SCANNED ON 211012009

13567

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VICTOR BAEZ-RENDON, Plaintiff, -againstVERIFIED ANSWER WITH AFFIRMATIVE DEFENSES & CROSSCLAIM

250 BOWERY PROJECT LLC and FOUNDATIONS GROUP INC., Defendants.

Defendant, 250 BOWERY PROJECT LLC, (hereinafter Defendant) by its attorneys Lustig & Brown, LLP., as and for their Verified Answer to plaintiffs Verified Complaint herein, alleges upon information and belief as follows: AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION ON BEHALF OF VICTOR BAEZ-RENDON
1.

Denies knowledge or information sufficient to form a belief as to the truth allegations contained in Paragraphs numbered l,3, 4 13, 14; ~ 1,i c 18 19, 20,21,and 27of the Verified Complaint. 7 ~

2.

With respect to the allegations contained in Paragraph numbered 2 of the Verifie Complaint, this answering defendant admits that it is a limited liability cor organized and existing under and by virtue of the laws of the State of New York.

3.

Denies any knowledge or information sufficient to form a belief, due to the lack of specificity, of the allegations contained in paragraphs marked and numbered S,6,
(6

797 ,66899 ,66999 ,and 10 of Plaintiffs Verified Complaint.

4.

Denies any knowledge or information sufficient to form a belief and avers that the contract speaks for itself, as to the allegations contained in paragraphs marked and

Supreme Court Records OnLine Library - page 1 of 9

numbered 11 and 12 of the Plaintiffs Verified Complaint. 5. Denies the allegations contained in paragraphs marked and numbered 22, 23,24, 25, 26, 28 and 29 of Plaintiffs Verified Complaint.
6.

Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs numbered 30 and 31 and respectfully refer all questions of law to the Court for an appropriate determination. AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION ON BEHALF OF VICTOR BAEZ-RENDON

7.

With respect to the allegations contained in Paragraph numbered 32 of the Verified Complaint, this answering defendant repeats and realleges their answers to Paragraphs numbered 1 through 3 1 inclusive, with the same force and effect as if set forth fully at length herein.

8.

Denies the allegations contained in paragraphs marked and numbered 33 and 34 of Plaintiffs Verified Complaint.

9.

Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs numbered 35 and 36 and respectfully refer all questions of law to the Court for an appropriate determination. AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION ON BEHALF OF VICTOR BAEZ-RENDON

10.

With respect to the allegations contained in Paragraph numbered 37 of the Verified Complaint, this answering defendant repeats and realleges their answers to Paragraphs numbered 1 through 36 inclusive, with the same force and effect as if set forth fully at length herein.

-2Supreme Court Records OnLine Library - page 2 of 9

11.

Denies the allegations contained in paragraphs marked and numbered 38, 39, 40, 41, 42 and 43 of Plaintiffs Verified Complaint

12.

Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs numbered 44 and 45 and respectfully refer all questions of law to the Court for an appropriate determination. AS AND FOR A RESPONSE TO THE FOURTH CAUSE OF ACTION ON BEHALF OF VICTOR BAEZ-RENDON

13.

With respect to the allegations contained in Paragraph numbered 46 of the Verified Complaint, this answering defendant repeats and realleges their answers to Paragraphs numbered 1 through 45 inclusive, with the same force and effect as if set forth fully at length herein.

14.

Denies the allegations contained in paragraphs marked and numbered 47 and 48 of Plaintiffs Verified Complaint

15.

Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs numbered 49 and 50 and respectfully refer all questions of law to the Court for an appropriate determination.

16.

Denies any and all of plaintiffs allegations not hereinbefore admitted, denied or otherwise controverted.

AS AND FOR A SEPARATE ANSWER AND FIRST AFFIRMATIVE DEFENSE TO THE MATTERS ALLEGED IN THE VERIFIED COMPLAINT ANSWERING DEFENDANT ALLEGES:

17.

The allegations set forth in the Verified Complaint fail to state a cause of action against the answering defendant.

-3-

Supreme Court Records OnLine Library - page 3 of 9

AS AND FOR A SEPARATE ANSWER AND SECOND AFFIRMATIVE DEFENSE TO THE MATTERS ALLEGED IN THE VERIFIED COMPLAINT ANSWERING DEFENDANT ALLEGES:

18.

That the accident set forth in the Verified Complaint was caused wholly and solely through the carelessness, negligence, and culpable conduct of the Plaintiff, and without any fault or neglect or culpable conduct on the part of this answering Defendants, and/or that the accident allegedly causing the damage to Plaintiff was due to their own contributory negligence and culpable conduct, entirely or in part, which this answering Defendants pleads in diminution of damages.

19.

That the Plaintiff assumed the risk of each and every condition, circumstance, or activity which may have caused or contributed to the accident or injuries alleged in the Verified Complaint.

AS AND FOR A SEPARATE ANSWER AND THIRD AFFIRMATIVE DEFENSE TO THE MATTERS ALLEGED IN THE VERIFIED COMPLAINT ANSWERING DEFENDANT ALLEGES: 20. The limitations of Article 16 of the CPLR apply to this action.

AS AND FOR A SEPARATE ANSWER AND FOURTH AFFIRMATIVE DEFENSE TO THE MATTERS ALLEGED IN THE VERIFIED COMPLAINT ANSWERING DEFENDANT ALLEGES:

21.

Upon information and belief, all or part of the cost of the Plaintiffs medical care, lost earnings, or other economic loss may have been paid, replaced, or indemnified, in whole or in part from collateral sources, or with reasonable certainty, will be replaced or indemnified in the future from such collateral sources and to that extent, this answering Defendants requests that in the event Plaintiff recover any judgment herein, that such

-4-

Supreme Court Records OnLine Library - page 4 of 9

amount be reduced in accordance with CPLR 54545. AS AND FOR A SEPARATE ANSWER AND FIFTH AFFIRMATIVE DEFENSE TO THE MATTERS ALLEGED IN THE VERIFIED COMPLAINT ANSWERING DEFENDANT ALLEGES:

22.

Plaintiffs claims are barred because of Plaintiffs failure to join necessary and indispensable parties. CROSSCLAIM AGAINST CO-DEFENDANT FOUNDATIONS GROUP INC.

23.

If this answering defendant is found liable for damages in this action, such liability will have been caused or contributed to, in whole or in part, by the negligence, breach of contract and/or culpable conduct of co-defendants and the answering defendant will be entitled to indemnification or contribution from said defendants. WHEREFORE, Defendant, 250 BOWERY PROJECT LLC, demands: judgment as follows: a) b) C) The causes of action of the plaintiff be dismissed; Judgment be awarded based upon the affirmative defenses; any recovery awarded to plaintiff be diminished in proportion to which plaintiffs

own culpable conduct contributed to its claimed damages;

d)

The rights of defendants and as against themselves, be determined and that 250 BOWERY PROJECT LLC, have judgment over and against the co-defendants for all or part of any judgment that plaintiff may recover against; AND

e)

Such other relief be awarded as the Court deems just and proper.

Dated: New York, New York February 3,2009

-5-

Supreme Court Records OnLine Library - page 5 of 9

LUSTIG & BROWN, LLP

-7

By: Attorneys for Defendant 250 BOWERY PROJECT LLC 30 Ramland Road, Suite 201 Orangeburg, New York 10928 Telephone: (845) 770-0001 Fax: (845) 770-0002

TO : David Friedman, Esq JOSEPH T. MULLEN, JR. & ASSOCIATES Attorneys for Plaintiff VICTOR BAEZ-RENDON 30 Vesey Street, 1ShFloor New York, New York 10007 Telephone: (2 12) 776-1 177 Fax: (212) 776-1 131

-6-

Supreme Court Records OnLine Library - page 6 of 9

VERIFICATION OF ATTORNEY

STATE OF NEW YORK

}SS.:
COUNTY OF ROCKLAND }

William C. Kelly, being duly sworn, deposes and says:

I am the attorney for defendants in this action. This verification is made by me because
answering defendants maintain their residence outside of the County of Rockland, which is the county where I have my office.

I have read the foregoing Answer and know its contents. The Answer is true to my
knowledge, except as to matters alleged on information and belief, and as to those matters I believe them to be true. The sources of my information and grounds of my belief as to all matters in the foregoing Answer not stated to be made upon my knowledge are as follows: review of all file materials.
i'

Sworn to before me this 3'd day of February, 2009

Notary Public
223557.1

-7-

Supreme Court Records OnLine Library - page 7 of 9

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK VICTOR BAEZ-RENDON, Plaintiff, -against250 BOWERY PROJECT LLC and FOUNDATIONS GROUP INC., Defendants. Index No. 1 1354/08
AFFIDAVIT OF SERVICE VIA REGULAR MAIL

STATE OF NEW YORK COUNTY OF ROCKLAND

1
)ss:

The undersigned, being duly sworn, deposes and says: Deponent is not a party to the action, is over 18 years of age and employed by Lustig & Brown, LLP located at 30 Ramland Road, Suite 201, Orangeburg, New York. . On February 4, deponent served the annexed Verified Answer with Affirmative Defenses and Crossclaim upon the following: David Friedman, Esq JOSEPH T. MULLEN, JR. & ASSOCIATES Attorneys for Plaintiff VICTOR BAEZ-RENDON 30 Vesey Street, lShFloor New York, New York 10007 Telephone: (212) 776-1 177 Fax: (212) 776-1 131 at the addresses designated by said attorney(s) for that purpose by depositing true copies of same enclosed in postpaid properly addressed wrappers, in a post office - official depository under the exclusive care and custody of the United States York.

Sworn to before me this 4th day of February, 2009

Notary Public
TAlSA PAREMTE Notary Public, %ate OS New York
'9
Supreme Court Records OnLine Library - page 8 of 9

SUPREME COURT OF THE STATE OF NEW Y O N COUNTY OF NEW YORK Index No. 113354

Year 2008

VICTOR BAEZ-RENDON,

u .
Plaintiff, -against250 BOWERY PROJECT LLC and FOUNDATIO Defendants.
Q

sGROUP~C.

il

VERIFIED ANSWER WITH AFFIRMATIVE DEFENSES AND CROSSCLAIM

LUSTIG & BROWN, LLP

Attorneys for Defendant 250 BOWERY PROJECT LLC
30 Ramland Road, Suite 201 Orangeburg, NY 10962 845-770-0001 845-770-0002FAX FILE ## 13567

Supreme Court Records OnLine Library - page 9 of 9