Preview
FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ROSA PERALTA, Index No.: 155016/2018
Plaintiff,
VERIFIED ANSWER
-against- TO VERIFIED
COMPLAINT WITH
P & M CLASSIC PIZZA & RESTAURANT INC., CROSS-CLAIMS
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.
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The defendant, P & M CLASSIC PIZZA & RESTAURANT INC., by its attorneys,
McMANUS ATESHOGLOU AIELLO & APOSTOLAKOS, PLLC, upon information and belief,
answers the plaintiff's Verified Complaint herein as follows:
FIRST: Denies any knowledge or information thereof sufficient to form a belief as to the
truth of the allegations contained in the paragraphs or subdivisions of the Verified Complaint
designated "i", "24", "25", "26", "27", "28", "29", "30", "31", "32", "33", "34", "35", "36", "37",
"38", "39", "40", "41", "42", "43", "44", "45", "46", "47", "48", "49", "50", "51", "52", "53",
"54", "55", "56", "57", "58", "59", "60", "61", "62", "63", "64", "65", "66", "67", "68", "69",
"82"
"70", "71", "72", "73", "74", "75", "76", "77", "78", "79", "80", "81", and "83".
SECOND: Denies each and every allegation contained in the paragraph or subdivision of
"2"
the Verified Complaint designated except admits that defendant P & M CLASSIC PIZZA &
RESTAURANT INC.'s principal place of business was in the County of New York and State of
New York.
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THIRD: Denies each and every allegation contained in the paragraph or subdivision of
"3"
the Verified Complaint designated except admits that defendant, P & M CLASSIC PIZZA &
RESTAURANT INC., was a domestic corporation duly licensed to do business under the laws of
the State of New York.
FOURTH: Denies each and every allegation contained in the paragraphs or subdivisions
"8"
of the Verified Complaint designated "4", "5", "6", and "9".
FIFTH: Denies any knowledge or information thereof sufficient to form a belief as to the
truth of the allegations contained in the paragraphs or subdivisions of the Verified Complaint
"7" "10"
designated and and respectfully refers allquestions of law to this Honorable Court.
SIXTH: Denies each and every allegation contained in the paragraphs or subdivisions of
the Verified Complaint designated "11", "12", "13", "14", "15", "16", "17", "18", "19", "20",
"93" "94"
"21", "22", "23", "84", "85", "86", "87", "88", "89", "90", "91", "92", and and
respectfully refers all questions of law to this Honorable Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE.
SEVENTH: Any damages which may have been sustained by the plaintiff were
contributed to in whole or in part the culpable conduct of the pursuant to Section 14-
by plaintiff,
A, CPLR.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE.
EIGHTH: Any damages which may have been sustained by the plaintiff were contributed
to in whole or in part by the culpable conduct of third parties not under the control of answering
defendant.
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AS AND FOR A THIRD AFFIRMATIVE DEFENSE.
NINTH: Pursuant to CPLR 4545(c), if itbe determined or established that plaintiff has
received or with reasonable certainty shall receive the cost of medical care, dental care, custodial
care or rehabilitation services, loss of earnings or other economic loss, and that the same shall be
replaced or indemnified, in whole or in part from any collateral source such as insurance (except
for lifeinsurance), social security (except for those benefits provided under title XVIII of the Social
workers'
Security Act), compensation or employee benefit programs (except such collateral source
entitled by law to liens against any recovery of the plaintiff), then and in that event answering
defendant hereby pleads in mitigation of damages the assessment of any such cost or expense as a
collateral source in reduction of the amount of the award by such replacement or indemnification,
minus an amount equal to the premiums paid by the plaintiff for such benefits for the two year
period immediately preceding the accrual of this action and minus an amount equal to the projected
future cost to the plaintiff ofmaintaining such benefits and as otherwise provided in CPLR 4545(c).
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE.
TENTH: The injuries and damages alleged, all of which are denied by the answering
defendant, were caused by the intervening, interceding and superseding acts of third parties not
under the control of answering defendant.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE.
ELEVENTH: The plaintiff failed to mitigate her damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE.
TWELFTH: Answering defendant is entitled to limitation of liability pursuant to Article
16 of the CPLR.
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AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE.
THIRTEENTH: The Verified Complaint fails to state a cause of action upon which relief
may be granted.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE.
FOURTEENTH: This action lacks merit and is contrary to established law and fact and
answering defendant is entitled to costs in the sum of $10,000 for this frivolous action.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE.
FIFTEENTH: If the plaintiff sustained damages as alleged, such damages occurred while
the plaintiff was engaged in an activity into which she entered, knowing the hazard, risk and danger
of the activity and she assumed the risks incidental to and attending the activity.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE.
SIXTEENTH: Any alleged defective condition was open and obvious and therefore
should have been avoided by plaintiff.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE.
defect"
SEVENTEENTH: Any alleged defective condition was a "trivial for which
plaintiff may not recover.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE.
EIGHTEENTH: The Verified Complaint must be dismissed due to lack of privity
between plaintiff and answering defendant.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE.
NINETEENTH: The defendant is not liable to the plaintiff as the plaintiff's actions were
the sole proximate cause of the alleged occurrence.
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AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE.
TWENTIETH: The answering defendant did not have actual or constructive notice of the
alleged condition.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE.
TWENTY-FIRST: No duty to plaintiff was owed by this defendant.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FIRST CROSS CLAIM AGAINST
CO-DEFENDANTS, ANSWERING DEFENDANT
ALLEGES:
TWENTY-SECOND: Ifplaintiff was caused to sustain injuries and damages at the time
and place set forth in plaintiffs Verified Complaint through any carelessness, recklessness and
negligence other than plaintiffs those damages arose in whole or in part from the acts of co-
own,
defendants, and ifany judgment is recovered herein by plaintiff against answering defendant, then
this defendant will be damaged thereby and will be entitled to apportionment or indemnification,
in whole or in on the basis of proportionate or obligation to of co-
part, responsibility indemnify
defendants.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A SECOND CROSS CLAIM AGAINST
CO-DEFENDANTS, ANSWERING DEFENDANT
ALLEGES:
TWENTY-THIRD: If the plaintiff was caused to sustain injuries and damages at the time
and in the manner set forth in her Verified Complaint through any carelessness, recklessness or
negligence other than that of plaintiffs own, which is expressly denied, such injuries and damages
will have been caused, brought about and sustained solely by reason of the active, primary and
affirmative negligence, carelessness and wrongdoing of the co-defendants, by their agents,
servants and/or employees, without any negligence on the part of the answering defendant
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contributing thereto, or if there be any negligence on the part of the answering defendant, the same
was merely passive and secondary in nature.
TWENTY-FOURTH: That by reason of the foregoing, if the plaintiff recovers any
judgment against the answering defendant, then this defendant is entitled to be fully indemnified
by the co-defendants in a like amount, together with the costs, disbursements, expenses and
attorneys'
fees of the defense of this action by reason of the active and primary negligence of the
co-defendants.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A THIRD CROSS CLAIM AGAINST
CO-DEFENDANTS, ANSWERING DEFENDANT
ALLEGES:
TWENTY-FIFTH: If plaintiff sustained damages as alleged in the Verified Complaint
through any fault other than the plaintiffs own fault, then such damages were sustained due to the
sole fault of the co-defendants, and if plaintiff should obtain and/or recover judgment against the
answering defendant, then the co-defendants shall be liable pursuant to common law for the full
indemnification of the answering defendant.
In view of the foregoing, the answering defendant is entitled to complete common law
indemnification for all loss, damage, cost or expense, including, without limitation, judgments,
attorneys'
fees, Court costs and the cost of appellate proceedings from the co-defendants.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FOURTH CROSS CLAIM AGAINST
CO-DEFENDANT, ANSWERING DEFENDANT
ALLEGES:
TWENTY-SIXTH: That pursuant to the contracts and/or agreements, upon information
and belief, the co-defendants undertook certain duties and obligations.
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TWENTY-SEVENTH: If the plaintiff sustained injuries and damages as alleged in the
Verified Complaint, they were sustained within the provisions of the aforesaid contracts and/or
agreements and/or the terms and conditions emanating therefrom, including warranties contained
therein and/or implied therefrom by operation of law or otherwise.
TWENTY-EIGHTH: If the plaintiff was caused to sustain the injuries as set forth in
plaintiffs Verified Complaint, through any carelessness, recklessness and/or negligence or other
culpable conduct other than that of the plaintiff, said injuries and damages were caused by breach
of and/or in furtherance of and as a result of the activities pursuant to the aforesaid contracts and/or
agreements and/or the terms and conditions emanating therefrom, including breach of warranties,
stated and/or implied, by operation of law or otherwise, by the co-defendant, their agents, servants
and/or employees and if any judgment is recovered herein against the answering defendant, they
will be damaged thereby and the co-defendants are or will be primarily responsible therefore and
the answering defendant will be entitled to contribution and/or indemnification, in whole or in part,
from the culpable parties named in this claim over for their portion of plaintiffs damages which
attorneys'
were caused by the culpable parties named in this claim over, together with all fees,
costs and disbursements.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A FIFTH CROSS CLAIM AGAINST
CO-DEFENDANTS, ANSWERING DEFENDANT
ALLEGES:
TWENTY-NINTH: That pursuant to contracts and/or agreements heretofore alleged, the
co-defendants undertook certain duties and obligations in connection with this lawsuit.
THIRTIETH: That the said co-defendants undertook and agreed to hold harmless,
indemnify and defend the answering defendant in connection with injuries and accidents arising
out of or in the course of its work pursuant to its aforesaid agreement.
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THIRTY-FIRST: That if the plaintiff sustained injuries and damages as alleged in the
Verified Complaint they were sustained within the provisions of the aforesaid contracts and/or
agreements and/or the terms and conditions emanating therefrom, including warranties contained
therein and/or implied therefrom by operation of law, or otherwise.
THIRTY-SECOND: That by virtue of the foregoing the said co-defendants are obligated
to indemnify the answering defendant in the event of any liability against the answering defendant
in favor of the plaintiff in this matter.
THIRTY-THIRD: That by virtue of the foregoing the co-defendants are obligated to
defend and to undertake the defense of the answering defendant.
THIRTY-FOURTH: That if theplaintiff was caused to sustain any injuries as set forth in
her Verified Complaint due to any carelessness, recklessness and/or negligence other than her own,
including any culpable conduct on her part, said injuries and damages were caused by breach of
and/or in furtherance of and as a result of the activities undertaken by the said co-defendants
pursuant to the aforesaid contracts and/or agreements and/or the terms and conditions emanating
therefrom including breach of warranties, stated and/or implied by operation of law or otherwise
by the said co-defendants, their agents, servants and/or employees.
THIRTY-FIFTH: That the co-defendants will be primarily responsible for the injuries
and damages allegedly sustained by the plaintiff herein.
THIRTY-SIXTH: That by reason of the foregoing the co-defendants will be liable to this
defendant in the event and in the full amount of any recovery herein by the plaintiff against the
answering defendant and itis bound to pay any and all attorney's fees, disbursements, costs of
investigation and costs of defense of this action.
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THIRTY-SEVENTH: That by reason of the foregoing, the answering defendant is
entitled to judgment over and against the co-defendants for the full amount of any recovery herein
by the plaintiff against the answering defendant for the injuries and damages sustained by the
plaintiff.
AS A BASIS FOR AFFIRMATIVE RELIEF AND
AS AND FOR A SIXTH CROSS CLAIM AGAINST
CO-DEFENDANTS, ANSWERING DEFENDANT
ALLEGES:
THIRTY-EIGHTH: Pursuant to the terms and conditions of the agreement heretofore
alleged between the answering defendant and co-defendants, they agreed to obtain and maintain
certain insurance coverages which would ensure their contractual indemnification and hold
harmless provisions and which would ensure the answering defendant against any and all liability
or damages established by the plaintiff and to further name the answering defendant as an
additional insured under the aforesaid insurance agreement and coverage obtained by them.
THIRTY-NINTH: If plaintiff was caused to sustain injuries and damages and ifplaintiff
establishes liability against the answering defendant, and if recovery is had against the answering
defendant by the plaintiff such shall come within the provisions of the aforesaid hold harmless
indemnification and insurance coverage agreements referred to above.
FORTIETH: That if indeed the co-defendants are in breach of the aforesaid agreement
and/or agreements regarding the obtaining of the aforesaid insurance coverages and if indeed the
said defendants failed to comply therewith, the pleading defendant will have been damaged
thereby.
FORTY-FIRST: That if the co-defendants are in breach of the aforesaid agreement and
have failed to obtain such insurance coverage as undertaken by them, then co-defendants are
attorneys'
obligated to reimburse the pleading defendant in the fullamount of fees expended by it
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or on itsbehalf in defense of the action instituted against itby the plaintiff as well as to indemnify
them in the full amount of any recovery by the plaintiff in this action against the pleading
attorneys'
defendant, together with fees, costs and disbursements.
WHEREFORE, answering defendant demands judgment dismissing the Verified
Complaint as to answering defendant, with costs and further demands that the ultimate rights of
this defendant and co-defendants, as between themselves, be determined in this action, and that
answering defendant have judgment over and against co-defendants for all or a part of any verdict
or judgment which may be obtained by the plaintiff against answering defendant, together with
costs, interest and disbursements of this action.
Dated: New York, New York
November 27, 2018
Yours, etc.,
McMANUS ATÈ OGL
AIELLO &dP STO S, PLLC
ATHANASIA APOSTOLAKOS
Attorneys for Defendant
P & M CLASSIC PIZZA
& RESTAURANT INC.
25d'
48 Wall Street, Floor
New York, New York 10005
(212) 425-3100
File No.: UFIC21996
TO: GUERRERO & ROSENGARTEN
Attorneys for Plaintiff
ROSA PERALTA
7"'
363 Avenue, 7 Floor
New York, New York 10001
(212) 533-2606
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AW HOLDING L.P.
1220 Lexington Avenue, #2E
New York, New York 10028
Zachary W. Carter, Esq.
Corporation Counsel
THE CITY OF NEW YORK
100 Church Street
New York, New York 10007
NEW YORK CITY DEPARTMENT
OF TRANSPORATION
55 Water Street
New York, New York 10004
NEW YORK CITY DEPARTMENT
OF PARKS AND RECREATION
2 Broadway
New York, New York 10004
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SUPREME COURT OF THE STATE OF NEW YORK INDEX NO. 155016/2018
COUNTY OF NEW YORK
ROSA PERALTA,
Plaintiff,
-against-
P & M CLASSIC PIZZA & 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.
VERIFIED ANSWER TO VERIFIED COMPLAINT WITH CROSS-CLAIMS
McMANUS ATESHOGLOU AIELLO & APOSTOLAKOS, PLLC
Attorneys for Defendant
P & M CLASSIC PIZZA & RESTAURANT INC.
48 Wall Street, 25th Floor
New York, New York 10005
(212) 425-3100
Fax: (212) 425-3175
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FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X ROSA PERALTA, Index No.: 155016/2018 Plaintiff, VERIFIED ANSWER -against- TO VERIFIED COMPLAINT WITH P & M CLASSIC PIZZA & RESTAURANT INC., CROSS-CLAIMS 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 The defendant, P & M CLASSIC PIZZA & RESTAURANT INC., by its attorneys, McMANUS ATESHOGLOU AIELLO & APOSTOLAKOS, PLLC, upon information and belief, answers the plaintiff's Verified Complaint herein as follows: FIRST: Denies any knowledge or information thereof sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Verified Complaint designated "i", "24", "25", "26", "27", "28", "29", "30", "31", "32", "33", "34", "35", "36", "37", "38", "39", "40", "41", "42", "43", "44", "45", "46", "47", "48", "49", "50", "51", "52", "53", "54", "55", "56", "57", "58", "59", "60", "61", "62", "63", "64", "65", "66", "67", "68", "69", "82" "70", "71", "72", "73", "74", "75", "76", "77", "78", "79", "80", "81", and "83". SECOND: Denies each and every allegation contained in the paragraph or subdivision of "2" the Verified Complaint designated except admits that defendant P & M CLASSIC PIZZA & RESTAURANT INC.'s principal place of business was in the County of New York and State of New York. 1 of 12 FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 THIRD: Denies each and every allegation contained in the paragraph or subdivision of "3" the Verified Complaint designated except admits that defendant, P & M CLASSIC PIZZA & RESTAURANT INC., was a domestic corporation duly licensed to do business under the laws of the State of New York. FOURTH: Denies each and every allegation contained in the paragraphs or subdivisions "8" of the Verified Complaint designated "4", "5", "6", and "9". FIFTH: Denies any knowledge or information thereof sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Verified Complaint "7" "10" designated and and respectfully refers allquestions of law to this Honorable Court. SIXTH: Denies each and every allegation contained in the paragraphs or subdivisions of the Verified Complaint designated "11", "12", "13", "14", "15", "16", "17", "18", "19", "20", "93" "94" "21", "22", "23", "84", "85", "86", "87", "88", "89", "90", "91", "92", and and respectfully refers all questions of law to this Honorable Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE. SEVENTH: Any damages which may have been sustained by the plaintiff were contributed to in whole or in part the culpable conduct of the pursuant to Section 14- by plaintiff, A, CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE. EIGHTH: Any damages which may have been sustained by the plaintiff were contributed to in whole or in part by the culpable conduct of third parties not under the control of answering defendant. 2 of 12 FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 AS AND FOR A THIRD AFFIRMATIVE DEFENSE. NINTH: Pursuant to CPLR 4545(c), if itbe determined or established that plaintiff has received or with reasonable certainty shall receive the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, and that the same shall be replaced or indemnified, in whole or in part from any collateral source such as insurance (except for lifeinsurance), social security (except for those benefits provided under title XVIII of the Social workers' Security Act), compensation or employee benefit programs (except such collateral source entitled by law to liens against any recovery of the plaintiff), then and in that event answering defendant hereby pleads in mitigation of damages the assessment of any such cost or expense as a collateral source in reduction of the amount of the award by such replacement or indemnification, minus an amount equal to the premiums paid by the plaintiff for such benefits for the two year period immediately preceding the accrual of this action and minus an amount equal to the projected future cost to the plaintiff ofmaintaining such benefits and as otherwise provided in CPLR 4545(c). AS AND FOR A FOURTH AFFIRMATIVE DEFENSE. TENTH: The injuries and damages alleged, all of which are denied by the answering defendant, were caused by the intervening, interceding and superseding acts of third parties not under the control of answering defendant. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE. ELEVENTH: The plaintiff failed to mitigate her damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE. TWELFTH: Answering defendant is entitled to limitation of liability pursuant to Article 16 of the CPLR. 3 of 12 FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE. THIRTEENTH: The Verified Complaint fails to state a cause of action upon which relief may be granted. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE. FOURTEENTH: This action lacks merit and is contrary to established law and fact and answering defendant is entitled to costs in the sum of $10,000 for this frivolous action. AS AND FOR A NINTH AFFIRMATIVE DEFENSE. FIFTEENTH: If the plaintiff sustained damages as alleged, such damages occurred while the plaintiff was engaged in an activity into which she entered, knowing the hazard, risk and danger of the activity and she assumed the risks incidental to and attending the activity. AS AND FOR A TENTH AFFIRMATIVE DEFENSE. SIXTEENTH: Any alleged defective condition was open and obvious and therefore should have been avoided by plaintiff. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE. defect" SEVENTEENTH: Any alleged defective condition was a "trivial for which plaintiff may not recover. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE. EIGHTEENTH: The Verified Complaint must be dismissed due to lack of privity between plaintiff and answering defendant. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE. NINETEENTH: The defendant is not liable to the plaintiff as the plaintiff's actions were the sole proximate cause of the alleged occurrence. 4 of 12 FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE. TWENTIETH: The answering defendant did not have actual or constructive notice of the alleged condition. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE. TWENTY-FIRST: No duty to plaintiff was owed by this defendant. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIRST CROSS CLAIM AGAINST CO-DEFENDANTS, ANSWERING DEFENDANT ALLEGES: TWENTY-SECOND: Ifplaintiff was caused to sustain injuries and damages at the time and place set forth in plaintiffs Verified Complaint through any carelessness, recklessness and negligence other than plaintiffs those damages arose in whole or in part from the acts of co- own, defendants, and ifany judgment is recovered herein by plaintiff against answering defendant, then this defendant will be damaged thereby and will be entitled to apportionment or indemnification, in whole or in on the basis of proportionate or obligation to of co- part, responsibility indemnify defendants. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SECOND CROSS CLAIM AGAINST CO-DEFENDANTS, ANSWERING DEFENDANT ALLEGES: TWENTY-THIRD: If the plaintiff was caused to sustain injuries and damages at the time and in the manner set forth in her Verified Complaint through any carelessness, recklessness or negligence other than that of plaintiffs own, which is expressly denied, such injuries and damages will have been caused, brought about and sustained solely by reason of the active, primary and affirmative negligence, carelessness and wrongdoing of the co-defendants, by their agents, servants and/or employees, without any negligence on the part of the answering defendant 5 of 12 FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 contributing thereto, or if there be any negligence on the part of the answering defendant, the same was merely passive and secondary in nature. TWENTY-FOURTH: That by reason of the foregoing, if the plaintiff recovers any judgment against the answering defendant, then this defendant is entitled to be fully indemnified by the co-defendants in a like amount, together with the costs, disbursements, expenses and attorneys' fees of the defense of this action by reason of the active and primary negligence of the co-defendants. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A THIRD CROSS CLAIM AGAINST CO-DEFENDANTS, ANSWERING DEFENDANT ALLEGES: TWENTY-FIFTH: If plaintiff sustained damages as alleged in the Verified Complaint through any fault other than the plaintiffs own fault, then such damages were sustained due to the sole fault of the co-defendants, and if plaintiff should obtain and/or recover judgment against the answering defendant, then the co-defendants shall be liable pursuant to common law for the full indemnification of the answering defendant. In view of the foregoing, the answering defendant is entitled to complete common law indemnification for all loss, damage, cost or expense, including, without limitation, judgments, attorneys' fees, Court costs and the cost of appellate proceedings from the co-defendants. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FOURTH CROSS CLAIM AGAINST CO-DEFENDANT, ANSWERING DEFENDANT ALLEGES: TWENTY-SIXTH: That pursuant to the contracts and/or agreements, upon information and belief, the co-defendants undertook certain duties and obligations. 6 of 12 FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 TWENTY-SEVENTH: If the plaintiff sustained injuries and damages as alleged in the Verified Complaint, they were sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom, including warranties contained therein and/or implied therefrom by operation of law or otherwise. TWENTY-EIGHTH: If the plaintiff was caused to sustain the injuries as set forth in plaintiffs Verified Complaint, through any carelessness, recklessness and/or negligence or other culpable conduct other than that of the plaintiff, said injuries and damages were caused by breach of and/or in furtherance of and as a result of the activities pursuant to the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom, including breach of warranties, stated and/or implied, by operation of law or otherwise, by the co-defendant, their agents, servants and/or employees and if any judgment is recovered herein against the answering defendant, they will be damaged thereby and the co-defendants are or will be primarily responsible therefore and the answering defendant will be entitled to contribution and/or indemnification, in whole or in part, from the culpable parties named in this claim over for their portion of plaintiffs damages which attorneys' were caused by the culpable parties named in this claim over, together with all fees, costs and disbursements. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIFTH CROSS CLAIM AGAINST CO-DEFENDANTS, ANSWERING DEFENDANT ALLEGES: TWENTY-NINTH: That pursuant to contracts and/or agreements heretofore alleged, the co-defendants undertook certain duties and obligations in connection with this lawsuit. THIRTIETH: That the said co-defendants undertook and agreed to hold harmless, indemnify and defend the answering defendant in connection with injuries and accidents arising out of or in the course of its work pursuant to its aforesaid agreement. 7 of 12 FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 THIRTY-FIRST: That if the plaintiff sustained injuries and damages as alleged in the Verified Complaint they were sustained within the provisions of the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom, including warranties contained therein and/or implied therefrom by operation of law, or otherwise. THIRTY-SECOND: That by virtue of the foregoing the said co-defendants are obligated to indemnify the answering defendant in the event of any liability against the answering defendant in favor of the plaintiff in this matter. THIRTY-THIRD: That by virtue of the foregoing the co-defendants are obligated to defend and to undertake the defense of the answering defendant. THIRTY-FOURTH: That if theplaintiff was caused to sustain any injuries as set forth in her Verified Complaint due to any carelessness, recklessness and/or negligence other than her own, including any culpable conduct on her part, said injuries and damages were caused by breach of and/or in furtherance of and as a result of the activities undertaken by the said co-defendants pursuant to the aforesaid contracts and/or agreements and/or the terms and conditions emanating therefrom including breach of warranties, stated and/or implied by operation of law or otherwise by the said co-defendants, their agents, servants and/or employees. THIRTY-FIFTH: That the co-defendants will be primarily responsible for the injuries and damages allegedly sustained by the plaintiff herein. THIRTY-SIXTH: That by reason of the foregoing the co-defendants will be liable to this defendant in the event and in the full amount of any recovery herein by the plaintiff against the answering defendant and itis bound to pay any and all attorney's fees, disbursements, costs of investigation and costs of defense of this action. 8 of 12 FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 THIRTY-SEVENTH: That by reason of the foregoing, the answering defendant is entitled to judgment over and against the co-defendants for the full amount of any recovery herein by the plaintiff against the answering defendant for the injuries and damages sustained by the plaintiff. AS A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SIXTH CROSS CLAIM AGAINST CO-DEFENDANTS, ANSWERING DEFENDANT ALLEGES: THIRTY-EIGHTH: Pursuant to the terms and conditions of the agreement heretofore alleged between the answering defendant and co-defendants, they agreed to obtain and maintain certain insurance coverages which would ensure their contractual indemnification and hold harmless provisions and which would ensure the answering defendant against any and all liability or damages established by the plaintiff and to further name the answering defendant as an additional insured under the aforesaid insurance agreement and coverage obtained by them. THIRTY-NINTH: If plaintiff was caused to sustain injuries and damages and ifplaintiff establishes liability against the answering defendant, and if recovery is had against the answering defendant by the plaintiff such shall come within the provisions of the aforesaid hold harmless indemnification and insurance coverage agreements referred to above. FORTIETH: That if indeed the co-defendants are in breach of the aforesaid agreement and/or agreements regarding the obtaining of the aforesaid insurance coverages and if indeed the said defendants failed to comply therewith, the pleading defendant will have been damaged thereby. FORTY-FIRST: That if the co-defendants are in breach of the aforesaid agreement and have failed to obtain such insurance coverage as undertaken by them, then co-defendants are attorneys' obligated to reimburse the pleading defendant in the fullamount of fees expended by it 9 of 12 FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 or on itsbehalf in defense of the action instituted against itby the plaintiff as well as to indemnify them in the full amount of any recovery by the plaintiff in this action against the pleading attorneys' defendant, together with fees, costs and disbursements. WHEREFORE, answering defendant demands judgment dismissing the Verified Complaint as to answering defendant, with costs and further demands that the ultimate rights of this defendant and co-defendants, as between themselves, be determined in this action, and that answering defendant have judgment over and against co-defendants for all or a part of any verdict or judgment which may be obtained by the plaintiff against answering defendant, together with costs, interest and disbursements of this action. Dated: New York, New York November 27, 2018 Yours, etc., McMANUS ATÈ OGL AIELLO &dP STO S, PLLC ATHANASIA APOSTOLAKOS Attorneys for Defendant P & M CLASSIC PIZZA & RESTAURANT INC. 25d' 48 Wall Street, Floor New York, New York 10005 (212) 425-3100 File No.: UFIC21996 TO: GUERRERO & ROSENGARTEN Attorneys for Plaintiff ROSA PERALTA 7"' 363 Avenue, 7 Floor New York, New York 10001 (212) 533-2606 10 of 12 FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 AW HOLDING L.P. 1220 Lexington Avenue, #2E New York, New York 10028 Zachary W. Carter, Esq. Corporation Counsel THE CITY OF NEW YORK 100 Church Street New York, New York 10007 NEW YORK CITY DEPARTMENT OF TRANSPORATION 55 Water Street New York, New York 10004 NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION 2 Broadway New York, New York 10004 11 of 12 FILED: NEW YORK COUNTY CLERK 11/27/2018 06:45 PM INDEX NO. 155016/2018 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 11/27/2018 SUPREME COURT OF THE STATE OF NEW YORK INDEX NO. 155016/2018 COUNTY OF NEW YORK ROSA PERALTA, Plaintiff, -against- P & M CLASSIC PIZZA & 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. VERIFIED ANSWER TO VERIFIED COMPLAINT WITH CROSS-CLAIMS McMANUS ATESHOGLOU AIELLO & APOSTOLAKOS, PLLC Attorneys for Defendant P & M CLASSIC PIZZA & RESTAURANT INC. 48 Wall Street, 25th Floor New York, New York 10005 (212) 425-3100 Fax: (212) 425-3175 12 of 12