Preview
FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018
(FILED : BRONX COUNT) LERff 09 /11/2 015 07 : 02 E INDEX NO. 25060/2015E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/11/2015
SUPREME COURT OF THE STATE OF NEW YORK Index No.
COUNTY OF BRONX Date Purchased:
I
MABEL OLIVENCIA Plaintiffdesignates
BRONX County as the
place of trial
Plaintiff,
The basis of venue:
-against-
--agal)lst-
a ga 1s t-
CPLR 504 (3)
THE CITY OF NEW YORK, SUMMONS
Defendant. Plaintiff resides at:
32440 Prospect Avenue (2)
Bronx, NY 10458
TO THE ABOVE NAMED DEFENDANT:
You are summoned to answer the complaint inthis action and to serve a copy of
hereby
your answer on the plaintiff'sattorneys within twenty (20) days afterthe service of this
summons, exclusive of the day of service, or within (30) days after the service is complete ifthis
summons is not personally delivered to you within the State of New York. In the event of your
failure to appear or answer, judgment will be taken against you by default for the relief
demanded herein. I
Dated: New York, New York
September 11, 2015
I
YUDIN & YUDIN-lfLLC
/
r
By: /,/ iZg'
Ronald M. Yudin
370 Seventh Avenue,
Suite 720 I
New York, NY 10001
(212) 949-7979
Attorneys for Plaintiff(s)
Defendant's address:
THE CITY OF NEW YORK
The Comptroller of the City of New York
1 Centre Street
New York, NY 10007
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SUPREME COURT OF THE STATE OF NE W YORK
COUNTY OF BRONX
MABEL OLIVENCIA,
VERIFIED COMPLAINT
Plaintiff,
-against- Index No.
THE CITY OF NEW YORK,
Defendant.
Plaintiff,MABEL OLIVENCIA, by her attorneys, Y UDIN & YUDIN, PLLC,
complaining of the defendant alleges as follows:
AS AND FOR A FIRST CAUSE OF ACTION ON
BEHALF OF THE PLAINTIFF, MABEL OLIVENCIA
1. That at alltimes hereinafter mentioned, plaintiff, MABEL OLIVENCIA, was
and continues to be a resident of the County of BRONX, in the State of New York.
2. That at alltimes hereinafter mentioned, the defendant, THE CITY OF NEW
YORK (hereinafter referred to as CITY), was and stillis a municipal corporation duly
organized and existing under and by virtue of the laws of the State of New York.
3. That the plaintiff has complied with allthe conditions precedent to the bringing
of this action and has complied with allof the provisions of the Charter of The City of
New York in relation thereto, and in particular,the plaintiff has presented a written claim
with a demand for judgment of same on September 12, 2014 to the CITY.
4. That more than thirty (30) days have elapsed since the presentation of such
notice and such claim remains unadjusted and the said defendant has neglected and refused
to iuake an adjustment of payment thereof.
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5. That The Notice of Claim was served upon the defendant, CITY, on or about
September 12, 2014, within ninety (90) days after the claim herein below described arose.
6, That the defendant, CITY, had verified notice of the claim, setting forth the
names and post office addresses of the plaintiff and her attorneys, the nature of the claim,
the time, place and manner in which the claim arose and the injuries and damage sustained
insofar as they were practicable.
7. That the defendant, CITY, has demanded a Hearing, and saiddemand has been
complied with on December 2, 2014.
8. That this action has been commenced within one year and ninety days from the
date of accident.
9. Upon information and belief,at alltimes hereinafter mentioned, the defendant,
Authority"
CITY, owned the sidewalk in front of the premises known as "Auto Sales
located at 682 E. Fordham Road Bronx, NY (which is also listed as 680 E. Fordham Road)
near the corner of E. Fordham Road and Cambreleng Avenue Bronx, NY (hereinaher
Location"
referred to as the "Accident Location").
10. Upon information and belief, at alltimes hereinafter mentioned, the defendant,
CITY, controlled the "Accident Location".
11. Upon information and belief, at alltimes hercinaRer mentioned, the defendant,
CITY, managed the "Accident Location".
'
12. Upon information and belief,at alltimes hereinafter mentioned, the defendant,
CITY, operated the "Accident Location".
13. Upon information and belief, at alltimes hereinafter mentioned, the defendant,
I.ocation"
Cl I'Y, maintained the "Accident
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14. Upon information and belief,at alltimes hereinafter mentioned, the defendant,
CITY, supervised the "Accident Location".
15. Upon information and belief,at alltimes hereinafter mentioned, the defendant,
CITY, inspected the "Accident Location".
16. Upon information and belief,the City derived a special benefit or use to the
"Accident Location".
I
17. Upon information and belief,at alltimes hereinafter mentioned, the defendant,
CITY, owned tlierectangular metal box or cut out located on the sidewalk at the "Accident
Location".
18. Upon information and belief,at alltimes hereinafter mentioned, the defendant,
CITY, controlled the rectangular metal box or cut out located on the sidewalk at the
"Accident Location".
19. Upon information and belief, at alltimes hereinafter mentioned, the defendant,
CITY, managed the rectangular metal box or cut out located on the sidewalk at the
"Accident Location".
20. Upon information and belief, at alltimes hereinafter mentioned, the defendant,
CITY, operated the rectangular metal box or cut out located on thesidewalk at the
"Accident Location".
1
21. Upon information and belief,at alltimes hereinafter mentioned, the defendant,
CITY, maintained the rectangular metal box or cut out located on the sidewalk at the
"Accident Location".
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22. Upon information and belief,at alltimes hereinafter mentioned, the defendant,
CITY, supervised the rectangular metal box or cut out located on the sidewalk at the
"Accident Location".
23. Upon information and belief,at alltimes hercinafter mentioned, the defendant,
CITY, inspected the rectangular metal box or cut out located on the sidewalk at the
"Accident Location".
24. Upon information and belief,at alltimes hereinafter mentioned, the defendant,
CITY, itsagents, employees and/or independent contractors repaired the rectangular metal
box or cut out located on the sidewalk at the "Accident Location".
25. Upon information and belief,the City derived a special benefit or use to the
rectangular metal box or cut out (or area inside the rectangular metal box or cut out)
located on the sidewalk at the "Accident Location".
26. Upon information and belief,at some time prior to June 17, 2014, defendant
CITY issued a street/sidewalk/curb opening permit and/or otherwise entered into an
agreement with itsagents, employees and/or independent contractors relative to certain
work, labor.and/or services to be performed in the sidewalk/rectangular metal box at the
"Accident Location".
27. Upon information and belief,at some time prior to and/or including June 17,
2014, the defendant, itsagents, employees and/or independent contractors performed
certain work, labor and/or services, and/or construction, excavation, renovation and/or
repair work in or to the sidewalk/metal box at the above location.
28. That on or about June 17, 2014 at approximately 5:45 P.M., while the plaintiff,
MABEL OL1VENClA, with due care and diligence for her safety, was lawfully and
4
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properly attempting to walk along E. Fordham Road at the Accident Location, she tripped
and fell into unguarded rectangular metal hole or cut out on the sidewalk near the corner of
682 E. Fordham Road and Cambreleng Avenue which was broken, in a stateof disrepair,
and dilapidated, the same forming a trap and nuisance and constituting a danger, menace,
and hazard to persons and Road'
lawfully properly walking near the comer of E. Fordham Road
and Cambreleng Avenue Bronx, NY, thereby sustaining severe and serious personal
injuries.
29. That the aforementioned occurrence was the result of the negligence,
recklessness and carelessness of the defendant, itsagents, servants, employees and/or
independent contractors as follows:
In permitting, allowing, causing and/or creating the dangerous condition as
aforestated at the said location; in causing, permitting and allowing the sidewalk at the
I
aforementioned location to be, become and remain in an unsafe, defective and hazardous
condition, in a state of disrepair,with portions thereof broken, uneven, cracked, depressed,
and dilapidated, the same forming-a trap and nuisance and constituting a danger, menace,
and hazard to persons lawfully and properly attempting to walk near the corner of E.
Fordham Road and Cambreleng Avenue Bronx, NY, in front of the aforementioned
location, including more particularly this plaintiff,MABEL OLIVENCIA; in failing to
wam of the hazardous condition and place a barrier, barricade, sign or cone around the
dangerous hole; in removing the cover of the rectangular metal box, in negligently failing
to control, maintain, manage, supervise, inspect and/or repair the broken metal box and
sidewalk; in failing to properly cover the rectangular metal box; in failingand neglecting to
correct and remedy and/or properly correct and remedy the aforementioned dangerous,
5
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condition,'
hazardous, unsafe and defective condition, in negligently maintaining, repairing,
controlling and inspecting the sidewalk/metal box at the Accident Location; in negligently
creating and/or causing the aforementioned dangerous condition to exist; in allowing the
aforementioned dangerous and hazardous condition to exist for a long and unreasonable
length of time without, repairing same afterthe City knew or should have known of the
existence of such condition; in failing to exercise due and proper care; in failing to warn; in
failing to warn other persons at the aforementioned location, including more particularly
thisplaintiff, MABEL OLlVENCIA, of the dangerous, hazardous, unsafe and defective
condition and otherwise being careless, reckless, and negligent all afteractual and
constructive notice of said dangerous and unsafe condition and in violation of the laws,
rules,statutes, ordinances, codes and regulations of the State and City of New York in
effect at the time of the accident for such cases made and provided.
30. Upon information and belief,the defendant, CITY, received actual and/or
constructive notice of the dangerous condition complained of.
3L Upon information and belief,the defendant, CITY, and/or itsagents, .
including
the NYC Department of Transportation was given prior written notice of the defect
alleged, pursuant to the Administrative Code of the City of New York, Chapter 2, Section
7-201, C-2.
32. Upon information and belief, the defendant, CITY, itsagents, employees and/or
independent contractors created and/or caused the aforementioned dangerous condition to
exist.
()
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33. Upon information and belief,the defendant, CITY, itsagents, employees and/or
independent contractors derived a special benefit or special use to the metal box or cut out
at the Accident Location.
34. That as a result of the aforesaid occurrence, Plaintiff,MABEL OLIVENCIA,
sustained severe and permanent personal injuries to her nerves and nervous system and she
was otherwise rendered sick, sore, lame and disabled; that she was confined to hospital,
bed and home for a considerable period of time subsequent to said occurrence; that she was
and willbe incapacitated from attending her usual vocation, duties and functions; that she
was and will be compelled to submit to medical and hospital aid,care and attention in
order to be treated for her injuries; and has suffered grievous physical pain and mental
anguish and willcontinue to suffer pain for a considerable time to come.
35. That-the occurrence and subsequent injuries to plaintiff,MABEL OLIVENCIA,
were caused solely and exclusively due tothe negligence of the defendant herein, without
any conduct on the partof the plaintiff contributing thereto.
36. That by reason of the foregoing, plaintiffMABEL OLIVENCIA has been
damaged in an amount to be determined at trialwhich exceeds the jurisdictional limits of
alllower courts which would otherwise have jurisdiction.
WITEREFORE, plaintiff MABEL OLIVENCIA demands judgment in her favor
against defendant THE CITY OF NEW YORK in an amount which execeds the
jurisdictional limits of alllower courts which would otherwise have competent jurisdiction,
together with interest,costs and disbursements of this action, and such other and further
relief as to thisCom·t may seem just and proper.
7
FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018
Dated: New York, New York
September 11, 2015
YUDIN & YUD1fV I LC
By:
R8nald Yudin
370 Seventh Ave1iue
Suite 720
New York, NY 10001
(212) 949-7979
Attorneys forPlaintiff
MABEL OLIVENCIA
8
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NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
MABEL OLIVENC[A.
Plaintiff, VERIFICATION
-against-
Index No.
THE CITY OF NEW YORK,
Defendant.
STATE OF NEW YORK, COUNTY OF NEW YORK ss.:
I,RONALD M. YUDIN, an attorney duly admitted to practice in the courts of New
York State, state that Iam the attorney of record forthe Plaintiff in the above-captioned
action. Ihave read the foregoing VERIFIED COMPLAINT in thisaction and know the
contents thereof; the same istrue and correct to my own knowledge, except as tothe
matters stated therein to be alleged upon information and belief,and as to those matters, I
believe them to be true.
The grounds of my belief as to allmatters not stated upon my own knowledge are .
as follows: consultations and conversations with the plaintiffand documentary evidence
contained in your deponent's file.The reason thisverification ismade by me and not by the
plaintiffis that plaintiffdoes not reside in the county where your deponent maintains his
office.
I affirm that the foregoing statements are true,under penalties of perjury.
i"'
(
lÓnald M. Yudin
Dated: New York, New York
September 11, 2015
FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018
I
Index No.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
MABEL OUVENCIA,
Plaintiff,
-against-
THE CITY OF NEW YORK,
Defendants.
I,
SUMMONS AND VERIFIED COMPLAINT
Signature (Rule 130-1.1-a)
Ronald M. Yudin
YUDIN & YUDIN, PLLC
370 Seventh Avenue
Suite 720
New York, NY 10001
(212) 949.7979
Attorneys for .Plaintiff
FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018
.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
------------------------------------..-----------------------------------X
X
MABEL OLlVENCIA,
ANSWER
Plaintiff(s),
-against- Index #: 025060/2015E
THE CITY OF NEW Law Dept. #: 2015-043502
YORK,
Defendant(s).
------------------------------------..-----------------------------------X
Defendant THE CITY OF NEW YORK, by ZACHARY W. CARTER,
Corporation Counsel, answering the complaint, allege upon information and belief:
1. Deny each allegation set forth in paragraph(s) 28, 29, 'UNNUMBERED
PARAGRAPH', 30-32, 34-36, inclusive.
2. Deny knowledge or information sufficient to form a belief with respect to
the truth of the allegations set forth in paragraph(s) 1, 15-27, 33, inclusive.
3. Deny the allegations set forth in paragraph(s) 3-8, inclusive, except that a
notice of a claim was presented, that more than thirty days have elapsed without adjustment
thereof.
4. Deny each allegation set forth in paragraph(s) 9-14, inclusive, except that
with respect to those portions of the street(s), sidewalks and appurtenances referred to in the
complaint which were or may have been owned by the City of New York, defendant(s) had such
duties as were imposed by law.
5. Deny each allegation set forth in paragraph(s) 2, inclusive, except that the
City of New York is a municipal corporation.
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AFFIRMATIVE DEFENSE(S)
Plaintiff(s)'
6. culpable conduct caused or contributed, in whole or in part, to
his/her/their injuries and or damages.
7. At all times mentioned in the complaint, plaintiff(s) knew or should have
known in the exercise of due/reasonable care of the risks and dangers incident to engaging in the
activity alleged. Plaintiff(s) voluntarily performed and engaged in the alleged activity and
assumed the risk of the injuries and/or damages claimed. Plaintiff(s) failed to use all required,
proper, appropriate and reasonable safety devices and/or equipment and failed to take all proper,
Plaintiff(s)'
appropriate and reasonable steps to assure his/her/their safety. primary assumption
to'
of risk solely caused his/her/their injuries and/or damage and defendant(s) owed no duty the
Plaintiff(s)'
plaintiff(s) with respect to the risk assumed. express assumption of risk solely
caused his/her/their injuries and/or damage and defendant(s) owed no duty to the plaintiff(s) with
Plaintiff(s)'
respect to the risk assumed. implied assumption of risk caused or contributed, in
whole or in part to his/her/their injuries. In any action for injuries arising from the use of a
vehicle in, or upon which plaintiff(s) were riding; it will be claimed that the injuries and/or
damages sustained were caused by the failure of the plaintiff(s) to use available seat-belts and/or
other safety devices.
8. Defendants are immune from suit for their exercise of discretion in the
performance of a governmental function and/or their exercise of professional judgment.
9. The amounts recoverable by plaintiff(s) are subject to limitation pursuant
to Section 1601 of the Civil Practice Law and Rules, by reason of the culpable conduct of other
person(s) who are, or with reasonable diligence could have been made party defendant(s) to this
action, or pursuant to Section 15-108 of the General Obligations Law, by reason of a prior
settlement between plaintiff(s) and said person(s), or pursuant to Section 4545 of the Civil
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NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018
.
Practice Law and Rules are subject to reduction by collateral sources received by plaintiff(s), or
reason of the fact that punitive damages are not recoverable against municipal defendant(s).
by
Plaintiff(s)'
10. complaint fails to consecutively number allegations as
required by section 3014 of the CPLR.
WHEREFORE, defendant(s) demand judgment dismissing the complaint and all
cross-claims against them, or, in the event that they are adjudged liable, granting judgment over,
or apportioning such liability in accordance with their equitable shares of responsibility, and
awarding the costs of this action, together with such other and further relief as to the court may
seem just.
ZACHARY W. CARTER
Corporation Counsel
100 Church Street
New York, New York 10007
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NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018
SUPREME COURT O. - HE STATE OF NEW YORK
COUNTY OF BRONX
----------------------------------------.---.-----------------------------
X
MABEL OLIVENCIA,
Plaintiff(s), AFFIDAVIT OF SERVICE
-against-
Index #: 025060/2015E
THE CITY OF NEW YORK,
Defendant(s).
Law Dept. #: 2015-043502
-----------------------------------------------------------------------·
x
STATE OF NEW YORK )
: ss-:
COUNTY OF NEW YORK )
t't
r
/ ~, being duly sworn deposes and says that:
I. The deponent isnot a party to the action.and is 18 yearsof age or older.
2. On /O /g g, , the deponent served the annexed ANSWER AND
DEMANDS upon the following person or persons:
MABEL OLIVENCIA
by mailing a copy to his/her/theirattorney(s),
YUDIN & YUDIN, PLLC
at 370 SEVENTH AVENUE, SU1TE 720
NEW YORK, NY 10001
being the address designated by said attorney(s) for thatpurpose by depositing the same in a first
class,
postpaid, properly addressed wrapper, ina post office or officialdepository under the exclusive care and
ol'
custody of the United States Postal Service within the State of ew York pursuant t CPLR 2103(b)(2).
'
Sworn to before me this
pw/
ln y of , 20LC
C
JOYCELYN JACK
Notary Public, State ofNew York
No. 01JA6231515 !
Qualified inQueens County
Commission Expires Nov. 29,20~
FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018
Index #: 025060/2015E
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
MABEL OLIVENCIA, I
Plaintiff(s),
- against -
THE CITY OF NEW YORK,
Defendant(s).
ANSWER AND DEMANDS
ZACHARY W. CARTER
Corporation Counsel
Attorney for Defendant THE CITY OF NEW YORK,
100 Church Street
New York, New York 10007
Telephone Numbers:
Intervention Unit (settlements - all
Early Boroughs)
(212)356-3144
Pleadings Unit (212) 356-3235 (pleadings matters only)
All Other Matters (Inquire by county of venue)
Bronx Office: (718) 503-5030 (EBT's -
5045)
Brooklyn Office: (718) 724-5200 (EBT's-5226)
Manhattan Office: (212) 356-2725 (EBT's-2791)
Queens Office: 558-2100 (EBT's -
(718) 2105)
Staten Island OfEce: (718) 447-5983 (EBT's-5985)
Please refer to the following Law Dept. #: 2015-043502
and indicate the County in which the action is pending in allpapers,
correspondence and other communications vvith respect thereto.
/
Preview
FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 (FILED : BRONX COUNT) LERff 09 /11/2 015 07 : 02 E INDEX NO. 25060/2015E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/11/2015 SUPREME COURT OF THE STATE OF NEW YORK Index No. COUNTY OF BRONX Date Purchased: I MABEL OLIVENCIA Plaintiffdesignates BRONX County as the place of trial Plaintiff, The basis of venue: -against- --agal)lst- a ga 1s t- CPLR 504 (3) THE CITY OF NEW YORK, SUMMONS Defendant. Plaintiff resides at: 32440 Prospect Avenue (2) Bronx, NY 10458 TO THE ABOVE NAMED DEFENDANT: You are summoned to answer the complaint inthis action and to serve a copy of hereby your answer on the plaintiff'sattorneys within twenty (20) days afterthe service of this summons, exclusive of the day of service, or within (30) days after the service is complete ifthis summons is not personally delivered to you within the State of New York. In the event of your failure to appear or answer, judgment will be taken against you by default for the relief demanded herein. I Dated: New York, New York September 11, 2015 I YUDIN & YUDIN-lfLLC / r By: /,/ iZg' Ronald M. Yudin 370 Seventh Avenue, Suite 720 I New York, NY 10001 (212) 949-7979 Attorneys for Plaintiff(s) Defendant's address: THE CITY OF NEW YORK The Comptroller of the City of New York 1 Centre Street New York, NY 10007 FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 SUPREME COURT OF THE STATE OF NE W YORK COUNTY OF BRONX MABEL OLIVENCIA, VERIFIED COMPLAINT Plaintiff, -against- Index No. THE CITY OF NEW YORK, Defendant. Plaintiff,MABEL OLIVENCIA, by her attorneys, Y UDIN & YUDIN, PLLC, complaining of the defendant alleges as follows: AS AND FOR A FIRST CAUSE OF ACTION ON BEHALF OF THE PLAINTIFF, MABEL OLIVENCIA 1. That at alltimes hereinafter mentioned, plaintiff, MABEL OLIVENCIA, was and continues to be a resident of the County of BRONX, in the State of New York. 2. That at alltimes hereinafter mentioned, the defendant, THE CITY OF NEW YORK (hereinafter referred to as CITY), was and stillis a municipal corporation duly organized and existing under and by virtue of the laws of the State of New York. 3. That the plaintiff has complied with allthe conditions precedent to the bringing of this action and has complied with allof the provisions of the Charter of The City of New York in relation thereto, and in particular,the plaintiff has presented a written claim with a demand for judgment of same on September 12, 2014 to the CITY. 4. That more than thirty (30) days have elapsed since the presentation of such notice and such claim remains unadjusted and the said defendant has neglected and refused to iuake an adjustment of payment thereof. FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 5. That The Notice of Claim was served upon the defendant, CITY, on or about September 12, 2014, within ninety (90) days after the claim herein below described arose. 6, That the defendant, CITY, had verified notice of the claim, setting forth the names and post office addresses of the plaintiff and her attorneys, the nature of the claim, the time, place and manner in which the claim arose and the injuries and damage sustained insofar as they were practicable. 7. That the defendant, CITY, has demanded a Hearing, and saiddemand has been complied with on December 2, 2014. 8. That this action has been commenced within one year and ninety days from the date of accident. 9. Upon information and belief,at alltimes hereinafter mentioned, the defendant, Authority" CITY, owned the sidewalk in front of the premises known as "Auto Sales located at 682 E. Fordham Road Bronx, NY (which is also listed as 680 E. Fordham Road) near the corner of E. Fordham Road and Cambreleng Avenue Bronx, NY (hereinaher Location" referred to as the "Accident Location"). 10. Upon information and belief, at alltimes hereinafter mentioned, the defendant, CITY, controlled the "Accident Location". 11. Upon information and belief, at alltimes hercinaRer mentioned, the defendant, CITY, managed the "Accident Location". ' 12. Upon information and belief,at alltimes hereinafter mentioned, the defendant, CITY, operated the "Accident Location". 13. Upon information and belief, at alltimes hereinafter mentioned, the defendant, I.ocation" Cl I'Y, maintained the "Accident FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 14. Upon information and belief,at alltimes hereinafter mentioned, the defendant, CITY, supervised the "Accident Location". 15. Upon information and belief,at alltimes hereinafter mentioned, the defendant, CITY, inspected the "Accident Location". 16. Upon information and belief,the City derived a special benefit or use to the "Accident Location". I 17. Upon information and belief,at alltimes hereinafter mentioned, the defendant, CITY, owned tlierectangular metal box or cut out located on the sidewalk at the "Accident Location". 18. Upon information and belief,at alltimes hereinafter mentioned, the defendant, CITY, controlled the rectangular metal box or cut out located on the sidewalk at the "Accident Location". 19. Upon information and belief, at alltimes hereinafter mentioned, the defendant, CITY, managed the rectangular metal box or cut out located on the sidewalk at the "Accident Location". 20. Upon information and belief, at alltimes hereinafter mentioned, the defendant, CITY, operated the rectangular metal box or cut out located on thesidewalk at the "Accident Location". 1 21. Upon information and belief,at alltimes hereinafter mentioned, the defendant, CITY, maintained the rectangular metal box or cut out located on the sidewalk at the "Accident Location". FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 22. Upon information and belief,at alltimes hereinafter mentioned, the defendant, CITY, supervised the rectangular metal box or cut out located on the sidewalk at the "Accident Location". 23. Upon information and belief,at alltimes hercinafter mentioned, the defendant, CITY, inspected the rectangular metal box or cut out located on the sidewalk at the "Accident Location". 24. Upon information and belief,at alltimes hereinafter mentioned, the defendant, CITY, itsagents, employees and/or independent contractors repaired the rectangular metal box or cut out located on the sidewalk at the "Accident Location". 25. Upon information and belief,the City derived a special benefit or use to the rectangular metal box or cut out (or area inside the rectangular metal box or cut out) located on the sidewalk at the "Accident Location". 26. Upon information and belief,at some time prior to June 17, 2014, defendant CITY issued a street/sidewalk/curb opening permit and/or otherwise entered into an agreement with itsagents, employees and/or independent contractors relative to certain work, labor.and/or services to be performed in the sidewalk/rectangular metal box at the "Accident Location". 27. Upon information and belief,at some time prior to and/or including June 17, 2014, the defendant, itsagents, employees and/or independent contractors performed certain work, labor and/or services, and/or construction, excavation, renovation and/or repair work in or to the sidewalk/metal box at the above location. 28. That on or about June 17, 2014 at approximately 5:45 P.M., while the plaintiff, MABEL OL1VENClA, with due care and diligence for her safety, was lawfully and 4 FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 properly attempting to walk along E. Fordham Road at the Accident Location, she tripped and fell into unguarded rectangular metal hole or cut out on the sidewalk near the corner of 682 E. Fordham Road and Cambreleng Avenue which was broken, in a stateof disrepair, and dilapidated, the same forming a trap and nuisance and constituting a danger, menace, and hazard to persons and Road' lawfully properly walking near the comer of E. Fordham Road and Cambreleng Avenue Bronx, NY, thereby sustaining severe and serious personal injuries. 29. That the aforementioned occurrence was the result of the negligence, recklessness and carelessness of the defendant, itsagents, servants, employees and/or independent contractors as follows: In permitting, allowing, causing and/or creating the dangerous condition as aforestated at the said location; in causing, permitting and allowing the sidewalk at the I aforementioned location to be, become and remain in an unsafe, defective and hazardous condition, in a state of disrepair,with portions thereof broken, uneven, cracked, depressed, and dilapidated, the same forming-a trap and nuisance and constituting a danger, menace, and hazard to persons lawfully and properly attempting to walk near the corner of E. Fordham Road and Cambreleng Avenue Bronx, NY, in front of the aforementioned location, including more particularly this plaintiff,MABEL OLIVENCIA; in failing to wam of the hazardous condition and place a barrier, barricade, sign or cone around the dangerous hole; in removing the cover of the rectangular metal box, in negligently failing to control, maintain, manage, supervise, inspect and/or repair the broken metal box and sidewalk; in failing to properly cover the rectangular metal box; in failingand neglecting to correct and remedy and/or properly correct and remedy the aforementioned dangerous, 5 FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 condition,' hazardous, unsafe and defective condition, in negligently maintaining, repairing, controlling and inspecting the sidewalk/metal box at the Accident Location; in negligently creating and/or causing the aforementioned dangerous condition to exist; in allowing the aforementioned dangerous and hazardous condition to exist for a long and unreasonable length of time without, repairing same afterthe City knew or should have known of the existence of such condition; in failing to exercise due and proper care; in failing to warn; in failing to warn other persons at the aforementioned location, including more particularly thisplaintiff, MABEL OLlVENCIA, of the dangerous, hazardous, unsafe and defective condition and otherwise being careless, reckless, and negligent all afteractual and constructive notice of said dangerous and unsafe condition and in violation of the laws, rules,statutes, ordinances, codes and regulations of the State and City of New York in effect at the time of the accident for such cases made and provided. 30. Upon information and belief,the defendant, CITY, received actual and/or constructive notice of the dangerous condition complained of. 3L Upon information and belief,the defendant, CITY, and/or itsagents, . including the NYC Department of Transportation was given prior written notice of the defect alleged, pursuant to the Administrative Code of the City of New York, Chapter 2, Section 7-201, C-2. 32. Upon information and belief, the defendant, CITY, itsagents, employees and/or independent contractors created and/or caused the aforementioned dangerous condition to exist. () FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 33. Upon information and belief,the defendant, CITY, itsagents, employees and/or independent contractors derived a special benefit or special use to the metal box or cut out at the Accident Location. 34. That as a result of the aforesaid occurrence, Plaintiff,MABEL OLIVENCIA, sustained severe and permanent personal injuries to her nerves and nervous system and she was otherwise rendered sick, sore, lame and disabled; that she was confined to hospital, bed and home for a considerable period of time subsequent to said occurrence; that she was and willbe incapacitated from attending her usual vocation, duties and functions; that she was and will be compelled to submit to medical and hospital aid,care and attention in order to be treated for her injuries; and has suffered grievous physical pain and mental anguish and willcontinue to suffer pain for a considerable time to come. 35. That-the occurrence and subsequent injuries to plaintiff,MABEL OLIVENCIA, were caused solely and exclusively due tothe negligence of the defendant herein, without any conduct on the partof the plaintiff contributing thereto. 36. That by reason of the foregoing, plaintiffMABEL OLIVENCIA has been damaged in an amount to be determined at trialwhich exceeds the jurisdictional limits of alllower courts which would otherwise have jurisdiction. WITEREFORE, plaintiff MABEL OLIVENCIA demands judgment in her favor against defendant THE CITY OF NEW YORK in an amount which execeds the jurisdictional limits of alllower courts which would otherwise have competent jurisdiction, together with interest,costs and disbursements of this action, and such other and further relief as to thisCom·t may seem just and proper. 7 FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 Dated: New York, New York September 11, 2015 YUDIN & YUD1fV I LC By: R8nald Yudin 370 Seventh Ave1iue Suite 720 New York, NY 10001 (212) 949-7979 Attorneys forPlaintiff MABEL OLIVENCIA 8 FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX MABEL OLIVENC[A. Plaintiff, VERIFICATION -against- Index No. THE CITY OF NEW YORK, Defendant. STATE OF NEW YORK, COUNTY OF NEW YORK ss.: I,RONALD M. YUDIN, an attorney duly admitted to practice in the courts of New York State, state that Iam the attorney of record forthe Plaintiff in the above-captioned action. Ihave read the foregoing VERIFIED COMPLAINT in thisaction and know the contents thereof; the same istrue and correct to my own knowledge, except as tothe matters stated therein to be alleged upon information and belief,and as to those matters, I believe them to be true. The grounds of my belief as to allmatters not stated upon my own knowledge are . as follows: consultations and conversations with the plaintiffand documentary evidence contained in your deponent's file.The reason thisverification ismade by me and not by the plaintiffis that plaintiffdoes not reside in the county where your deponent maintains his office. I affirm that the foregoing statements are true,under penalties of perjury. i"' ( lÓnald M. Yudin Dated: New York, New York September 11, 2015 FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 I Index No. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX MABEL OUVENCIA, Plaintiff, -against- THE CITY OF NEW YORK, Defendants. I, SUMMONS AND VERIFIED COMPLAINT Signature (Rule 130-1.1-a) Ronald M. Yudin YUDIN & YUDIN, PLLC 370 Seventh Avenue Suite 720 New York, NY 10001 (212) 949.7979 Attorneys for .Plaintiff FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 . SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------------------------------------..-----------------------------------X X MABEL OLlVENCIA, ANSWER Plaintiff(s), -against- Index #: 025060/2015E THE CITY OF NEW Law Dept. #: 2015-043502 YORK, Defendant(s). ------------------------------------..-----------------------------------X Defendant THE CITY OF NEW YORK, by ZACHARY W. CARTER, Corporation Counsel, answering the complaint, allege upon information and belief: 1. Deny each allegation set forth in paragraph(s) 28, 29, 'UNNUMBERED PARAGRAPH', 30-32, 34-36, inclusive. 2. Deny knowledge or information sufficient to form a belief with respect to the truth of the allegations set forth in paragraph(s) 1, 15-27, 33, inclusive. 3. Deny the allegations set forth in paragraph(s) 3-8, inclusive, except that a notice of a claim was presented, that more than thirty days have elapsed without adjustment thereof. 4. Deny each allegation set forth in paragraph(s) 9-14, inclusive, except that with respect to those portions of the street(s), sidewalks and appurtenances referred to in the complaint which were or may have been owned by the City of New York, defendant(s) had such duties as were imposed by law. 5. Deny each allegation set forth in paragraph(s) 2, inclusive, except that the City of New York is a municipal corporation. FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 AFFIRMATIVE DEFENSE(S) Plaintiff(s)' 6. culpable conduct caused or contributed, in whole or in part, to his/her/their injuries and or damages. 7. At all times mentioned in the complaint, plaintiff(s) knew or should have known in the exercise of due/reasonable care of the risks and dangers incident to engaging in the activity alleged. Plaintiff(s) voluntarily performed and engaged in the alleged activity and assumed the risk of the injuries and/or damages claimed. Plaintiff(s) failed to use all required, proper, appropriate and reasonable safety devices and/or equipment and failed to take all proper, Plaintiff(s)' appropriate and reasonable steps to assure his/her/their safety. primary assumption to' of risk solely caused his/her/their injuries and/or damage and defendant(s) owed no duty the Plaintiff(s)' plaintiff(s) with respect to the risk assumed. express assumption of risk solely caused his/her/their injuries and/or damage and defendant(s) owed no duty to the plaintiff(s) with Plaintiff(s)' respect to the risk assumed. implied assumption of risk caused or contributed, in whole or in part to his/her/their injuries. In any action for injuries arising from the use of a vehicle in, or upon which plaintiff(s) were riding; it will be claimed that the injuries and/or damages sustained were caused by the failure of the plaintiff(s) to use available seat-belts and/or other safety devices. 8. Defendants are immune from suit for their exercise of discretion in the performance of a governmental function and/or their exercise of professional judgment. 9. The amounts recoverable by plaintiff(s) are subject to limitation pursuant to Section 1601 of the Civil Practice Law and Rules, by reason of the culpable conduct of other person(s) who are, or with reasonable diligence could have been made party defendant(s) to this action, or pursuant to Section 15-108 of the General Obligations Law, by reason of a prior settlement between plaintiff(s) and said person(s), or pursuant to Section 4545 of the Civil FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 . Practice Law and Rules are subject to reduction by collateral sources received by plaintiff(s), or reason of the fact that punitive damages are not recoverable against municipal defendant(s). by Plaintiff(s)' 10. complaint fails to consecutively number allegations as required by section 3014 of the CPLR. WHEREFORE, defendant(s) demand judgment dismissing the complaint and all cross-claims against them, or, in the event that they are adjudged liable, granting judgment over, or apportioning such liability in accordance with their equitable shares of responsibility, and awarding the costs of this action, together with such other and further relief as to the court may seem just. ZACHARY W. CARTER Corporation Counsel 100 Church Street New York, New York 10007 FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 SUPREME COURT O. - HE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------.---.----------------------------- X MABEL OLIVENCIA, Plaintiff(s), AFFIDAVIT OF SERVICE -against- Index #: 025060/2015E THE CITY OF NEW YORK, Defendant(s). Law Dept. #: 2015-043502 -----------------------------------------------------------------------· x STATE OF NEW YORK ) : ss-: COUNTY OF NEW YORK ) t't r / ~, being duly sworn deposes and says that: I. The deponent isnot a party to the action.and is 18 yearsof age or older. 2. On /O /g g, , the deponent served the annexed ANSWER AND DEMANDS upon the following person or persons: MABEL OLIVENCIA by mailing a copy to his/her/theirattorney(s), YUDIN & YUDIN, PLLC at 370 SEVENTH AVENUE, SU1TE 720 NEW YORK, NY 10001 being the address designated by said attorney(s) for thatpurpose by depositing the same in a first class, postpaid, properly addressed wrapper, ina post office or officialdepository under the exclusive care and ol' custody of the United States Postal Service within the State of ew York pursuant t CPLR 2103(b)(2). ' Sworn to before me this pw/ ln y of , 20LC C JOYCELYN JACK Notary Public, State ofNew York No. 01JA6231515 ! Qualified inQueens County Commission Expires Nov. 29,20~ FILED: BRONX COUNTY CLERK 04/04/2018 03:36 PM INDEX NO. 25060/2015E NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 04/04/2018 Index #: 025060/2015E SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX MABEL OLIVENCIA, I Plaintiff(s), - against - THE CITY OF NEW YORK, Defendant(s). ANSWER AND DEMANDS ZACHARY W. CARTER Corporation Counsel Attorney for Defendant THE CITY OF NEW YORK, 100 Church Street New York, New York 10007 Telephone Numbers: Intervention Unit (settlements - all Early Boroughs) (212)356-3144 Pleadings Unit (212) 356-3235 (pleadings matters only) All Other Matters (Inquire by county of venue) Bronx Office: (718) 503-5030 (EBT's - 5045) Brooklyn Office: (718) 724-5200 (EBT's-5226) Manhattan Office: (212) 356-2725 (EBT's-2791) Queens Office: 558-2100 (EBT's - (718) 2105) Staten Island OfEce: (718) 447-5983 (EBT's-5985) Please refer to the following Law Dept. #: 2015-043502 and indicate the County in which the action is pending in allpapers, correspondence and other communications vvith respect thereto. /