Preview
FILED:
FILED : DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 03/03/2022
12/28/2015 09:55
09:31 AM
AM|
INDEX
INDEX NO.
NO. 2015-52210
2015-52210
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 57
1 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 03/03/2022
12/28/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
------- -----------------------------------------------------------X
KENNETH GAROFOLO and JENNIFER GAROFOLO, Index No.:
Plaintiffs, SUMMONS
-against-
Basis of Venue:
Plaintiffs'
DEVIN J. CARPENTER, Residence
PREFERRED GROUP OF MANHATTAN, INC., 8 Caywood Place
CONSOLIDATED RAIL CORPORATION and Hyde Park, NY 12538
CSX TRANSPORTATION, INC.,
Defendants.
___________--_----_--_--_-_--_
_-_-...._-_
_-_--_-_-_-- -------X
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and to
Plaintiffs'
serve a copy of your answer on the attorney within 20 days after service of this Summons
and Verified Complaint, exclusive of the day of service, or within 30 days after service is complete
if this Summons and Verified Complaint is not personally delivered to you within the State of New
York.
PLEASE BE ADVISED that should you fail to answer or appear, a default judgment will
be taken against you for the relief sought in the Verified Complaint.
Dated: Poughkeepsie, New York
December 23, 2015
Yours, etc.,
Midhaell. ar le, Esq.
MICHAEL R. VARBL & ASSOCIATES, P.C.
Attorney for Plaintiffs Kenneth and Jennifer Garofolo
40 Garden Street, Suite 301
Poughkeepsie, New York 12601
Telephone: (845) 363-6500
Michael R. Varble & Associates, P.C.
40 Garden Street, Suite 301
Poughkeepsie, New York
12601
(845)363-6500
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
____-______________________________-----------------------------------------X
KENNETH GAROFOLO and JENNIFER GAROFOLO, Index No.:
VERIFIED COMPLAINT
Plaintiffs,
-against-
DEVIN J. CARPENTER,
PREFERRED GROUP OF MANHATTAN, INC,
CONSOLIDATED RAIL CORPORATION and
CSX TRANSPORTATION, INC.,
Defendants.
___________________________________________________________________________-X
Plaintiffs. Kenneth Garofolo and Jennifer Garofolo, by their attorney, Michael R. Varble,
Esq., of Michael R. Varble & Associates, P.C., complaining of the Defendants herein, respectfully
shows to this Court, and alleges as follows:
1. At all the time herein mentioned, Plaintiff Kenneth Garofolo, of 8 Caywood Place,
Hyde Park, New York 12538 is a resident of the County of Dutchess, State of New York.
2. At all the time herein mentioned, Plaintiff Jennifer Garofolo, of 8 Caywood Place,
Hyde Park, New York 12538 is a resident of the County of Dutchess, State of New York.
3. At all the time herein mentioned, Defendant Devin J. Carpenter (hereinafter
"Carpenter"), of 7 Surico Drive, Poughkeepsie, New York 12601 is a resident of the County of
Dutchess, State of New York.
4. Upon information and belief and at all relevant times, Defendant Preferred Group of
Manhattan, Inc. (hereinaner "Preferred Group") was and is a Corporation organized under the laws
of the State of New York and doing business in Dutchess County.
5. Upon information and belief and at all relevant times, Defendant Consolidated Rail
Corporation (hereinafter "Consolidated Rail") was and is a Corporation organized under the laws of
the State of New York and doing business in Dutchess County.
6. Upon information and belief and at all relevant times, Defendant CSX
Transportation, Inc. (hereinaher "CSX") was and is a Corporation organized under the laws of the
State of New York and doing business in Dutchess County.
Michael R. Varble & Associates, P C
40 Garden Street. Suite 301
Poughkeepsie. New York
12601
(845) 363-6500 Page 2 of 12
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
FIRST CAUSE OF ACTION
NEGLIGENCE BY DEFENDANT CARPENTER
7. Plaintiffs repeat and reallege all prior allegations.
8. On November 22, 2014, at 35 Main Street. Poughkeepsie, New York and 41 Main
Street, Poughkeepsie, New York, at properties owned by Defendant Preferred Group, Defendant
Consolidated Rail and Defendant CSX, Defendant Devin J. Carpenter negligently struck, hit and
make contact with the Plaintiff, Kenneth Garofolo, with his fists and causing Plaintiff to fall to the
ground, striking his head.
9. The actions of Defendant Devin J. Carpenter were negligently, careless, unwarrented
and without any just cause or provocation.
10. Plaintiff incurred permanent and lasting injuries from Defendant's actions.
without limitations: a seizure traumatic brain injury, post-
including concussion, disorder,
concussive syndrome, white matter disease, diffuse axonal injury, contusion of orbital tissue, and
complex skull fracture of the left facial and temporal bones.
1 1. As a direct and proximate result of the aforementioned actions, Plaintiff has incurred
without limitations: permanent disability, medical expenses, loss of earnings and other economic
damages, and continues to be in physical pain and is now obligated to expend sums of money for
medical care and attention in an effort to cure himself of his injuries and to alleviate his pain and
suffering. Plaintiff is unable, and continues to be unable to pursue his usual daily activities,
including working, all due to his physical injuries and damage.
12. As a result of the foregoing, the Plaintiff has been damaged in an amount that is in
excess of the jurisdiction of all lower courts.
13. As a result of the foregoing, Plaintiff demands judgment against Defendant
Carpenter in an amount to be determined by the trier of fact and in excess of the jurisdictional
limits of all lower Courts.
Michael R. Varble & Associates, P.C.
40 Garden Street, Suite 301
Poughkeepsic. New York
12601
(845u63.6500 Page 3 of 12
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
SECOND CAUSE OF ACTION
NEGLIGENCE BY DEFENDANT PREFERRED GROUP
14. Plaintiffs repeat and reallege all prior allegations.
15. On November 22, 2014, Plaintiff was lawfully upon the premises owned by
Defendant Preferred Group. at 35 Main Street, Poughkeepsie, NY 12601 where he was lawfully
employed, the Plaintiff was negligently hit, struck and otherwise contacted by Defendant Carpenter,
who inflicted severe and permanent bodily injury on the Plaintiff.
16. Defendant Preferred Group had actual and/or constructive knowledge of activity on
the premises about criminal and dangerous activity occurring for a significant duration and/or
occurring frequently and they failed and/or refused to take any steps to remedy the situation.
17. Defendant Preferred Group knew or should have known of the propensities of the
aforesaid Defendant Carpenter and other patrons frequenting Mahoney's of Dooley Square, Inc.
and failed to take steps to protect persons, such as the Plaintiff, lawfully employed and/or
frequenting at the premises; that Defendant Preferred Group failed to exercise reasonable care in
controlling itspremises and environs and in otherwise acting negligently on the premises.
18. As a result of the foregoing, actual and/or constructive, the injuries of the Plaintiff
were caused by the negligence of Defendant Preferred Group in having knowledge of the condition
of Defendant Carpenter and other prior patrons on its premises and taking no reasonable steps to
protect the invited public or employees, such as the Plaintiff, from being injured.
19. Defendant Preferred Group had prior notice that was actual notice and/or
constructive notice as to the dangerous condition and propensities at the aforementioned property.
20. The said injuries to the Plaintiff caused solely by Defendant Preferred Group were
without any negligence on the part of the Plaintiff contributing thereto.
21. As a direct and proximate result of the aforementioned negligence of the Defendant
Preferred Group Plaintiff has incurred, without limitation, permanent disability, medical expenses,
a loss of earnings and other economic damages, and continues to be in physical pain and is now
obligated to expend sums of money for medical care and attention in an effort to cure himself and
to alleviate his pain and suffering. Plaintiff was unable, and continues to be unable for the
Michael R. Varble & Associates, P.C.
40 Garden Street, Suite 301
Poughkeepsie. New York
1260I
(845) 363-6500 Page 4 of 12
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
foreseeable future. to pursue his usual activities and employment, all due to his physical injuries
and damage.
22. As a result of the foregoing, the Plaintiff has been damaged in an amount that is in
excess of the jurisdiction of all lower courts.
23. As a result of the foregoing, Plaintiff demands judgment against Preferred Group in
an amount to be determined by the trier of fact and in excess of the jurisdictional limits of all lower
Courts.
THIRD CAUSE OF ACTION
NEGLIGENCE BY DEFENDANT CONSOLIDATED RAIL
24. Plaintiffs repeat and reallege all prior allegations.
25. On November 22, 2014, Plaintiff was lawfully upon the premises owned by
Defendant Consolidated Rail, at 41 Main Street. Poughkeepsie, NY 12601, which was outside the
establishment where Plaintiff was lawfully employed, the Plaintiff was negligently struck, hit and
otherwise made contact with the Defendant Carpenter, who inflicted severe and permanent bodily
injury on the Plaintiff.
26. Defendant Consolidated Rail had actual and/or constructive knowledge of activity
on the premises about criminal and dangerous activity occurring for a significant duration and/or
occurring frequently and they failed and/or refused to take any steps to remedy the situation.
27. Defendant Consolidated Rail knew or should have known of the propensities of the
aforesaid Defendant Carpenter and other patrons frequenting Mahoney's of Dooley Square, inc.
and failed to take steps to protect persons, such as the Plaintiff, lawfully employed and/or
frequenting at the premises; that Defendant Consolidated Rail failed to exercise reasonable care in
controlling itspremises and environs and in otherwise acting negligently on the premises.
28. As a result of the foregoing, actual and/or constructive, the injuries of the Plaintiff
Michael R. Varble & Associates. P.C.
40 Garden Street. Suite 301
Poughkeepsic, New York
12601
(845)363-6500 Page 5 of 12
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
were caused by the negligence of Defendant Consolidated Rail in having knowledge of the
condition of Defendant Carpenter on its premises and taking no reasonable steps to protect the
invited public or employees, such as the Plaintiff, from being injured
29. Defendant Consolidated Rail had prior notice that was actual notice or constructive
as to the dangerous condition and propensities at the aforementioned properties.
30. The said injuries to the Plaintiff were caused solely by Defendant Consolidated Rail
without any negligence on the part of the Plaintiff contributing thereto.
3 1. As a direct and proximate result of the aforementioned negligence, Plaintiff
has incurred, without limitation. permanent disability, medical expenses, a loss of earnings and
other economic damages, and continues to be in physical pain and is now obligated to expend sums
of money for medical care and attention in an effort to cure himself and to alleviate his pain and
suffering. Plaintiff was unable, and continues to be unable for the foreseeable future, to pursue his
usual activities and employment, all due to his physical injuries and damage.
32. As a result of the foregoing, the Plaintiff has been damaged in an amount that is in
excess of the jurisdiction of alllower courts.
33. As a result of the foregoing, Plaintiff demands judgment against Consolidated Rail
in an amount to be determined by the trier of fact and in excess of the jurisdictional limits of all
lower Courts.
FOURTH CAUSE OF ACTION
NEGLIGENCE BY DEFENDANT CSX TRANSPORTATION, INC.
34. Plaintiffs repeat and reallege all prior allegations.
35. On November 22, 2014, Plaintiff was lawfully upon the premises owned by
Defendant CSX Transportation, Inc., at 41 Main Street, Poughkeepsie, NY 12601, which was
outside the establishment where Plaintiff was lawfully employed, the Plaintiff was negligently
struck, hit and otherwise made contact with the Defendant Carpenter, who inflicted severe and
permanent bodily injury on the Plaintiff.
Michael R. Varble & Associates. P.C
40 Garden Street. Suite 30I
Poughkeepsie. New York
12601
(845) 363-6500 Page 6 of 12
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
36. Defendant CSX had actual and/or constructive knowledge of activity on the
premises about criminal and dangerous activity occurring for a significant duration and/or
occurring frequently and they failed and/or refused to take any steps to remedy the situation.
37. Defendant CSX knew or should have known of the propensities of the aforesaid
Defendant Carpenter and other patrons frequenting Mahoney's of Dooley Square, Inc. and failed to
take steps to protect persons, such as the Plaintiff, lawfully employed and/or frequenting at the
premises; that Defendant CSX failed to exercise reasonable care in controlling its premises and
environs and in otherwise acting negligently on the premises.
38. As a result of the foregoing, actual and/or constructive, the injuries of the PlaintitT
were caused by the negligence of Defendant CSX in having knowledge of the condition of
Defendant Carpenter on itspremises and taking no reasonable steps to protect the invited public or
employees, such as the Plaintiff, from being injured.
39. Defendant CSX had prior notice that was actual notice or constructive as to the
dangerous condition and propensities at the aforementioned properties.
40. The said injuries to the Plaintiff were caused solely by Defendant CSX without any
negligence on the part of the Plaintiff contributing thereto.
41. As a direct and proximate result of the aforementioned negligence, Plaintiff
has incurred, without limitation, permanent disability, medical expenses, a loss of earnings and
other economic damages. and continues to be in physical pain and is now obligated to expend sums
of money for medical care and attention in an effort to cure himself and to alleviate his pain and
suffering. Plaintiff was unable, and continues to be unable for the foreseeable future, to pursue his
usual activities and employment, all due to his physical injuries and damage.
42. As a result of the foregoing, the Plaintiff has been damaged in an amount that is in
excess of the jurisdiction of all lower courts.
43. As a result of the foregoing, Plaintiff demands judgment against Defendant CSX in
an amount to be determined by the trier of fact and in excess of the jurisdictional limits of all lower
Courts.
Michael R. Varbic & Associates, Pf
40 Garden Street. Suite 301
Poughkeepsie. New York
12601
(845) 363-6500 Page 7 of 12
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
FIFTH CAUSE OF ACTION
LOSS OF CONSORTIUM
44. Plaintiffs repeat and reallege all prior allegations.
45. On November 22, 2014. Plaintiff, Jennifer Garofolo's spouse. Plaintiff, Kenneth
Garofolo, was physically injured and permanently disabled when Defendant Carpenter negligently
struck, hit and otherwise made contact with Mr. Garofolo with his fists causing a head injury and
due to the negligence of all other Defendants. The aforementioned incident was allowed to occur
and Mr. Garofolo was not protected by all Defendants breaching their duty of care to Mr. Garofolo
as they reasonably should have foreseen under the circumstances.
Defendants'
46. As a direct and proximate result of all the negligent conduct, Plaintiff s
spouse suffered, without limitation, traumatic brain injury, concussion, post-concussive syndrome,
white matter disease, diffuse axonal injury, contusion of orbital tissue, and complex skull fracture
of the left facial and temporal bones, which caused and still causes him to become completely
disabled and unable to fully function cognitively, in that he lacks mental stamina, mental speed,
concentration, memory and the ability to organize and maintain a consistent and predictable level of
mental effort necessary for enjoying his previous quality of life.
47. Before suffering these injuries, Plaintiff s spouse was able to and did perform allthe
duties of a husband and did perform all these duties, including without limitations assisting in
maintaining the home, and providing love, companionship, affection, society, sexual relations,
moral support, and solace to Plaintiff.
48. Plaintiff s spouse's ability to perform these tasks has been greatly, ifnot completely,
diminished due to his traumatic brain injury. As a direct and proximate result of the injuries.
PlaintifPs spouse has been unable to perform the duties of a husband in that he isunable to assist in
house work, drive, participate in family, recreational, or social activities with Plaintiff, or contribute
to the household income.
49. Due to the nature of the injuries sustained by Plaintiff s spouse and the severe
physical and psychological strains they cause him, Plaintiff s spouse is no longer able to provide
Plaintiff with love, companionship, affection, society, moral support, and solace among other
Michael R. Varble & Associates. P.C.
40 Garden Street, Suite 301
Poughkeepsie, New York
1260 I
(845) 363-6500 Page 8 of 12
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
!duties. Because of these injuries. Plaintiff s spouse will be unable to perform these duties in the
future. Plaintiff is therefore deprived and will be permanently deprived of her spouse's consortium,
allto Plaintiff s damage, in a total amount to be established by proof at the trial.
50. As a result of the foregoing, the Plaintiff has been damaged in an amount that is in
excess of the jurisdiction of all lower courts.
51. As a result of the foregoing, Plaintiff Jennifer Garofolo has been damaged in an
amount in excess of the jurisdiction of the lower courts and demands judgment against the
Defendants.
WHEREFORE, Plaintiffs pray that the Court enter judgment in their favor and against
Defendants, containing the following relief:
a. On the First Cause of Action, in favor of Plaintiff, Kenneth Garofolo, in an amount
to be determined by the trier of the facts and in excess of the jurisdiction of all lower Courts;
b. On the Second Cause of Action, in favor of Plaintiff, Kenneth Garofolo, in an
amount to be determined by the trier of the facts and in excess of the jurisdiction of all lower
Courts;
c. On the Third Cause of Action, in favor of Plaintiff, Kenneth Garofolo, in an amount
to be determined by the trier of the facts and in excess of the jurisdiction of all lower Courts;
d. On the Fourth Cause of Action, in favor of Plaintiff, Kenneth Garofolo, in an amount
to be determined by the trier of the facts and in excess of the jurisdiction of all lower Courts;
e. On the Fifth Cause of Action, Jennifer Garofolo, in an amount to be determined by
the trier of the facts and in excess of the jurisdiction of all lower Courts;
Plaintiffs'
f. An award of costs that Plaintiffs have incurred in this action, as well as
reasonable attorneys's fees to the fullest extent permitted by law; and
g. Such other and further relief as the Court may deem just and proper.
Michael R. Varble & Associates. P.C.
40 Garden Street. Suite 301
Poughkeepsie. New York
12601
(845063-6500 Page 9 of 12
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
Dated: Poughkeepsie, New York
December 23, 2015
Yours, etc.,
IVydfÃae R. Varble, Esq.
MICHAEL R. VARBLE ASSOCIATES, P.C.
Attorneys for Plaintiffs Ken eth and Jennifer Garofolo
40 Garden Street, Suite 301
Poughkeepsie, New York 12601
Telephone: (845) 363-6500
MichaelR. Varble & Associates, P.C.
40 Garden Street, Suite 301
Poughk s e, Nw Y rk 12601
Page 10 of 12
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
VERIFICATION
STATE OF NEW YORK )
) :ss:
COUNTY OF DUTCHESS )
KENNETH GAROFOLO, being duly sworn, deposes and says:
I am the Plaintiff in the action herein; I have read the annexed Summons and Verified
Complaint, know the contents thereof and the same are true to my knowledge, except those matters
therein which are stated to be alleged on information and belief, and as to those matters I believe
them to be true.
K NEI'H AROFOLO
Sworn to before me this
day of December, 2015.
(N a Public)
Notary . w York
Cornauss on es y w, 200f/
7
Michael R. Varble &
Associates, P.C.
40 Garden Street, Suite 301
Poughkeepsie, New York
12601
t845)363-6500 Page 11 of 12
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
VERIFICATION
STATE OF NEW YORK )
) :ss
COUNTY OF DUTCHESS )
JENNIFER GAROFOLO, being duly sworn, deposes and says:
I am the Plaintiff in the action herein; I have read the annexed Summons and Verified
Zomplaint, know the contents thereof and the same are true to my knowledge, except those matters
herein which are stated to be alleged on information and belief. and as to those matters 1 believe
hem to be true.
1 E A OF LO
S o to before me this
day of December, 2015.
L. R
(No Public)
Notary o 2 NewYork
On er County
Comnnosion by es JUy 19, 2095
Michael R. Varble & Associates. P C
40 Garden Street. Suite 301
Poughkeepsie, New York
12601
(845) 3634500 Page 12 of 12
FILED:
FILED : DUTCHESS
DUTCHESS COUNTY
COUNTY CLERK
CLERK 03/03/2022
02 /02 /2016 09:55
12 : 11 AM
PMl
INDEX
INDEX NO.
NO . 2015-52210
2 0 15 -52210
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 57
5 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 03/03/2022
02/02/2016
STATE OF NEW YORK
SUPREME COURT : COUNTY OF DUTCHESS
Kenneth Garofolo and Jennifer Garofolo,
Plaintiffs,
v. Index No.: 2015-52210
Devin J. Carpcñtcr, Preferred Group of Manhattan, Inc.,
Consolidated Rail Corporation and CSX
Transportation, Inc.,
Defendants.
ANSWER TO COMPLAINT AND CROSS-CLAIMS
The Defendants Consolidated Rail Corporation and CSX Transportation, Inc., by
their attorneys, Eckert Seamans Cherin & Mellott, LLC, as and for their Answer to the
Coniplaiñt and Cross-Claims alleges, upon information and belief as follows:
1. Denies knowledge sufficient to form a belief as to the truth or falsity of the
23"
allegations contained in paragraphs "1, 2, 3, 4, 9, 15, 16, 17, 18, 19, 20, 21, 22 and of the
Complaint.
2. Denies each and every allegation contained in paragraphs "8, 10, 11, 12,
13, 25, 26, 27, 28, 29, 30, 31, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, 46, 47, 48, 49, 50
51"
and of the Complaint.
"5"
3. Denies each and every allegation contained in Paragraph of the
Coniplaint, accept admits that Defendant Consolidated Rail Corporation is a foreign corporation
- 1 -
{V0309374.1}
FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022
formed pursuant to the laws of the Commonwealth of Pennsylvania with itsprincipal palace of
business in the Commonwealth of Pennsylvania.
"6"
4. Denies each and every allegation contained in paragraph of the
Complaint, except admits that the Defendant CSX Transportation, Inc. is a foreign corporation
formed pursuant to the laws of the Commonwealth of Virginia with its principal place of
business in the State of Florida.
5. Denies each and every allegation contained in Paragraphs "7, 14, 24, 34
44"
and of the Complaint, except as previously admitted herein.
AS AND FOR THE FIRST AFFIRMATIVE DEFENSE:
6. If injuries and damages were sustained by the Plaintiffs at the time and
place and in the manner alleged in the Complaint, such injuries and damages were caused by or
attributable to, in whole or in part, or were contributed to by the culpable conduct and want of
care of the Plaintiffs, or on the part of the Plaintiffs.
7. If any damages are recoverable against said Defendants Consolidated Rail
Corporation and CSX Transportation, Inc., the amount of such damages shall be diminished in
the proportion to which the culpable conduct caused by, contributed to or attributable to the
Plaintiffs bear to the culpable conduct, if any, of Defendants Consolidated Rail Corporation and
CSX Transportation, Inc.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE:
8. That if Plaintiffs, in fact suffered, any injuries or damages, those injuries
or damages are a direct consequence of the Plaintiffs assuming the risk.
- 2 -
Preview
FILED: FILED : DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 03/03/2022 12/28/2015 09:55 09:31 AM AM| INDEX INDEX NO. NO. 2015-52210 2015-52210 NYSCEF NYSCEF DOC. DOC. NO. NO. 57 1 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/03/2022 12/28/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ------- -----------------------------------------------------------X KENNETH GAROFOLO and JENNIFER GAROFOLO, Index No.: Plaintiffs, SUMMONS -against- Basis of Venue: Plaintiffs' DEVIN J. CARPENTER, Residence PREFERRED GROUP OF MANHATTAN, INC., 8 Caywood Place CONSOLIDATED RAIL CORPORATION and Hyde Park, NY 12538 CSX TRANSPORTATION, INC., Defendants. ___________--_----_--_--_-_--_ _-_-...._-_ _-_--_-_-_-- -------X TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and to Plaintiffs' serve a copy of your answer on the attorney within 20 days after service of this Summons and Verified Complaint, exclusive of the day of service, or within 30 days after service is complete if this Summons and Verified Complaint is not personally delivered to you within the State of New York. PLEASE BE ADVISED that should you fail to answer or appear, a default judgment will be taken against you for the relief sought in the Verified Complaint. Dated: Poughkeepsie, New York December 23, 2015 Yours, etc., Midhaell. ar le, Esq. MICHAEL R. VARBL & ASSOCIATES, P.C. Attorney for Plaintiffs Kenneth and Jennifer Garofolo 40 Garden Street, Suite 301 Poughkeepsie, New York 12601 Telephone: (845) 363-6500 Michael R. Varble & Associates, P.C. 40 Garden Street, Suite 301 Poughkeepsie, New York 12601 (845)363-6500 FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ____-______________________________-----------------------------------------X KENNETH GAROFOLO and JENNIFER GAROFOLO, Index No.: VERIFIED COMPLAINT Plaintiffs, -against- DEVIN J. CARPENTER, PREFERRED GROUP OF MANHATTAN, INC, CONSOLIDATED RAIL CORPORATION and CSX TRANSPORTATION, INC., Defendants. ___________________________________________________________________________-X Plaintiffs. Kenneth Garofolo and Jennifer Garofolo, by their attorney, Michael R. Varble, Esq., of Michael R. Varble & Associates, P.C., complaining of the Defendants herein, respectfully shows to this Court, and alleges as follows: 1. At all the time herein mentioned, Plaintiff Kenneth Garofolo, of 8 Caywood Place, Hyde Park, New York 12538 is a resident of the County of Dutchess, State of New York. 2. At all the time herein mentioned, Plaintiff Jennifer Garofolo, of 8 Caywood Place, Hyde Park, New York 12538 is a resident of the County of Dutchess, State of New York. 3. At all the time herein mentioned, Defendant Devin J. Carpenter (hereinafter "Carpenter"), of 7 Surico Drive, Poughkeepsie, New York 12601 is a resident of the County of Dutchess, State of New York. 4. Upon information and belief and at all relevant times, Defendant Preferred Group of Manhattan, Inc. (hereinaner "Preferred Group") was and is a Corporation organized under the laws of the State of New York and doing business in Dutchess County. 5. Upon information and belief and at all relevant times, Defendant Consolidated Rail Corporation (hereinafter "Consolidated Rail") was and is a Corporation organized under the laws of the State of New York and doing business in Dutchess County. 6. Upon information and belief and at all relevant times, Defendant CSX Transportation, Inc. (hereinaher "CSX") was and is a Corporation organized under the laws of the State of New York and doing business in Dutchess County. Michael R. Varble & Associates, P C 40 Garden Street. Suite 301 Poughkeepsie. New York 12601 (845) 363-6500 Page 2 of 12 FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 FIRST CAUSE OF ACTION NEGLIGENCE BY DEFENDANT CARPENTER 7. Plaintiffs repeat and reallege all prior allegations. 8. On November 22, 2014, at 35 Main Street. Poughkeepsie, New York and 41 Main Street, Poughkeepsie, New York, at properties owned by Defendant Preferred Group, Defendant Consolidated Rail and Defendant CSX, Defendant Devin J. Carpenter negligently struck, hit and make contact with the Plaintiff, Kenneth Garofolo, with his fists and causing Plaintiff to fall to the ground, striking his head. 9. The actions of Defendant Devin J. Carpenter were negligently, careless, unwarrented and without any just cause or provocation. 10. Plaintiff incurred permanent and lasting injuries from Defendant's actions. without limitations: a seizure traumatic brain injury, post- including concussion, disorder, concussive syndrome, white matter disease, diffuse axonal injury, contusion of orbital tissue, and complex skull fracture of the left facial and temporal bones. 1 1. As a direct and proximate result of the aforementioned actions, Plaintiff has incurred without limitations: permanent disability, medical expenses, loss of earnings and other economic damages, and continues to be in physical pain and is now obligated to expend sums of money for medical care and attention in an effort to cure himself of his injuries and to alleviate his pain and suffering. Plaintiff is unable, and continues to be unable to pursue his usual daily activities, including working, all due to his physical injuries and damage. 12. As a result of the foregoing, the Plaintiff has been damaged in an amount that is in excess of the jurisdiction of all lower courts. 13. As a result of the foregoing, Plaintiff demands judgment against Defendant Carpenter in an amount to be determined by the trier of fact and in excess of the jurisdictional limits of all lower Courts. Michael R. Varble & Associates, P.C. 40 Garden Street, Suite 301 Poughkeepsic. New York 12601 (845u63.6500 Page 3 of 12 FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 SECOND CAUSE OF ACTION NEGLIGENCE BY DEFENDANT PREFERRED GROUP 14. Plaintiffs repeat and reallege all prior allegations. 15. On November 22, 2014, Plaintiff was lawfully upon the premises owned by Defendant Preferred Group. at 35 Main Street, Poughkeepsie, NY 12601 where he was lawfully employed, the Plaintiff was negligently hit, struck and otherwise contacted by Defendant Carpenter, who inflicted severe and permanent bodily injury on the Plaintiff. 16. Defendant Preferred Group had actual and/or constructive knowledge of activity on the premises about criminal and dangerous activity occurring for a significant duration and/or occurring frequently and they failed and/or refused to take any steps to remedy the situation. 17. Defendant Preferred Group knew or should have known of the propensities of the aforesaid Defendant Carpenter and other patrons frequenting Mahoney's of Dooley Square, Inc. and failed to take steps to protect persons, such as the Plaintiff, lawfully employed and/or frequenting at the premises; that Defendant Preferred Group failed to exercise reasonable care in controlling itspremises and environs and in otherwise acting negligently on the premises. 18. As a result of the foregoing, actual and/or constructive, the injuries of the Plaintiff were caused by the negligence of Defendant Preferred Group in having knowledge of the condition of Defendant Carpenter and other prior patrons on its premises and taking no reasonable steps to protect the invited public or employees, such as the Plaintiff, from being injured. 19. Defendant Preferred Group had prior notice that was actual notice and/or constructive notice as to the dangerous condition and propensities at the aforementioned property. 20. The said injuries to the Plaintiff caused solely by Defendant Preferred Group were without any negligence on the part of the Plaintiff contributing thereto. 21. As a direct and proximate result of the aforementioned negligence of the Defendant Preferred Group Plaintiff has incurred, without limitation, permanent disability, medical expenses, a loss of earnings and other economic damages, and continues to be in physical pain and is now obligated to expend sums of money for medical care and attention in an effort to cure himself and to alleviate his pain and suffering. Plaintiff was unable, and continues to be unable for the Michael R. Varble & Associates, P.C. 40 Garden Street, Suite 301 Poughkeepsie. New York 1260I (845) 363-6500 Page 4 of 12 FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 foreseeable future. to pursue his usual activities and employment, all due to his physical injuries and damage. 22. As a result of the foregoing, the Plaintiff has been damaged in an amount that is in excess of the jurisdiction of all lower courts. 23. As a result of the foregoing, Plaintiff demands judgment against Preferred Group in an amount to be determined by the trier of fact and in excess of the jurisdictional limits of all lower Courts. THIRD CAUSE OF ACTION NEGLIGENCE BY DEFENDANT CONSOLIDATED RAIL 24. Plaintiffs repeat and reallege all prior allegations. 25. On November 22, 2014, Plaintiff was lawfully upon the premises owned by Defendant Consolidated Rail, at 41 Main Street. Poughkeepsie, NY 12601, which was outside the establishment where Plaintiff was lawfully employed, the Plaintiff was negligently struck, hit and otherwise made contact with the Defendant Carpenter, who inflicted severe and permanent bodily injury on the Plaintiff. 26. Defendant Consolidated Rail had actual and/or constructive knowledge of activity on the premises about criminal and dangerous activity occurring for a significant duration and/or occurring frequently and they failed and/or refused to take any steps to remedy the situation. 27. Defendant Consolidated Rail knew or should have known of the propensities of the aforesaid Defendant Carpenter and other patrons frequenting Mahoney's of Dooley Square, inc. and failed to take steps to protect persons, such as the Plaintiff, lawfully employed and/or frequenting at the premises; that Defendant Consolidated Rail failed to exercise reasonable care in controlling itspremises and environs and in otherwise acting negligently on the premises. 28. As a result of the foregoing, actual and/or constructive, the injuries of the Plaintiff Michael R. Varble & Associates. P.C. 40 Garden Street. Suite 301 Poughkeepsic, New York 12601 (845)363-6500 Page 5 of 12 FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 were caused by the negligence of Defendant Consolidated Rail in having knowledge of the condition of Defendant Carpenter on its premises and taking no reasonable steps to protect the invited public or employees, such as the Plaintiff, from being injured 29. Defendant Consolidated Rail had prior notice that was actual notice or constructive as to the dangerous condition and propensities at the aforementioned properties. 30. The said injuries to the Plaintiff were caused solely by Defendant Consolidated Rail without any negligence on the part of the Plaintiff contributing thereto. 3 1. As a direct and proximate result of the aforementioned negligence, Plaintiff has incurred, without limitation. permanent disability, medical expenses, a loss of earnings and other economic damages, and continues to be in physical pain and is now obligated to expend sums of money for medical care and attention in an effort to cure himself and to alleviate his pain and suffering. Plaintiff was unable, and continues to be unable for the foreseeable future, to pursue his usual activities and employment, all due to his physical injuries and damage. 32. As a result of the foregoing, the Plaintiff has been damaged in an amount that is in excess of the jurisdiction of alllower courts. 33. As a result of the foregoing, Plaintiff demands judgment against Consolidated Rail in an amount to be determined by the trier of fact and in excess of the jurisdictional limits of all lower Courts. FOURTH CAUSE OF ACTION NEGLIGENCE BY DEFENDANT CSX TRANSPORTATION, INC. 34. Plaintiffs repeat and reallege all prior allegations. 35. On November 22, 2014, Plaintiff was lawfully upon the premises owned by Defendant CSX Transportation, Inc., at 41 Main Street, Poughkeepsie, NY 12601, which was outside the establishment where Plaintiff was lawfully employed, the Plaintiff was negligently struck, hit and otherwise made contact with the Defendant Carpenter, who inflicted severe and permanent bodily injury on the Plaintiff. Michael R. Varble & Associates. P.C 40 Garden Street. Suite 30I Poughkeepsie. New York 12601 (845) 363-6500 Page 6 of 12 FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 36. Defendant CSX had actual and/or constructive knowledge of activity on the premises about criminal and dangerous activity occurring for a significant duration and/or occurring frequently and they failed and/or refused to take any steps to remedy the situation. 37. Defendant CSX knew or should have known of the propensities of the aforesaid Defendant Carpenter and other patrons frequenting Mahoney's of Dooley Square, Inc. and failed to take steps to protect persons, such as the Plaintiff, lawfully employed and/or frequenting at the premises; that Defendant CSX failed to exercise reasonable care in controlling its premises and environs and in otherwise acting negligently on the premises. 38. As a result of the foregoing, actual and/or constructive, the injuries of the PlaintitT were caused by the negligence of Defendant CSX in having knowledge of the condition of Defendant Carpenter on itspremises and taking no reasonable steps to protect the invited public or employees, such as the Plaintiff, from being injured. 39. Defendant CSX had prior notice that was actual notice or constructive as to the dangerous condition and propensities at the aforementioned properties. 40. The said injuries to the Plaintiff were caused solely by Defendant CSX without any negligence on the part of the Plaintiff contributing thereto. 41. As a direct and proximate result of the aforementioned negligence, Plaintiff has incurred, without limitation, permanent disability, medical expenses, a loss of earnings and other economic damages. and continues to be in physical pain and is now obligated to expend sums of money for medical care and attention in an effort to cure himself and to alleviate his pain and suffering. Plaintiff was unable, and continues to be unable for the foreseeable future, to pursue his usual activities and employment, all due to his physical injuries and damage. 42. As a result of the foregoing, the Plaintiff has been damaged in an amount that is in excess of the jurisdiction of all lower courts. 43. As a result of the foregoing, Plaintiff demands judgment against Defendant CSX in an amount to be determined by the trier of fact and in excess of the jurisdictional limits of all lower Courts. Michael R. Varbic & Associates, Pf 40 Garden Street. Suite 301 Poughkeepsie. New York 12601 (845) 363-6500 Page 7 of 12 FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 FIFTH CAUSE OF ACTION LOSS OF CONSORTIUM 44. Plaintiffs repeat and reallege all prior allegations. 45. On November 22, 2014. Plaintiff, Jennifer Garofolo's spouse. Plaintiff, Kenneth Garofolo, was physically injured and permanently disabled when Defendant Carpenter negligently struck, hit and otherwise made contact with Mr. Garofolo with his fists causing a head injury and due to the negligence of all other Defendants. The aforementioned incident was allowed to occur and Mr. Garofolo was not protected by all Defendants breaching their duty of care to Mr. Garofolo as they reasonably should have foreseen under the circumstances. Defendants' 46. As a direct and proximate result of all the negligent conduct, Plaintiff s spouse suffered, without limitation, traumatic brain injury, concussion, post-concussive syndrome, white matter disease, diffuse axonal injury, contusion of orbital tissue, and complex skull fracture of the left facial and temporal bones, which caused and still causes him to become completely disabled and unable to fully function cognitively, in that he lacks mental stamina, mental speed, concentration, memory and the ability to organize and maintain a consistent and predictable level of mental effort necessary for enjoying his previous quality of life. 47. Before suffering these injuries, Plaintiff s spouse was able to and did perform allthe duties of a husband and did perform all these duties, including without limitations assisting in maintaining the home, and providing love, companionship, affection, society, sexual relations, moral support, and solace to Plaintiff. 48. Plaintiff s spouse's ability to perform these tasks has been greatly, ifnot completely, diminished due to his traumatic brain injury. As a direct and proximate result of the injuries. PlaintifPs spouse has been unable to perform the duties of a husband in that he isunable to assist in house work, drive, participate in family, recreational, or social activities with Plaintiff, or contribute to the household income. 49. Due to the nature of the injuries sustained by Plaintiff s spouse and the severe physical and psychological strains they cause him, Plaintiff s spouse is no longer able to provide Plaintiff with love, companionship, affection, society, moral support, and solace among other Michael R. Varble & Associates. P.C. 40 Garden Street, Suite 301 Poughkeepsie, New York 1260 I (845) 363-6500 Page 8 of 12 FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 !duties. Because of these injuries. Plaintiff s spouse will be unable to perform these duties in the future. Plaintiff is therefore deprived and will be permanently deprived of her spouse's consortium, allto Plaintiff s damage, in a total amount to be established by proof at the trial. 50. As a result of the foregoing, the Plaintiff has been damaged in an amount that is in excess of the jurisdiction of all lower courts. 51. As a result of the foregoing, Plaintiff Jennifer Garofolo has been damaged in an amount in excess of the jurisdiction of the lower courts and demands judgment against the Defendants. WHEREFORE, Plaintiffs pray that the Court enter judgment in their favor and against Defendants, containing the following relief: a. On the First Cause of Action, in favor of Plaintiff, Kenneth Garofolo, in an amount to be determined by the trier of the facts and in excess of the jurisdiction of all lower Courts; b. On the Second Cause of Action, in favor of Plaintiff, Kenneth Garofolo, in an amount to be determined by the trier of the facts and in excess of the jurisdiction of all lower Courts; c. On the Third Cause of Action, in favor of Plaintiff, Kenneth Garofolo, in an amount to be determined by the trier of the facts and in excess of the jurisdiction of all lower Courts; d. On the Fourth Cause of Action, in favor of Plaintiff, Kenneth Garofolo, in an amount to be determined by the trier of the facts and in excess of the jurisdiction of all lower Courts; e. On the Fifth Cause of Action, Jennifer Garofolo, in an amount to be determined by the trier of the facts and in excess of the jurisdiction of all lower Courts; Plaintiffs' f. An award of costs that Plaintiffs have incurred in this action, as well as reasonable attorneys's fees to the fullest extent permitted by law; and g. Such other and further relief as the Court may deem just and proper. Michael R. Varble & Associates. P.C. 40 Garden Street. Suite 301 Poughkeepsie. New York 12601 (845063-6500 Page 9 of 12 FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 Dated: Poughkeepsie, New York December 23, 2015 Yours, etc., IVydfÃae R. Varble, Esq. MICHAEL R. VARBLE ASSOCIATES, P.C. Attorneys for Plaintiffs Ken eth and Jennifer Garofolo 40 Garden Street, Suite 301 Poughkeepsie, New York 12601 Telephone: (845) 363-6500 MichaelR. Varble & Associates, P.C. 40 Garden Street, Suite 301 Poughk s e, Nw Y rk 12601 Page 10 of 12 FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 VERIFICATION STATE OF NEW YORK ) ) :ss: COUNTY OF DUTCHESS ) KENNETH GAROFOLO, being duly sworn, deposes and says: I am the Plaintiff in the action herein; I have read the annexed Summons and Verified Complaint, know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters I believe them to be true. K NEI'H AROFOLO Sworn to before me this day of December, 2015. (N a Public) Notary . w York Cornauss on es y w, 200f/ 7 Michael R. Varble & Associates, P.C. 40 Garden Street, Suite 301 Poughkeepsie, New York 12601 t845)363-6500 Page 11 of 12 FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 VERIFICATION STATE OF NEW YORK ) ) :ss COUNTY OF DUTCHESS ) JENNIFER GAROFOLO, being duly sworn, deposes and says: I am the Plaintiff in the action herein; I have read the annexed Summons and Verified Zomplaint, know the contents thereof and the same are true to my knowledge, except those matters herein which are stated to be alleged on information and belief. and as to those matters 1 believe hem to be true. 1 E A OF LO S o to before me this day of December, 2015. L. R (No Public) Notary o 2 NewYork On er County Comnnosion by es JUy 19, 2095 Michael R. Varble & Associates. P C 40 Garden Street. Suite 301 Poughkeepsie, New York 12601 (845) 3634500 Page 12 of 12 FILED: FILED : DUTCHESS DUTCHESS COUNTY COUNTY CLERK CLERK 03/03/2022 02 /02 /2016 09:55 12 : 11 AM PMl INDEX INDEX NO. NO . 2015-52210 2 0 15 -52210 NYSCEF NYSCEF DOC. DOC. NO. NO. 57 5 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/03/2022 02/02/2016 STATE OF NEW YORK SUPREME COURT : COUNTY OF DUTCHESS Kenneth Garofolo and Jennifer Garofolo, Plaintiffs, v. Index No.: 2015-52210 Devin J. Carpcñtcr, Preferred Group of Manhattan, Inc., Consolidated Rail Corporation and CSX Transportation, Inc., Defendants. ANSWER TO COMPLAINT AND CROSS-CLAIMS The Defendants Consolidated Rail Corporation and CSX Transportation, Inc., by their attorneys, Eckert Seamans Cherin & Mellott, LLC, as and for their Answer to the Coniplaiñt and Cross-Claims alleges, upon information and belief as follows: 1. Denies knowledge sufficient to form a belief as to the truth or falsity of the 23" allegations contained in paragraphs "1, 2, 3, 4, 9, 15, 16, 17, 18, 19, 20, 21, 22 and of the Complaint. 2. Denies each and every allegation contained in paragraphs "8, 10, 11, 12, 13, 25, 26, 27, 28, 29, 30, 31, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, 46, 47, 48, 49, 50 51" and of the Complaint. "5" 3. Denies each and every allegation contained in Paragraph of the Coniplaint, accept admits that Defendant Consolidated Rail Corporation is a foreign corporation - 1 - {V0309374.1} FILED: DUTCHESS COUNTY CLERK 03/03/2022 09:55 AM INDEX NO. 2015-52210 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/03/2022 formed pursuant to the laws of the Commonwealth of Pennsylvania with itsprincipal palace of business in the Commonwealth of Pennsylvania. "6" 4. Denies each and every allegation contained in paragraph of the Complaint, except admits that the Defendant CSX Transportation, Inc. is a foreign corporation formed pursuant to the laws of the Commonwealth of Virginia with its principal place of business in the State of Florida. 5. Denies each and every allegation contained in Paragraphs "7, 14, 24, 34 44" and of the Complaint, except as previously admitted herein. AS AND FOR THE FIRST AFFIRMATIVE DEFENSE: 6. If injuries and damages were sustained by the Plaintiffs at the time and place and in the manner alleged in the Complaint, such injuries and damages were caused by or attributable to, in whole or in part, or were contributed to by the culpable conduct and want of care of the Plaintiffs, or on the part of the Plaintiffs. 7. If any damages are recoverable against said Defendants Consolidated Rail Corporation and CSX Transportation, Inc., the amount of such damages shall be diminished in the proportion to which the culpable conduct caused by, contributed to or attributable to the Plaintiffs bear to the culpable conduct, if any, of Defendants Consolidated Rail Corporation and CSX Transportation, Inc. AS AND FOR A SECOND AFFIRMATIVE DEFENSE: 8. That if Plaintiffs, in fact suffered, any injuries or damages, those injuries or damages are a direct consequence of the Plaintiffs assuming the risk. - 2 -