Preview
FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018
NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 06/14/2022
Exhibit 3
FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018
NYSCEFDOC.
NYSCEF DOC.NO.NO.4 109 RECEIVEDNYSCEF:
RECEIVED NYSCEF:11/19/2018
06/14/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINOS
......................................--._ _______ __............Ç
RAUL SANTILLAN,
INDEX NO.: 519867/2018
Plaintiff(s),
VERIFIED ANSWER,
- against - BILL OF PARTICULARS &
COMBINED DEMANDS
THE NEW WORLD SERVICE INC. AND
MANA M. WAIBA, Our File No.: 1027151
Case ID No.: 97406
Defendant(s). Your File No.: 180012
___-.....--.................................................................x
The Defendant(s) THE NEW WORLD SERVICE INC. AND MANA M. WAIBA by
their/his/her attorneys, BAKER, MCEVOY, MORRISSEY & MOSKOVITS, P.C. answering the
Complaint of the Plaintiff herein, respectfully shows and alleges upon information and belief, as
follows:
ANSWER
Deny(ies) each and every allegation in the paragraphs of the Complaint designated as
follows: 1, 14, 15, 16, 17, 18, 19, 21.
Deny(ies) any knowledge or information thereof, sufficient to form a belief as to the truth
of the allegations contained in the paragraphs of the Complaint designated as follows: 6, 7, 8, 10,
13, 20.
FIRST CAUSE OF ACTION
Defendant(s) repeats, reiterates, and realleges their responses to each and every allegation
contained in the preceding paragraphs of this Answer with the same force and effect as if fully
set forth herein.
Deny(ies) each and every allegation in the paragraphs of the Complaint designated as
follows: 23.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
By reason of the provisions of Article 51 of the New York Comprehensive Motor Vehicle
Insurance Reparations Act, Sections 5101 to 5108, this Court lacks jurisdiction over the subject
matter of this action and Plaintiff(s) is/are expressly prohibited from maintaining this action.
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SECOND AFFIRMATIVE DEFENSE
Pursuant to the C.P.L.R. Sections 1411 and 1412, any damages sustained by the
Plaintiff(s) was/were caused by the culpable conduct of Plaintiff(s), including contributory
negligence or assumption of the risk, and not by the culpable conduct or negligence of the
answering Defendant(s).
THIRD AFFIRMATIVE DEFENSE
Pursuant to C.P.L.R. 4545, Plaintiff's recovery should be reduced by any amounts
received or that will be received by Plaintiff(s) from collateral sources of payment.
FOURTH AFFIRMATIVE DEFENSE
If Plaintiff(s) suffered injury and damage in the manner and at the time and place leged
in the Complaint, which Defendant(s) deny, and ifit is determined that said injury and damage
were caused by and contributed to the Plaintiff's failure to use or properly use seat belts, shoulder
harness(es) or other restraining devices, pursuant to the authority of Spier V. Barker, 35 N.Y.2d
444, 363 N.Y.S.2d 916, Defendant(s) pleads Plaintiff's failure to mitigate damages.
FIFTII AFFIRMATIVE DEFENSE
Ifit is determined that Plaintiff(s) or any party to this lawsuit has proceeded to arbitration
with respect to any issue related to this action that results in an adverse ruling to said Plaintiff(s)
or party, then the answering Defendant(s) pleads said adverse ruling or award on the of
theory
collateral estoppel under the authority of Matter of American Insurance Co. (Messenger-Aetna
Cas. & Sur. Co.), 43 N.Y.2d 184, 401 N.Y,S.2d 36; Altman v. Queens Tr. Corp., 94 Misc.2d
549, 405 N.Y.S.2d 212; Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219, 501
N.Y.S.2d 784; c.f. Baldwin v. Brooks, 83 A.D.2d 85, 443 N.Y.S.2d 906; Clemmens v. Apple, 65
N.Y.2d 746 and Schultz v. Boyscouts ofAmerica, 65 N.Y.2d 189.
SIXTH AFFIRMATIVE DEFENSE
For the Defendant(s) engaged in the trade or business of renting or leasing vehicles,
including but not limited to the vehicle alleged in the Complaint, that/those Defendant(s) had no
active negligence or criminal wrongdoing related to the alleged accident in which personal
injuries are claimed to have been sustained by Plaintiff(s). As such, under Federal Legislation,
49 United State Code Chapter 301, Subdivision 1, Section 3016 titled "Rented or Leased Motor
Responsibility,"
Vehicle Safety and Defendant(s) is/are not liable under the law of the State of
New York for the injuries alleged in the Complaint that may have resulted or arisen out of the
use, operation or possession of the vehicle stated in the Complaint. The Complaint therefore
fails to state a cause of action against Defendant(s). Dismissal will be sought, together with
attorneys'
costs, expenses and fees.
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RESERVATION OF RIGHTS
Defendant(s) reserve(s) the right to amend the answer, defenses, and/or any
counterclaims and cross claims at a later date.
WHEREFORE
WHEREFORE, Defendant(s) demand(s) judgment dismissing the Complaint in its
entirety or diminishing the damages recoverable by Plaintiff(s) in proportion to the culpable
conduct attributable to Plaintiff(s), together with the costs, disbursements, and attorney's fees of
this action.
Dated: November 16, 2018
'
Brooklyn, N.Y. Baker,- oy, Morrissey ovi , PC
Adriãime J. Leven, Es
Attorney(s) for the De nda
THE NEW WORLD ER CE INC.
AND MANA M. WA
8th
One MetroTech Center, FlOOr
Brooklyn, New York 11201
Tel: 212-857-8230
RONALD W. RAMIREZ, ESQ.
Attorney(s) for the Plaintiff(s)
RAUL SANTILLAN
107-19 71ST AVE
FOREST HILLS, NY 11375
Tel: (718) 268-8900
3 o f 21
FILED: KINGS COUNTY CLERK 06/14/2022 INDEX NO. 519867/2018
c..su. aAmur VW&YA A MLAh AAf A P / 4.VAO V703:38
...PA PM
ASM '
NYSCEFDOC.
NYSCEF DOC.NO.NO.4 109 RECEIVEDNYSCEF:
RECEIVED NYSCEF:11/19/2018
06/14/2022
SUPREME COURT OF TIIE STATE OF NEW YORK
COUNTY OF KINGS
......_...__ _ _ _ _........................._______.._Ç
RAUL SANTILLAN, INDEX NO.: 519867/2018
Plaintiff(s), ATTORNEY VERIFICATION
-against - Our File No.: 1027151
Case ID No.: 97406
THE NEW WORLD SERVICE INC. AND Your File No.: 180012
MANA M. WAIBA,
Defendant(s).
.--......._.-........_.___......................___.x
I, ADRIANNE J. LEVEN, an attorney admitted to the practice of law before the courts of
the State of New York, and not a party to the above-referenced action, affirm the following to be
true under the penalties of perjury:
1. Affirmant is a member of the law firm of Baker, McEvoy, Morrissey &
Moskovits, P.C., attorneys of record for answering Defendant(s) in the above-referenced action.
2. Affirmant has read the VERIFIED ANSWER, BILL OF PARTICULARS, &
COMBINED DEMANDS and knows the contents thereof; that same is true to Affirmant's own
knowledge, except as to the matters therein stated to be alleged on information and belief, and as
to those matters Affirmant believes them to be true.
3. This verification is made by Affirmant and not by answering Defendant(s),
because said Defendant(s) were not within the County in which Baker, McEvoy, Morrissey &
Moskovits, P.C. maintain their offices for the practice of law when this VERIFIED ANSWER,
BILL OF PARTICULARS, & COMBINED DEMANDS was drafted.
Affirmant'
4. The grounds of Affirmant's belief as to all matters not stated upon s
knowledge is as follows: BOOKS AND RECORDS MAINTAINED BY THE FIRM OF
BAKER, MCEVOY, MORRISSEY & MOSKOVITS, P.C. AND INFORMATION SUPPLIED
BY AMERICAN TRANSIT INSURANCE COMPANY. ,/
Dated: November 16, 2018
Brooklyn, NY
#
Adra ne J.Leven, Esq
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Preview
FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 06/14/2022 Exhibit 3 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEFDOC. NYSCEF DOC.NO.NO.4 109 RECEIVEDNYSCEF: RECEIVED NYSCEF:11/19/2018 06/14/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINOS ......................................--._ _______ __............Ç RAUL SANTILLAN, INDEX NO.: 519867/2018 Plaintiff(s), VERIFIED ANSWER, - against - BILL OF PARTICULARS & COMBINED DEMANDS THE NEW WORLD SERVICE INC. AND MANA M. WAIBA, Our File No.: 1027151 Case ID No.: 97406 Defendant(s). Your File No.: 180012 ___-.....--.................................................................x The Defendant(s) THE NEW WORLD SERVICE INC. AND MANA M. WAIBA by their/his/her attorneys, BAKER, MCEVOY, MORRISSEY & MOSKOVITS, P.C. answering the Complaint of the Plaintiff herein, respectfully shows and alleges upon information and belief, as follows: ANSWER Deny(ies) each and every allegation in the paragraphs of the Complaint designated as follows: 1, 14, 15, 16, 17, 18, 19, 21. Deny(ies) any knowledge or information thereof, sufficient to form a belief as to the truth of the allegations contained in the paragraphs of the Complaint designated as follows: 6, 7, 8, 10, 13, 20. FIRST CAUSE OF ACTION Defendant(s) repeats, reiterates, and realleges their responses to each and every allegation contained in the preceding paragraphs of this Answer with the same force and effect as if fully set forth herein. Deny(ies) each and every allegation in the paragraphs of the Complaint designated as follows: 23. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE By reason of the provisions of Article 51 of the New York Comprehensive Motor Vehicle Insurance Reparations Act, Sections 5101 to 5108, this Court lacks jurisdiction over the subject matter of this action and Plaintiff(s) is/are expressly prohibited from maintaining this action. 1 of 21 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEFDOC. NYSCEF DOC.NO.NO.4 109 RECEIVEDNYSCEF: RECEIVED NYSCEF:11/19/2018 06/14/2022 SECOND AFFIRMATIVE DEFENSE Pursuant to the C.P.L.R. Sections 1411 and 1412, any damages sustained by the Plaintiff(s) was/were caused by the culpable conduct of Plaintiff(s), including contributory negligence or assumption of the risk, and not by the culpable conduct or negligence of the answering Defendant(s). THIRD AFFIRMATIVE DEFENSE Pursuant to C.P.L.R. 4545, Plaintiff's recovery should be reduced by any amounts received or that will be received by Plaintiff(s) from collateral sources of payment. FOURTH AFFIRMATIVE DEFENSE If Plaintiff(s) suffered injury and damage in the manner and at the time and place leged in the Complaint, which Defendant(s) deny, and ifit is determined that said injury and damage were caused by and contributed to the Plaintiff's failure to use or properly use seat belts, shoulder harness(es) or other restraining devices, pursuant to the authority of Spier V. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, Defendant(s) pleads Plaintiff's failure to mitigate damages. FIFTII AFFIRMATIVE DEFENSE Ifit is determined that Plaintiff(s) or any party to this lawsuit has proceeded to arbitration with respect to any issue related to this action that results in an adverse ruling to said Plaintiff(s) or party, then the answering Defendant(s) pleads said adverse ruling or award on the of theory collateral estoppel under the authority of Matter of American Insurance Co. (Messenger-Aetna Cas. & Sur. Co.), 43 N.Y.2d 184, 401 N.Y,S.2d 36; Altman v. Queens Tr. Corp., 94 Misc.2d 549, 405 N.Y.S.2d 212; Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219, 501 N.Y.S.2d 784; c.f. Baldwin v. Brooks, 83 A.D.2d 85, 443 N.Y.S.2d 906; Clemmens v. Apple, 65 N.Y.2d 746 and Schultz v. Boyscouts ofAmerica, 65 N.Y.2d 189. SIXTH AFFIRMATIVE DEFENSE For the Defendant(s) engaged in the trade or business of renting or leasing vehicles, including but not limited to the vehicle alleged in the Complaint, that/those Defendant(s) had no active negligence or criminal wrongdoing related to the alleged accident in which personal injuries are claimed to have been sustained by Plaintiff(s). As such, under Federal Legislation, 49 United State Code Chapter 301, Subdivision 1, Section 3016 titled "Rented or Leased Motor Responsibility," Vehicle Safety and Defendant(s) is/are not liable under the law of the State of New York for the injuries alleged in the Complaint that may have resulted or arisen out of the use, operation or possession of the vehicle stated in the Complaint. The Complaint therefore fails to state a cause of action against Defendant(s). Dismissal will be sought, together with attorneys' costs, expenses and fees. 2 of 21 FILED: KINGS COUNTY CLERK 06/14/2022 03:38 PM INDEX NO. 519867/2018 NYSCEFDOC. NYSCEF DOC.NO.NO.4 109 RECEIVEDNYSCEF: RECEIVED NYSCEF:11/19/2018 06/14/2022 RESERVATION OF RIGHTS Defendant(s) reserve(s) the right to amend the answer, defenses, and/or any counterclaims and cross claims at a later date. WHEREFORE WHEREFORE, Defendant(s) demand(s) judgment dismissing the Complaint in its entirety or diminishing the damages recoverable by Plaintiff(s) in proportion to the culpable conduct attributable to Plaintiff(s), together with the costs, disbursements, and attorney's fees of this action. Dated: November 16, 2018 ' Brooklyn, N.Y. Baker,- oy, Morrissey ovi , PC Adriãime J. Leven, Es Attorney(s) for the De nda THE NEW WORLD ER CE INC. AND MANA M. WA 8th One MetroTech Center, FlOOr Brooklyn, New York 11201 Tel: 212-857-8230 RONALD W. RAMIREZ, ESQ. Attorney(s) for the Plaintiff(s) RAUL SANTILLAN 107-19 71ST AVE FOREST HILLS, NY 11375 Tel: (718) 268-8900 3 o f 21 FILED: KINGS COUNTY CLERK 06/14/2022 INDEX NO. 519867/2018 c..su. aAmur VW&YA A MLAh AAf A P / 4.VAO V703:38 ...PA PM ASM ' NYSCEFDOC. NYSCEF DOC.NO.NO.4 109 RECEIVEDNYSCEF: RECEIVED NYSCEF:11/19/2018 06/14/2022 SUPREME COURT OF TIIE STATE OF NEW YORK COUNTY OF KINGS ......_...__ _ _ _ _........................._______.._Ç RAUL SANTILLAN, INDEX NO.: 519867/2018 Plaintiff(s), ATTORNEY VERIFICATION -against - Our File No.: 1027151 Case ID No.: 97406 THE NEW WORLD SERVICE INC. AND Your File No.: 180012 MANA M. WAIBA, Defendant(s). .--......._.-........_.___......................___.x I, ADRIANNE J. LEVEN, an attorney admitted to the practice of law before the courts of the State of New York, and not a party to the above-referenced action, affirm the following to be true under the penalties of perjury: 1. Affirmant is a member of the law firm of Baker, McEvoy, Morrissey & Moskovits, P.C., attorneys of record for answering Defendant(s) in the above-referenced action. 2. Affirmant has read the VERIFIED ANSWER, BILL OF PARTICULARS, & COMBINED DEMANDS and knows the contents thereof; that same is true to Affirmant's own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters Affirmant believes them to be true. 3. This verification is made by Affirmant and not by answering Defendant(s), because said Defendant(s) were not within the County in which Baker, McEvoy, Morrissey & Moskovits, P.C. maintain their offices for the practice of law when this VERIFIED ANSWER, BILL OF PARTICULARS, & COMBINED DEMANDS was drafted. Affirmant' 4. The grounds of Affirmant's belief as to all matters not stated upon s knowledge is as follows: BOOKS AND RECORDS MAINTAINED BY THE FIRM OF BAKER, MCEVOY, MORRISSEY & MOSKOVITS, P.C. AND INFORMATION SUPPLIED BY AMERICAN TRANSIT INSURANCE COMPANY. ,/ Dated: November 16, 2018 Brooklyn, NY # Adra ne J.Leven, Esq 4 of 2 1