Preview
FILED: NEW YORK COUNTY CLERK 05/20/2019 10:40 AM INDEX NO. 155016/2018
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/20/2019
19-5731
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----- ---- - -- ------ - - --------- X
Plaintiff, :
: VERIFIED ANSWER
-against- : WITH CROSS-CLAIMS
:
P & M CLASSIC PlZZA & RESTAURANT :
INC., AW HOLDING L.P., THE CITY OF :
NEW YORK, NEW YORK CITY :
DEPARTMENT OF TRANSPORTATION :
and NEW YORK CITY DEPARTMENT OF :
PARKS AND RECREATION, :
:
Defendants. :
-------------------------------- X
Defendant AW Holding L.P., by itsattorneys, Gannon, Rosenfarb & Drossman, as
and for its answer to the verified complaint, upon information and belief, states as follows:
1. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraphsi, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,
15, 16, 17, 18, 19, 20, 21, 22 and 23.
2. Admits the allegations contained in paragraph 24.
3. Denies the allegations contained in paragraph 25 and 26.
4. Denies the allegations contained in paragraph 27, except admits that on
March 2, 2017, AW Holding L.P. was a limited partnership authorized to do business in
New York.
5. Denies the allegations contained in paragraph 28.
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6. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 29, and defers to the Court the resolution
of legal issues contained therein.
7. Denies the silegations contained in paragraph 30, except admits that on
March 2, 2017, AW Holding L.P. owned the building known as 1747 Amsterdam Avenue,
New York, New York, fulfilled allduties imposed on itby operation of law and defers to the
Court the resolution of legal issues contained therein.
8. Denies the allegations contained in paragraph 31.
9. Denies the allegations contained in paragraphs 32, 33, 34, 35, 36, 37, 38, 39,
40, 41, 42, 43, 44 and 45, except admits that on March 2, 2017, AW Holding LP. owned
the building known as 1747 Amsterdam Avenue, New York, New York, fulfilled all duties
imposed on itby operaticñ of law and defers to the Court the resolution of legal issues
contained therein.
10. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraphs 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56,
57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80,
81, 82 and 83.
11. Denies the allegations contained in paragraphs 84, 85, 86, 87, 88, 89, 90, 91
and 92.
12. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 93, and defers to the Court the resolution
of legal issues contained therein.
13. Denies the allegations contained in paragraph 94.
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AS A FIRST AFFIRMATIVE DEFENSE
14. Plaintiff's injuries, ifany, were caused in whole or in part by her own culpable
conduct, including comparative negligence and assumption of risk.
15. Pursuant to New York Civil Practice Law and Rules § 1411, the amount of
damages, ifany, otherwise recoverable by plaintiff shall be diminished in the proportion
which the culpable conduct attributable to them bears to the culpable conduct, ifany, which
caused the damages.
AS A SECOND AF FIRMATIVE DEFENSE
16. Any recovery for the past or future cost or expense of medical care, dental
care, custodial care or rehabilitation services, loss of eamiñgs or other economic loss shall
be reduced by the amounts that such was, or will, with reascñable certainty, be replaced
or indemnified, in whole or in part, from collateral sources such as insurance and other
sources.
AS A THIRD AFFIRMATIVE DEFENSE
17. Plaintiff has failed to state a cause of action upon which relief can be granted.
AS A FOURTH AFFIRMATIVE DEFENSE
18. The acts and/or omissions of defendant as alleged in the verified complaint
were not the proximate cause of Plaintiff's injuries.
AS A FIFTH AFFIRMATIVE DEFENSE
19. Defendant asserts the limitations of liability for non-economic loss set forth
in New York Civil Practice Law and Rules § 1601.
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AS A SIXTH AFFIRMATIVE DEFENSE
20. Plaintiff has failed to join a necessary party to the instant action.
AS A SEVENTH AFFIRMATIVE DEFENSE
21. Upon information and belief, plaintiff has failed to mitigate damages allegedly
suffered.
AS AN EIGHTH AFFIRMATIVE DEFENSE
22. Plaintiffs action is barred by the doctrines of waiver, estoppel, laches and/or
ratification.
AS A NINTH AFFIRMATIVE DEFENSE
23. Any risks, dangers, or hazards in existence at the time and place mentioned
in the complaint were open, obvious, and apparent and were known to and assumed by
the plaintiff.
AS A TENTH AFFIRMATIVE DEFENSE
24. Any judgment plaintiff obtains against the answering defendant is subject to
a reduction pursuant to General Obligations Law Section 15-108(a).
AS AND FOR A FIRST CROSS-CLAIM AGAINST
P & M CLASSIC PlZZA & RESTAURANT INC., THE CITY OF NEW YORK,
NEW YORK CITY DEPARTMENT OF TRANSPORTATION AND
NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION
25. If plaintiff sustained the injuries and damages as alleged in the verified
said injuries were caused as a result of the conduct or omissions of co-
complaint, acts,
defendants P & M Classic Pizza & Restaurant Inc., The City of New York, New York City
Department of Transportation and New York City Department of Parks and Recreation
without any fault on the part of defendant AW Holding L.P. contributing thereto.
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26. If plaintiff recovers judgment against defendant AW Holding L.P., said
defendant is entitled to indemnity and/or contribution by co-defendants P & M Classic Pizza
& Restaurant Inc., The City of New York, New York City Department of Transportation and
New York City Department of Parks and Recreation, to have judgment over and against
him for any judgment that may be recovered by plaintiff against defendant AW Holding L.P.
or for that portion shown to be the responsibility of co-defendants P & M Classic Pizza &
Restaurant Inc., The City of New York, New York City Department of Transportation and
New York City Department of Parks and Recreation.
AS AND FOR A SECOND CROSS-CLAIM AGAINST
P & M CLASSIC PIZZA & RESTAURANT INC.
27. Pursuant to a lease, co-defendant P & M Classic Pizza & Restaurant Inc.,
was obligated to carry general liability insurance in favor of defendant AW Holding L.P.
This insurance was to be in a type and amount sufficient to cover defendant AW Holding
L.P. for the claims made by plaintiff herein.
28. In breach of the lese, co-defendant P & M Classic Pizza & Restaurant Inc.,
failed to acquire the proper general liability insurance on behalf of defendant AW Holding
L.P.
29. If plaintiff recovers judgment against defendant AW Holding L.P., said
defendant is entitled to indemnity and/or contribution from co-defendant P & M Classic
Pizza & Restaurant Inc., to have judgment over and against itfor any judgment, losses,
expenses, and damages that may be recovered by plaintiff against defendant AW Holding
L.P.
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AS AND FOR A THIRD CROSS-CLAIM AGAINST
P & M CLASSIC PlZZA & RESTAURANT INC.
30. Pursuant to a lease, co-defendant P & M Classic Pizza & Restaurant Inc.
agreed to defend and indemnify defendant AW Holding L.P., from allclaims arising from
the performance of their duties under the contract.
31. Accordingly, co-defendant P & M Classic Pizza & Restaurant Inc. is obligated
to provide defendant AW Holding L.P. with a defense to the subject action and to indemnify
attorneys'
him for amounts recovered by plaintiff, ifany, as well as such costs, fees and
disbursements as may be incurred by defendant AW Holding L.P. in defense of this action.
AS AND FOR A FOURTH CROSS-CLAIM AGAINST
P & M CLASSIC PIZZA & RESTAURANT INC.
32. Defendant repeats, reiterates and realleges the allegations of paragraphs 25
through 31 as iffully set forth herein.
33. Pursuant to a lease, co-defendant P & M Classic Pizza & Restaurant Inc. was
responsible for maintaining and repairing the area where plaintiff was a!!egedly injured
and/or the condition that allegedly caused the accident.
34. To the extent that plaintiff establishes his injuries herein were the result of the
subject area or condition, defendant AW Holding L.P. is entitled to indemnification against
co-defendant P & M Classic Pizza & Restaurant Inc., to have judgment over and against
itfor any judgment that may be recovered by plaintiff against defendant AW Holding L.P.
35. Take notice that pursuant to CPLR Section 3011, defendant hereby demands
an answer to the cross-claims contained herein.
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WHEREFORE defendant AW Holding L.P. respectfully requests that the Court
dismiss the verified complaint in itsentirety, and, in the alternative, that itgrant judgment
over against co-defendants P & M Classic Pizza & Restaurant Inc., The City of New York,
New York City Department of Trâñsportation and New York City Department of Parks and
Recreation for any judgment that may be rendered against defendant AW Holding L.P.,
together with itscosts and attorney's fees, and that itgrant such other and further relief as
the court deems just.
Dated: New York, New York
May 20, 2019
Gannon, Rosenfarb & Drossman
Attorneys For Defendant
AW Holding L.P.
100 William Street, 7th Floor
New York, New York 10038
(212) 655-5000
TO: Gurrero & Rosengarten
Attorneys for Plaintiff
367 7th Avenue - 7th Floor
New York, New York 10001
McManus Ateshoglou Aiello & Apostolakos
Attorneys for Defendant
P & M Classic Pizza & Restaurant Inc.
48 Wall Street - 25th Floor
New York, New York 10005
Zachary Carter
Corporation Counsel
Attorney for Defendants
The City of New York,
New York City Department of Trañsportation
and New York City Department of Parks and Recreation
100 Church Street
New York, New York 10007
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ATTORNEY'S VERIFICATION
STATE OF NEW YORK )
SS.
COUNTY OF NEW YORK )
Jason B. Rosenfarb, being duly sworn, deposes and says:
I am the attorney for defendant, AW Holding L.P. in this action.
This Verified Answer with Cross-Claims is true to the knowledge of deponent except
as to matters which are therein stated to be alleged upon information and belief, and as
to those matters he believes itto be true.
Deponent further says that he maintains his office for the practice of law at 100
Williaiïï Street, New York, New York, and the reason why this verification is made by
deponent, and not by the aforesaid deferidant is that said defendant does not maintain an
office in the county in which deponent maintains his office.
Deponent further says that the sources of his information include communications
with defendant and investigation.
Dated: New York, New York
May 20, 2019
ason B. Rosenfarb
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Preview
FILED: NEW YORK COUNTY CLERK 05/20/2019 10:40 AM INDEX NO. 155016/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/20/2019 19-5731 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----- ---- - -- ------ - - --------- X Plaintiff, : : VERIFIED ANSWER -against- : WITH CROSS-CLAIMS : P & M CLASSIC PlZZA & RESTAURANT : INC., AW HOLDING L.P., THE CITY OF : NEW YORK, NEW YORK CITY : DEPARTMENT OF TRANSPORTATION : and NEW YORK CITY DEPARTMENT OF : PARKS AND RECREATION, : : Defendants. : -------------------------------- X Defendant AW Holding L.P., by itsattorneys, Gannon, Rosenfarb & Drossman, as and for its answer to the verified complaint, upon information and belief, states as follows: 1. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphsi, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23. 2. Admits the allegations contained in paragraph 24. 3. Denies the allegations contained in paragraph 25 and 26. 4. Denies the allegations contained in paragraph 27, except admits that on March 2, 2017, AW Holding L.P. was a limited partnership authorized to do business in New York. 5. Denies the allegations contained in paragraph 28. 1 of 8 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:40 AM INDEX NO. 155016/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/20/2019 6. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 29, and defers to the Court the resolution of legal issues contained therein. 7. Denies the silegations contained in paragraph 30, except admits that on March 2, 2017, AW Holding L.P. owned the building known as 1747 Amsterdam Avenue, New York, New York, fulfilled allduties imposed on itby operation of law and defers to the Court the resolution of legal issues contained therein. 8. Denies the allegations contained in paragraph 31. 9. Denies the allegations contained in paragraphs 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45, except admits that on March 2, 2017, AW Holding LP. owned the building known as 1747 Amsterdam Avenue, New York, New York, fulfilled all duties imposed on itby operaticñ of law and defers to the Court the resolution of legal issues contained therein. 10. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphs 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82 and 83. 11. Denies the allegations contained in paragraphs 84, 85, 86, 87, 88, 89, 90, 91 and 92. 12. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 93, and defers to the Court the resolution of legal issues contained therein. 13. Denies the allegations contained in paragraph 94. 2 of 8 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:40 AM INDEX NO. 155016/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/20/2019 AS A FIRST AFFIRMATIVE DEFENSE 14. Plaintiff's injuries, ifany, were caused in whole or in part by her own culpable conduct, including comparative negligence and assumption of risk. 15. Pursuant to New York Civil Practice Law and Rules § 1411, the amount of damages, ifany, otherwise recoverable by plaintiff shall be diminished in the proportion which the culpable conduct attributable to them bears to the culpable conduct, ifany, which caused the damages. AS A SECOND AF FIRMATIVE DEFENSE 16. Any recovery for the past or future cost or expense of medical care, dental care, custodial care or rehabilitation services, loss of eamiñgs or other economic loss shall be reduced by the amounts that such was, or will, with reascñable certainty, be replaced or indemnified, in whole or in part, from collateral sources such as insurance and other sources. AS A THIRD AFFIRMATIVE DEFENSE 17. Plaintiff has failed to state a cause of action upon which relief can be granted. AS A FOURTH AFFIRMATIVE DEFENSE 18. The acts and/or omissions of defendant as alleged in the verified complaint were not the proximate cause of Plaintiff's injuries. AS A FIFTH AFFIRMATIVE DEFENSE 19. Defendant asserts the limitations of liability for non-economic loss set forth in New York Civil Practice Law and Rules § 1601. 3 of 8 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:40 AM INDEX NO. 155016/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/20/2019 AS A SIXTH AFFIRMATIVE DEFENSE 20. Plaintiff has failed to join a necessary party to the instant action. AS A SEVENTH AFFIRMATIVE DEFENSE 21. Upon information and belief, plaintiff has failed to mitigate damages allegedly suffered. AS AN EIGHTH AFFIRMATIVE DEFENSE 22. Plaintiffs action is barred by the doctrines of waiver, estoppel, laches and/or ratification. AS A NINTH AFFIRMATIVE DEFENSE 23. Any risks, dangers, or hazards in existence at the time and place mentioned in the complaint were open, obvious, and apparent and were known to and assumed by the plaintiff. AS A TENTH AFFIRMATIVE DEFENSE 24. Any judgment plaintiff obtains against the answering defendant is subject to a reduction pursuant to General Obligations Law Section 15-108(a). AS AND FOR A FIRST CROSS-CLAIM AGAINST P & M CLASSIC PlZZA & RESTAURANT INC., THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION AND NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION 25. If plaintiff sustained the injuries and damages as alleged in the verified said injuries were caused as a result of the conduct or omissions of co- complaint, acts, defendants P & M Classic Pizza & Restaurant Inc., The City of New York, New York City Department of Transportation and New York City Department of Parks and Recreation without any fault on the part of defendant AW Holding L.P. contributing thereto. 4 of 8 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:40 AM INDEX NO. 155016/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/20/2019 26. If plaintiff recovers judgment against defendant AW Holding L.P., said defendant is entitled to indemnity and/or contribution by co-defendants P & M Classic Pizza & Restaurant Inc., The City of New York, New York City Department of Transportation and New York City Department of Parks and Recreation, to have judgment over and against him for any judgment that may be recovered by plaintiff against defendant AW Holding L.P. or for that portion shown to be the responsibility of co-defendants P & M Classic Pizza & Restaurant Inc., The City of New York, New York City Department of Transportation and New York City Department of Parks and Recreation. AS AND FOR A SECOND CROSS-CLAIM AGAINST P & M CLASSIC PIZZA & RESTAURANT INC. 27. Pursuant to a lease, co-defendant P & M Classic Pizza & Restaurant Inc., was obligated to carry general liability insurance in favor of defendant AW Holding L.P. This insurance was to be in a type and amount sufficient to cover defendant AW Holding L.P. for the claims made by plaintiff herein. 28. In breach of the lese, co-defendant P & M Classic Pizza & Restaurant Inc., failed to acquire the proper general liability insurance on behalf of defendant AW Holding L.P. 29. If plaintiff recovers judgment against defendant AW Holding L.P., said defendant is entitled to indemnity and/or contribution from co-defendant P & M Classic Pizza & Restaurant Inc., to have judgment over and against itfor any judgment, losses, expenses, and damages that may be recovered by plaintiff against defendant AW Holding L.P. 5 of 8 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:40 AM INDEX NO. 155016/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/20/2019 AS AND FOR A THIRD CROSS-CLAIM AGAINST P & M CLASSIC PlZZA & RESTAURANT INC. 30. Pursuant to a lease, co-defendant P & M Classic Pizza & Restaurant Inc. agreed to defend and indemnify defendant AW Holding L.P., from allclaims arising from the performance of their duties under the contract. 31. Accordingly, co-defendant P & M Classic Pizza & Restaurant Inc. is obligated to provide defendant AW Holding L.P. with a defense to the subject action and to indemnify attorneys' him for amounts recovered by plaintiff, ifany, as well as such costs, fees and disbursements as may be incurred by defendant AW Holding L.P. in defense of this action. AS AND FOR A FOURTH CROSS-CLAIM AGAINST P & M CLASSIC PIZZA & RESTAURANT INC. 32. Defendant repeats, reiterates and realleges the allegations of paragraphs 25 through 31 as iffully set forth herein. 33. Pursuant to a lease, co-defendant P & M Classic Pizza & Restaurant Inc. was responsible for maintaining and repairing the area where plaintiff was a!!egedly injured and/or the condition that allegedly caused the accident. 34. To the extent that plaintiff establishes his injuries herein were the result of the subject area or condition, defendant AW Holding L.P. is entitled to indemnification against co-defendant P & M Classic Pizza & Restaurant Inc., to have judgment over and against itfor any judgment that may be recovered by plaintiff against defendant AW Holding L.P. 35. Take notice that pursuant to CPLR Section 3011, defendant hereby demands an answer to the cross-claims contained herein. 6 of 8 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:40 AM INDEX NO. 155016/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/20/2019 WHEREFORE defendant AW Holding L.P. respectfully requests that the Court dismiss the verified complaint in itsentirety, and, in the alternative, that itgrant judgment over against co-defendants P & M Classic Pizza & Restaurant Inc., The City of New York, New York City Department of Trâñsportation and New York City Department of Parks and Recreation for any judgment that may be rendered against defendant AW Holding L.P., together with itscosts and attorney's fees, and that itgrant such other and further relief as the court deems just. Dated: New York, New York May 20, 2019 Gannon, Rosenfarb & Drossman Attorneys For Defendant AW Holding L.P. 100 William Street, 7th Floor New York, New York 10038 (212) 655-5000 TO: Gurrero & Rosengarten Attorneys for Plaintiff 367 7th Avenue - 7th Floor New York, New York 10001 McManus Ateshoglou Aiello & Apostolakos Attorneys for Defendant P & M Classic Pizza & Restaurant Inc. 48 Wall Street - 25th Floor New York, New York 10005 Zachary Carter Corporation Counsel Attorney for Defendants The City of New York, New York City Department of Trañsportation and New York City Department of Parks and Recreation 100 Church Street New York, New York 10007 7 of 8 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:40 AM INDEX NO. 155016/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/20/2019 ATTORNEY'S VERIFICATION STATE OF NEW YORK ) SS. COUNTY OF NEW YORK ) Jason B. Rosenfarb, being duly sworn, deposes and says: I am the attorney for defendant, AW Holding L.P. in this action. This Verified Answer with Cross-Claims is true to the knowledge of deponent except as to matters which are therein stated to be alleged upon information and belief, and as to those matters he believes itto be true. Deponent further says that he maintains his office for the practice of law at 100 Williaiïï Street, New York, New York, and the reason why this verification is made by deponent, and not by the aforesaid deferidant is that said defendant does not maintain an office in the county in which deponent maintains his office. Deponent further says that the sources of his information include communications with defendant and investigation. Dated: New York, New York May 20, 2019 ason B. Rosenfarb 8 of 8