FILED: NEW YORK COUNTY CLERK 02/09/ :08 PM INDEX NO /2016 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/09/2018

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2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X â â â Index No /2016 KARL MURPHY, -against- Plaintiff, VERIFIED ANSWER SCHIMENTI CONSTRUCTION COMPANY, LLC. KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, X Defendants. The defendants, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, by their attorneys, The Law Offices of Leon R. Kowalsid, as and for an answer to the complaint of the plaintiff herein, respectfully allege upon information and belief: AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION 1. Admit paragraph 26 of the complaint. 2. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 27, 28, 29, 30, 31, 32, 33, 34, 49, 50, 51 and 58 of the complaint. 3. Deny paragraph 61 of the complaint. 4. Deny paragraphs 10, 11, 12, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 52, 53, 54, 55, 56, 57, 59, 60, 62 and 63 of the complaint and respectfully refer all questions of law to the court. 5. Deny each and every allegation set forth in paragraph 13 of the complaint except Admit that defendant, KRE BROADWAY OWNER, LLC, was a foreign limited company, duly authorized to do business in the State of New York.

3 6. Deny each and every allegation set forth in paragraph 18 of the complaint except Admit that defendant, KOHLBERG KRAVIS ROBERTS & CO. L.P., was a limited partnership. 7. Deny each and every allegation set forth in paragraph 35 of the complaint except Admit that defendant, KRE BROADWAY OWNER, LLC, was the owner of the property referenced and described in the "Bargain and sale deed with covenants", dated February 24, 2014 and entered by the clerk of Nassau County on March 17, 2014, relative to the premises known as the "Broadway Mall, Hicksville, New York." AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION 8. Repeat, reiterate and reallege the admissions and denials to the paragraphs of the complaint repeated and realleged in paragraph designated as 64 of the complaint. 9. Deny paragraphs 65, 66 and 67 of the complaint and respectfully refer all questions of law to the court. AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ATION 10. Repeat, reiterate and reallege the admissions and denials to the paragraphs of the complaint repeated and realleged in paragraph 68 of the complaint. 11. Deny paragraphs 69, 70 and 71 of the complaint and respectfully refer all questions of law to the court. AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION 12. Repeat, reiterate and reallege the admissions and denials to the paragraphs of the complaint repeated and realleged in paragraph 72 of the complaint. 13. Deny paragraphs 73, 74 and 75 of the complaint and respectfully refer all questions of law to the court.

4 AS AND FOR AN ANSWER TO THE FIFTH CAUSE OF ACTION 14. Repeat, reiterate and reallege the admissions and denials to the paragraphs of the complaint repeated and realleged in paragraph 76 of the complaint. 15. Deny paragraphs 77, 78 and 79 of the complaint and respectfully refer all questions of law to the court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE That the injuries and damages to the plaintiff were caused in whole or in part or were contributed to by the culpable conduct and want of care on the part of the plaintiff and any such alleged damages should be fully or partially diminished by said culpable conduct and want of care pursuant to CPLR Article 14-A. AS AND FOR A SECOND AFFIRMATIVE DEFENSE That all risks and dangers connected with this action were known to and assumed by the plaintiff herein, were open, obvious, notorious and apparent and the plaintiff, in undertaking an inherently dangerous activity, assumed the risk thereof. AS AND FOR A THIRD AFFIRMATIVE DEFENSE That the plaintiff received remuneration and/or compensation for some or all of his claimed economic loss and that the defendant is entitled to have plaintiffs award, if any, reduced by the amount of that remuneration and/or compensation, pursuant to Section 4545(c) of the Civil Practice Law and Rules. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE That the liability of the defendants, KOHLBERG KRAVIS ROBERTS & CO. L.P. AND KRE BROADWAY OWNER, LLC, if any, does not exceed fifty percent (50%) of the assigned to all persons and that the of'the KOHLBERG KRAVIS liability liability defendants,

5 ROBERTS & CO. L.P. AND KRE BROADWAY OWNER, LLC, if any, for non-economic loss is limited pursuant to Article 16 of the CPLR. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE That the plaintiff failed to mitigate plaintiffs damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE That if plaintiff sustained any injury or incurred any loss or damages as alleged in the Complaint, the same were caused in whole or in part by actions or omissions of another or others over whom the answering defendant is not responsible, and whose conduct the defendant had no duty or reason to anticipate or control. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE That plaintiffs injuries, if any, were proximately caused by an unforeseeable, unanticipated, independent, intervening and/or superseding event beyond the control and unrelated to any conduct of the answering defendant. AS AND FOR A CROSS-CLAIM FOR CONTRIBUTION AND/OR INDEMNIFICATION AGAINST THE CO- DEFENDANT, SCHIMENTI CONSTRUCTION COMPANY, LLC, THE DEFENDANTS, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, ALLEGE: That any injuries and damages sustained by the plaintiff herein as a result of the alleged incident described in the plaintiffs Complaint were sustained in whole or in part by reason of the negligence or other breach of duty on the part of the co-defendant, SCHIMENTI CONSTRUCTION COMPANY, LLC. That if it is determined that the defendants, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, are liable in any degree to the plaintiff, whether because of negligence, by operation of law or any other reason, the defendants, KOHLBERG

6 KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, are entitled to have the liability apportioned among and between the defendants by way of contribution and/or are entitled to be indemnified by said co-defendant AS AND FOR A CROSS-CLAIM FOR CONTRACTUAL INDEMNIFICATION AGAINST THE CO-DEFENDANT SCHIMENTI CONSTRUCTION COMPANY, LLC. THE DEFENDANTS, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, ALLEGE: That on or before September 27, 2016, the co-defendant, SCHIMENTI CONSTRUCTION COMPANY, LLC, entered into an agreement whereby said co-defendant agreed to indemnify and hold defendants, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, harmless in the event any suit or claim for personal injuries, property damage and/or wrongful death was made as a result of the work being done pursuant to said agreement. That said agreement was in full force and effect on September 27, That the claims being made by the plaintiff herein, if true, will entitle the defendants, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, to be indemnified and held harmless pursuant to said agreement as aforesaid. AS AND FOR A CROSS-CLAIM FOR INDEMNIFICATION AGAINST THE CO-DEFENDANT, SCHIMENTI CONSTRUCTION COMPANY, LLC, THE DEFENDANTS, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, ALLEGE: That on or before September 27, 2016, the co-defendant, SCHIMENTI CONSTRUCTION COMPANY, LLC, entered into an agreement whereby said co-defendant agreed to purchase insurance providing coverage for the defendants, KOHLBE<RG KRAVIS

7 ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, for part or all of the loss or injury claimed by the plaintiffherein. That said agreement was in full force and effect on September 27, That the co-defendant failed to provide such insurance as required by the said agreement. That, therefore, the codefendant is liable to the defendants, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, to the extent of any such insurance coverage which should have been purchased to protect the defendants, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, in the event that any recovery is had against the answering defendants. WHEREFORE, the defendants, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, demand judgment dismissing the Complaint of the plaintiff herein with costs and further demand judgment, pursuant to Section 3019b and Article 14 of the CPLR, that the ultimate rights of the defendants, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, and the co-defendant, SCHIMENTI CONSTRUCTION COMPANY, LLC, be determined as between themselves in that the defendants, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC, have judgment over and against the co-defendant, SCHIMENTI CONSTRUCTION COMPANY, LLC, for indemnification and/or contribution in whole or in part, for the amount of any sum which may be recovered herein against the defendants, KOHLBERG KOINE KRAVIS ROBERTS & CO. L.P. L.P, and KRE BROADWAY OWNER, LLC,

8 together with attorneys' fees and the costs and disbursements of this action. Dated: Brooklyn, New York March 21, 2017 Yours etc., THE LAW OFFICES OF LEON R. KOWALSKI Attorneys for Defendants, KOHLBER VIS ROBERTS O..P. and KRE BRO AY OWNE By: aret 12 Metrotech C nte, 28 In ' F r Brooklyn, Ne rk (718) Our File # NYNY TO: SCHWARTZAPFEL LAWYBRS P.C. Attorneys for Plaintiff KARL MURPHY 600 Old Country Road - Suite 450 Garden City, New York SCHIMENTI CONSTRUCTION COMPANY, LLC. 622 Third Avenue 33rd Floor New York, New York 10017

9 ATTORNEY'S VERIFICATION MARGARET MAZLIN, an attorney duly admitted to practice law in New York State states: That I am associated with The Law Offices of Leon R. Kowalski attorneys for the defendants, KOHLBERG KRAVIS ROBERTS & CO. L.P. and KRE BROADWAY OWNER, LLC. That I have read the annexed VERIFIED ANSWER and know the contents thereof and the same are true to my knowledge, except those matters herein which are stated to be alleged on information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon the following: Investigations made into the subject matter of the Complaint and information received in the course of the defense of this action, and files maintained by my office. The reason why this verification is made by said deponent and not by the defendants is that said defendants are not within the county where I have my office. Dated: Brooklyn, New York. - March 21, 2017

10 STATE OF NEW YORK ) COUNTY OF KINGS ) ) ss: Gail Thomas, being duly sworn, deposes and says: That she is not a party to this action and is over the age of 18 years and resides in Brooklyn, New York. On 23'd March, 2017, she served the within VERIFIED ANSWER, DEMAND FOR VERIFIED BILL OF PARTICULARS, COMBINED DEMANDS and EBT NOTICE, upon ' the attorneys whose names and addresses are set forth below, by enclosing a true copy thereof in a securely sealed envelope/container, with proper postage, addressed to their respective offices, and by depositing the same in an official box of the U.S. Post Office regularly maintained by the United States Government at 12 Metrotech Center, 28th Floor, Brooklyn, New York 11201: TO: SCHWARTZAPFEL LAWYERS P.C. 600 Old Country Road - Suite 450 Garden City, New York SCHIMENTI CONSTRUCTION COMPANY, LLC. 622 Third Avenue 33rd Floor New York, New York Swo t be eme this a o March, Gail Thomas ROSLYN SIMMONS N hterypohile. Stablof New York TARY PUBLIC b o. 01S ouawa ousans cm NYNY Karl Murphy v. Schimenti Construction Company. LLC ct at.carnmission Expkes Oct 21, 2Le24 index Nnrubcr /2016

11 NYSCEF - New York County Supreme Court ',' ~ ~ 8'i) I ", "~I Confirmation Notice '~~Q~)j This is an automated response for Supreme Court / Court of Claims cases. The NYSCEF site has received your electronically filed document(s) for: Klf 'I KARL MURPHY - v. - SCHIMENTI CONSTRUCTION COMPANY, LLC et al /2016 Assigned Judge: Arlene P Bluth Documents Received on 03/23/ :18 AM Doc 0 Document Type Motion 0 14 ANSWER Does not contain an SSN or CPI as defined in 202.5(e) or 206.5(e) Filing User Name: MARGARET MAZLIN Phone #: Address: Margaret.Mazlin@aig.com Fax #: Work Address: 12 Metrotech Center, 28th Floor Brooklyn, NY Notifications An notification regarding this filing has been sent to the following address(es) on 03/23/ :18 AM : HOLBROOK, CHRISTOPHER F - cholbrook@fightingforyou.com MAZLIN, MARGARET - Margaret.Mazlin@aig.com SCHWARTZAPFEL, STEVEN J. - steven@fightingforyou.com TOOMEY, JAMES J - ToomLaw1@Travelers.com NOTE: If submitting a working copy of this filing to the court, you must include as a notification page firmly affixed thereto a copy of this Confirmation Notice. Hon. Milton A. Tingling, New York County Clerk and Clerk of the Supreme Court Phone: Website: clerk_operations.shtml NYSCEF Resource Center - EFile@nycourts.gov Phone: (646) Fax: (212) Website: Page I1 of li