximately caused by independent, intervening and superseding causes which could not
have been reasonably foreseen and for which the Answering Defendant is not liable or
responsible.
As and for a Seventh Affirmative Defense
14. Upon information and belief, all hazards and risks incident to the circumstances
set forth in the Verified Complaint were open, obvious and apparent, and were readily assumed
by the Plaintiff.
As and for a Eighth Affirmative Defense
15. That whatever injuries and/or damages that were sustained by the Plaintiff, at the
time and place alleged, were the result of the Plaintiff's assumption of risk, in realizing and
knowing the hazards thereof, and that Plaintiff assumed all risks necessarily incidental to such an
undertaking.
As and for a Ninth Affirmative Defense
16. Plaintiff's action may not be maintained because the Plaintiff has failed to join
necessary and essential parties with whom this court should not proceed.
As and for a Tenth Affirmative Defense
17. The liability of the Answering Defendant, if any, is limited to the percentage of
culpability found against him, and the Answering Defendant shall not be responsible for any
percentage of culpability attributed to other individuals and/or entities whether named or
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unnamed, over whom the Plaintiff could have obtained personal jurisdiction by use of due
diligence pursuant to the CPLR.
As and for a Eleventh Affirmative Defense
18. Plaintiff's injuries, if any, were caused by third-parties.
As and for a Twelfth Affirmative Defense
19. Answering Defendant reserves his right to amend this answer and to assert
additional defenses or to supplement, alter or change this answer and assert additional cross-
claims or counterclaims upon ascertaining more definite facts upon completion of discovery and
inspection.
As and for a Thirteenth Affirmative Defense
20. That the Answering Defendant hereby gives notice that he intends to rely upon
such other defenses as may come available or apparent during discovery proceedings, or as may
be raised or asserted by other defendants in this case.
As and for a Fourteenth-Affirmative Defense
21. Plaintiff assumed the risk of injury.
As and for a Fifteenth Affirmative Defense
22. Plaintiff is barred from recovery by the Firefighter's Rule In New York. General
Municipal Law Section 205(a)
As and for a Sixteenth Affirmative Defense
20. Plaintiff's accident did not result from the violation of any municipal law or code. By
reason of which Plaintiff may not recover.
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As And For A Cross-Claim Against Co-Defêñdâñ‡
21. Should the Plaintiff recover of Defendant Joseph A. Brizzi & Sons, Inc., such
liability can only result from the Acts, Omissions and/or Negligence of Co-Defendant
Flemington Electrical Maintenance, Inc., which was performing Electrical work at the premises
at the time of the fire.
22. By reason of the foregoing, Answering Defendant is entitled to indemnity and/or
contribution from co-defendant, Flemington, in whole or in part, and in relation to how their
respective negligence, if any, bears to the whole.
WHEREFORE, Defend ants JOSEPH A. BRIZZI & SONS, INC. respectfully request that
this Honorable Court dismiss the Complaint with Prejudice, and/or in the Alternative Grant its
Cross-Claim against Co-Defendat Flemington Electrical Maintenance, Inc..
Dated: Bellmore, New York
November 19, 2018
Yours, etc.
Jeffrey B. Gold, Esq.
Gold Benes, LLP
Attorneys for Defendants
JOSEPH A. BRIZZI & SONS, INC.
1666 Newbridge Road, Second Floor
Bellmore, New York 11710
(516) 512-6333
To: Sara Director, Esq.
Barasch McGarry Salzman & Penson
Attorneys for Plaintiff
MICHAEL VINDIGNI
11 Park Place, Suite 1801
New York, New York 10007
(212) 385-8000
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ATTORNEY VERIFICATION
STATE OF NEW YORK)
) ss.:
COUNTY OF NASSAU )
The undersigned, an attorney admitted to practice in the Courts of the State of New York,
states, under the penalties of perjury:
That I am a partner with the firm Gold Benes, LLP, the attorneys for the Defendants
JOSEPH A. BRIZZI & SONS, INC.. I have read the foregoing Verified Answer and know the
contents thereof, the same is true to my own knowledge, except as to the matters stated to be
alleged on information and belief, and that as to those matters I believe to be true.
The reason for the attorney verification in lieu of a verification by the defendant is due to
the Defendant not residing in a County within New York State in which the offices of this
attorney resides.
Dated: Bellmore, New York
November 19, 2018
Jeffrey B. Gold, Esq.
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FILED: KINGS COUNTY CLERK 11/19/2018 03:29 PM INDEX NO. 519872/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/19/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------ X MICHAEL VINDIGNI, Index No.:519872/2018 Plaintiffs, VERIFIED ANSWER -against- JOSEPH A. BRIZZI & SONS, INC. and FLEMINGTON ELECTRICAL MA1NTENANCE INC., Defendants. ---------------------- ----------------------------------X Defendants JOSEPH A. BRIZZI & SONS, INC. by Their Attorneys GOLD BENES, LLP, for Its Verified Answer to the Complaint, alleges as follows: 1. Denies knowledge and information sufficient to form a belief as to the truth of the "23" allegations of Paragraph "1", "12", "13", "14", "15", "16", "20", "21", "22", "26", and "27". "3" 2. Admits the Allegations of Paragraph "2", ,"4", "5", "17", "18", "19", "24", and "25". 3. Denies the Allegations of Paragraph "6", "7", "8", "9", "10", and "11", because the "operated" terms "controlled", "managed", "maintained","supervised", "inspected", and as used therein are vague, ambiguous and over broad when applied to a property owned by an absentee property owner, and their use herein. 4. Denies the Allegations of Paragraph "28", "29", "30", and "31". As And To The Second Cause of Action "32" "1" 5. Answers Paragraph by repeating and reasserting its Answers to Paragraphs through "31". 1 of 7 FILED: KINGS COUNTY CLERK 11/19/2018 03:29 PM INDEX NO. 519872/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/19/2018 6. Denies the Allegations of Paragraphs "33", "35", and "36". "34" 7. Answers Paragraph by Denying all allegations of negligence and referring all questions of law to Court. As and for a First Affirmative Defense 8. Upon information and belief, that if the Plaintiff sustained damages as alleged, which allegations are denied, such damages were caused or contributed to, in whole or in part, by the culpable conduct, breach of duty and carelessness on the part of the Plaintiff and/or other persons over whom Answering Defendant had no duty to supervise or control, without negligence or fault on the part of said Defendant contributing thereto, which requires a dismissal of all claims against the Answering Defendant, or a proportionate diminution in any recovery to which Plaintiff might otherwise be entitled. As and for a Second Affirmative Defense 9. Upon information and belief, Plaintiff's recovery, if any, must be reduced by the amount of collateral payments received in accordance with CPLR § 4545. As and for a Third Affirmative Defense 10. Upon information and belief, if the Plaintiff sustained damages as alleged, which allegations are denied, such damages were solely caused by Plaintiff's own negligence, and/or other conduct. As and for a Fourth Affirmative Defense 11. Answering Defendant had no duty with respect to the location where Plaintiff claims to have fallen. As and for a Fifth Affirmative Defense 12. Answering Defendant lacked knowledge, constructive or otherwise of the alleged 2 of 7 FILED: KINGS COUNTY CLERK 11/19/2018 03:29 PM INDEX NO. 519872/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/19/2018 defect or condition that Plaintiff claims caused him to fall, and Answering Defendant did not create or cause the alleged defect or condition. As and for a Sixth Affirmative Defense 13, If the Plaintiff sustained injuries as alleged in the Verified Complaint, said injuries were proximately caused by independent, intervening and superseding causes which could not have been reasonably foreseen and for which the Answering Defendant is not liable or responsible. As and for a Seventh Affirmative Defense 14. Upon information and belief, all hazards and risks incident to the circumstances set forth in the Verified Complaint were open, obvious and apparent, and were readily assumed by the Plaintiff. As and for a Eighth Affirmative Defense 15. That whatever injuries and/or damages that were sustained by the Plaintiff, at the time and place alleged, were the result of the Plaintiff's assumption of risk, in realizing and knowing the hazards thereof, and that Plaintiff assumed all risks necessarily incidental to such an undertaking. As and for a Ninth Affirmative Defense 16. Plaintiff's action may not be maintained because the Plaintiff has failed to join necessary and essential parties with whom this court should not proceed. As and for a Tenth Affirmative Defense 17. The liability of the Answering Defendant, if any, is limited to the percentage of culpability found against him, and the Answering Defendant shall not be responsible for any percentage of culpability attributed to other individuals and/or entities whether named or 3 of 7 FILED: KINGS COUNTY CLERK 11/19/2018 03:29 PM INDEX NO. 519872/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/19/2018 unnamed, over whom the Plaintiff could have obtained personal jurisdiction by use of due diligence pursuant to the CPLR. As and for a Eleventh Affirmative Defense 18. Plaintiff's injuries, if any, were caused by third-parties. As and for a Twelfth Affirmative Defense 19. Answering Defendant reserves his right to amend this answer and to assert additional defenses or to supplement, alter or change this answer and assert additional cross- claims or counterclaims upon ascertaining more definite facts upon completion of discovery and inspection. As and for a Thirteenth Affirmative Defense 20. That the Answering Defendant hereby gives notice that he intends to rely upon such other defenses as may come available or apparent during discovery proceedings, or as may be raised or asserted by other defendants in this case. As and for a Fourteenth-Affirmative Defense 21. Plaintiff assumed the risk of injury. As and for a Fifteenth Affirmative Defense 22. Plaintiff is barred from recovery by the Firefighter's Rule In New York. General Municipal Law Section 205(a) As and for a Sixteenth Affirmative Defense 20. Plaintiff's accident did not result from the violation of any municipal law or code. By reason of which Plaintiff may not recover. 4 of 7 FILED: KINGS COUNTY CLERK 11/19/2018 03:29 PM INDEX NO. 519872/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/19/2018 As And For A Cross-Claim Against Co-Defêñdâñ‡ 21. Should the Plaintiff recover of Defendant Joseph A. Brizzi & Sons, Inc., such liability can only result from the Acts, Omissions and/or Negligence of Co-Defendant Flemington Electrical Maintenance, Inc., which was performing Electrical work at the premises at the time of the fire. 22. By reason of the foregoing, Answering Defendant is entitled to indemnity and/or contribution from co-defendant, Flemington, in whole or in part, and in relation to how their respective negligence, if any, bears to the whole. WHEREFORE, Defend ants JOSEPH A. BRIZZI & SONS, INC. respectfully request that this Honorable Court dismiss the Complaint with Prejudice, and/or in the Alternative Grant its Cross-Claim against Co-Defendat Flemington Electrical Maintenance, Inc.. Dated: Bellmore, New York November 19, 2018 Yours, etc. Jeffrey B. Gold, Esq. Gold Benes, LLP Attorneys for Defendants JOSEPH A. BRIZZI & SONS, INC. 1666 Newbridge Road, Second Floor Bellmore, New York 11710 (516) 512-6333 To: Sara Director, Esq. Barasch McGarry Salzman & Penson Attorneys for Plaintiff MICHAEL VINDIGNI 11 Park Place, Suite 1801 New York, New York 10007 (212) 385-8000 5 of 7 FILED: KINGS COUNTY CLERK 11/19/2018 03:29 PM INDEX NO. 519872/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/19/2018 ATTORNEY VERIFICATION STATE OF NEW YORK) ) ss.: COUNTY OF NASSAU ) The undersigned, an attorney admitted to practice in the Courts of the State of New York, states, under the penalties of perjury: That I am a partner with the firm Gold Benes, LLP, the attorneys for the Defendants JOSEPH A. BRIZZI & SONS, INC.. I have read the foregoing Verified Answer and know the contents thereof, the same is true to my own knowledge, except as to the matters stated to be alleged on information and belief, and that as to those matters I believe to be true. The reason for the attorney verification in lieu of a verification by the defendant is due to the Defendant not residing in a County within New York State in which the offices of this attorney resides. Dated: Bellmore, New York November 19, 2018 Jeffrey B. Gold, Esq. 6 of 7 @MS FILED: KINGS NYSCEF DOC. NO. 4 W M COUNTY CLERK WM03:29 RM 11/19/2018 M 8 PM S 5 INDEX NO. 519872/2018 M RECEIVED NYSCEF: 11/19/2018 n n a 7 of 7 ab