KENNY & ZONGHETTI, LLC 26 Broadway New York, NY 10004 (212) 422-6111 Attorneys for Defendant

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------------------X

SHEILA R FOSTER AS ADMINISTRATRIX OF THE ESTATE OF COREY A. FOSTER, DECEASED, AND SHEILA R FOSTER, INDIVIDUALLY,

Plaintiffs,

-against-

LEAKE AND WATTS SERVICES, INC., JOSEPH PERSON, ANDREW DUNCAN, STEVEN MCSWEEN, AND CLIFTON CABALLERO,

Defendants.

Index No_: 309395/2012

VERIFIED ANSWER TO VERIFIED COMPLAINT

----------------------------------------------------------------------------------X

Defendant, LEAKE AND WATTS SERVICES, INC., by and through its

attorneys, KENNY & ZONGHETTI, LLC, as and for its Verified Ans:w:er_ to_ the ______ ..

plaintiffs Verified Complaint, states upon information and belief:

1. Denies knowledge or information sufficient to form a belief as to the

truth of allegations contained in paragraph "1" ofthe plaintiffs verified complaint.

2. Denies knowledge or information sufficient to form a belief as to the

truth of allegations contained in paragraph "2" of the plaintiffs verified complaint.

3. Denies knowledge or information sufficient to form a belief as to the

truth of allegations contained in paragraph "3" of the plaintiffs verified complaint.

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4. Denies knowledge or information sufficient to form a belief as to th

truth of allegations contained in paragraph "4" ofthe plaintiffs verified complaint.

5. Denies knowledge or information sufficient to form a belief as to th

truth of allegations contained in paragraph "5" of the plaintiffs verified complaint.

6. Denies upon information and belief each and every allegation ·

paragraph "6" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

7. Denies upon information and belief each and every allegation i

paragraph "7" of the plaintiffs verified complaint and refers all questions of law t

this honorable court, but admits Leake and Watts is a domestic Not For Profi

business corporation.

8. Denies knowledge or information sufficient to form a belief as to th

truth of allegations contained in paragraph "8" of the plaintiffs verified complaint.

9. Denies knowledge or information sufficient to form a belief as to the

truth of allegations contained in paragraph "9" of the plaintiffs verified complaint.

10. Denies knowledge or information sufficient to form a belief as to the

truth of allegations contained in paragraph "10" of the plaintiffs verifi.e

complaint.

11. Denies knowledge or information sufficient to form a belief as to the

truth of allegations contained in paragraph "11" of the plaintiff's verifie

complaint.

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12. Admits the allegations contained in paragraph "12" of the plaintiff

verified complaint.

13. Admits the allegations contained in paragraph "13" of the plaintiff

verified complaint.

14. Admits the allegations contained in paragraph "14" of the plaintiff

verified complaint.

15. Admits the allegations contained in paragraph "15" of the plaintiff

verified complaint.

16. Deny upon information and belief each and every allegation i

paragraph "16" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

17. Deny upon information and belief each and every allegation i

paragraph "17" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

18. Deny upon information and belief each and every allegation- i

paragraph "18" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

19. Deny upon information and belief each and every allegation i

paragraph "19" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

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20. Deny upon information and belief each and every allegation i

paragraph "20" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

21. Deny upon information and belief each and every allegation i

paragraph "21" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

22. Deny upon information and belief each and every allegation i

paragraph "22" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

23. Deny upon information and belief each and every allegation i

paragraph "23" of the plaintiffs verified complaint and refer all questions of law t

this honorable court.

24. Deny upon information and belief each and every allegation i

paragraph "24" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

25. Deny upon information and belief each and every allegation i

paragraph "25" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

26. Deny upon information and belief each and every allegation i

paragraph "26" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

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27. Deny upon information and belief each and every allegation i

paragraph "27" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

28. Deny upon information and belief each and every allegation i

paragraph "28" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

29. Deny upon information and belief each and every allegation i

paragraph "29" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

30. Deny upon information and belief each and every allegation i

paragraph "30" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

31. Deny upon information and belief each and every allegation i

paragraph "31" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

32. Deny upon information and belief each and every allegation i

paragraph "32" ofthe plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

33. Deny upon information and belief each and every allegation i

paragraph "33" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

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34. Deny upon information and belief each and every allegation i

paragraph "34'' of the plaintiff's verified complaint and refers all questions of law t

this honorable court.

35. Deny upon information and belief each and every allegation i

paragraph "35" of the plaintiffs verified complaint and refers all questions of law to

this honorable court.

36. Deny upon information and belief each and every allegation i

paragraph "36" of the plaintiffs verified complaint and refers all questions of law to

this honorable court.

37. Deny upon information and belief each and every allegation ·

paragraph "37" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

38. Deny upon information and belief each and every allegation ·

paragraph "38" of the plaintiffs verified complaint and refers all questions oflaw to

this honorable court.

39. Deny upon information and belief each and every allegation ·

paragraph "39" of the plaintiffs verified complaint and refers all questions oflaw to

this honorable court.

40. Deny upon information and belief each and every allegation ·

paragraph "40" of the plaintiffs verified complaint and refers all questions oflaw to

this honorable court.

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41. Deny upon information and belief each and every allegation i

paragraph "41" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

42. Deny upon information and belief each and every allegation i

paragraph "42" of the plaintiffs verified complaint and refers all questions of law to

this honorable court.

AS AND FOR AN ANSWER TO A SECOND CAUSE OF ACTION

43. Defendant repeats, reiterates, and realleges each denial of the

foregoing allegations as though more fully set forth herein.

44. Deny upon information and belief each and every allegation i

paragraph "44" of the plaintiffs verified complaint and refers all questions of law to

this honorable court.

45. Deny upon information and belief each and every allegation i

paragraph "45" of the plaintiffs verified complaint and refers all questions oflaw to

this honorable court.

46. Deny upon information and belief each and every allegation i

paragraph "46" of the plaintiffs verified complaint and refers all questions of law to

this honorable court.

47. Deny upon information and belief each and every allegation i

paragraph "47" of the plaintiffs verified complaint and refers all questions of law to

this honorable court.

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48. Deny upon information and belief each and every allegation i

paragraph "48" of the plaintiffs verified complaint and refers all questions oflaw to

this honorable court.

AS AND FOR AN ANSWER TO A THIRD CAUSE OF ACTION

49. Defendant repeats, reiterates, and realleges each denial of the

foregoing allegation as though more fully set forth herein.

50. Admits the allegations contained in paragraph "50" of the plaintiffs

verified complaint.

51. Deny upon information and belief each and every allegation i

paragraph "51" of the plaintiffs verified complaint and refers all questions of law to

this honorable court.

52. Deny upon information and belief each and every allegation i

paragraph "52" of the plaintiffs verified complaint and refers all questions .of law_ to_

this honorable court.

53. Deny upon information and belief each and every allegation i

paragraph "53" of the plaintiffs verified complaint and refers all questions of law to

this honorable court.

54. Deny upon information and belief each and every allegation i

paragraph "554" of the plaintiffs verified complaint and refers all questions of la

to this honorable court.

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55. Deny upon information and belief each and every allegation i

paragraph "55" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

AS AND FOR AN ANSWER TO A FOURTH CAUSE OF ACTION

56. Defendant repeats, reiterates, and realleges each denial of the

foregoing allegation as though more fully set forth herein.

57. Deny upon information and belief each and every allegation i

paragraph "57" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

58. Deny upon information and belief each and every allegation i

paragraph "58" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

59. Deny upon information and belief each and every allegation i

paragraph "59" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

60. Deny upon information and belief each and every allegation i

paragraph "60" ofthe plaintiffs verified complaint and refers all questions of law t

this honorable court.

61. Deny upon information and belief each and every allegation ·

paragraph "61" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

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62. Deny upon information and belief each and every allegation i

paragraph "62" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

AS AND FOR AN ANSWER TO A FIFTH CAUSE OF ACTION

63. Defendant repeats, reiterates, and realleges each denial of th

foregoing allegation as though more fully set forth herein.

64. Deny upon information and belief each and every allegation i

paragraph "64" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

65. Deny upon information and belief each and every allegation ·

paragraph "65" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

66. Deny upon information and belief each and every allegation i

paragraph "66" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

67. Deny upon information and belief each and every allegation i

paragraph "67" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

AS AND FOR AN ANSWER TO A SIXTH CAUSE OF ACTION

68. Defendant. repeats, reiterates, and realleges each denial of the

foregoing allegation as though more fully set forth herein.

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69. Deny upon information and belief each and every allegation i

paragraph "69" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

70. Deny upon information and belief each and every allegation i

paragraph "70" of the plaintiff's verified complaint and refers all questions of law t

this honorable court.

71. Deny upon information and belief each and every allegation i

paragraph "71" of the plaintiff's verified complaint and refers all questions of law t

this honorable court.

72. Deny upon information and belief each and every allegation i

paragraph "72" of the plaintiff's verified complaint and refers all questions oflaw t

this honorable court.

AS AND FOR AN ANSWER TO THE SEVENTH CAUSE OF ACTION

73. Defendant repeats, reiterates, and realleges each denial of th

foregoing allegation as though more fully set forth herein.

74. Deny upon information and belief each and every allegation i

paragraph "74" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

75. Deny upon information . and belief each and every allegation i

paragraph "75" of the plaintiff's verified complaint and refers all questions of law t

this honorable court.

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76. Deny upon information and belief each and every allegation i

paragraph "76" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

77. Deny upon information and belief each and every allegation ·

paragraph "77" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

AS AND FOR AN ANSWER TO AN EIGHTH CAUSE OF ACTION

78. Defendant repeats, reiterates, and realleges each denial of the

foregoing allegation as though more fully set forth herein.

79. Deny upon information and belief each and every allegation i

paragraph "79" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

80. Deny upon information and belief each and every allegation i

paragraph "80" of the plaintiffs verified complaint and refers all q1.1estions of law to

this honorable court.

81. Deny upon information and belief each and every allegation i

paragraph "81" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

82. Deny upon information and belief each and every allegation i

paragraph "82" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

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83. Deny upon information and belief each and every allegation i

paragraph "83" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

AS AND FOR AN ANSWER TO A NINTH CAUSE OF ACTION

84. Defendant repeats, reiterates, and realleges each denial

foregoing allegation as though more fully set forth herein.

85. Deny upon information and belief each and every allegation ·

paragraph "85" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

86. Deny upon information and belief each and every allegation i

paragraph "86" of the plaintiffs verified complaint and refers all questions of law t

this honorable court.

87. Deny upon information and belief each and every allegation i

paragraph "87" of the plaintiffs verified complaint and refers all questions oflaw t

this honorable court.

AS AND FOR A FIRST DEFENSE

88. That the verified complaint herein fails to state a cause of action upo

which relief may be granted.

AS AND FOR A SECOND DEFENSE

89. That if plaintiff sustained any injuries as alleged, such injuries were

caused by plaintiffs own fault and negligence, and/or culpable conduct, and/o

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assumption of risk, wholly or partially. Accordingly, any damages to which plainti

may become entitled should be diminished in the same proportion, as plaintiffs ow

negligent and/or culpable conduct, and/or assumption of risk bears to the tota

negligent and/or culpable conduct responsible for the injuries sustained.

AS AND FOR A THIRD DEFENSE

90. In the event the answering defendant is liable to the plaintiff, an

liability being specifically denied, then the answering defendant's liability is limite

pursuant to the provisions of Article 16 of the CPLR.

AS AND FOR A FOURTH DEFENSE

91. Upon information and belief some or all of plaintiffs alleged economi

losses were or will be replaced or indemnified in whole or in part from collatera

sources and, therefore, any award for economic loss should be reduced thereb

pursuant to CPLR § 4545.

AS AND FOR A FIFTH DEFENSE

92. That upon information and belief, the injuries and damages allege

were caused by the culpable conduct of some third person or persons over whom thi

answering defendant exercised no control, direction or supervision.

AS AND FOR AN SIXTH DEFENSE

93. That if the plaintiff was injured and damaged as alleged in the verifie

complaint, said injuries and damages were caused by the independent intervenin

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conduct of a person over whom this answering defendant exercised no d:irection,

control or supervision.

AS AND FOR A SEVENTH DEFENSE

94. If the injuries and damages were sustained by Plaintiffs at th

time and place and in the manner alleged in the complaint, such damages an

injuries are attributable, in whole or in part, to intervening, superseding causes t

which the defendant had no controL

AS AND FOR A EIGHTH DEFENSE

95. All risks and danger of loss or damages connected with the situatio

alleged in the Verified Complaint were at the time and place mentioned obvious an

apparent and were known by the plaintiff and voluntarily assumed by the plaintiff.

Accordingly, plaintiffs claims are barred by the assumption of risk doctrine.

AS AND FOR AN NINTH DEFENSE

96. Defendant denies the allegations of wrongdoing assertecl against it an

if plaintiffs have been injured and damaged as alleged in the verified complaint,

which defendant denies, any amount recovered must be diminished as a result o

plaintiffs' failure to minimize and/or mitigate its damages.

AS AND FOR A TENTH DEFENSE

97. The verified complaint and the claims therein are baned by the term

of the contract between the parties.

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WHEREFORE, the answering defendant demands judgment dismissing the

Verified Complaint of the plaintiff herein, together with costs, attorney's fees an

disbursements of this action, as well as such other and further relief as this Cour

deems just and proper.

Dated: New York, New York February 5, 2013

TO: Jacob Oresky & Associates, PLLC Jacob Oresky, Esq. Attorneys for Plaintiffs 155 East 149th Street Bronx, New York 10451

Rutherford & Christie, LLP David S. Rutherford, Esq.

KENNY & ZONGHETTI, LLC Attorneys for Defendant Leake And Watts Services, Inc.

Kenneth B. Danielsen 26 Broadway New York, New York 10004 (212) 422-6111 Our File No. 245-4328

Attorneys for Defendants Joseph Person, Andrew Duncan, Steven McSween, and Clifton Caballero 369 Lexington Avenue, Sth Floor New York, New York 10017

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STATE OF NEW YORK ) ) SS:

COUNTY OF NEW YORK )

Kenneth B. Danielsen, an attorney-at-law, duly admitted to practice law ·

the State of New York, hereby affirms pursuant to the C.P.L.R. and subscribing as·

true under the penalties of perjury, as follows:

That the Affirmant is an associate of the firm of KENNY & ZONGHETTI,

LLC, attorneys of record for the answering defendant(s) in the above entitle action.

That the Affirmant has read the foregoing Answer and knows the contents

thereof; that same is true to his own knowledge, except as to the matters therein

stated to be alleged upon information and belief, and as to those matters, he

believes them to be true.

This Verification is made by Mfirmant and not by the defendant(s) because

said defendant(s) do/does not reside within the County in which the firm of KEN

& ZONGHETTI, LLC, maintain their offices for the practice oflaw.

The grounds of Affirmant's belief as to all matters not stated upon his

knowledge are as follows:

Dated:

BOOKS AND RECORDS MAINTAINED BY THE LAW FIRM OF KENNY & ZONGHETTI AND INFORMATION PROVIDED BY THE PHILADELPHIA INDEMNITY INSURANCE COMPANY AND BY THE DEFENDANT HEREIN

New York, New York February 5, 2012

By: Kenneth B. Danielsen

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AFFIDAVIT OF SERVICE BY MAIL

STATE OF NEW YORK ) ss:

COUNTY OF NEW YORK )

Arthur Pearson, being duly sworn, deposes and says that deponent is not a party to this action, is over 18 years of age and resides in Staten Island, New York.

That, upon the 71h day of February 2013, deponent served copies of the within:

VERIFIED ANSWER TO VERIFIED COMPLAINT DEMAND FOR A VERIFIED BILL OF PARTICULARS

COMBINED DEMANDS NOTICE TO TAKE DEPOSITIONS

UPON:

Jacob Oresky, Esq. JACOB ORESKY & ASSOCIATES, PLLC 155 East 1491

h Street Bronx, New York 10451 Attorneys for Plaintiffs

Rutherford & Christie, LLP DavidS. Rutherford, Esq. 369 Lexington Avenue, 8th Floor New York, New York 10017 Attorneys for Defendants Joseph Person, Andrew Duncan, Steven McSween, and Clifton Caballero

attorney(s) in this action, at the above address(es), the address(es) designated by said attorney(s) for the purpose, by depositing same in a post-paid properly addressed wrapper, in a post office official depository under the exclusive care and custody of the United States Post Office Department within the State of New York.

Sworn to before me this 11th day of February 2013.

NOTARY PUBLIC Kenneth B. Danielsen Notary Public, State of New York No. 02DA6212907 Qualified in Nassau County Commission Expires October 26, 2013

Arthur Pearson

Index No.: 309395/2012

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX

SHEILA R. FOSTER AS ADMINISTRATRIX OF THE ESTATE OF COREY A. FOSTER, DECEASED, AND SHEILA R. FOSTER, INDIVIDUALLY,

Plaintiffs,

-against-

LEAKE AND WATTS SERVICES, INC., JOSEPH PERSON, ANDREW DUNCAN, STEVEN MCSWEEN, AND CLIFTON CABALLERO,

Defendants.

VERIFIED ANSWER TO VERIFIED COMPLAINT

KENNY & ZONGHETTI, LLC Attorney(s) for Defondant Office and Post Office Address 26 Broadway - 27th Floor New York, New York 10004 (212) 422-6111