Denies each and every allegation asserted against defendant, FIVE BORO FUEL OIL, LTD., contained in paragraph numbered “21” of the Complaint and respectfully refers all questions of law to the Honorable Court.

reiterates and realleges each and every answer made with respect to paragraphs numbered “1” through “22” with the same force and effect as if more fully set forth at length herein.

Upon information and belief, plaintiff’s Complaint should be dismissed as culpable conduct of third-parties not within answering defendant’s control proximately caused the alleged damages.

The aforementioned agreement(s) and the aforesaid contractual obligations contained therein were in full force and effect on the date(s) of the alleged occurrence(s) and loss(es).

The aforementioned agreement(s) and the aforesaid contractual obligations contained therein were in full force and effect on the date(s) of the alleged occurrence(s) and loss(es).

At all relevant times herein, Cohler undertook and had a duty to perform the Work in a safe, proper and workman-like manner which would ensure the safety of property owned by the Subrogor.

Upon information and belief, at some time prior and including March 3, 2022, the Subrogor hired, retained, contracted, entered into an agreement with, or arranged for Five Boro to perform the Work.

At all relevant times herein, Five Boro undertook and had a duty to perform the Work in a safe, proper and workman-like manner which would ensure the safety of property owned by the Subrogor.

The Fire and the resulting Loss was directly and proximately caused by the negligent, grossly negligent, negligent per se, reckless and careless acts and/or omissions of the Defendants by and through their agents, employees, contractors, subcontractors, servants and/or representatives in breach of their duties to properly: a. inspect, maintain, repair, service, and modify the Boiler which includes but is not limited to the chimney/chimney flue components located within the Premises; b. adhere to standard industry practices in connection with the inspection, maintenance and repair of the Premises, including, but not limited to the Boiler and/or the chimney/chimney flue components contained therein; c. select, inform, instruct, educate, train, manage or supervise their contractors, agents, and/or employees regarding circumstances, conditions, procedures and practices in connection with the inspection, maintenance, repair, service, and modification of the Boiler and/or the chimney/chimney flue components contained therein; d. perform the Work in accordance with state and local building codes, including the mechanical code and/or regulations and/or the common standards and practices of the trade and industry; e. perform the Work in a safe, proper and workman-like manner; f. control, supervise, oversee, manage and coordinate the performance of the Work, so that it would be performed in a safe and careful manner so as to prevent accidents, damages or losses to property; g. select, inform, instruct, educate, train, manage or supervise their contractors, agents, and/or employees regarding circumstances, conditions, procedures and practices in connection with the Work; h. ascertain whether said employees, agents and/or contractors had adequate enforceable insurance to cover liabilities to third parties; i. protect the property of third parties, specifically the Plaintiff and Subrogor herein, from loss or damage; and j. exercise due care and skill under the circumstances.

WHEREFORE, Plaintiff UTICA FIRST INSURANCE COMPANY demands judgment in its favor and against Defendant COHLER FUEL OIL CO. INC. and FIVE BORO FUEL OIL, LTD. jointly and severally for an amount to be determined by the court in excess of Two Hundred Thirty-Six Thousand Two Hundred Fifty Two Dollars and Eighty-Nine Cents ($236,252.89) together with pre-judgment interest from March 3, 2022, post-judgment interest, costs and attorneys’ fees, and such other relief that the court may deem just and proper.

UTICA FIRST INSURANCE COMPANY as subrogee of

IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, the attorneys of record for the above appearing parties, that whereas no party hereto is an infant or incompetent person for whom a committee has been appointed and no person not a party has an interest in the subject matter of the within action, that the above-captioned action, and all claims, cross-claims and counterclaim asserted therein, are hereby discontinued, with prejudice, and without costs to any party hereto.

IT IS FURTHER STIPULATED AND AGREED, that facsimile and electronic copies of the signatures will be deemed as originals for purposes of this Stipulation; and this Stipulation may be executed in counterparts.

This Stipulation may be filed with the Clerk of the Court without further notice.

- No appearance by Counsel