Preview
FILED: RICHMOND COUNTY CLERK 10/14/2021 11:52 AM INDEX NO. 151693/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/14/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
----------------------------------------------------------------------X
RAFAEL J. RAMIREZ, Index No.: 151693/2021
Plaintiff, VERIFIED ANSWER TO
VERIFIED COMPLAINT
-against-
PTM MANAGEMENT CORP.,
Defendant.
----------------------------------------------------------------------X
Defendant PTM MANAGEMENT CORP., by and through its attorneys, GALLO
VITUCCI KLAR LLP answering the Verified Complaint of Plaintiff, respectfully states and
alleges, upon information and belief as follows:
1. Denies any knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs “1”, “8”, “9”, “11” and “20” of the Verified Complaint.
2. Denies each and every allegation contained in paragraphs “4”, “6”, “22”, “23”,
“24”, “25”, “26”, “27”, “28”, “29”, “30” and “31” of the Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
3. That any injuries and/or damages sustained by the Plaintiff, as alleged in the
Verified Complaint therein, were caused in whole or in part by the contributory negligence and/or
culpable conduct of said Plaintiff and not as a result of any contributory negligence and/or culpable
conduct on the part of answering Defendant.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
4. That the injuries and/or damages allegedly sustained by the Plaintiff was caused, in
whole or in part, by the failure of the Plaintiff to utilize and/or properly utilize available seat belts
and/or other safety devices available.
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AS AND FOR A THIRD AFFIRMATIVE DEFENSE
5. Pursuant to CPLR 4545, if it be determined or established that Plaintiff has received
or with reasonable certainty shall receive the cost of medical care, dental care, custodial care or
rehabilitation services, loss of earnings or other economic loss, and that the same shall be replaced
or indemnified, in whole or in part from any collateral source such as insurance (except for life
insurance), social security (except for those benefits provided under title XVIII of the Social
Security ACT), workers’ compensation or employee benefit programs (except such collateral
source entitled by law to liens against any recovery of the Plaintiff), then and in that event
answering Defendant hereby pleads in mitigation of damages the assessment of any such cost or
expense as a collateral source in reduction of the amount of the award by such replacement or
indemnification, minus an amount equal to the premiums paid by the Plaintiff for such benefits for
the two year period immediately preceding the accrual of this action and minus an amount equal
to the projected future cost to the Plaintiff of maintaining such benefits and as otherwise provided
in CPLR 4545.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
6. This action may not be maintained because of Plaintiff’s failure to join all necessary
parties in this action, and in the absence of person(s) who should be a party this action cannot
proceed.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
7. Answering Defendant is entitled to limitation of liability pursuant to Article 16 of
the CPLR.
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
8. The Verified Complaint of the Plaintiff fails to state a cause of action, cognizable
in equity or law against this answering Defendant and must therefore be dismissed.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
9. That the action against the answering Defendant cannot be prosecuted due to the
Plaintiff’s failure to name and likewise prosecute an indispensable party to this litigation.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
10. A. The accident described in the Verified Complaint did not result in a “serious
injury” to the Plaintiff so defined in and by Section 5102 (d) of the Insurance Law of the State of
New York. By reason of the premises in Section 5104 of the Insurance Law of the State of New
York, Plaintiff has no right to institute, maintain or prosecute this action and is barred from doing
so.
B. The Plaintiff did not sustain serious injury as defined by Section 5102 (d)
of the Insurance Law of the State of New York, and his exclusive remedy therefore 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 NINTH AFFIRMATIVE DEFENSE
11. The Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or
reduce the injuries, damages and disabilities alleged in the Verified Complaint.
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WHEREFORE, Defendant PTM MANAGEMENT CORP. demands judgment dismissing
the Verified Complaint, together with attorneys’ fees, costs and disbursements of this action.
Dated: New York, New York
October 14, 2020
Yours etc.,
GALLO VITUCCI KLAR LLP
_____________________________
By: Joseph Scarglato, Esq.
Attorneys for Defendant
PTM Management Corp.
90 Broad Street, 12th Floor
New York, New York 10004
(212) 683-7100
File No.: CSB.2020011
TO:
BANILOV & ASSOCIATES, P.C.
Attorney for Plaintiff
Rafael J. Ramirez
2566 86th Street, Suite 3
Brooklyn, New York 11214
(718) 333-1002
File No.: 15817
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
The undersigned affirms the following statement to be true under penalties of perjury
pursuant to Rule 2106 of the Civil Practice Law and Rules.
That he is a member with the firm of GALLO VITUCCI KLAR LLP attorneys for
Defendant PTM MANAGEMENT CORP.
That he has read the foregoing instrument and knows the contents thereof, and, that the
same is true to the knowledge of your deponent, except as to those matters therein alleged on
information and belief, and that as to those matters he believes them to be true.
That the reason why this Verification is made by your deponent and not by the Defendant
is that said party resides outside the county in which your deponent maintains his office.
That the source of your deponent’s information and the grounds of his belief as to all
matters therein alleged upon information and belief is reports from and communications had with
said party.
Dated: New York, New York
October 14, 2020
______________________________
JOSEPH SCARGLATO
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AFFIDAVIT OF SERVICE VIA NYSCEF
Claudette Garraud, being duly sworn, deposes and says that she is not a party to the within
action, is over the age of 18 years and resides in the County of Queens, and that on the on the 14th
day of October, 2021 served the within VERIFIED ANSWER TO VERIFIED COMPLAINT upon all
parties as appearing on the Supreme Court, State of New York Electronic Filing Website, at the e-
mail addresses designated by said parties in this matter for that purpose.
BANILOV & ASSOCIATES, P.C.
Attorney for Plaintiff
Rafael J. Ramirez
2566 86th Street, Suite 3
Brooklyn, New York 11214
(718) 333-1002
File No.: 15817
__________________________
Claudette Garraud
Sworn to before me this
14th day of October, 2021
__________________________
Notary Public
Mary Thompson
Notary Public – State of New York
No. 01TH6044466
Qualified in Richmond County
Commission Expires on July 3, 2022
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NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/14/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND INDEX NO.: 151693/2021
RAFAEL J. RAMIREZ,
Plaintiff,
- against -
PTM MANAGEMENT CORP.,
Defendant.
VERIFIED ANSWER TO VERIFIED COMPLAINT
GALLO VITUCCI KLAR LLP
Attorneys for Defendant
PTM Management Corp.
90 Broad Street, 12th Floor
New York, New York 10004
(212) 683-7100
File No.: CSB.2020011
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Preview
FILED: RICHMOND COUNTY CLERK 10/14/2021 11:52 AM INDEX NO. 151693/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/14/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ----------------------------------------------------------------------X RAFAEL J. RAMIREZ, Index No.: 151693/2021 Plaintiff, VERIFIED ANSWER TO VERIFIED COMPLAINT -against- PTM MANAGEMENT CORP., Defendant. ----------------------------------------------------------------------X Defendant PTM MANAGEMENT CORP., by and through its attorneys, GALLO VITUCCI KLAR LLP answering the Verified Complaint of Plaintiff, respectfully states and alleges, upon information and belief as follows: 1. Denies any knowledge or information sufficient to form a belief as to the allegations contained in paragraphs “1”, “8”, “9”, “11” and “20” of the Verified Complaint. 2. Denies each and every allegation contained in paragraphs “4”, “6”, “22”, “23”, “24”, “25”, “26”, “27”, “28”, “29”, “30” and “31” of the Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 3. That any injuries and/or damages sustained by the Plaintiff, as alleged in the Verified Complaint therein, were caused in whole or in part by the contributory negligence and/or culpable conduct of said Plaintiff and not as a result of any contributory negligence and/or culpable conduct on the part of answering Defendant. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 4. That the injuries and/or damages allegedly sustained by the Plaintiff was caused, in whole or in part, by the failure of the Plaintiff to utilize and/or properly utilize available seat belts and/or other safety devices available. 1 of 7 FILED: RICHMOND COUNTY CLERK 10/14/2021 11:52 AM INDEX NO. 151693/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/14/2021 AS AND FOR A THIRD AFFIRMATIVE DEFENSE 5. Pursuant to CPLR 4545, if it be determined or established that Plaintiff has received or with reasonable certainty shall receive the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, and that the same shall be replaced or indemnified, in whole or in part from any collateral source such as insurance (except for life insurance), social security (except for those benefits provided under title XVIII of the Social Security ACT), workers’ compensation or employee benefit programs (except such collateral source entitled by law to liens against any recovery of the Plaintiff), then and in that event answering Defendant hereby pleads in mitigation of damages the assessment of any such cost or expense as a collateral source in reduction of the amount of the award by such replacement or indemnification, minus an amount equal to the premiums paid by the Plaintiff for such benefits for the two year period immediately preceding the accrual of this action and minus an amount equal to the projected future cost to the Plaintiff of maintaining such benefits and as otherwise provided in CPLR 4545. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 6. This action may not be maintained because of Plaintiff’s failure to join all necessary parties in this action, and in the absence of person(s) who should be a party this action cannot proceed. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 7. Answering Defendant is entitled to limitation of liability pursuant to Article 16 of the CPLR. 2 of 7 FILED: RICHMOND COUNTY CLERK 10/14/2021 11:52 AM INDEX NO. 151693/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/14/2021 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 8. The Verified Complaint of the Plaintiff fails to state a cause of action, cognizable in equity or law against this answering Defendant and must therefore be dismissed. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 9. That the action against the answering Defendant cannot be prosecuted due to the Plaintiff’s failure to name and likewise prosecute an indispensable party to this litigation. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 10. A. The accident described in the Verified Complaint did not result in a “serious injury” to the Plaintiff so defined in and by Section 5102 (d) of the Insurance Law of the State of New York. By reason of the premises in Section 5104 of the Insurance Law of the State of New York, Plaintiff has no right to institute, maintain or prosecute this action and is barred from doing so. B. The Plaintiff did not sustain serious injury as defined by Section 5102 (d) of the Insurance Law of the State of New York, and his exclusive remedy therefore 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 NINTH AFFIRMATIVE DEFENSE 11. The Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce the injuries, damages and disabilities alleged in the Verified Complaint. 3 of 7 FILED: RICHMOND COUNTY CLERK 10/14/2021 11:52 AM INDEX NO. 151693/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/14/2021 WHEREFORE, Defendant PTM MANAGEMENT CORP. demands judgment dismissing the Verified Complaint, together with attorneys’ fees, costs and disbursements of this action. Dated: New York, New York October 14, 2020 Yours etc., GALLO VITUCCI KLAR LLP _____________________________ By: Joseph Scarglato, Esq. Attorneys for Defendant PTM Management Corp. 90 Broad Street, 12th Floor New York, New York 10004 (212) 683-7100 File No.: CSB.2020011 TO: BANILOV & ASSOCIATES, P.C. Attorney for Plaintiff Rafael J. Ramirez 2566 86th Street, Suite 3 Brooklyn, New York 11214 (718) 333-1002 File No.: 15817 4 of 7 FILED: RICHMOND COUNTY CLERK 10/14/2021 11:52 AM INDEX NO. 151693/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/14/2021 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) The undersigned affirms the following statement to be true under penalties of perjury pursuant to Rule 2106 of the Civil Practice Law and Rules. That he is a member with the firm of GALLO VITUCCI KLAR LLP attorneys for Defendant PTM MANAGEMENT CORP. That he has read the foregoing instrument and knows the contents thereof, and, that the same is true to the knowledge of your deponent, except as to those matters therein alleged on information and belief, and that as to those matters he believes them to be true. That the reason why this Verification is made by your deponent and not by the Defendant is that said party resides outside the county in which your deponent maintains his office. That the source of your deponent’s information and the grounds of his belief as to all matters therein alleged upon information and belief is reports from and communications had with said party. Dated: New York, New York October 14, 2020 ______________________________ JOSEPH SCARGLATO 5 of 7 FILED: RICHMOND COUNTY CLERK 10/14/2021 11:52 AM INDEX NO. 151693/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/14/2021 AFFIDAVIT OF SERVICE VIA NYSCEF Claudette Garraud, being duly sworn, deposes and says that she is not a party to the within action, is over the age of 18 years and resides in the County of Queens, and that on the on the 14th day of October, 2021 served the within VERIFIED ANSWER TO VERIFIED COMPLAINT upon all parties as appearing on the Supreme Court, State of New York Electronic Filing Website, at the e- mail addresses designated by said parties in this matter for that purpose. BANILOV & ASSOCIATES, P.C. Attorney for Plaintiff Rafael J. Ramirez 2566 86th Street, Suite 3 Brooklyn, New York 11214 (718) 333-1002 File No.: 15817 __________________________ Claudette Garraud Sworn to before me this 14th day of October, 2021 __________________________ Notary Public Mary Thompson Notary Public – State of New York No. 01TH6044466 Qualified in Richmond County Commission Expires on July 3, 2022 6 of 7 FILED: RICHMOND COUNTY CLERK 10/14/2021 11:52 AM INDEX NO. 151693/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/14/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND INDEX NO.: 151693/2021 RAFAEL J. RAMIREZ, Plaintiff, - against - PTM MANAGEMENT CORP., Defendant. VERIFIED ANSWER TO VERIFIED COMPLAINT GALLO VITUCCI KLAR LLP Attorneys for Defendant PTM Management Corp. 90 Broad Street, 12th Floor New York, New York 10004 (212) 683-7100 File No.: CSB.2020011 7 of 7