All cross-claims sounding in breach of contract as asserted against answering Defendant/Third-Party Plaintiff must be dismissed as a matter of law on the grounds that: (1) Cross-claimant was neither in privity with nor an intended third-party beneficiary of any contract with answering defendant at the time of the occurrences and/or damages alleged in the Complaint; and/or (2) answering defendant did not breach any contractual duties and/or the contractual duties allegedly breached by answering defendant were not owed to Cross-claimant; and/or (3) The agreement that answering defendant allegedly breached was terminated, expired, or is void, voidable and/or unenforceable under the General Obligations 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 (4) The cross-claims asserted by Cross-claimant are based on an unreasonable interpretation of clear and unambiguous contract terms; and/or (5) The agreement relied upon by Cross-claimant is incomplete and/or was modified by a subsequent writing agreed to by the parties; and/or (6) To the extent that plaintiff suffered damage or expense alleged in the Complaint, such damage or expense did not arise from a cause, conduct or omission that triggered contractual indemnification and reimbursement obligations on the part of answering defendant.

and/or must be dismissed as a matter of law on the grounds that: (1) There was no contract requiring answering defendant to indemnify Cross-claimant for the claims of plaintiff at the time of or in connection with the conditions allegedly existing, acts and omissions allegedly performed or damages allegedly sustained; and/or (2) Cross-claimant was neither in privity with nor an intended third-party beneficiary of any contract with answering defendant at the time of the occurrences and/or damages alleged in the Complaint; and/or (3) Cross-claimant and/or its agents, employees, representatives and/or subcontractors was actively negligent; and/or (4) Any alleged contract for indemnification in favor of Cross-claimant is unenforceable pursuant to New York General Obligations; and/or (5) Any alleged contract for indemnification in favor of Cross- claimant was terminated, expired, or is void, voidable and/or unenforceable under the General Obligations 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 (6) The claims asserted by Cross-claimant are based on an unreasonable interpretation of clear and unambiguous contract terms; and/or (7) The agreement relied upon by Cross-claimant is incomplete and/or was modified by a subsequent writing agreed to by the parties; and/or (8) The claims, losses or damages alleged in the Complaint arise directly and solely from acts or omissions by Cross-claimant and/or a party under the control of Cross-claimant; and/or (9) Any obligation for indemnification was not triggered by the conditions, occurrence and/or damages alleged in the Complaint; and/or (10) 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, condition or occurrence that triggered or was intended by contracting parties to trigger contractual indemnification or reimbursement obligations on the part of answering defendant.

In the event any person or entity jointly liable or claimed to be jointly liable for the damages alleged has been given or may hereinafter be given a release or covenant not to sue, answering defendant will be entitled to a set off in accordance with the New York State General Obligations Law 15-108 and the relevant Decisional Law.

Upon information and belief, to the extent that plaintiff’s alleged damages were not pre-existing or solely caused by plaintiff, said damages were solely caused by the acts or omissions of Cross-claimant and/or its employees, agents, representatives and/or subcontractors, including negligence, breach of contract, and breach of warranties both express and implied.

WHEREFORE, defendant, TRI-STATE CIVIL CONSTRUCTION, LLC, demands judgment dismissing the Cross-claims of the aforesaid Defendant, CITY OF LONG BEACH, asserted against it; demands judgment dismissing the claims of the plaintiff asserted against it; demands judgment over and against the co-defendants for the amount of any verdict or judgment which may be recovered against answering defendant by the plaintiff; and further demands that the ultimate rights of the parties, between themselves, be determined in this action, together with recoverable attorneys’ fees, costs and disbursements of this action, all consequential economic damages suffered as a result of co-defendants’ breaches of their insurance procurement obligations and all other and further relief available to the defendant in contract, law or equity with interest thereon.

Defendant City of Long Beach, by its attorneys, Wade Clark Mulcahy LLP, as and for an answer to plaintiff's verified complaint, respectfully alleges:

The defendant not being fully advised as to all the facts and circumstances surrounding the incident complained of, hereby asserts and reserves unto itself the defenses of accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense which the further investigation of this matter may prove applicable herein.

Pursuant to CPLR Article 16, the liability of defendant, City of Long Beach, to the plaintiff herein for non-economic loss is limited to defendant, City of Long Beach, equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss.

Whatever injuries and/or damages sustained by the plaintiffs at the time and place alleged in the complaint, were due to the acts of parties over whom the defendant was not obligated to exercise any control or supervision.

That if plaintiffs was caused to sustain damages by reason of the claims set forth in the complaint, all of which are specifically denied, and if any judgment is recovered by the plaintiffs against this answering defendant, that under a contract entered into between the parties or by reason of express or implied warranty, the co-defendants, Posillico Civil, Inc., and Tri-State Civil Construction, LLC, will be liable over to this answering defendant pursuant to the terms of the indemnity agreement in said contract or warranty, for the full amount of any verdict or judgment awarded to the plaintiffs against this answering defendant, together with attorneys’ fees, costs and disbursements.