FILED: KINGS COUNTY CLERK 10/23/2017 01:05 PM
`FILED: KINGS COUNTY CLERK 10312017 01:05 PM
`NYSC 3F DOC. NO. 28
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`FILED: KINGS COUNTY CLERK 10/23/2017 01:05 PM
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`NYSCEF DOC. NO. 28
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
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`___________________________________________________________________________X
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`ARKADY ZELDIN,
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`Index No.: 5145181201?
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`Plaintiff,
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`VERIFIED ANSWER TO
`VERIFIED COMPLAINT
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`against-
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`PIER ASSOCIATES AND SHEEPSHEAD APPLE, LLC
`D/B/A APPLEBEE’S,
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`Defendants.
`___________________________________________________________________________X
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`Defendant, PIER ASSOCIATES, answering the verified complaint by its attorneys,
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`MALAPERO & PRISCO LLP, respectfully sets forth:
`1.
`Denies having knowledge or information sufficient to form a belief as to
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`the allegations contained in the paragraphs designated as “1”, “2”, “7”, “8” and “9” of the verified
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`complaint and respectfully refers all questions of law to the Court at the time of trial.
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`2.
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`Denies each and every allegation contained in the paragraphs designated as
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`“3”, “4”, “5”, “6”, “10”, “1 1”, “the second number 12 (misnumbered by plaintiffs attorney)”,
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`“13”, “14”, “15”, “16”, “17”, “18”, “the second ‘18” (misnumbered by plaintiff’s attorney)", “20”,
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`“21”, “23 (misnumbered by plaintiff‘s attorney [as there is no number ‘22’])”, “24”, “25”, “26”,
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`and “27” of the verified complaint and respectfully refers all questions of law to the Court at the
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`time of trial.
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`3.
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`Denies each and every allegation contained in the first paragraph of the two
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`paragraphs designated as “12” of the verified complaint and respectfiilly refers the Court to the
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`subject written agreement, if any, for its content, meaning and interpretation at the time oftrial.
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`4.
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`Denies each and every allegation contained in the paragraph designated as
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`“28", “29”, “30”, “31", “32” and “33” of the verified complaint.
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`lof47
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`AS AND FOR A FIRST, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`1.
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`That the plaintiff has failed to state a cause of action.
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`AS AND FOR A SECOND, SEPARATE
`AND DISTINCT AFFIRNIATIVE DEFENSE:
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`1.
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`That the answering defendant, pursuant to CPLR Section 1412, alleges upon
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`information and belief, that if the plaintiff sustained any injuries or damages at the time and place
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`alleged in its complaint, such injuries or damages were as a result of the culpable conduct of the
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`plaintiff and/or because of the plaintiff’s assumption of risk.
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`2.
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`Should it be found, however, that the answering defendant is liable to
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`plaintiff herein, any liability being specifically denied, then the answering defendant alleges that
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`if any damages are found, they are to be apportioned among the plaintiff and answering defendant
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`according to the degree ofresponsibility that each is found to have for the occurrence, in proportion
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`to the entire measure of responsibility for the occurrence.
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`AS AND FOR A THIRD, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`3.
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`Any‘past or future costs or expenses incurred, or to be incurred, by the
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`plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings or
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`other economic loss that has been or may be replaced or indemnified, in whole or in part, from a
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`collateral source as defined in CPLR Section 4545(c) shall not be recoverable from the answering
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`defendant and the amount of such damages will be diminished by the amount of the funds which
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`plaintiff has or may receive from such collateral source.
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`AS AND FOR A FOURTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`4.
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`That plaintiff has failed to mitigate its damages.
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`2 of 47
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`INDEX NO. 514518/2017
`FILED: KINGS COUNTY CLERK 10/23/2017 01:05 PM
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`AS AND FOR A FIFTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`5.
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`While the answering defendant denies
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`the plaintiff’s allegation of
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`negligence and liability, any injury and damages, if proven, were the result of intervening and/or
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`interceding acts of superseding negligence and liability on the part of parties over which this
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`answering defendant neither has control nor had the right to control, and for which acts or
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`omissions these answering defendant is not legally responsible.
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`AS AND FOR A SIXTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`6.
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`This answering defendant has no statutory or common-law duty to the
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`plaintiff.
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`AS AND FOR A SEVENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`7.
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`That the plaintiff has failed to join all necessary parties.
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`AS AND FOR AN EIGHTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`8.
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`That the condition which allegedly gave rise to plaintiff s claimed injuries
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`was “open and obvious” and not actionable as a matter of law.
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`AS AND FOR A NINTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`9.
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`That the injuries or damages complained of were caused in whole or part by
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`plaintiff’s own culpable conduct or the culpable conduct of others for whom the answering
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`defendant has no legal responsibility.
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`3 of 47'
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`INDEX NO. 514518/2017
`FILED: KINGS COUNTY CLERK 10/23/2017 01:05 PM
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`FILED: KINGS COUNTY CLERK lug-$1020170].: 05 PM
`IND-3X NO 514518/2017
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`NYSCEF DOC. NO. 28
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`AS AND FOR A TENTH, SEPARATE
`AND DISTINCT AFFIRNIATIVE DEFENSE:
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`10.
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`That if the plaintiff has received sums of money in settlement of the claims
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`asserted herein, by reason thereof, the answering defendant is entitled to the protection, provisions
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`and limitations of Section 15-108 of the General Obligations Law of the State of New York in
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`reducing the claim of the plaintiff against the answering defendant, by the amount stipulated in
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`any release, the amount of consideration paid for it or the amount of the equitable share of the
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`damages of any released entities, whichever is the greatest.
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`AS AND FOR AN ELEVENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`11.
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`That the liability of the defendant, if any, does not exceed fifty percent
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`(50%) of the liability assigned to all persons, if any, and that the liability of the defendant, if any,
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`for non-economic loss is limited pursuant to CPLR Article 16.
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`AS AND FOR A TWELFTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`12.
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`That this Court lacks jurisdiction over answering defendant.
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`AS AND FOR A THIRTEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`13.
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`That the plaintiff lacks standing to maintain this action.
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`AS AND FOR A FOURTEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`14.
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`That this action is frivolous as against answering defendant, and as such,
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`answering defendant is entitled to an award of sanctions not to exceed $10,000 pursuant to CPLR
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`§8303-a.
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`40f 47
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`RECEIVED NYSCEF: 10/23/2017
`NYSCEF DOC. NO. 28
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`AS AND FOR A FIFTEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`15.
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`Plaintiff’s complaint fails to consecutively number allegations pursuant to
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`CPLR §3014 and is defective.
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`AS AND FOR A CROSS-COMPLAINT
`AGAINST CO-DEFENDANT, SHEEPSHEAD APPLE, LLC, D/B/A APPLEBEE’S:
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`16.
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`That if plaintiff’s damages as alleged in the complaint were caused through
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`negligence other than plaintiff’s own negligence, carelessness and recklessness, said damages were
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`sustained due to the primary and active, negligent, careless and reckless acts of omission or
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`commission of the co—defendant, SHEEPSHEAD APPLE, LLC, D/B/A APPLEBEE’S with the
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`negligence, if any, of the answering Defendant, PIER ASSOCIATES, being secondary and for
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`derivative only.
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`17.
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`That if plaintiff should recover judgment against this answering defendant,
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`PIER ASSOCIATES, then co-defendant, SHEEPSHEAD APPLE, LLC, D/B/A APPLEBEE‘S,
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`shall be liable to said answering defendant for the full amount of said judgment or on the basis of
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`apportionment of responsibility of the alleged occurrence, answering defendant, PIER
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`ASSOCIATES,
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`is entitled to indemnification from and judgment over and against the co-
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`defendant, SHEEPSHEAD APPLE, LLC, D/B/A APPLEBEE’S, for all or part of any verdict or
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`judgment which plaintiff may recover in such amounts as a jury or Court may direct.
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`AS AND FOR A SECOND CROSS-COMPLAINT
`AGAINST CO—DEFENDANT, SHEEPSHEAD APPLE, LLC, D/BIA APPLEBEE’S:
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`18.
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`That prior to the date of the subject incident, co-defendant, SHEEPSHEAD
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`APPLE, LLC, D/B/A APPLEBEE’S, entered into a contract wherein it agreed to perform certain
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`services at the subject premises known as 2505 Emmons Avenue, Brooklyn, New York and the
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`abutting sidewalk on Bedford Avenue.
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`50f 47
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`IND3X NO. 514518/2017
`INDEX NO. 514518/2017
`FILED: KINGS COUNTY CLERK 10/23/2017 01:05 PM
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`19.
`That under the terms, conditions and provisions of said contracts, co-
`defendant, SHEEPSHEAD APPLE, LLC, D/B/A APPLBBEE’S, was obligated to indemnify and
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`save the answering defendant, PIER ASSOCIATES, harmless from all liability and loss because
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`of injury, including death, to any person, or damage to any property that may occur or may be
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`alleged to have occurred as a result, directly or indirectly, of their respective fault or negligence
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`and to defend all suits and claims alleging such injury or damage and to pay all charges of
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`attorneys, court costs, and all other costs and expenses in connection therewith.
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`20.
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`That if answering defendant, PIER ASSOCIATES is held liable for the
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`damage allegedly sustained by the plaintiff herein, such liability will have been brought about by
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`and caused in whole or in part as a result ofthe carelessness, recklessness, negligence and/or breach
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`of contract of the co-defendant, SHEEPSHEAD APPLE, LLC, D/B/A APPLEBEE’S, its agents,
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`servants and/or employees without any fault or negligence of the part of answering defendant,
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`PIER ASSOCIATES, contributing thereto.
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`21.
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`That by reason of the foregoing, the co-defendant, SHEEPSHEAD APPLE,
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`LLC, D/B/A APPLEBEE’S, is liable to the answering defendant, PIER ASSOCIATES, in whole
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`or in part for the claim made against them by the plaintiff in this action.
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`AS AND FOR A THIRD CROSS-COMPLAINT
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`AGAINST CO-DEFENDANT, SHEEPSHEAD APPLE, LLC,
`was:
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`22.
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`That, upon information and belief, pursuant to the above contract(s) entered
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`into by co-defendant, SHEEPSHEAD APPLE, LLC, D/B/A APPLEBEE’S, was obligated to
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`purchase insurance for the protection of answering defendant, PIER ASSOCIATES, covering
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`claims for bodily injury which arise out of or by reason of or in the course of performance of work
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`by Answering defendant.
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`6 of 47
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`23.
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`That upon information and belief, co-defendant, SHEEPSHEAD APPLE,
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`LLC, D/B/A APPLEBEE’S, failed to purchase such insurance for the protection of answering
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`defendant, PIER ASSOCIATES, pursuant to their obligations under their contract(s).
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`24.
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`As a result of co—defendant, SHEEPSHEAD APPLE, LLC, D/B/A
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`APPLEBEE’S ’s breach of contract in failing to purchase insurance for the protection of answering
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`defendant, PIER ASSOCIATES, answering defendant has been and will continue to be damaged
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`as a result of the claim of plaintiff, in that it will be required to expend attorney’s fees and other
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`expenses for its own defense in the within action and will or may be subject to liability to plaintiffs
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`all of which costs and expenses would have been defrayed and covered by liability insurance that
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`was obligated to purchase.
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`25.
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`That as a result of co-defendant’s breach of contractual obligations
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`regarding the purchase of insurance, answering defendant, PIER ASSOCIATES is entitled to be
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`reimbursed for the amount ofany judgment or damages they are obligated to pay plaintiffincluding
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`the cost of a settlement, if any, and in addition thereto, are entitled to be reimbursed for the costs
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`of attorneys” fees and defense costs associated with defense of the instant action.
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`WHEREFORE, defendant PIER ASSOCIATES, demands judgment dismissing
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`the complaint, and further demands judgment over and against the co-defendant, SHEEPSHEAD
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`APPLE, LLC, D/B/A APPLEBEE’S, on the cross—complaints, together with the costs and
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`disbursements of this action.
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`Dated: New York, New York
`September 12, 2017
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`Yours etc.,
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`MALAPERO & PRISCO LLP
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`Attorneys for Defendant
`PIER ASSOCIATES
`185 Madison Avenue
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`New York, New York 10016
`(212) 661-7300
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`7 of 47
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`INDEX NO. 514518/2017
`INDEX NO. 514518/2017
`FILED: KINGS COUNTY CLERK 10/23/2017 01:05 PM
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`INDEX NO. 514518/ 017
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`NYSCEF DOC. NO. 28
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`0 RC.Iv.D \IYSCEF: 10/23 2017
`NYCEF DOC. NO. 8
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`RECEIVED NYSCEF: 09/12/2017
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`TO:
`
`Ymiy Prakhin, Esq.
`LAW OFFICE OF YURIY PRAKHIN, P.C.
`Attorneys for Plaintiff ARKADY ZELDIN
`1883 861h Street, 2nd Floor
`Brooklyn, New York 11214
`(718) 946-5099
`Our File No.: IG04282017
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`(NONuREGISTERED ECF USER)
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`SHEEPSHEAD APPLE, LLC
`550 Marnaroneck Avenue, Suite 301
`Harrison, New York 10528
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`8 of 47
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`-8- (82-923 est)
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`INDEX NO. 514518/2017
`FILED: KINGS COUNTY CLERK 10/23/2017 01:05 PM
`INDEX NO. 514518/2017
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`VERIFICATION:
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`ss:
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`) )
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`STATE OF NEW YORK
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`COUNTY OF NEW YORK )
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`ANDREW L. KLAUBER, being duly sworn, deposes and says:
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`That I am one of the attorneys for the answering defendant in the within action; that I
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`have read the foregoing ANSWER TO VERIFIED COMPLAINT and know the contents thereof;
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`that the same are true to my own knowledge, except as to the matters therein stated to be alleged on
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`information and belief, and that as to those matters I believe them to be true.
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`The reason this Verification is made by deponent and not by the answering defendant
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`is that said defendants are not within the County in which deponent ha
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`s we The facts set forth
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`.herein are upon information and belief derived from the records
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`.d pap s in deponent’s office.
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`Dated: New York, New York
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`September 12, 2017
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`ANDREW L. KLAUBER
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`90f 47
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`-9- (82—923 cot)
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