Preview
FILED: OSWEGO COUNTY CLERK 06/11/2021 02:41 PM INDEX NO. EFC-2018-0401
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 06/11/2021
EXHIBIT D
FILED: OSWEGO COUNTY CLERK 06/19/2018
06/11/2021 11:05
02:41 AM
PM INDEX NO. EFC-2018-0401
NYSCEF DOC. NO. 5
17 RECEIVED NYSCEF: 06/19/2018
06/11/2021
SUPREME COURT
STATE OF NEW YORK COUNTY OF OSWEGO
ROCHDALE INSURANCE COMPANY, INC., as
Assignee of JENNIE M. FULLINGTON, Assignor,
Plaintiff,
VERIFIED ANSWER
v.
DANIEL J. KIDD, ROBERTA F. KIDD and Index No.: EFC-2018-0401
DUSTYN R. KIDD,
Defendants.
Defendants, DANIEL J. KIDD, ROBERTA F. KIDD and DUSTYN R.
KIDD, by their attorney, Jeffrey R. Parry, Esq., as and for their Verified Answer to
Plaintiff's Verified Complaint, allege as follows:
1. Deny having knowledge or information sufficient to form a belief as to
the allegations contained in the paragraphs designated "1", "2", "3", "10", "11",
"25" "26"
"20", "22", "23", "24", and of the Verified Complaint.
2. Deny each and every allegation contained in paragraphs "7", "8", "9",
CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC
"12", "13", "14", "15", "16", "17", "18", "19", "27", "28", "29", "30", "31", "32",
CC 00 CC 00 CC 00 CC 00 CC 00 CC 0')CC 00 CC 00 CC 00 CC 0') CC 00 CC ')')
CC 00 CC
"33", "34", "35", "36", "37", "38", "39", "40", "41", "42", "43", "44", "45", "46",
CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 'J0CC 00 "60"
"47", "48", "49", "50", "51", "52", "53", "54", "55", "56", "57", "58", "59",
"61"
and of the Verified Complaint.
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NYSCEF DOC. NO. 5
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"21"
3. Admit the allegations contained in paragraphs of the Verified
Complaint.
"5" "6"
4. Admit the allegations contained in paragraphs "4", and in that the
defendants did reside in the counties of Cayuga and Oswego at the time of the
incident depicted in the Verified Complaint. However, since the time of the
incident, defendants have moved from New York State and therefore deny that
they are presently residents.
5. Deny each and every other allegation in the Verified Complaint not
hereinbefore specifically admitted, controverted or denied.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
THEDEFENDANTSALLEGE:
plaintiffs'
6. That the injuries alleged in the plaintiffs complaint were caused or
contributed to, in whole or in part, by the negligence, lack of care and culpable
conduct on the part of the plaintiff including assumption of risk, and not by any
fault or lack of care on the part of the defendants. Plaintiff's claim is therefore
barred or diminished in proportion to the negligence, lack of care and culpable
conduct attributable to the plaintiff compared to the total negligence, lack of care
and culpable conduct contributing to plaintiff's damages, if any.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
THEDEFENDANTSALLEGE:
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NYSCEF DOC. NO. 5
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7. In the event plaintiff has judgment against the defendants, the defendants
are entitled to set-off or reduction of any damage award, liability for which is
expressly denied, for amounts received from any collateral sources as defined by
CPLR §4545.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
THEDEFENDANTSALLEGE:
8. Plaintiff has failed to mitigate her damages.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
THEDEFENDANTSALLEGE:
9. That the Court lacks personal jurisdiction over the answering defendants.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
THEDEFENDANTSALLEGE:
10. That the causes of action are barred by the applicable statutes of
limitations.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
THEDEFENDANTSALLEGE:
11. Plaintiff's injuries were caused and/or contributed to by the culpable
conduct of other parties that were not under the control of the defendants.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
THEDEFENDANTSALLEGE:
12. That any liability upon the answering defendants is limited by the
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FILED: OSWEGO COUNTY CLERK 06/19/2018
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NYSCEF DOC. NO. 5
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06/11/2021
provisions CPLR art. 16 as the answering defendants are not jointly and severally
liable.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
THE DEFENDANTS ALLEGE:
13. The Complaint fails to state a cause of action upon which relief may be
granted.
WHEREFORE, defendants Roberta Kidd, Daniel Kidd and Dustyn R. Kidd,
demand judgment dismissing plaintiff's Verified Complaint, together with the
costs and disbursements of this action, for any expenses incurred in defense thereof
including attorney's fees, together with such other and further relief which the
Court may deem to be just and proper.
Dated: June 18, 2018
~---- Je
A orney r the Defendants
7030 E. enesee Street
Fayetteville, New York 13066
(315)424-6115
JeffreyParry404@gmail.com
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NYSCEF DOC. NO. 5
17 RECEIVED NYSCEF: 06/19/2018
06/11/2021
ATTORNEY VERIFICATION
JEFFREY R. PARRY, an attorney at law duly admitted to practice in the
Courts of the State of New York affirms under penalty of perjury as follows: I am
the attorney for the defendants herein. I have read the forgoing Verified Answer
and know the contents to be true to my own knowledge except as to matters
therein alleged to be made upon information and belief and as to those matters I
believe them to be true.
This verification is made by me and not the defendants as they are not
present within the county where I maintain my office. See CPLR §3020(d)(3).
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Preview
FILED: OSWEGO COUNTY CLERK 06/11/2021 02:41 PM INDEX NO. EFC-2018-0401 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 06/11/2021 EXHIBIT D FILED: OSWEGO COUNTY CLERK 06/19/2018 06/11/2021 11:05 02:41 AM PM INDEX NO. EFC-2018-0401 NYSCEF DOC. NO. 5 17 RECEIVED NYSCEF: 06/19/2018 06/11/2021 SUPREME COURT STATE OF NEW YORK COUNTY OF OSWEGO ROCHDALE INSURANCE COMPANY, INC., as Assignee of JENNIE M. FULLINGTON, Assignor, Plaintiff, VERIFIED ANSWER v. DANIEL J. KIDD, ROBERTA F. KIDD and Index No.: EFC-2018-0401 DUSTYN R. KIDD, Defendants. Defendants, DANIEL J. KIDD, ROBERTA F. KIDD and DUSTYN R. KIDD, by their attorney, Jeffrey R. Parry, Esq., as and for their Verified Answer to Plaintiff's Verified Complaint, allege as follows: 1. Deny having knowledge or information sufficient to form a belief as to the allegations contained in the paragraphs designated "1", "2", "3", "10", "11", "25" "26" "20", "22", "23", "24", and of the Verified Complaint. 2. Deny each and every allegation contained in paragraphs "7", "8", "9", CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC "12", "13", "14", "15", "16", "17", "18", "19", "27", "28", "29", "30", "31", "32", CC 00 CC 00 CC 00 CC 00 CC 00 CC 0')CC 00 CC 00 CC 00 CC 0') CC 00 CC ')') CC 00 CC "33", "34", "35", "36", "37", "38", "39", "40", "41", "42", "43", "44", "45", "46", CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 00 CC 'J0CC 00 "60" "47", "48", "49", "50", "51", "52", "53", "54", "55", "56", "57", "58", "59", "61" and of the Verified Complaint. 1 1 of 5 FILED: OSWEGO COUNTY CLERK 06/19/2018 06/11/2021 11:05 02:41 AM PM INDEX NO. EFC-2018-0401 NYSCEF DOC. NO. 5 17 RECEIVED NYSCEF: 06/19/2018 06/11/2021 "21" 3. Admit the allegations contained in paragraphs of the Verified Complaint. "5" "6" 4. Admit the allegations contained in paragraphs "4", and in that the defendants did reside in the counties of Cayuga and Oswego at the time of the incident depicted in the Verified Complaint. However, since the time of the incident, defendants have moved from New York State and therefore deny that they are presently residents. 5. Deny each and every other allegation in the Verified Complaint not hereinbefore specifically admitted, controverted or denied. AS AND FOR A FIRST AFFIRMATIVE DEFENSE THEDEFENDANTSALLEGE: plaintiffs' 6. That the injuries alleged in the plaintiffs complaint were caused or contributed to, in whole or in part, by the negligence, lack of care and culpable conduct on the part of the plaintiff including assumption of risk, and not by any fault or lack of care on the part of the defendants. Plaintiff's claim is therefore barred or diminished in proportion to the negligence, lack of care and culpable conduct attributable to the plaintiff compared to the total negligence, lack of care and culpable conduct contributing to plaintiff's damages, if any. AS AND FOR A SECOND AFFIRMATIVE DEFENSE THEDEFENDANTSALLEGE: 2 of 5 FILED: OSWEGO COUNTY CLERK 06/19/2018 06/11/2021 11:05 02:41 AM PM INDEX NO. EFC-2018-0401 NYSCEF DOC. NO. 5 17 RECEIVED NYSCEF: 06/19/2018 06/11/2021 7. In the event plaintiff has judgment against the defendants, the defendants are entitled to set-off or reduction of any damage award, liability for which is expressly denied, for amounts received from any collateral sources as defined by CPLR §4545. AS AND FOR A THIRD AFFIRMATIVE DEFENSE THEDEFENDANTSALLEGE: 8. Plaintiff has failed to mitigate her damages. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THEDEFENDANTSALLEGE: 9. That the Court lacks personal jurisdiction over the answering defendants. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE THEDEFENDANTSALLEGE: 10. That the causes of action are barred by the applicable statutes of limitations. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE THEDEFENDANTSALLEGE: 11. Plaintiff's injuries were caused and/or contributed to by the culpable conduct of other parties that were not under the control of the defendants. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE THEDEFENDANTSALLEGE: 12. That any liability upon the answering defendants is limited by the 3 of 5 FILED: OSWEGO COUNTY CLERK 06/19/2018 06/11/2021 11:05 02:41 AM PM INDEX NO. EFC-2018-0401 NYSCEF DOC. NO. 5 17 RECEIVED NYSCEF: 06/19/2018 06/11/2021 provisions CPLR art. 16 as the answering defendants are not jointly and severally liable. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE THE DEFENDANTS ALLEGE: 13. The Complaint fails to state a cause of action upon which relief may be granted. WHEREFORE, defendants Roberta Kidd, Daniel Kidd and Dustyn R. Kidd, demand judgment dismissing plaintiff's Verified Complaint, together with the costs and disbursements of this action, for any expenses incurred in defense thereof including attorney's fees, together with such other and further relief which the Court may deem to be just and proper. Dated: June 18, 2018 ~---- Je A orney r the Defendants 7030 E. enesee Street Fayetteville, New York 13066 (315)424-6115 JeffreyParry404@gmail.com 4 4 of 5 FILED: OSWEGO COUNTY CLERK 06/19/2018 06/11/2021 11:05 02:41 AM PM INDEX NO. EFC-2018-0401 NYSCEF DOC. NO. 5 17 RECEIVED NYSCEF: 06/19/2018 06/11/2021 ATTORNEY VERIFICATION JEFFREY R. PARRY, an attorney at law duly admitted to practice in the Courts of the State of New York affirms under penalty of perjury as follows: I am the attorney for the defendants herein. I have read the forgoing Verified Answer and know the contents to be true to my own knowledge except as to matters therein alleged to be made upon information and belief and as to those matters I believe them to be true. This verification is made by me and not the defendants as they are not present within the county where I maintain my office. See CPLR §3020(d)(3). 5 of 5