Preview
FILED: NASSAU COUNTY CLERK 06/18/2018 07:28 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 06/18/2018
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FILED:
FILED: NASSAU
NASSnU COUNTY
COUNTÈ CLERK
CLERK 06/18/2018
08/25/2015 07:28
10:52 PM INDEX
INDEX NO.
NO. 604204/2014
04204/20L4
RM|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 112
84 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 06/18/2018
06/14/20 5
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
--------------------------------------x Index #: 60420:4 /14
MICHAEL MESSINA,
Plaintiff, VERIFIED ANSWER
-against- WITH CROSS-CLAIM
MORTON VILLAGE REALTY INC. and
PHILLIPS INTERNATIONAL REALTY INC.
Defendants.
--------------------------------------x
Defendants, MORTON VILLAGE REALTY INC., by their
attorneys PATTERSON 6 SCIARRINO, L.L.P., answering the
plaintiff's Complaint herein respectfully responds as follows:
AS AND FOR A FIRST CAUSE OF ACTION
1. DENIES HAVING KNOWLEDGE OR INFORMATION
sufficient to form a belief as to each and every allegation
contained in paragraphs designated FIRST, SECOND, THIRD,
FOURTH, FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, TENTH, ELEVENTH,
TWELFTH, THIRTEENTH, FOURTEENTH, FIFTEENTH, SIXTEENTH,
SEVENTEENTH, EIGHTEENTH, NINETEENTH, TWENTIETH, TWENTY-FIRST,
TWENTY-SECOND, TWENTY-THIRD, TWENTY-FOURTH and TWENTY-FIFTH of
plaintiff's Complaint.
2. DENIES each and every allegation contained in
paragraphs designated TWENTY-
TWENTY-SIXTH, TWENTY-SEVENTH,
EIGHTH, TWENTY-NINTH and THIRTIETH of plaintiff's Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
That if the plaintiff sustained the injuries alleged,
they were caused in whole or in part through the comparative
negligence of the plaintiff and/or the culpable conduct and
negligence of the plaintiff and not through any negligence on
the part of this answering defendant.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
Upon information and belief, any past or future costs
or expenses incurred or to be incurred by the plaintiff for
medical care, dental care, custodial care or rehabilitative
services, loss of earnings or other economic loss has been or
will be with reasonable certainty replaced or indemnified in
whole or in part from a collateral source as defined in Section
4545c of the New York Civil Practice Laws and Rules.
FILED: NASSAU COUNTY CLERK 06/18/2018 07:28 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 06/18/2018
If any e
damages e are recoverable r e r
against this said e ~
answering ~ defendant, e the e
amount of such damages e shall be
diminished by the amount of the funds which plaintiff has e or
shall receive from such e
collateral e sources.
AS AND l FOR A THIRD AFFIRMATIVE DEFENSE
That whatever injuries and/or damages e sustained t by
the plaintiff at the time and t place r alleged ~ in the Complaint e
were the result of plaintiff's assumption
e of risk in realizing
r
and ~ knowing the dangers and t hazards thereof e
and ~ plaintiff
assumed all risks necessary e
and ~ incidental to such an
undertaking.
AS AND .
k FOR A ' FOURTH AFFIRMATIVE DEFENSE
Any damages, injury e
and/or injuries sustained ~ by
plaintiff were caused in whole or part by plaintiff's
assumption
e of the risk and the e
amount recovered, if any, should
be diminished pursuant to CPLR § 1412 by the proportion which
the culpable e conduct attributed to the plaintiff caused the
injuries and e
damages alleged.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
The plaintiff fails to state e ae cause of action upon
which relief can be found.
'
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
The liability of this answering defendant is limited
by law under the terms of Article 16 of the CPLR.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
That any e
and all risks, hazards and dangers were
open, obvious and apparent, natural and inherent and known or
should have been known by the plaintiff herein, and the
plaintiff assumed all such risks, hazards and defects.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
The defendant herein hade no duty of care to
plaintiff, and therefore is not liable for any alleged injuries
or damages to plaintiff.
AS AND 0 A NINTH AFFIRMATIVE DEFENSE
e ~ ~ 0
FILED: NASSAU COUNTY CLERK 06/18/2018 07:28 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 06/18/2018
any condition prior to or at the time of plaintiff's alleged
accident and therefore is not liable for any alleged injuries
or damages to plaintiff.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
The defendant herein had no actual notice of any
condition prior to or at the time of plaintiff's alleged
accident and therefore is not liable for any alleged injuries
or damages to plaintiff.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
The liability of the answering defendant, if any,
to the plaintiff for non-economic loss is limited to its
equitable share, determined in accordance with relative
culpability of all persons or entities contributing to the
total liability for non-economic loss, including named parties
and others over whom plaintiff could have obtained personal
jurisdiction with due diligence.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
This claim is barred by Worker's Compensation.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiff failed to mitigate damages.
AS AND FOR A CROSS-CLAIM OVER AND AGAINST
PHILLIPS INTERNATIONAL REALTY INC.
That if the plaintiff(s) were caused to sustain
personal injuries and resulting damages at the time and place
set forth in the plaintiff's complaint and in the manner
alleged therein, through any carelessness, recklessness, acts,
omissions, negligence and/or breaches of duty and/or warranty
and/or contract, other than of the plaintiff(s), then said
injuries and damages arose out of the carelessness,
recklessness, acts, omissions, negligence and breaches of duty
and/or obligation and/or statute and or warranty and/or
contract in fact or implied in law, upon the part of said
defendant(s), with indemnification and save harmless agreement
and/or responsibility by them in fact and/or implied in law·and
without any breaches or any negligence of the answering
defendant contributing thereto; and if the answering defendant
is found liable as to the plaintiff(s) or to any other party
herein for the injuries and damages as set forth in the
plaintiff's verified complaint, then, and in that event, the
relative responsibilities of all said defendant(s) in fairness
FILED: NASSAU COUNTY CLERK 06/18/2018 07:28 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 06/18/2018
must be apportioned by a separate determination in view of the
existing factual disparity, and the said defendant(s) herein
will be liable over to the answering defendant and bound to
fully indemnify and hold answering defendant harmless for the
full amount of any verdict or judgment that the plaintiff(s) or
any other party herein may recover against the answering
defendant in this action, including all costs of investigation,
disbursements, expenses and attorney's fees incurred in the
defense of this action and in the conduct of this cross-claim.
W H E R E F 0 R E, the defendant, MORTON VILLAGE REALTY
INC. demands judgment dismissing the plaintiff's complaint on
the merits; and if the defendant is found to have contributed
to the accident or damages, that any damages be reduced in
proportion to which the plaintiff(s) may be found to have so
contributed to the accident or damages; and further demands
judgment over and against the defendant, PHILLIPS INTERNATIONAL
REALTY INC. for the amount of any judgment obtained against the
answering defendant by plaintiff or any other party or on the
basis of the apportionment of responsibility in such amount as
a jury or Court may direct together with the costs,
disbursements and expenses of this action including attorney's
fees.
DATED: Bayside, New York
September 9, 2014
You s e .,
h ome D. Patterson, Esq.
PA TER N & SCIARRINO, L.L.P.
At orn for Defendant
MO'TON ILLAGE REALTY INC.
42 40 ell Blvd., Suite 606
Ba i e, New York 11361
i
To:
Sanders, Sanders, Block,
Woycik, Viener & Grossman, P.C.
Attorney for Plaintiff
100 Herricks Road
Mineola, NY 11501
—
741-5252
(516)
Phillips International
' 2"d
295 Madison Avenue, Floor
New York, NY 10017
FILED: NASSAU COUNTY CLERK 06/18/2018 07:28 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 06/18/2018
ATTORNEY'
8 AFFIRMATION
I, JEROME D. PATTERSON, an attorney duly admitted to
practice law before the Courts of the State of New York, make
this affirmation pursuant to the provisions of Rule 2106 of the
Civil Practice Law and Rules under the penalties of perjury.
1. I am the attorney of record for defendant N[ORTON
VILLAGE REALTY INC., in the instant action.
2. I have read the foregoing Answer and know the
contents thereof; the same is true to my own
knowledge, except as to the matters therein stated to
be upon information and belief, and as to those
matters I believe it to be true.
3. My grounds for belief as to matters not herein stated
to be alleged upon my own knowledge are
investigations and information received by myself in
the course of my duties as an attorney for the
defendant.
4. The reason this Verification is made by myself and
not by the defendant. The defendant does not reside
in the county where I maintain my office.
DATED: Bayside, New York
September 9, 2014
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FILED: NASSAU COUNTY CLERK 06/18/2018 07:28 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 06/18/2018 †FILED: FILED: NASSAU NASSnU COUNTY COUNTÈ CLERK CLERK 06/18/2018 08/25/2015 07:28 10:52 PM INDEX INDEX NO. NO. 604204/2014 04204/20L4 RM| NYSCEF NYSCEF DOC. DOC. NO. NO. 112 84 RECEIVED RECEIVED NYSCEF: NYSCEF: 06/18/2018 06/14/20 5 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------x Index #: 60420:4 /14 MICHAEL MESSINA, Plaintiff, VERIFIED ANSWER -against- WITH CROSS-CLAIM MORTON VILLAGE REALTY INC. and PHILLIPS INTERNATIONAL REALTY INC. Defendants. --------------------------------------x Defendants, MORTON VILLAGE REALTY INC., by their attorneys PATTERSON 6 SCIARRINO, L.L.P., answering the plaintiff's Complaint herein respectfully responds as follows: AS AND FOR A FIRST CAUSE OF ACTION 1. DENIES HAVING KNOWLEDGE OR INFORMATION sufficient to form a belief as to each and every allegation contained in paragraphs designated FIRST, SECOND, THIRD, FOURTH, FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, TENTH, ELEVENTH, TWELFTH, THIRTEENTH, FOURTEENTH, FIFTEENTH, SIXTEENTH, SEVENTEENTH, EIGHTEENTH, NINETEENTH, TWENTIETH, TWENTY-FIRST, TWENTY-SECOND, TWENTY-THIRD, TWENTY-FOURTH and TWENTY-FIFTH of plaintiff's Complaint. 2. DENIES each and every allegation contained in paragraphs designated TWENTY- TWENTY-SIXTH, TWENTY-SEVENTH, EIGHTH, TWENTY-NINTH and THIRTIETH of plaintiff's Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE That if the plaintiff sustained the injuries alleged, they were caused in whole or in part through the comparative negligence of the plaintiff and/or the culpable conduct and negligence of the plaintiff and not through any negligence on the part of this answering defendant. AS AND FOR A SECOND AFFIRMATIVE DEFENSE Upon information and belief, any past or future costs or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings or other economic loss has been or will be with reasonable certainty replaced or indemnified in whole or in part from a collateral source as defined in Section 4545c of the New York Civil Practice Laws and Rules. FILED: NASSAU COUNTY CLERK 06/18/2018 07:28 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 06/18/2018 If any e damages e are recoverable r e r against this said e ~ answering ~ defendant, e the e amount of such damages e shall be diminished by the amount of the funds which plaintiff has e or shall receive from such e collateral e sources. AS AND l FOR A THIRD AFFIRMATIVE DEFENSE That whatever injuries and/or damages e sustained t by the plaintiff at the time and t place r alleged ~ in the Complaint e were the result of plaintiff's assumption e of risk in realizing r and ~ knowing the dangers and t hazards thereof e and ~ plaintiff assumed all risks necessary e and ~ incidental to such an undertaking. AS AND . k FOR A ' FOURTH AFFIRMATIVE DEFENSE Any damages, injury e and/or injuries sustained ~ by plaintiff were caused in whole or part by plaintiff's assumption e of the risk and the e amount recovered, if any, should be diminished pursuant to CPLR § 1412 by the proportion which the culpable e conduct attributed to the plaintiff caused the injuries and e damages alleged. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE The plaintiff fails to state e ae cause of action upon which relief can be found. ' AS AND FOR A SIXTH AFFIRMATIVE DEFENSE The liability of this answering defendant is limited by law under the terms of Article 16 of the CPLR. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE That any e and all risks, hazards and dangers were open, obvious and apparent, natural and inherent and known or should have been known by the plaintiff herein, and the plaintiff assumed all such risks, hazards and defects. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE The defendant herein hade no duty of care to plaintiff, and therefore is not liable for any alleged injuries or damages to plaintiff. AS AND 0 A NINTH AFFIRMATIVE DEFENSE e ~ ~ 0 FILED: NASSAU COUNTY CLERK 06/18/2018 07:28 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 06/18/2018 any condition prior to or at the time of plaintiff's alleged accident and therefore is not liable for any alleged injuries or damages to plaintiff. AS AND FOR A TENTH AFFIRMATIVE DEFENSE The defendant herein had no actual notice of any condition prior to or at the time of plaintiff's alleged accident and therefore is not liable for any alleged injuries or damages to plaintiff. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE The liability of the answering defendant, if any, to the plaintiff for non-economic loss is limited to its equitable share, determined in accordance with relative culpability of all persons or entities contributing to the total liability for non-economic loss, including named parties and others over whom plaintiff could have obtained personal jurisdiction with due diligence. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE This claim is barred by Worker's Compensation. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff failed to mitigate damages. AS AND FOR A CROSS-CLAIM OVER AND AGAINST PHILLIPS INTERNATIONAL REALTY INC. That if the plaintiff(s) were caused to sustain personal injuries and resulting damages at the time and place set forth in the plaintiff's complaint and in the manner alleged therein, through any carelessness, recklessness, acts, omissions, negligence and/or breaches of duty and/or warranty and/or contract, other than of the plaintiff(s), then said injuries and damages arose out of the carelessness, recklessness, acts, omissions, negligence and breaches of duty and/or obligation and/or statute and or warranty and/or contract in fact or implied in law, upon the part of said defendant(s), with indemnification and save harmless agreement and/or responsibility by them in fact and/or implied in law·and without any breaches or any negligence of the answering defendant contributing thereto; and if the answering defendant is found liable as to the plaintiff(s) or to any other party herein for the injuries and damages as set forth in the plaintiff's verified complaint, then, and in that event, the relative responsibilities of all said defendant(s) in fairness FILED: NASSAU COUNTY CLERK 06/18/2018 07:28 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 06/18/2018 must be apportioned by a separate determination in view of the existing factual disparity, and the said defendant(s) herein will be liable over to the answering defendant and bound to fully indemnify and hold answering defendant harmless for the full amount of any verdict or judgment that the plaintiff(s) or any other party herein may recover against the answering defendant in this action, including all costs of investigation, disbursements, expenses and attorney's fees incurred in the defense of this action and in the conduct of this cross-claim. W H E R E F 0 R E, the defendant, MORTON VILLAGE REALTY INC. demands judgment dismissing the plaintiff's complaint on the merits; and if the defendant is found to have contributed to the accident or damages, that any damages be reduced in proportion to which the plaintiff(s) may be found to have so contributed to the accident or damages; and further demands judgment over and against the defendant, PHILLIPS INTERNATIONAL REALTY INC. for the amount of any judgment obtained against the answering defendant by plaintiff or any other party or on the basis of the apportionment of responsibility in such amount as a jury or Court may direct together with the costs, disbursements and expenses of this action including attorney's fees. DATED: Bayside, New York September 9, 2014 You s e ., h ome D. Patterson, Esq. PA TER N & SCIARRINO, L.L.P. At orn for Defendant MO'TON ILLAGE REALTY INC. 42 40 ell Blvd., Suite 606 Ba i e, New York 11361 i To: Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C. Attorney for Plaintiff 100 Herricks Road Mineola, NY 11501 — 741-5252 (516) Phillips International ' 2"d 295 Madison Avenue, Floor New York, NY 10017 FILED: NASSAU COUNTY CLERK 06/18/2018 07:28 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 06/18/2018 ATTORNEY' 8 AFFIRMATION I, JEROME D. PATTERSON, an attorney duly admitted to practice law before the Courts of the State of New York, make this affirmation pursuant to the provisions of Rule 2106 of the Civil Practice Law and Rules under the penalties of perjury. 1. I am the attorney of record for defendant N[ORTON VILLAGE REALTY INC., in the instant action. 2. I have read the foregoing Answer and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be upon information and belief, and as to those matters I believe it to be true. 3. My grounds for belief as to matters not herein stated to be alleged upon my own knowledge are investigations and information received by myself in the course of my duties as an attorney for the defendant. 4. The reason this Verification is made by myself and not by the defendant. The defendant does not reside in the county where I maintain my office. DATED: Bayside, New York September 9, 2014