HEATING86 AC- LLC, and EDIKLEMPNER

SUPREME CGURTOF THE STATE OF NEWr YCRK.

Action #1 Index No: 690-185—2020

IT IS HEREBY STIPULATED AND AGREE?!)

that the Clerk ofthe Supreme Court, Nemu],- shell transfer and consolidate the papers I011 file.

Denies the allegations contained in paragraph “12” except admits At all relevant times, herein, defendant JDJ KLEMPNER PLUMBING LLC is a domestic corporation.

The defendants reserve the right to amend or supplement their bill of particulars on the affirmative defenses, within a reasonable time prior to trial, and subsequent to the date of service of this response.

FIFTY-FIFTH: Plaintiff’s damages were solely caused by the acts or omissions of plaintiff’s subrogors inclusive of plaintiff subrogor’s failure to maintain their property in a reasonably safe manner.

FIFTY-EIGHTH: Plaintiff’s claim sounding in breach of contract must be dismissed as a matter of law on the grounds that: (1) Plaintiff/Plaintiff’s subrogor were neither in privity with nor an intended third-party beneficiary of any contract with answering defendant; and/or (2) the agreement that answering defendant allegedly breached was terminated, expired, or is void, voidable and/or unenforceable under the General Obligations Law and/or other statutes, or under the common law for failure of consideration, prior material breach or repudiation, mutual mistake, unconscionable terms or conditions, vagueness, ambiguity, impossibility of performance, against public policy, due to the non-occurrence of conditions precedent, due to the occurrence of conditions subsequent, rescission, waiver, fraudulent inducement, adhesion and/or duress; and/or (3) the agreement relied upon by Plaintiff is incomplete and/or was modified by a subsequent writing agreed to by the parties; and/or (4) to the extent Plaintiff suffered damage or expense alleged in the Complaint, such damage or expense did not arise, in whole or part, from a cause that triggered or was intended by contracting parties to trigger contractual indemnification or reimbursement obligations on the part of answering defendant; and/or (5) Plaintiff’s claim sounding in breach of contract must be dismissed as a matter of law on the ground that answering defendant complied with the terms and conditions of all agreements and Plaintiff’s claims are founded upon an unreasonable interpretation of clear and unambiguous terms.

SIXTIETH: That the Court lacks jurisdiction over the person of the defendant in that plaintiff failed to effect service in accordance with the applicable provisions of the CPLR.

Denies knowledge and information sufficient to form a belief thereof as to the "2" allegations contained in paragraphs numbered "1" and of the Complaint.

Denies knowledge and information sufficient to form a belief thereof as to the allegations colitaiiied in paragraph numbered "6" of the Complaint and respectfully refers all questions of law to the Honorable Court.

The causes of action asserted by the plaintiff in the Complaint are barred by the applicable statutes of limitations set forth in the CPLR and/or UCC Article

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

will be responsible to hold answering defendant harmless for any Judgment recovered over or against it on the basis of common law indemnification, together with costs and disbursements, including attomeys' fees with interest thereon.

At all relevant times hereinafter mentioned and prior to December 30, 2017, and upon information and belief defendants JDJ, MARIO’S, CUSTOM HOMES, AWS, KLEMPNER and/or ABS’s agents, servants, and/or employees were hired to do work at the Premises and both owed and breached their respective duties to plaintiff’s subrogor FRASER.

Upon information and belief, the pipe freeze event occurred at the Insured’s Premises due to the negligence of defendants JDJ, MARIO’S, CUSTOM HOMES, AWS, KLEMPNER and/or ABS, jointly and severally.

As a direct and proximate result of the aforesaid property damage referred to in Paragraph “2” hereof, the Insured sustained damage and destruction to its property in a fair and reasonable amount exceeding the jurisdictional limits of the lower courts and OCEAN HARBOR is thereby legally and equitably subrogated to the claims of the Insured against defendants JDJ, MARIO’S, CUSTOM HOMES, AWS KLEMPNER and/or ABS herein.

The aforesaid damages were caused, in whole or in part, by the negligence, carelessness, negligence per se, recklessness, and negligent omissions on the part of defendants JDJ, MARIO’S, CUSTOM HOMES, AWS, KLEMPNER and/or ABS, their agents, servants, employees, subcontractors and/or employees of subcontractors in: (a) failing to build/install/service the fire sprinkler piping at the Premises in such a manner as to prevent freeze ups; due to deviating from the fire sprinkler plans for the Premises, which provide a detail of installing an insulated “tent” above the attic fire sprinkler piping to confirm to the applicable code; (b) failing to hire competent servants, contractors, agents, employees, and/or workmen to properly inspect, service, maintain, build, and install, the sprinkler/piping/water equipment at the subject Premises in such a manner as to prevent a pipe freeze; (c) failing to conduct a proper inspection to detect the dangers associated with the improper service, maintenance, building, and installation of the sprinkler/piping/water equipment at the subject Premises which the defendants knew or should have known created an unreasonable risk of a freeze up causing water to spread throughout the Premises; (d) failing to take the proper steps and supervise the work performed by its employees, servants, workers, agents, and/or contractors in a way that would protect the Subrogors’ property from a freeze up causing water to spread throughout the Premises; (e) failing to do those things which were necessary to make safe, preserve and protect the plaintiff’s insured’s property, including improper installation of the fire sprinkler system in regards to protection of the piping from freezing; (f) otherwise failing to use due care and proper skill under the circumstances while installing fire sprinkler piping in a ventilated attic exposed to below freezing outdoor air conditions without a means of freeze protection as required by the applicable code; (g) allowing the careless utilization of a water source in close proximately to freezing temperatures; (h) failing to maintain proper and procedures to ensure the safety of the premises; failing to protect the property of others, pursuant to NIFPA-13D Standard for Installation of Sprinkler Systems on One- and Two-Family Dwellings and Manufactured Homes (2016 Edition).

ENGINEERING, P.C.C, a fair and reasonable amount exceeding the jurisdictional limits of the lower courts to be determined at trial, plus the deductible on behalf of the Insured under the Policy; B.

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days of the service upon you of this a Bill and specification with to derñand, of Particulars, duly verified, giving an itemization regard each of the following as to the cross-complaint of the co-defendants,

The nature and location of the condition alleged; State whether constructive it will notice be claimed that the answering defendant had actual or thereof; If actual is claimed, notice or person of the party identity in receiving said notice; specify acting the date when, on behalf of place the the answering and where, defendant's the it will If employee the date condition; be claimed caused or when the that created identity the any of answering dangerous person the its defendant, or defective who caused agent, condition, or created servant or specify said is notice constructive If accident before the existed as may be stated).

state claimed, (in minutes, the length of time hours, days, weeks, the etc., condition as nearly to give indemnity by

be claimed Set was forth fully violated each this by statute, code, answering regulation, defendant.

this State answering in what maññer defendant was it will be claimed only passively the that or secondarily party serving negligent.