Preview
FILED: ROCKLAND COUNTY CLERK 06/04/2021 02:51 PM INDEX NO. 031780/2021
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/04/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
DADIN TORRES and FERNANDO TORRES,
Index No.: 031780/2021
Plaintiffs,
-against- AMENDED VERIFIED
ANSWER AND
MAVIS DISCOUNT TIRE, INC., AFFIRMATIVE DEFENSES
Defendants.
Defendant, MAVIS DISCOUNT TIRE, INC., (“Defendant”) by and through its attorneys,
GOLDBERG SEGALLA LLP, as and for its Verified Answer and Affirmative Defenses to
Plaintiffs’ Verified Complaint, allege as follows:
1. Deny having knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraphs 1, 3, 4, 5 and 6 of the Verified Complaint.
2. With respect to paragraph “2” of the Verified Complaint, deny in the form alleged,
but admit Defendant is a foreign corporation authorized to do business within the State of New
York.
AS TO THE FIRST CAUSE OF ACTION
3. Regarding the allegations contained within paragraph 7 of the Verified Complaint,
Defendant repeat and reallege each of their foregoing responses as if fully set forth herein.
4. Deny having knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraphs 8, 9 and 10 of the Verified Complaint.
5. Deny the allegations set forth in paragraphs 11, 12, 13, 14, 15, 16 and 17 of the
Verified Complaint.
6. Deny the allegations set forth in paragraph “18” of the Verified Complaint and
respectfully refer all questions of law to the court.
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AS TO THE SECOND CAUSE OF ACTION
7. Regarding the allegations contained within paragraph 19 of the Verified Complaint,
Defendants repeat and reallege each of their foregoing responses as if fully set forth herein.
8. Deny the allegations set forth in paragraphs 20, 21, 22, 23, 24 and 25 of the Verified
Complaint.
9. Deny the allegations set forth in paragraph 26 of the Verified Complaint and
respectfully refer all questions of law to the court.
AS TO THE THIRD CAUSE OF ACTION
10. Regarding the allegations contained within paragraph 27 of the Verified Complaint,
Defendants repeat and reallege each of their foregoing responses as if fully set forth herein.
11. Deny the allegations set forth in paragraphs 28, 29, 30, 31, 32 and 33 of the Verified
Complaint.
12. Deny the allegations set forth in paragraph 34 of the Verified Complaint and
respectfully refer all questions of law to the court.
AS TO THE FOURTH CAUSE OF ACTION
13. Regarding the allegations contained within paragraph 35 of the Verified Complaint,
Defendants repeat and reallege each of their foregoing responses as if fully set forth herein.
14. Deny the allegations set forth in paragraph 36 and 38 of the Verified Complaint and
respectfully refer all questions of law to the court.
15. Deny having knowledge or information sufficient to form a belief as to the truth of
the allegations set forth in paragraph 37 of the Verified Complaint.
As to the WHEREFORE clause following paragraph 38 of plaintiffs’ Verified Complaint,
Answering Defendant states that the information therein purports to allege relief to which Plaintiffs
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claim to be entitled, and, as such, it does not require a response from Answering Defendant. To
any extent a response is deemed to be required, Answering Defendant denies the averments therein
and refer all questions of law to the Court and leave plaintiffs to their proofs.
AFFIRMATIVE DEFENSES
By advancing the Affirmative Defenses set forth below, Defendant MAVIS DISCOUNT
TIRE, INC. does not admit that it bears the burden of proof or the burden of going forward with
evidence on any matter related to any of the following Affirmative Defenses.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
The damages allegedly sustained by Plaintiffs were caused by the direct and proximate
negligence or intentional conduct of other parties, their agents or employees, or by others unknown
at this time over whom Defendants had no control at any time relevant hereto, and in the event the
Defendants are found liable to Plaintiffs, which liability is expressly denied, Defendants will be
entitled to indemnification, contribution or apportionment of liability pursuant to applicable law.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
The damages allegedly sustained by Plaintiffs were caused or contributed to by Plaintiffs’
own negligence or culpable conduct and Defendants are not liable to Plaintiffs or, alternatively,
Defendants’ liability to Plaintiffs is partial only and should be reduced in accordance with
applicable law.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
Plaintiffs assumed the risk of the injuries and damages alleged in the Complaint, and on
that account, the Defendants are not liable to Plaintiffs.
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
The Defendants’ liability, if any, to Plaintiffs is limited under Article 16 of the Civil
Practice Law & Rules of the State of New York.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
Defendants, pursuant to §§1411, 1412 and other applicable provisions of the Civil Practice
Law and Rules, allege that if Plaintiffs sustained any injuries or damages at the time and place
alleged in the Complaint, such injuries and/or damages were the result of the culpable conduct of
the Plaintiffs, and/or the other parties hereto or were the result of the Plaintiffs’ assumption of risk.
Should it be found, however, that Defendants are liable to the Plaintiffs herein, any liability being
specifically denied, then any damages are to be apportioned among the Plaintiffs, Defendants
and/or the other parties hereto according to the degree of responsibility that each is found to have
in the occurrence, in proportion to the entire measure of responsibility for the occurrence.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
Defendants hereby assert and seek the full benefit of General Obligations Law § 15-108
and its provisions relating to the settlement between the Plaintiffs and any joint tortfeasor.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs could, with due diligence, have obtained personal jurisdiction over tortfeasors
not parties to this lawsuit and thus the culpability of these missing or absent tortfeasors may be
computed into the apportionment of total culpability causing the subject occurrence.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
In the event that Plaintiffs recover a verdict or judgment against Defendants, then said
verdict or judgment must be reduced pursuant to CPLR 4545 by those amounts which have been
or will with reasonable certainty replace or indemnify Plaintiffs in whole or in part for any past or
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future claimed medical expenses, or other such economic loss, as paid from any collateral source,
such as, but not limited to, insurance, social security, worker’s compensation or employee
programs.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
Plaintiffs did not sustain a “serious injury” as defined in the New York State Insurance
Law.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
The damages allegedly sustained by Plaintiffs were not proximately caused by any
negligence or culpable conduct on the part of Defendants.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ damages were caused and brought about by an intervening and superseding
cause and were not caused by Defendants or by a person or entity for whom Defendants are
responsible.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
Plaintiffs have failed to mitigate their alleged damages.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiffs have failed to comply with CPLR 3016(g) in that they have not sustained a
serious injury, as defined in Section 5102(d) of the Insurance Law, or economic loss greater than
basic economic loss, as defined in 5102(a) of the Insurance Law.
AS AN FOR A FOURTEENTH AFFIRMATIVE DEFENSE
That, upon information and belief, the vehicle which was occupied by Plaintiffs at the time
of the incident complained of in the Verified Complaint was equipped with seatbelts and/or
harnesses, the use of which would have prevented and/or substantially reduced Plaintiffs’ alleged
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injuries but, upon information and belief, Plaintiffs did not make use of such available device(s),
and that Plaintiffs’ failure to wear such safety equipment was a contributing factor to her injuries,
if any.
WHEREFORE, the Defendant MAVIS DISCOUNT TIRE, INC., demands judgment
dismissing Plaintiffs’ Verified Complaint on the merits; and if Plaintiffs are found to have
contributed to the accident or damages, that any damages be reduced in proportion to which the
Plaintiffs may be found to have so contributed to the accident and damages, together with the costs
and disbursements of this action and for such other and further relief as to this Court seems just
and proper.
Dated: New York, New York
June 4, 2021
GOLDBERG SEGALLA, LLP
By:___________________________
Adam R. Dolan, Esq.
MAILING ADDRESS:
P.O. Box 1020
Buffalo, New York 14201
OFFICE ADDRESS:
50 Main Street, Suite 425
White Plains, New York 10606
(914) 798-5451
Attorneys for Defendant
Mavis Discount Tire, Inc.
TO: Dwight D. Joyce, Esq.
Law Office of Dwight D. Joyce
Attorneys for Plaintiffs
2 Joyce Plaza
Stony Point, New York 10980
(845) 429-9323
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ATTORNEY VERIFICATION
The undersigned, Adam R. Dolan, an attorney duly admitted to practice in the Courts of
the State of New York, affirms:
I am the attorney of record for Defendant, MAVIS DISCOUNT TIRE, INC. in the within
action; I have read the foregoing VERIFIED ANSWER and AFFIRMATIVE DEFENSES, and
know the contents thereof; that the same is true to my own knowledge, except as to the matters
therein stated to be alleged upon information and belief, and as to those matters, I believe them to
be true.
The grounds for my belief as to all matters not stated upon my knowledge are
investigations, which I have made or have caused to be made concerning the subject matter of this
action, and statements of parties and/or witnesses made herein.
This verification is made by affirmation because, MAVIS DISCOUNT TIRE, INC., reside
in a jurisdiction outside the county where the affirmant maintains his office.
The undersigned affirms that the foregoing statements are true under the penalties of
perjury.
Dated: White Plains, New York
June 4, 2021
______________________________________
Adam R. Dolan
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CERTIFICATION
ADAM R. DOLAN, an attorney admitted to practice law in the Courts of the State of New
York, affirms under the penalties of perjury, that the following statements are true:
That I am the attorney for MAVIS DISCOUNT TIRE, INC., in the above-captioned action.
That I certify to the best of my knowledge, information and belief, formed after an inquiry
reasonable under the circumstances, that presentation of these Defendants’ Verified Answer and
Affirmative Defenses, and the contentions therein, are not frivolous as defined in 22 NYCRR 130-
1.1-a, et seq.
Dated: White Plains, New York
June 4, 2021
______________________________________
Adam R. Dolan
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Preview
FILED: ROCKLAND COUNTY CLERK 06/04/2021 02:51 PM INDEX NO. 031780/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/04/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND DADIN TORRES and FERNANDO TORRES, Index No.: 031780/2021 Plaintiffs, -against- AMENDED VERIFIED ANSWER AND MAVIS DISCOUNT TIRE, INC., AFFIRMATIVE DEFENSES Defendants. Defendant, MAVIS DISCOUNT TIRE, INC., (“Defendant”) by and through its attorneys, GOLDBERG SEGALLA LLP, as and for its Verified Answer and Affirmative Defenses to Plaintiffs’ Verified Complaint, allege as follows: 1. Deny having knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 1, 3, 4, 5 and 6 of the Verified Complaint. 2. With respect to paragraph “2” of the Verified Complaint, deny in the form alleged, but admit Defendant is a foreign corporation authorized to do business within the State of New York. AS TO THE FIRST CAUSE OF ACTION 3. Regarding the allegations contained within paragraph 7 of the Verified Complaint, Defendant repeat and reallege each of their foregoing responses as if fully set forth herein. 4. Deny having knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraphs 8, 9 and 10 of the Verified Complaint. 5. Deny the allegations set forth in paragraphs 11, 12, 13, 14, 15, 16 and 17 of the Verified Complaint. 6. Deny the allegations set forth in paragraph “18” of the Verified Complaint and respectfully refer all questions of law to the court. 30183163.v1 30183163.v1 1 of 8 FILED: ROCKLAND COUNTY CLERK 06/04/2021 02:51 PM INDEX NO. 031780/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/04/2021 AS TO THE SECOND CAUSE OF ACTION 7. Regarding the allegations contained within paragraph 19 of the Verified Complaint, Defendants repeat and reallege each of their foregoing responses as if fully set forth herein. 8. Deny the allegations set forth in paragraphs 20, 21, 22, 23, 24 and 25 of the Verified Complaint. 9. Deny the allegations set forth in paragraph 26 of the Verified Complaint and respectfully refer all questions of law to the court. AS TO THE THIRD CAUSE OF ACTION 10. Regarding the allegations contained within paragraph 27 of the Verified Complaint, Defendants repeat and reallege each of their foregoing responses as if fully set forth herein. 11. Deny the allegations set forth in paragraphs 28, 29, 30, 31, 32 and 33 of the Verified Complaint. 12. Deny the allegations set forth in paragraph 34 of the Verified Complaint and respectfully refer all questions of law to the court. AS TO THE FOURTH CAUSE OF ACTION 13. Regarding the allegations contained within paragraph 35 of the Verified Complaint, Defendants repeat and reallege each of their foregoing responses as if fully set forth herein. 14. Deny the allegations set forth in paragraph 36 and 38 of the Verified Complaint and respectfully refer all questions of law to the court. 15. Deny having knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 37 of the Verified Complaint. As to the WHEREFORE clause following paragraph 38 of plaintiffs’ Verified Complaint, Answering Defendant states that the information therein purports to allege relief to which Plaintiffs 2 of 8 FILED: ROCKLAND COUNTY CLERK 06/04/2021 02:51 PM INDEX NO. 031780/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/04/2021 claim to be entitled, and, as such, it does not require a response from Answering Defendant. To any extent a response is deemed to be required, Answering Defendant denies the averments therein and refer all questions of law to the Court and leave plaintiffs to their proofs. AFFIRMATIVE DEFENSES By advancing the Affirmative Defenses set forth below, Defendant MAVIS DISCOUNT TIRE, INC. does not admit that it bears the burden of proof or the burden of going forward with evidence on any matter related to any of the following Affirmative Defenses. AS AND FOR A FIRST AFFIRMATIVE DEFENSE The damages allegedly sustained by Plaintiffs were caused by the direct and proximate negligence or intentional conduct of other parties, their agents or employees, or by others unknown at this time over whom Defendants had no control at any time relevant hereto, and in the event the Defendants are found liable to Plaintiffs, which liability is expressly denied, Defendants will be entitled to indemnification, contribution or apportionment of liability pursuant to applicable law. AS AND FOR A SECOND AFFIRMATIVE DEFENSE The damages allegedly sustained by Plaintiffs were caused or contributed to by Plaintiffs’ own negligence or culpable conduct and Defendants are not liable to Plaintiffs or, alternatively, Defendants’ liability to Plaintiffs is partial only and should be reduced in accordance with applicable law. AS AND FOR A THIRD AFFIRMATIVE DEFENSE Plaintiffs assumed the risk of the injuries and damages alleged in the Complaint, and on that account, the Defendants are not liable to Plaintiffs. 3 of 8 FILED: ROCKLAND COUNTY CLERK 06/04/2021 02:51 PM INDEX NO. 031780/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/04/2021 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE The Defendants’ liability, if any, to Plaintiffs is limited under Article 16 of the Civil Practice Law & Rules of the State of New York. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE Defendants, pursuant to §§1411, 1412 and other applicable provisions of the Civil Practice Law and Rules, allege that if Plaintiffs sustained any injuries or damages at the time and place alleged in the Complaint, such injuries and/or damages were the result of the culpable conduct of the Plaintiffs, and/or the other parties hereto or were the result of the Plaintiffs’ assumption of risk. Should it be found, however, that Defendants are liable to the Plaintiffs herein, any liability being specifically denied, then any damages are to be apportioned among the Plaintiffs, Defendants and/or the other parties hereto according to the degree of responsibility that each is found to have in the occurrence, in proportion to the entire measure of responsibility for the occurrence. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Defendants hereby assert and seek the full benefit of General Obligations Law § 15-108 and its provisions relating to the settlement between the Plaintiffs and any joint tortfeasor. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Plaintiffs could, with due diligence, have obtained personal jurisdiction over tortfeasors not parties to this lawsuit and thus the culpability of these missing or absent tortfeasors may be computed into the apportionment of total culpability causing the subject occurrence. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE In the event that Plaintiffs recover a verdict or judgment against Defendants, then said verdict or judgment must be reduced pursuant to CPLR 4545 by those amounts which have been or will with reasonable certainty replace or indemnify Plaintiffs in whole or in part for any past or 4 of 8 FILED: ROCKLAND COUNTY CLERK 06/04/2021 02:51 PM INDEX NO. 031780/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/04/2021 future claimed medical expenses, or other such economic loss, as paid from any collateral source, such as, but not limited to, insurance, social security, worker’s compensation or employee programs. AS AND FOR A NINTH AFFIRMATIVE DEFENSE Plaintiffs did not sustain a “serious injury” as defined in the New York State Insurance Law. AS AND FOR A TENTH AFFIRMATIVE DEFENSE The damages allegedly sustained by Plaintiffs were not proximately caused by any negligence or culpable conduct on the part of Defendants. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE Plaintiffs’ damages were caused and brought about by an intervening and superseding cause and were not caused by Defendants or by a person or entity for whom Defendants are responsible. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE Plaintiffs have failed to mitigate their alleged damages. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs have failed to comply with CPLR 3016(g) in that they have not sustained a serious injury, as defined in Section 5102(d) of the Insurance Law, or economic loss greater than basic economic loss, as defined in 5102(a) of the Insurance Law. AS AN FOR A FOURTEENTH AFFIRMATIVE DEFENSE That, upon information and belief, the vehicle which was occupied by Plaintiffs at the time of the incident complained of in the Verified Complaint was equipped with seatbelts and/or harnesses, the use of which would have prevented and/or substantially reduced Plaintiffs’ alleged 5 of 8 FILED: ROCKLAND COUNTY CLERK 06/04/2021 02:51 PM INDEX NO. 031780/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/04/2021 injuries but, upon information and belief, Plaintiffs did not make use of such available device(s), and that Plaintiffs’ failure to wear such safety equipment was a contributing factor to her injuries, if any. WHEREFORE, the Defendant MAVIS DISCOUNT TIRE, INC., demands judgment dismissing Plaintiffs’ Verified Complaint on the merits; and if Plaintiffs are found to have contributed to the accident or damages, that any damages be reduced in proportion to which the Plaintiffs may be found to have so contributed to the accident and damages, together with the costs and disbursements of this action and for such other and further relief as to this Court seems just and proper. Dated: New York, New York June 4, 2021 GOLDBERG SEGALLA, LLP By:___________________________ Adam R. Dolan, Esq. MAILING ADDRESS: P.O. Box 1020 Buffalo, New York 14201 OFFICE ADDRESS: 50 Main Street, Suite 425 White Plains, New York 10606 (914) 798-5451 Attorneys for Defendant Mavis Discount Tire, Inc. TO: Dwight D. Joyce, Esq. Law Office of Dwight D. Joyce Attorneys for Plaintiffs 2 Joyce Plaza Stony Point, New York 10980 (845) 429-9323 6 of 8 FILED: ROCKLAND COUNTY CLERK 06/04/2021 02:51 PM INDEX NO. 031780/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/04/2021 ATTORNEY VERIFICATION The undersigned, Adam R. Dolan, an attorney duly admitted to practice in the Courts of the State of New York, affirms: I am the attorney of record for Defendant, MAVIS DISCOUNT TIRE, INC. in the within action; I have read the foregoing VERIFIED ANSWER and AFFIRMATIVE DEFENSES, and know the contents thereof; that the same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true. The grounds for my belief as to all matters not stated upon my knowledge are investigations, which I have made or have caused to be made concerning the subject matter of this action, and statements of parties and/or witnesses made herein. This verification is made by affirmation because, MAVIS DISCOUNT TIRE, INC., reside in a jurisdiction outside the county where the affirmant maintains his office. The undersigned affirms that the foregoing statements are true under the penalties of perjury. Dated: White Plains, New York June 4, 2021 ______________________________________ Adam R. Dolan 7 of 8 FILED: ROCKLAND COUNTY CLERK 06/04/2021 02:51 PM INDEX NO. 031780/2021 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/04/2021 CERTIFICATION ADAM R. DOLAN, an attorney admitted to practice law in the Courts of the State of New York, affirms under the penalties of perjury, that the following statements are true: That I am the attorney for MAVIS DISCOUNT TIRE, INC., in the above-captioned action. That I certify to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that presentation of these Defendants’ Verified Answer and Affirmative Defenses, and the contentions therein, are not frivolous as defined in 22 NYCRR 130- 1.1-a, et seq. Dated: White Plains, New York June 4, 2021 ______________________________________ Adam R. Dolan 8 of 8