Preview
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018
EXHIBIT B
FILED: NASSAU COUNTYCOUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
FILED: NASSnU CLERK 09/11/2014 12:12 PM|
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018
NYSCEF DOC. NO. 3 REC
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
--------------------------------------x Index
MICHAEL MESSINA,
Plaintiff, VER
-against- WITH
MORTON VILLAGE REALTY INC. and
PHILLIPS INTERNATIONAL REALTY INC.
Defendants.
--------------------------------------x
Defendants, MORTON VILLAGE REALTY
attorneys PATTERSON & SCIARRINO, L.L.P.,
plaintiff's Complaint herein respectfully responds
AS AND FOR A FIRST CAUSE OF ACTION
1. DENIES HAVING KNOWLEDGE
sufficient to form a belief as to each and
contained in paragraphs designated FIRST,
FOURTH, FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH,
TWELFTH, THIRTEENTH, FOURTEENTH, FIFTEENTH,
SEVENTEENTH, EIGHTEENTH, NINETEENTH, TWENTIETH,
TWENTY-SECOND, TWENTY-THIRD, TWENTY-FOURTH and
plaintiff's Complaint.
2. DENIES each and every allegation
paragraphs designated TWENTY-SIXTH, TWENTY-SEVE
EIGHTH, TWENTY-NINTH and THIRTIETH of plaintiff's
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
That if the plaintiff sustained the
were caused in whole or in part through
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018
If any damages are recoverable against this said
answering defendant, the amount of such damages shall be
diminished by the amount of the funds which plaintiff has or
shall receive from such collateral sources.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
That whatever injuries and/or damages sustained by
the plaintiff at the time and place alleged in the Complaint
result-
were the of plaintiff's assumption of risk in realizing
and knowing the dangers and hazards thereof and plaintiff
assumed all risks necessary and incidental to such an
undertaking.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
Any damages, injury and/or injuries sustained by
plaintiff were caused in whole or part by plaintiff's
assumption of the risk and the amount recovered, if any, should
be diminished pursuant to CPLR § 1412 by the proportion which
the culpable conduct attributed to the plaintiff caused the
injuries and damages alleged.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
The plaintiff fails to state a 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 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 had no duty of care to
plaintiff, and therefore is not liable for any alleged injuries
.or damages to plaintiff.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
The defendant herein had no constructive notice of
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018
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 AFFIRNATIVE 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 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018
must be apportioned by a separate determination
existing factual disparity, and the said def
will be liable over to the answering defendant
fully indemnify and hold answering defendant
full amount of any verdict or judgment that the
any other party herein may recover against
defendant in this action, including all costs
disbursements, expenses and attorney's fees
defense of this action and in the conduct of th
W H E R E F O R E, the defendant, MORTO
INC. demands judgment dismissing the plaintiff's
the merits; and if the defendant is found to
to the accident or damages, that any damages
proportion to which the plaintiff(s) may be
contributed to the accident or damages; and
judgment over and against the defendant, PHILLIPS
REALTY INC. for the amount of any judgment obta
answering defendant by plaintiff or any other
basis of the apportionment of responsibility
a jury or Court may direct together
disbursements and expenses of this action inclu
fees.
DATED: Bayside, New York
September 9, 2014
You-s e .,
ome D. Patterson,
PA TER ON & SCIARRINO,
At orn for Defendant
MO TON ILLAGE REALTY
42 40 ell Blvd., Suite
Ba i e, New York 11361
(718,631-4400
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014
NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018
ATTORNEY'S AFFIRMATION
I, JEROME D. PATTERSON, an attorney duly
practice law before the Courts of the State of
this affirmation pursuant to the provisions of
Civil Practice Law and Rules under the penalties
1. I am the attorney of record for defendan
VILLAGE REALTY INC., in the instant
2. I have read the foregoing Answer and
contents thereof; the same is true to
knowledge, except as to the matters
be upon information and belief, and
matters I believe it to be true.
3. My grounds for belief as to matters
to be alleged upon my own knowledge
investigations and information received
the course of my duties as an attorney
defendant.
4. The reason this Verification is made
not by the defendant. The defendant
in the county where I maintain my office
DATED: Bayside, New York
September 2014
Preview
FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018 EXHIBIT B FILED: NASSAU COUNTYCOUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 FILED: NASSnU CLERK 09/11/2014 12:12 PM| NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018 NYSCEF DOC. NO. 3 REC SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------x Index MICHAEL MESSINA, Plaintiff, VER -against- WITH MORTON VILLAGE REALTY INC. and PHILLIPS INTERNATIONAL REALTY INC. Defendants. --------------------------------------x Defendants, MORTON VILLAGE REALTY attorneys PATTERSON & SCIARRINO, L.L.P., plaintiff's Complaint herein respectfully responds AS AND FOR A FIRST CAUSE OF ACTION 1. DENIES HAVING KNOWLEDGE sufficient to form a belief as to each and contained in paragraphs designated FIRST, FOURTH, FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH, TWELFTH, THIRTEENTH, FOURTEENTH, FIFTEENTH, SEVENTEENTH, EIGHTEENTH, NINETEENTH, TWENTIETH, TWENTY-SECOND, TWENTY-THIRD, TWENTY-FOURTH and plaintiff's Complaint. 2. DENIES each and every allegation paragraphs designated TWENTY-SIXTH, TWENTY-SEVE EIGHTH, TWENTY-NINTH and THIRTIETH of plaintiff's AS AND FOR A FIRST AFFIRMATIVE DEFENSE That if the plaintiff sustained the were caused in whole or in part through FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018 If any damages are recoverable against this said answering defendant, the amount of such damages shall be diminished by the amount of the funds which plaintiff has or shall receive from such collateral sources. AS AND FOR A THIRD AFFIRMATIVE DEFENSE That whatever injuries and/or damages sustained by the plaintiff at the time and place alleged in the Complaint result- were the of plaintiff's assumption of risk in realizing and knowing the dangers and hazards thereof and plaintiff assumed all risks necessary and incidental to such an undertaking. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Any damages, injury and/or injuries sustained by plaintiff were caused in whole or part by plaintiff's assumption of the risk and the amount recovered, if any, should be diminished pursuant to CPLR § 1412 by the proportion which the culpable conduct attributed to the plaintiff caused the injuries and damages alleged. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE The plaintiff fails to state a 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 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 had no duty of care to plaintiff, and therefore is not liable for any alleged injuries .or damages to plaintiff. AS AND FOR A NINTH AFFIRMATIVE DEFENSE The defendant herein had no constructive notice of FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018 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 AFFIRNATIVE 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 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018 must be apportioned by a separate determination existing factual disparity, and the said def will be liable over to the answering defendant fully indemnify and hold answering defendant full amount of any verdict or judgment that the any other party herein may recover against defendant in this action, including all costs disbursements, expenses and attorney's fees defense of this action and in the conduct of th W H E R E F O R E, the defendant, MORTO INC. demands judgment dismissing the plaintiff's the merits; and if the defendant is found to to the accident or damages, that any damages proportion to which the plaintiff(s) may be contributed to the accident or damages; and judgment over and against the defendant, PHILLIPS REALTY INC. for the amount of any judgment obta answering defendant by plaintiff or any other basis of the apportionment of responsibility a jury or Court may direct together disbursements and expenses of this action inclu fees. DATED: Bayside, New York September 9, 2014 You-s e ., ome D. Patterson, PA TER ON & SCIARRINO, At orn for Defendant MO TON ILLAGE REALTY 42 40 ell Blvd., Suite Ba i e, New York 11361 (718,631-4400 FILED: NASSAU COUNTY CLERK 09/05/2018 10:20 PM INDEX NO. 604204/2014 NYSCEF DOC. NO. 183 RECEIVED NYSCEF: 09/05/2018 ATTORNEY'S AFFIRMATION I, JEROME D. PATTERSON, an attorney duly practice law before the Courts of the State of this affirmation pursuant to the provisions of Civil Practice Law and Rules under the penalties 1. I am the attorney of record for defendan VILLAGE REALTY INC., in the instant 2. I have read the foregoing Answer and contents thereof; the same is true to knowledge, except as to the matters be upon information and belief, and matters I believe it to be true. 3. My grounds for belief as to matters to be alleged upon my own knowledge investigations and information received the course of my duties as an attorney defendant. 4. The reason this Verification is made not by the defendant. The defendant in the county where I maintain my office DATED: Bayside, New York September 2014