FILED: NEW YORK COUNTY CLERK 03/05/ :57 PM INDEX NO /2016 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 03/05/2019

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

---X AIG PROPERTY CASUALTY COMPANY a/s/o

STEVEN SHOEMATE, Index No.:

156181/2016 Plaintiff,

-against- ANSWER TO SECOND AMENDED

COMPLAINT with CROSS CLAIMS LIFE SOURCE IRRIGATION, INC.,

JULIO DePIETRO, and 15 KELLIS LLC,

Defendants.

---X

Defendant, LIFE SOURCE IRRIGATION, INC. (“LSI”), by and through its attorneys Hill Rivkins LLP, as and for its Answer to the Plaintiff’s Second Amended Complaint, states upon information and belief as follows:

IN ANSWER TO THE FIRST CAUSE OF ACTION

1. Admits the allegations set forth in paragraph 1 of the Second Amended Complaint.

2. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the Second Amended Complaint.

3. Admits the allegations set forth in paragraph 3 of the Second Amended Complaint.

4. Admits that defendant Julio DePietro occupied the penthouse apartment located at

50 Bond Street, New York, NY, but denies knowledge or information sufficient to form a belief

as to the truth of the remaining allegations set forth in paragraph 4 of the Second Amended

Complaint.

5. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 5 of the Second Amended Complaint.

6. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 6 of the Second Amended Complaint.

7. Admits the allegations set forth in paragraph 7 of the Second Amended Complaint.

8. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 of the Second Amended Complaint.

9. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 of the Second Amended Complaint.

10. Admits that a certain irrigation system or systems serviced the DePietro Premises, but denies knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 10 of the Second Amended Complaint.

11. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 11 of the Second Amended Complaint.

12. Defendant admits that it had entered into an agreement to provide certain services in connection with an irrigation system at the DePietro Premises, but denies knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 12 of the Second Amended Complaint.

13. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 13 of the Second Amended Complaint.

14. Denies knowledge or information sufficient to form a belief as to the truth of the

allegations contained in paragraph 14 of the Second Amended Complaint.

15. Defendant denies the allegations contained in paragraph 15 of the Second Amended Complaint.

16. Defendant denies the allegations contained in paragraph 15 of the Second Amended Complaint.

17. Defendant denies that AIG has any right of action against Life Source, and otherwise denies knowledge or information sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 17 of the Second Amended Complaint.

18. Defendant denies the allegations contained in paragraph 18 of the Second Amended Complaint.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

19. The Second Amended Complaint fails to state a cause of action upon which relief can be granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

20. Any recovery to which the Plaintiff and/or its subrogor may be entitled, which is

specifically denied, must be reduced in accordance with the comparative negligence and culpable conduct of the Plaintiff’s subrogor.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE 21. The Plaintiff has failed to name a necessary party or parties.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE

22. Neither the Plaintiff nor its subrogor has suffered any recoverable damages as a consequence of any activity or culpable conduct undertaken by LSI.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

23. The Plaintiff’s claim is barred in whole or in part in accordance with General Obligations

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

24. The Plaintiff and/or its subrogor failed to properly mitigate any damages they may have suffered.

AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE 25. Any liability of LSI is limited by contract.

AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE

26. The damages alleged by the Plaintiff, if any, were caused by the culpable conduct of some third party(ies) over whom LSI neither had nor exercised control.

AS AND FOR A NINTH AFFIRMATIVE DEFENSE

27. The liability of LSI, if any, is limited in accordance with CPLR Article 16.

AS AND FOR A TENTH AFFIRMATIVE DEFENSE

28. LSI reserves the right to supplement the foregoing and raise additional defenses as may appear during the progress of this case to the fullest extent allowed under the controlling applicable law.

AS AND FOR A FIRST CROSS CLAIM AGAINST CO-DEFENDANTS JULIO DePIETRO and 15

KELLIS LLC FOR INDEMNIFICATION

29. LSI repeats its responses and averments in paragraphs 1 through 28 as if fully set forth herein.

30. At all times hereinafter mentioned, Co-Defendants Julio DePietro (“Mr.

DePietro”) and/or 15 Kellis LLC (“Kellis”) owned, occupied and/or resided at 50 Bond Street, New York, New York, in residential premises described as the penthouse apartment.

31. In or about September 2013, LSI was retained by to provide certain services in

connection with the installation of an irrigation system for the eighth floor terrace of the

penthouse residential premises at 50 Bond Street.

32. Subsequent to the installation of the irrigation system for the eighth floor terrace of the penthouse residential premises at 50 Bond Street, LSI agreed to provide certain periodic services in connection with the eighth floor terrace irrigation system.

33. Prior to the performance by LSI of any services or work at 50 Bond Street, there existed a distinct irrigation system for a terrace connected to the seventh floor of the penthouse apartment, different and separate from the eighth floor terrace irrigation system installed by LSI, and for which LSI never provided any services or otherwise maintained (hereinafter “rear terrace irrigation system”).

34. Any water incursion into Apartment 6 at 50 Bond Street on or about April 26, 2016, originated from a water line or lines and./or other sources that were present in the penthouse apartment of 50 Bond Street prior to the commencement of any work performed by LSI at 50 Bond Street, and which was separate and distinct from the eighth floor terrace and irrigation system installed and/or serviced by LSI.

35. No one ever informed LSI or any of LSI’s employees or agents of the existence of the seventh floor terrace irrigation system prior to April 20, 2016.

36. In the event the property of Mr. Shoemate insured by AIG pursuant to the applicable policy of insurance should be found to have sustained any loss or damage in the manner alleged in AIG’s Second Amended Complaint, all of which is fully denied, such loss or damage was caused entirely by reason of the negligence, carelessness and/or otherwise culpable conduct of Mr. DePietro and/or Kellis, there being no active or primary wrongdoing on the part of LSI, and any liability attributable to LSI would be strictly vicarious.

37. If any judgment or verdict should be rendered against LSI in favor of AIG for the

loss or damage complained of in the Second Amended Complaint, LSI shall be damaged thereby

and shall be entitled to indemnification from co-defendants for all or part of said judgment or verdict.

AS AND FOR A SECOND CROSS CLAIM AGAINST CO-DEFENDANTS FOR CONTRIBUTION

38. LSI repeats the allegations of Paragraphs 1 through 37 as if fully set forth herein.

39. In the event the property of Mr. Shoemate insured by AIG pursuant to the applicable policy of insurance should be found to have sustained any loss or damage in the manner alleged in AIG’s Second Amended Complaint, all of which is fully denied, such loss or damage was caused in whole or in part by reason of the negligence or other culpable conduct of Mr. DePietro and/or Kellis.

40. On account of the premises, if any judgment or verdict should be rendered against LSI in favor of AIG for the loss or damage complained of in the Second Amended Complaint, LSI shall be damaged thereby and shall be entitled to contribution from co-defendants for all or part of said judgment or verdict.

WHEREFORE, Defendant LIFE SOURCE IRRIGATION, INC., respectfully prays as follows:

1. For judgment dismissing the Second Amended Complaint with prejudice;

2. For judgment on its Cross Claims;

3. For all costs of suit, including attorneys’ fees; and

4. For such other and further relief as this Court deems just and proper.

Dated: New York, New York March 5, 2019

Yours, etc.,

HILL RIVKINS LLP

Attorneys for Defendant,

LIFE SOURCE IRRIGATION, INC.

By : / ^S / John J. Sullivan ___________________

John J. Sullivan

45 Broadway, Suite 1500 New York, New York 10006 (212) 669-0600

To: FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP Lawrence Lambert, Esq.

Attorneys for Plaintiff

One Whitehall Street, 20

Floor New York, New York 10004 212-344-3100

File No. 02-081332

KEANE & BERNHEIMER PLLC Jason M. Bernheimer, Esq.

Attorneys for Defendant Julio DePietro & 15 Kellis LLC 400 Columbus Avenue, Suite 1005

Valhalla, New York 10595

914-345-0005