Preview
FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 10/22/2019
EXHIBIT 2
FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019
NYSCEF DOC.
NYSCEF DOC. NO.
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NYSCEF:
SUPREME COURT OF THE STATE OF NEW YORK
COLTNTY OF KINGS
X
MUBASSHAR AHMAD,
Plaintiff, CERTIFICATLON PURSUANT
TO PART 1 30-l.l (c)
-against-
Index No. 51435912019
FRANK A. DIMAULO,
Defendant.
The undersigned hereby certifies pursuant to 22 NYCRR $ 130-1.1-a that, to the best of my
knowledge, information and belief fbrmed after an inquiry reasonable under the circumstances, the
presentation of the Verified Answer antl Combined Piscovery Demands or the contentions therein are not
frivolous as defined in 22 NYCRR $ 1 30-I , 1(c).
DATED: Uniondale, New York
August 27,2019
Yours, etc.,
RIVKIN RADLER t-t-p
Attorneys for Defendant
K A. DIMAULO
w M
Plaza
Uniondale, New York 11556-0926
(sl6) 3s7-3000
File No,: 070660-00761
TO THE LAMBROU LAW FIRM, P.C,
RONNY SOLOMON, ESQ.
Attorneys for Plaintiff
45 Broadway - Suite 3120
New York, NY 10006
(212) 28s-2100
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SUPREME COURT OF THE STATE OF NEW YORK
COTJNTY OF KINGS
MUBASSHAR AHMAD,
VERIFIED ANSWER
Plaintiff
Index No. 514359/2019
-against-
FRANK A. DIMAULO,
Defendant.
Defendant, FRANK A, DIMAULO, by his attorneys, RIVKIN RADLER LLp, states upon
information and belief for his verified answer to plaintiff s complaint:
FIRST: Defendant denies having knowledge or information sufficient to form a belief as to
each and every allegation contained in paragraphs numbered "l ",'t2" and "5" of the plaintiffls
complaint.
SECOND: Defendant denies having knowledge or information sufficient to form a belief as
to each and every allegation contained in paragraph numberedoo3" of the plaintiff s complaint and
refers all questions of law and fact to this Honorable Court and the triers of fact at the trial of this
action.
THIRD: Defendant denies each and every allegation contained in paragraph numbered "4"
of the plaintifls complaint in the form alleged, but admits that on or about February 15,2019,
defendant, FRANK A. DIMAULO, operated a2019 Hyundai motor vehicle bearing Virginia
license plate #U ZW 397 6.
FOURTH: Defendant denies each and every allegation contained in paragraphs numbered
tt8", tt9tt, ttl0",
"l
"6"r"7"r lttand "l2tt of the plaintiff s complaint.
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AS AND FORA FIRST AFFIRMATIVE DEFENSE
FIFTH: The plaintiffs cause of action is barred by Article 51, Section 5104 of the
Insurance Law of the State of New York.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
SIXTH: The plaintiff did not sustain serious and permanent injuries as defined by Section
5102 of the Insurance Law of the State of New York, and his exclusive remedy is confined and
limited to the benefits and provisions of Article 5l of the Insurance Law of the State of New York.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
SEVENTH: The plaintiff s sole and exclusive remedy is confined and limited to the
benefits and provisions of Article 51 of the Insurance Law of the State of New York.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
EIGHTH: The plaintiff did not use, or misused the seat belt(s) and/or shoulder harness(es)
therein provided, and that the injuries claimed to have been sustained were caused, contributed to
and/or exacerbated by the lack of use, or misuse, of those protective devices to obviate and/or
rnitigate any injuries sustained herein in accordance with the decision of Spier v. Baker, 35 N.Y.2d
444 and in contravention of Vehicle and Traffic Law g 1229-c.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
NINTH: That the plaintiff, by not fastening the available seat belt, acted unreasonably and
disregarded his own best interest, and accordingly, caused or contributed to the happening of this
accident in accordance with the decision of CumJ v. Moser,454 N.Y.S .2d3ll.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
TENTH: That whatever injuries and/or damages were sustained by the plaintifTat the time
and place alleged in the cornplaint were in whole or in part the result of the plaintiff s own culpable
conduct.
2
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ELEVENTI-I: Upon information and belief, any past or future costs and/or expenses
incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or
rehabilitation services, Ioss of earnings or other economic loss, has been or will with reasonable
certainty be replaced or indemnified in whole or in part from a collateral source as defined in
Section 4545(c) of the New York Civil Practice Law and Rules.
TWELFTH: If any damages are recoverable against the said answering defendant, the
amount of such damages shall be diminished by the amount of the funds which plaintiff has or shall
receive from such collateral source.
WHEREFORE, defendant, FRANK A. DIMAULO, demands judgment dismissing the
plaintiff s complaint herein, together with the costs and disbursements of this action.
DATED: Uniondale, New York
August 27,2419
Yours, etc.,
RIVKIN RADLER r-r,p
Attorneys for Defendarrt
FRANK A. DIMAULO
926 RXR Plaza
Uniondale, New York 11556-0926
(sl6) 3s7-3000
File No.: 070660-00761
TO THE LAMBROU LAW ITIRM, P.C.
RONNY SOLOMON, ESQ.
Attorneys for Plaintiff
45 Broadway - Suite 3120
New York, NY 10006
(212) 28s-2100
J
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VERIFICATION
HOWARD M. MERKREBS, an attorney admitted to practice in the Courts of the
State of New York, affirms that the following statements are true under penalties of perjury:
Deponent is the attorney of record for the answering defendant, FRANK A.
DIMAULO, in the within action. Deponent has read the foregoing Verified Answer, knows the
contents thereof, and that the same is true to deponent's own knowledge, except as to those matters
therein stated to be alleged upon inforrnation and belief, and that those matters deponent believes it
to be true.
This verification is made by deponent and not by the answering defendant, because
answering defendant, FRANK A. DIMAULO, is not located in the county wherein your deponent
maintains an office.
The grounds of deponent's belief as to all matters not stated upon deponent's
knowledge are as follows: Statements of said answering defendant, office records, and deponent's
general investigation into the facts ofthis case
DATED: Uniondale, New York
August 27,2019
HOWARD M. MERKREB
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Preview
FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 10/22/2019 EXHIBIT 2 FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF DOC. NYSCEF DOC. NO. NO.3 10 RECtr]VED NYSCEF RECEIVED : / 201 9 OB / 2.710/22/2019 NYSCEF: SUPREME COURT OF THE STATE OF NEW YORK COLTNTY OF KINGS X MUBASSHAR AHMAD, Plaintiff, CERTIFICATLON PURSUANT TO PART 1 30-l.l (c) -against- Index No. 51435912019 FRANK A. DIMAULO, Defendant. The undersigned hereby certifies pursuant to 22 NYCRR $ 130-1.1-a that, to the best of my knowledge, information and belief fbrmed after an inquiry reasonable under the circumstances, the presentation of the Verified Answer antl Combined Piscovery Demands or the contentions therein are not frivolous as defined in 22 NYCRR $ 1 30-I , 1(c). DATED: Uniondale, New York August 27,2019 Yours, etc., RIVKIN RADLER t-t-p Attorneys for Defendant K A. DIMAULO w M Plaza Uniondale, New York 11556-0926 (sl6) 3s7-3000 File No,: 070660-00761 TO THE LAMBROU LAW FIRM, P.C, RONNY SOLOMON, ESQ. Attorneys for Plaintiff 45 Broadway - Suite 3120 New York, NY 10006 (212) 28s-2100 1of 5 FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF NYSCEF DOC. NO.NO. 3 10 RtrCEIVED RECEIVEDNYSCEF: 08/2j 10/22/2019 NYSCEF: /201" SUPREME COURT OF THE STATE OF NEW YORK COTJNTY OF KINGS MUBASSHAR AHMAD, VERIFIED ANSWER Plaintiff Index No. 514359/2019 -against- FRANK A. DIMAULO, Defendant. Defendant, FRANK A, DIMAULO, by his attorneys, RIVKIN RADLER LLp, states upon information and belief for his verified answer to plaintiff s complaint: FIRST: Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs numbered "l ",'t2" and "5" of the plaintiffls complaint. SECOND: Defendant denies having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph numberedoo3" of the plaintiff s complaint and refers all questions of law and fact to this Honorable Court and the triers of fact at the trial of this action. THIRD: Defendant denies each and every allegation contained in paragraph numbered "4" of the plaintifls complaint in the form alleged, but admits that on or about February 15,2019, defendant, FRANK A. DIMAULO, operated a2019 Hyundai motor vehicle bearing Virginia license plate #U ZW 397 6. FOURTH: Defendant denies each and every allegation contained in paragraphs numbered tt8", tt9tt, ttl0", "l "6"r"7"r lttand "l2tt of the plaintiff s complaint. 2of5 FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF NYSCEF DOC.. NO. NO. 310 RECEIVED RECEIVEDNYSCEFT NYSCEF: /20I 0B/2'710/22/2019 AS AND FORA FIRST AFFIRMATIVE DEFENSE FIFTH: The plaintiffs cause of action is barred by Article 51, Section 5104 of the Insurance Law of the State of New York. AS AND FOR A SECOND AFFIRMATIVE DEFENSE SIXTH: The plaintiff did not sustain serious and permanent injuries as defined by Section 5102 of the Insurance Law of the State of New York, and his exclusive remedy is confined and limited to the benefits and provisions of Article 5l of the Insurance Law of the State of New York. AS AND FOR A THIRD AFFIRMATIVE DEFENSE SEVENTH: The plaintiff s sole and exclusive remedy is confined and limited to the benefits and provisions of Article 51 of the Insurance Law of the State of New York. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE EIGHTH: The plaintiff did not use, or misused the seat belt(s) and/or shoulder harness(es) therein provided, and that the injuries claimed to have been sustained were caused, contributed to and/or exacerbated by the lack of use, or misuse, of those protective devices to obviate and/or rnitigate any injuries sustained herein in accordance with the decision of Spier v. Baker, 35 N.Y.2d 444 and in contravention of Vehicle and Traffic Law g 1229-c. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE NINTH: That the plaintiff, by not fastening the available seat belt, acted unreasonably and disregarded his own best interest, and accordingly, caused or contributed to the happening of this accident in accordance with the decision of CumJ v. Moser,454 N.Y.S .2d3ll. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE TENTH: That whatever injuries and/or damages were sustained by the plaintifTat the time and place alleged in the cornplaint were in whole or in part the result of the plaintiff s own culpable conduct. 2 3of5 FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF NYSCEF c. DOC. NO. NO. 3 10 RECEIVED RECEIVEDNYScuF"t 08/2110/22/2019 NYSCEF: /201- ELEVENTI-I: Upon information and belief, any past or future costs and/or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation services, Ioss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in Section 4545(c) of the New York Civil Practice Law and Rules. TWELFTH: If any damages are recoverable against the said answering defendant, the amount of such damages shall be diminished by the amount of the funds which plaintiff has or shall receive from such collateral source. WHEREFORE, defendant, FRANK A. DIMAULO, demands judgment dismissing the plaintiff s complaint herein, together with the costs and disbursements of this action. DATED: Uniondale, New York August 27,2419 Yours, etc., RIVKIN RADLER r-r,p Attorneys for Defendarrt FRANK A. DIMAULO 926 RXR Plaza Uniondale, New York 11556-0926 (sl6) 3s7-3000 File No.: 070660-00761 TO THE LAMBROU LAW ITIRM, P.C. RONNY SOLOMON, ESQ. Attorneys for Plaintiff 45 Broadway - Suite 3120 New York, NY 10006 (212) 28s-2100 J 4of5 FILED: KINGS COUNTY CLERK 10/22/2019 01:27 PM INDEX NO. 514359/2019 NYSCEF NYSCEF DOC. NO. NO. 3 10 RtrCEIVED RECEIVEDNYSCEFT NYSCEF: /20L 0B/2'710/22/2019 VERIFICATION HOWARD M. MERKREBS, an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury: Deponent is the attorney of record for the answering defendant, FRANK A. DIMAULO, in the within action. Deponent has read the foregoing Verified Answer, knows the contents thereof, and that the same is true to deponent's own knowledge, except as to those matters therein stated to be alleged upon inforrnation and belief, and that those matters deponent believes it to be true. This verification is made by deponent and not by the answering defendant, because answering defendant, FRANK A. DIMAULO, is not located in the county wherein your deponent maintains an office. The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are as follows: Statements of said answering defendant, office records, and deponent's general investigation into the facts ofthis case DATED: Uniondale, New York August 27,2019 HOWARD M. MERKREB 5of5