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FILED: NEW YORK COUNTY CLERK 03/22/2019 11:57 AM INDEX NO. 154026/2018
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/22/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
.-------____________,--____-_,-___ _____,-------X
ANNA FIRSOVA, Index No.: 154026/2018
Plaintiff, VERIFIED ANSWER TO
AMENDED COMPLAINT
-against-
MADISON 30 31 OWNER LLC, LE MARQUIS
ASSOCIATES, LLC, and OLIVIERO
CONSTRUCTION,
Defendants.
-----------------------------------------------------X
Defendant, OLIVIERO CONSTRUCTION, as and for itsVerified Answer to the
Plaintiff's Amended Verified Complaint, states upon information and belief, as follows:
1. Answering defendant denies having knowledge or information sufficient to form a
belief as to the allegations contained in paragraphs designated as "1", "2", "3", "4", "5", "6",
"12" "13"
"7", "8", "9", "10", "11", and of the Plaintiff's Amended Verified Complaint.
2. Answering Defendant denies in the form alleged each and every allegation
"14"
contained in the paragraphs of the Plaintiff's Amended Verified Complaint designated as
"19"
and except admits defendant Oliviero Construction Corp was and still is a Domestic
Business Corporation and begs leave to refer all questions of law to the Court.
3. Answering defendant denies each and every allegation contained in paragraphs
"17"
designated as "15", "16", and "18 of Plaintiff's Amended Verified Complaint.
AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT MADISON 30 31
OWNER LLC
4. With respect to that paragraph of the Plaintiff's Amended Verified Complaint
designated as "20", defendant repeats, reiterates and realleges each and every admission, denial,
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"1"
and denial of truth of each and every allegation contained in those paragraphs designated as
"19"
through with the same force and effect as if set forth fully herein.
5. Answering defendant denies having knowledge or information sufficient to form a
belief as to the allegations contained in paragraphs designated as "21", "22", "23", "24", "25",
"32" "37" "38"
"26", "27", "28", "29", "30", "31", "33", "36", and of the Plaintiff's Amended
Verified Complaint.
6. Answering Defendant denies each and every allegation contained in the paragraph
"34"
of the Plaintiff's Amended Verified Complaint designated as and begs leave to refer all
questions of law to the Court.
7. Answering defendant denies each and every allegation contained in paragraphs
"39" "40"
designated as "35", and of Plaintiff's Amended Verified Complaint as alleged aginst
the Answering Defendant and denies having knowledge or information sufficient to form a belief
as to the allegations as to all other defendants.
AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT LE MAROUIS
ASSOCIATES LLC
8. With respect to that paragraph of the Plaintiff's Amended Verified Complaint
designated as "41", defendant repeats, reiterates and realleges each and every admission, denial,
"1"
and denial of truth of each and every allegation contained in those paragraphs designated as
"40"
through with the same force and effect as if set forth fully herein.
9. Answering defendant denies having knowledge or information sufficient to form a
belief as to the allegations contained in paragraphs designated as "42", "43", "44", "45", "46",
"50"
"47", and "51 of the Plaintiff's Amended Verified Complaint.
10. Answering defendant denies each and every allegation contained in paragraph
"48"
designated as of Plaintiff's Amended Verified Complaint.
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11. Answering defendant denies each and every allegation contained in paragraphs
"53" "54"
designated as "49", "52", and of Plaintiff's Amended Verified Complaint as alleged
against the and denies having knowledge or information sufficient to form a belief as to the
allegations as to all other defendants.
AS AND FOR A THIRD CAUSE OF ACTIOM AGAINST DEFENDANT OLIVIER_O
CONSTRUCTION, CORP.
12. With respect to that paragraph of the Plaintiff's Amended Verified Complaint
designated as "55", defendant repeats, reiterates and realleges each and every admission, denial,
"1"
and denial of truth of each and every allegation contained in those paragraphs designated as
"54"
through with the same force and effect as if set forth fully herein.
13. Answering Defendant denies each and every allegation contained in the paragraph
of the Plaintiff's Amended Verified Complaint designated as "56", "57", "58", "59", "60", "61",
"71" "72"
"63", "64", "65", "66", "67", "68", "69", "70", and and begs leave to refer all
questions of law to the Court.
14. Answering Defendant denies in the form alleged each and every allegation
"62"
contained in the paragraphs of the Plaintiff's Amended Verified Complaint designated as
and begs leave to refer all questions of law to the Court.
AFFIRMATIVE DEFENSES
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
15. Whatever injuries and/or damages the plaintiff may have sustained at the time and
place mentioned in the Verified Amended Complaint and/or as a result of the occurrence alleged
in the Complaint, all of which are denied by this answering defendant, were caused in whole or
in part by the culpable conduct of the plaintiff. The amount of damages recovered, ifany, shall
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therefore be diminished in the proportion which the culpable conduct, attributable to plaintiff
bears to the culpable conduct, which caused said injuries.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
16. All risks and danger of loss or damages connected with a situation alleged in the
Complaint were at the time and place mentioned obvious and apparent and were known by the
plaintiff and voluntarily assumed by the plaintiff.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
17. The injuries and damages alleged were caused by the culpable conduct of some
third person or persons over whom this answering defendant neither had nor exercised control.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSI
18. The liability of this answering defendant is limited by the provisions of Article 16
of the Civil Practice Law and Rules (hereinafter "CPLR").
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
19. Upon information and belief, plaintiff failed to mitigate his damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
20. Any verdict, judgment or decision that might be obtained by plaintiff against this
answering defendant shall be reduced by the amount of any collateral source payments received
by plaintiff pursuant to CPLR §4545(c) as determined by the Court.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
21. Plaintiff was not in privity of contract with this answering defendant.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
22. The negligence of those responsible for the accident or the occurrence alleged in
the Verified Complaint, including the plaintiff, constituted a separate, independent, superseding,
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intervening culpable act or acts which constitute the sole proximate cause of the accident or
occurrence alleged.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
23. Answering defendant did not breach any duty or obligation owed, if any, to
plaintiff, under common law, statute, regulations or standards.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
24. Upon information and belief, the Plaintiff's actions were the sole proximate cause
of or the substantial factor of his accident.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
25. Plaintiff failed to identify and bring suit against proper, indispensable, parties to
the instant action.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
26. Plaintiff's actions were a superseding, intervening cause of the alleged incident
which broke any causal connection of any negligence, which is vehemëñtly denied, of the
answering defendant in any event.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
27. Pursuant to the provisions of section 15-108 of the General Obligations Law, the
answering defendant is entitled to a reduction of any adverse judgment by either the total
tortfeasors'
settlement amount paid by any other tortfeasors or in the amount of the released
equitable share of the damages under Article 14 of the CPLR, whichever is the greatest.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
28. Upon information and belief, the plaintiff was a recalcitrant worker.
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AS AND FOR AN FIFTEENTH AFFIRMATIVE DEFENSE
29. The facts of this case do not trigger a violation of §§ 200, 240(1) or 241(6) of the
Labor Law, as alleged by plaintiff.
AS AND FOR A CROSS-CLAIM AGAINST CO-DEFENDANTS MADISON3031
OWNER LLC and LE MAROUIS ASSOCIATES. LLC.
30. If plaintiff sustained damages in the manner alleged in the Verified
Complaint, such damages were caused by reason of the negligence, breach of contract,
obligation or warranty of the defendants, MADISON 30 31 OWNER LLC and LE
MARQUIS ASSOCIATES, LLC.
31. By reason of the foregoing, the answering defendant, OLIVIERO
CONSTRUCTION, is entitled to common-law and/or contractual indemnification from,
and to have judgment over and against defendants, MADISON 30 31 OWNER LLC and LE
MARQUIS ASSOCIATES, LLC., for all or part of any verdict or judgment that plaintiff
may recover against the answering defendants.
32. By reason of the foregoing, the answering defendant, OLIVIERO
CONSTRUCTION, is entitled to contribution from, and to have judgment over and against
the defendants, MADISON 30 31 OWNER LLC and LE MARQUIS ASSOCIATES, LLC.,
for all or part of any verdict or judgment that plaintiff may recover against the answering
defendant.
WHEREFORE, the Defendant, OLIVIERO CONSTRUCTION, demands Judgment
dismissing the Verified Complaint herein, together with the costs and disbursements of this
action.
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To the best of my knowledge, information and belief, formed after an inquiry reasonable
under the circumstances, the presentation of this paper or the contentions herein are not
frivolous, as that term is defined in Part 130 of the Court Rules.
Dated: New York, New York
March 23, 2017
Yours, etc.
KA MAN BO & RYAN LLP
By: Rocco P. Matra, Esq.
Attorneys for Defendant
OLIVIERO CONSTRUCTION
14th
120 Broadway,
New York, NY 10271
Tel. No.: (212) 980-9600
Fax No.: (212) 980-9291
Our File No.: 749.264
TO: MATTHEW HAICKEN, ESQ.
Attorneys for Plaintiff
1430 Broadway, Suite 1802
New York, New York 10018
(212) 529-8326
CARTAFALSA TURPIN & LENOFF
Attorneys for Defendant
LE MARQUIS ASSOCIATES, LLC
52nd
150 Greenwich, Street, FlOOr
New York, New York 10007
(212) 225-7700
File No. 455786
PILLINGER MILLER & TARALLO, LLP
Attorneys for Defendant
MADISON 30 31 OWNER LLC
5th
555 Taxter Road, FlOOr
Elmsford, New York 10523
(914) 703-6300
File No. PR-CHC-00104/ECH
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V E R I F IC A T I O N
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
ROCCO P. MATRA, ESQ., being duly sworn, states that he is a Partner of the firm of
KAUFMAN BORGEEST & RYAN LLP, attorneys for the Defendant, OLIVIERO
CONSTRUCTION, in this action and that the foregoing Answer to Plaintiff's Verified
Complaint is true to his knowledge, except as to those matters there in stated upon information
and belief, and as to those matters he believes them to be true; that the grounds of his belief as to
all matters not stated upon his knowledge are correspondence and other writings furnished by the
defendant and other documents maintained in the office of itsattorneys; and that the reason why
this verification is not made by Defendant is that the Defendant has its residence in a county
other than the county where itsattorneys have their place of business.
Dated: New York, New York
March 22, 2019
ROCCO P. MATRA, ESQ.
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FILED: NEW YORK COUNTY CLERK 03/22/2019 11:57 AM INDEX NO. 154026/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/22/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK .-------____________,--____-_,-___ _____,-------X ANNA FIRSOVA, Index No.: 154026/2018 Plaintiff, VERIFIED ANSWER TO AMENDED COMPLAINT -against- MADISON 30 31 OWNER LLC, LE MARQUIS ASSOCIATES, LLC, and OLIVIERO CONSTRUCTION, Defendants. -----------------------------------------------------X Defendant, OLIVIERO CONSTRUCTION, as and for itsVerified Answer to the Plaintiff's Amended Verified Complaint, states upon information and belief, as follows: 1. Answering defendant denies having knowledge or information sufficient to form a belief as to the allegations contained in paragraphs designated as "1", "2", "3", "4", "5", "6", "12" "13" "7", "8", "9", "10", "11", and of the Plaintiff's Amended Verified Complaint. 2. Answering Defendant denies in the form alleged each and every allegation "14" contained in the paragraphs of the Plaintiff's Amended Verified Complaint designated as "19" and except admits defendant Oliviero Construction Corp was and still is a Domestic Business Corporation and begs leave to refer all questions of law to the Court. 3. Answering defendant denies each and every allegation contained in paragraphs "17" designated as "15", "16", and "18 of Plaintiff's Amended Verified Complaint. AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT MADISON 30 31 OWNER LLC 4. With respect to that paragraph of the Plaintiff's Amended Verified Complaint designated as "20", defendant repeats, reiterates and realleges each and every admission, denial, 5525886 1 of 8 FILED: NEW YORK COUNTY CLERK 03/22/2019 11:57 AM INDEX NO. 154026/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/22/2019 "1" and denial of truth of each and every allegation contained in those paragraphs designated as "19" through with the same force and effect as if set forth fully herein. 5. Answering defendant denies having knowledge or information sufficient to form a belief as to the allegations contained in paragraphs designated as "21", "22", "23", "24", "25", "32" "37" "38" "26", "27", "28", "29", "30", "31", "33", "36", and of the Plaintiff's Amended Verified Complaint. 6. Answering Defendant denies each and every allegation contained in the paragraph "34" of the Plaintiff's Amended Verified Complaint designated as and begs leave to refer all questions of law to the Court. 7. Answering defendant denies each and every allegation contained in paragraphs "39" "40" designated as "35", and of Plaintiff's Amended Verified Complaint as alleged aginst the Answering Defendant and denies having knowledge or information sufficient to form a belief as to the allegations as to all other defendants. AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT LE MAROUIS ASSOCIATES LLC 8. With respect to that paragraph of the Plaintiff's Amended Verified Complaint designated as "41", defendant repeats, reiterates and realleges each and every admission, denial, "1" and denial of truth of each and every allegation contained in those paragraphs designated as "40" through with the same force and effect as if set forth fully herein. 9. Answering defendant denies having knowledge or information sufficient to form a belief as to the allegations contained in paragraphs designated as "42", "43", "44", "45", "46", "50" "47", and "51 of the Plaintiff's Amended Verified Complaint. 10. Answering defendant denies each and every allegation contained in paragraph "48" designated as of Plaintiff's Amended Verified Complaint. 2 5525886 2 of 8 FILED: NEW YORK COUNTY CLERK 03/22/2019 11:57 AM INDEX NO. 154026/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/22/2019 11. Answering defendant denies each and every allegation contained in paragraphs "53" "54" designated as "49", "52", and of Plaintiff's Amended Verified Complaint as alleged against the and denies having knowledge or information sufficient to form a belief as to the allegations as to all other defendants. AS AND FOR A THIRD CAUSE OF ACTIOM AGAINST DEFENDANT OLIVIER_O CONSTRUCTION, CORP. 12. With respect to that paragraph of the Plaintiff's Amended Verified Complaint designated as "55", defendant repeats, reiterates and realleges each and every admission, denial, "1" and denial of truth of each and every allegation contained in those paragraphs designated as "54" through with the same force and effect as if set forth fully herein. 13. Answering Defendant denies each and every allegation contained in the paragraph of the Plaintiff's Amended Verified Complaint designated as "56", "57", "58", "59", "60", "61", "71" "72" "63", "64", "65", "66", "67", "68", "69", "70", and and begs leave to refer all questions of law to the Court. 14. Answering Defendant denies in the form alleged each and every allegation "62" contained in the paragraphs of the Plaintiff's Amended Verified Complaint designated as and begs leave to refer all questions of law to the Court. AFFIRMATIVE DEFENSES AS AND FOR A FIRST AFFIRMATIVE DEFENSE 15. Whatever injuries and/or damages the plaintiff may have sustained at the time and place mentioned in the Verified Amended Complaint and/or as a result of the occurrence alleged in the Complaint, all of which are denied by this answering defendant, were caused in whole or in part by the culpable conduct of the plaintiff. The amount of damages recovered, ifany, shall 3 5525886 3 of 8 FILED: NEW YORK COUNTY CLERK 03/22/2019 11:57 AM INDEX NO. 154026/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/22/2019 therefore be diminished in the proportion which the culpable conduct, attributable to plaintiff bears to the culpable conduct, which caused said injuries. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 16. All risks and danger of loss or damages connected with a situation alleged in the Complaint were at the time and place mentioned obvious and apparent and were known by the plaintiff and voluntarily assumed by the plaintiff. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 17. The injuries and damages alleged were caused by the culpable conduct of some third person or persons over whom this answering defendant neither had nor exercised control. AS AND FOR A FOURTH AFFIRMATIVE DEFENSI 18. The liability of this answering defendant is limited by the provisions of Article 16 of the Civil Practice Law and Rules (hereinafter "CPLR"). AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 19. Upon information and belief, plaintiff failed to mitigate his damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 20. Any verdict, judgment or decision that might be obtained by plaintiff against this answering defendant shall be reduced by the amount of any collateral source payments received by plaintiff pursuant to CPLR §4545(c) as determined by the Court. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 21. Plaintiff was not in privity of contract with this answering defendant. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 22. The negligence of those responsible for the accident or the occurrence alleged in the Verified Complaint, including the plaintiff, constituted a separate, independent, superseding, 4 5525886 4 of 8 FILED: NEW YORK COUNTY CLERK 03/22/2019 11:57 AM INDEX NO. 154026/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/22/2019 intervening culpable act or acts which constitute the sole proximate cause of the accident or occurrence alleged. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 23. Answering defendant did not breach any duty or obligation owed, if any, to plaintiff, under common law, statute, regulations or standards. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 24. Upon information and belief, the Plaintiff's actions were the sole proximate cause of or the substantial factor of his accident. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 25. Plaintiff failed to identify and bring suit against proper, indispensable, parties to the instant action. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 26. Plaintiff's actions were a superseding, intervening cause of the alleged incident which broke any causal connection of any negligence, which is vehemëñtly denied, of the answering defendant in any event. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 27. Pursuant to the provisions of section 15-108 of the General Obligations Law, the answering defendant is entitled to a reduction of any adverse judgment by either the total tortfeasors' settlement amount paid by any other tortfeasors or in the amount of the released equitable share of the damages under Article 14 of the CPLR, whichever is the greatest. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 28. Upon information and belief, the plaintiff was a recalcitrant worker. 5 5525886 5 of 8 FILED: NEW YORK COUNTY CLERK 03/22/2019 11:57 AM INDEX NO. 154026/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/22/2019 AS AND FOR AN FIFTEENTH AFFIRMATIVE DEFENSE 29. The facts of this case do not trigger a violation of §§ 200, 240(1) or 241(6) of the Labor Law, as alleged by plaintiff. AS AND FOR A CROSS-CLAIM AGAINST CO-DEFENDANTS MADISON3031 OWNER LLC and LE MAROUIS ASSOCIATES. LLC. 30. If plaintiff sustained damages in the manner alleged in the Verified Complaint, such damages were caused by reason of the negligence, breach of contract, obligation or warranty of the defendants, MADISON 30 31 OWNER LLC and LE MARQUIS ASSOCIATES, LLC. 31. By reason of the foregoing, the answering defendant, OLIVIERO CONSTRUCTION, is entitled to common-law and/or contractual indemnification from, and to have judgment over and against defendants, MADISON 30 31 OWNER LLC and LE MARQUIS ASSOCIATES, LLC., for all or part of any verdict or judgment that plaintiff may recover against the answering defendants. 32. By reason of the foregoing, the answering defendant, OLIVIERO CONSTRUCTION, is entitled to contribution from, and to have judgment over and against the defendants, MADISON 30 31 OWNER LLC and LE MARQUIS ASSOCIATES, LLC., for all or part of any verdict or judgment that plaintiff may recover against the answering defendant. WHEREFORE, the Defendant, OLIVIERO CONSTRUCTION, demands Judgment dismissing the Verified Complaint herein, together with the costs and disbursements of this action. 6 5525886 6 of 8 FILED: NEW YORK COUNTY CLERK 03/22/2019 11:57 AM INDEX NO. 154026/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/22/2019 To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this paper or the contentions herein are not frivolous, as that term is defined in Part 130 of the Court Rules. Dated: New York, New York March 23, 2017 Yours, etc. KA MAN BO & RYAN LLP By: Rocco P. Matra, Esq. Attorneys for Defendant OLIVIERO CONSTRUCTION 14th 120 Broadway, New York, NY 10271 Tel. No.: (212) 980-9600 Fax No.: (212) 980-9291 Our File No.: 749.264 TO: MATTHEW HAICKEN, ESQ. Attorneys for Plaintiff 1430 Broadway, Suite 1802 New York, New York 10018 (212) 529-8326 CARTAFALSA TURPIN & LENOFF Attorneys for Defendant LE MARQUIS ASSOCIATES, LLC 52nd 150 Greenwich, Street, FlOOr New York, New York 10007 (212) 225-7700 File No. 455786 PILLINGER MILLER & TARALLO, LLP Attorneys for Defendant MADISON 30 31 OWNER LLC 5th 555 Taxter Road, FlOOr Elmsford, New York 10523 (914) 703-6300 File No. PR-CHC-00104/ECH 7 5525886 7 of 8 FILED: NEW YORK COUNTY CLERK 03/22/2019 11:57 AM INDEX NO. 154026/2018 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 03/22/2019 V E R I F IC A T I O N STATE OF NEW YORK ) ) COUNTY OF NEW YORK ) ROCCO P. MATRA, ESQ., being duly sworn, states that he is a Partner of the firm of KAUFMAN BORGEEST & RYAN LLP, attorneys for the Defendant, OLIVIERO CONSTRUCTION, in this action and that the foregoing Answer to Plaintiff's Verified Complaint is true to his knowledge, except as to those matters there in stated upon information and belief, and as to those matters he believes them to be true; that the grounds of his belief as to all matters not stated upon his knowledge are correspondence and other writings furnished by the defendant and other documents maintained in the office of itsattorneys; and that the reason why this verification is not made by Defendant is that the Defendant has its residence in a county other than the county where itsattorneys have their place of business. Dated: New York, New York March 22, 2019 ROCCO P. MATRA, ESQ. 8 5525886 8 of 8