Preview
FILED: NASSAU COUNTY CLERK 05/17/2022 03:50 PM INDEX NO. 600978/2019
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/17/2022
EXHIBIT B
FILED: NASSAU COUNTY CLERK 03/26/2019
05/17/2022 10:10
03:50 AM
PM INDEX NO. 600978/2019
NYSCEF DOC. NO. 3
34 RECEIVED NYSCEF: 03/26/2019
05/17/2022
18T87644
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
¬------------------------------------------x
HYACINTH REID,
Index No. 600978/2019
Plaintiff,
VERIFIED ANSWER
-against-
COUNTY OF NASSAU,
Defendant.
------------ -- -----------x
The defendant, COUNTY OF NASSAU, appearing herein by their attorney, JARED
A. KASSCHAU, County Attorney of Nassau County, STEPHEN CARLIN, Deputy County
Attorney, for itsanswer to the complaint herein, sets forth upon information and belief, as
follows:
. . .. . FIRST: Denies Imowledge or information thereof sufficient to form a belief as to -
each and every allegation contained in paragraphs number«l 1, 11, 20 and 21 of the
complaint.
SECOND: Deny upon information and belief, allegations contained in paragraphs
numbered 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14 and 15 of the complaint.
THIRD: Deny allegations contained in paragraph 2 but aver that COUNTY OF
NASSAU is a municipal corporation duly organized and existing under and by virtue of
the laws of the State of New York.
FOURTH: Denies each and every allegation contained in the complaint, marked and
designated in paragraphs 16, 17, 18, 19 and 22, but leaves allquestions of law to the Court.
. . .
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE:
FIFTH: The injuries and damages to plaintiff alleged in the complaint herein, if
any, were the result of an act of God for which defendent was not and is not responsible
and were not caused or contributed to be the negligence of defendant(s) in any way.
AS AND FOR A_SECOND AFFIRMATIVE DEFENSE:
SIXTH: Amounts alleged violate CPLR 3017 and/or General Municipal Law.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE:
SEVENTH: That all the dangers and risks incident to the situation mentioned in
the verified complaint were open, obvious and apparent and were known and assumed by
the plaintiff.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:
EIGHTH: Plaintiff has not complied with § 50-e and/or 50-I and/or 50-h of the
General Municipal Law of the State of New York.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:
NINTH: Plaintiff has failed to mitigate damages in this matter.
AS AND FOR A_SIXTH AFFIRMATIVE DEFENSE:
TENTH: The plaintiff fails to state a cause of action against the County of
Nassau upon which relief can be granted.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE:
ELEVENTH: Pursuant to §12-4.0(e) of the Administrative Code of Nassau
County, written notice of a defective, out of repair, unsafe, dangerous or obstructed
sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge,
culvert, curb or gutter, must be given to the Office of the County Attorney before any
2
. . . . .
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NYSCEF DOC. NO. 3
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civil action may be maintained against the County of Nassau for damages or injuries as a
result of the aforesaid condition.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE:
TWELFTH: That the action is barred by the statute of limitations.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE:
THIRTEENTH: The exclusive remedy of the plaintiff herein is the Workers
Compensation Law.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE:
FOURTEENTH: That if the plaintiff sustained the damages as alleged in the
complaiñt, such damages were sustained solely through and by virtue of the negligent
conduct of the plaintiff without any negligence on the part of the defendant COUNTY OF
NASSAU, itsagents, servants or employees contributing thereto.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE:
FIFTEENTH: Pursuant to CPLR 1603, defendant COUNTY OF NASSAU
asserts the limitations contained in CPLR 1601 and 1602 and allrights coñtained therein.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE:
SIXTEENTH: The location of the accident complained of is not under the
jurisdiction of the County of Nassau.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE_:
SEVENTEENTH: That if the plaintiff shall have a judgment and/or verdict in
his favor over and against the answering defendant, the answering defendant shall be
entitled to all rights, remedies and off sets in accordance with GML Article 15. That if
the plaintiff shall obtain a judgment and/or verdict entered in its favor over and against
3
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the answering defendant, the judgment and/or verdict shall be precluded, modified, off
set and/or reduced by any and all sums or consideration paid or promise to the plaintiff by
any person, corporation or parties claimed to be liable for the injuries and/or darnages
alleged in the complaint to the extent of the greater of either the sum or considaration
tortfeasors'
paid or promise to the plaintiff to the amount of the released equitable share
of the liability and the damages in accordance with Article 15 of the General Obligations
Law Section 15-105 and Section 15-18.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE:
EIGHTEENTH: Pursuant to General Obligations Law § 15-108 and the ruling
in Williams v. Niske, 81 N.Y.2d 437, 599 N.Y.S.2d 519, these answering defendants
demand a set-off corresponding to the amount of any settlement reached with any other
tortfeasor(s) involved in the operative facts of this lawsuit, whether or not they are
currently named as defendants herein.
fiS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE:
NINTEENTH: The alleged acts or omissions of this answering, third party
defendant were not the proximate cause of any injuries or damages incurred by plaintiff
and/or third-party plaintiff. Any injuries or damages incurred by plaintiff and/or
defendant/third-party plaintiff were the result of their own actions, the actions of other
and/or the superseding intervention of causes outside the control of this answering third
party defendant.
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AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE:
TWENTIETH: That any recovery against the defendant based on vicarious
liability for the capability of plaintiff's employer or fellow employee is barred by
Workers'
Sections 11 and 29(6) of the Compensation Law, in addition, itis barred by the
Appeals'
recent amendment to the Compeñsation Law and the Court of determination
that actions commenced after September 30, 1996, are barred from instituting third-party
actions against employers unless plaintiff has suffered a grave injury.
AS AND FOR A_SEVENTEENTH AFFIRMATIVE DEFENSE:
TWENTY-FIRST: That all the dangers and risks incident to the situation
mentioned in the verified complaint were open, obvious and apparent and were known
and assumed by the plaintiff.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE:
TWENTY-SECOND: Upon information and belief, the costs incurred, or paid
by plaintiff, if any, for medical care, dental care, custodial or rehabilitation services, loss
of earnings or other economic loss, in the past or future, were or will, with reasonable
certainty be replaced or indemnified, in whole or in part, from a collateral source of the
type described in CPLR § 4545 and defendant is entitled to have any award reduced in
the amount of such payments.
AS AND FOR A NINTEENTH AFFIRMATIVE DEFENSE:
TWENTY-THIRD: That should plaintiff recover damages as a result of finding
of liability in whole or in part as against the defendant COUNTY OF NASSAU, such
recovery should be reduced and diminished in proportion to the degree of comparative
negligence of plaintiff in contributing to such damages.
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NYSCEF DOC. NO. 3
34 RECEIVED NYSCEF: 03/26/2019
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WHEREFORE, the defendant, COUNTY OF NASSAU demand judgment
dismissing the complaint herein, together with the costs and disbursements of this action,
Dated: Mineola, New York
March 25, 2019
Yours, etc.,
JARED A. KASSCHAU
County Att ney of Nassau County
By:
STEPHE CARLIN
Attorney for County of Nassau
1 West Street
Mineola, New York 11501
6
. . . . . .
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FILED: NASSAU COUNTY CLERK 03/26/2019
05/17/2022 10:10
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NYSCEF DOC. NO. 3
34 RECEIVED NYSCEF: 03/26/2019
05/17/2022
CORPORATE VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
Stephen Carlin, being an attorney duly admitted to practice in the State of New
York, affirms that I am a Deputy County Attorney of the County of Nassau herein, that I
have read the foregoing Answer and know the contents thereof, and that the same is true
to my own knowledge, except as to the matters herein stated to be alleged upon
information and belief, and that as to those matters I believe itto be true.
Deponent further says that the reason this verification is made by deponent and
not by the County of Nassau is because the said County of Nassau is a Municipal
corporation, and deponent an officer thereof, to wit itsDeputy County Attorney.
The undersigned attorney hereby affirms that the foreg ing statements are true
under the penalties of perjury.
Dated: Mineola, NY
March 25, 2019
Steph Carlin
.. . .. . .
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Preview
FILED: NASSAU COUNTY CLERK 05/17/2022 03:50 PM INDEX NO. 600978/2019 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 05/17/2022 EXHIBIT B FILED: NASSAU COUNTY CLERK 03/26/2019 05/17/2022 10:10 03:50 AM PM INDEX NO. 600978/2019 NYSCEF DOC. NO. 3 34 RECEIVED NYSCEF: 03/26/2019 05/17/2022 18T87644 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ¬------------------------------------------x HYACINTH REID, Index No. 600978/2019 Plaintiff, VERIFIED ANSWER -against- COUNTY OF NASSAU, Defendant. ------------ -- -----------x The defendant, COUNTY OF NASSAU, appearing herein by their attorney, JARED A. KASSCHAU, County Attorney of Nassau County, STEPHEN CARLIN, Deputy County Attorney, for itsanswer to the complaint herein, sets forth upon information and belief, as follows: . . .. . FIRST: Denies Imowledge or information thereof sufficient to form a belief as to - each and every allegation contained in paragraphs number«l 1, 11, 20 and 21 of the complaint. SECOND: Deny upon information and belief, allegations contained in paragraphs numbered 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14 and 15 of the complaint. THIRD: Deny allegations contained in paragraph 2 but aver that COUNTY OF NASSAU is a municipal corporation duly organized and existing under and by virtue of the laws of the State of New York. FOURTH: Denies each and every allegation contained in the complaint, marked and designated in paragraphs 16, 17, 18, 19 and 22, but leaves allquestions of law to the Court. . . . 1 of 7 FILED: NASSAU COUNTY CLERK 03/26/2019 05/17/2022 10:10 03:50 AM PM INDEX NO. 600978/2019 NYSCEF DOC. NO. 3 34 RECEIVED NYSCEF: 03/26/2019 05/17/2022 AS AND FOR A FIRST AFFIRMATIVE DEFENSE: FIFTH: The injuries and damages to plaintiff alleged in the complaint herein, if any, were the result of an act of God for which defendent was not and is not responsible and were not caused or contributed to be the negligence of defendant(s) in any way. AS AND FOR A_SECOND AFFIRMATIVE DEFENSE: SIXTH: Amounts alleged violate CPLR 3017 and/or General Municipal Law. AS AND FOR A THIRD AFFIRMATIVE DEFENSE: SEVENTH: That all the dangers and risks incident to the situation mentioned in the verified complaint were open, obvious and apparent and were known and assumed by the plaintiff. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: EIGHTH: Plaintiff has not complied with § 50-e and/or 50-I and/or 50-h of the General Municipal Law of the State of New York. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: NINTH: Plaintiff has failed to mitigate damages in this matter. AS AND FOR A_SIXTH AFFIRMATIVE DEFENSE: TENTH: The plaintiff fails to state a cause of action against the County of Nassau upon which relief can be granted. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE: ELEVENTH: Pursuant to §12-4.0(e) of the Administrative Code of Nassau County, written notice of a defective, out of repair, unsafe, dangerous or obstructed sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter, must be given to the Office of the County Attorney before any 2 . . . . . 2 of 7 FILED: NASSAU COUNTY CLERK 03/26/2019 05/17/2022 10:10 03:50 AM PM INDEX NO. 600978/2019 NYSCEF DOC. NO. 3 34 RECEIVED NYSCEF: 03/26/2019 05/17/2022 civil action may be maintained against the County of Nassau for damages or injuries as a result of the aforesaid condition. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE: TWELFTH: That the action is barred by the statute of limitations. AS AND FOR A NINTH AFFIRMATIVE DEFENSE: THIRTEENTH: The exclusive remedy of the plaintiff herein is the Workers Compensation Law. AS AND FOR A TENTH AFFIRMATIVE DEFENSE: FOURTEENTH: That if the plaintiff sustained the damages as alleged in the complaiñt, such damages were sustained solely through and by virtue of the negligent conduct of the plaintiff without any negligence on the part of the defendant COUNTY OF NASSAU, itsagents, servants or employees contributing thereto. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE: FIFTEENTH: Pursuant to CPLR 1603, defendant COUNTY OF NASSAU asserts the limitations contained in CPLR 1601 and 1602 and allrights coñtained therein. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE: SIXTEENTH: The location of the accident complained of is not under the jurisdiction of the County of Nassau. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE_: SEVENTEENTH: That if the plaintiff shall have a judgment and/or verdict in his favor over and against the answering defendant, the answering defendant shall be entitled to all rights, remedies and off sets in accordance with GML Article 15. That if the plaintiff shall obtain a judgment and/or verdict entered in its favor over and against 3 3 of 7 FILED: NASSAU COUNTY CLERK 03/26/2019 05/17/2022 10:10 03:50 AM PM INDEX NO. 600978/2019 NYSCEF DOC. NO. 3 34 RECEIVED NYSCEF: 03/26/2019 05/17/2022 the answering defendant, the judgment and/or verdict shall be precluded, modified, off set and/or reduced by any and all sums or consideration paid or promise to the plaintiff by any person, corporation or parties claimed to be liable for the injuries and/or darnages alleged in the complaint to the extent of the greater of either the sum or considaration tortfeasors' paid or promise to the plaintiff to the amount of the released equitable share of the liability and the damages in accordance with Article 15 of the General Obligations Law Section 15-105 and Section 15-18. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE: EIGHTEENTH: Pursuant to General Obligations Law § 15-108 and the ruling in Williams v. Niske, 81 N.Y.2d 437, 599 N.Y.S.2d 519, these answering defendants demand a set-off corresponding to the amount of any settlement reached with any other tortfeasor(s) involved in the operative facts of this lawsuit, whether or not they are currently named as defendants herein. fiS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE: NINTEENTH: The alleged acts or omissions of this answering, third party defendant were not the proximate cause of any injuries or damages incurred by plaintiff and/or third-party plaintiff. Any injuries or damages incurred by plaintiff and/or defendant/third-party plaintiff were the result of their own actions, the actions of other and/or the superseding intervention of causes outside the control of this answering third party defendant. 4 of 7 FILED: NASSAU COUNTY CLERK 03/26/2019 05/17/2022 10:10 03:50 AM PM INDEX NO. 600978/2019 NYSCEF DOC. NO. 3 34 RECEIVED NYSCEF: 03/26/2019 05/17/2022 AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE: TWENTIETH: That any recovery against the defendant based on vicarious liability for the capability of plaintiff's employer or fellow employee is barred by Workers' Sections 11 and 29(6) of the Compensation Law, in addition, itis barred by the Appeals' recent amendment to the Compeñsation Law and the Court of determination that actions commenced after September 30, 1996, are barred from instituting third-party actions against employers unless plaintiff has suffered a grave injury. AS AND FOR A_SEVENTEENTH AFFIRMATIVE DEFENSE: TWENTY-FIRST: That all the dangers and risks incident to the situation mentioned in the verified complaint were open, obvious and apparent and were known and assumed by the plaintiff. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE: TWENTY-SECOND: Upon information and belief, the costs incurred, or paid by plaintiff, if any, for medical care, dental care, custodial or rehabilitation services, loss of earnings or other economic loss, in the past or future, were or will, with reasonable certainty be replaced or indemnified, in whole or in part, from a collateral source of the type described in CPLR § 4545 and defendant is entitled to have any award reduced in the amount of such payments. AS AND FOR A NINTEENTH AFFIRMATIVE DEFENSE: TWENTY-THIRD: That should plaintiff recover damages as a result of finding of liability in whole or in part as against the defendant COUNTY OF NASSAU, such recovery should be reduced and diminished in proportion to the degree of comparative negligence of plaintiff in contributing to such damages. 5 5 of 7 FILED: NASSAU COUNTY CLERK 03/26/2019 05/17/2022 10:10 03:50 AM PM INDEX NO. 600978/2019 NYSCEF DOC. NO. 3 34 RECEIVED NYSCEF: 03/26/2019 05/17/2022 WHEREFORE, the defendant, COUNTY OF NASSAU demand judgment dismissing the complaint herein, together with the costs and disbursements of this action, Dated: Mineola, New York March 25, 2019 Yours, etc., JARED A. KASSCHAU County Att ney of Nassau County By: STEPHE CARLIN Attorney for County of Nassau 1 West Street Mineola, New York 11501 6 . . . . . . 6 of 7 FILED: NASSAU COUNTY CLERK 03/26/2019 05/17/2022 10:10 03:50 AM PM INDEX NO. 600978/2019 NYSCEF DOC. NO. 3 34 RECEIVED NYSCEF: 03/26/2019 05/17/2022 CORPORATE VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) Stephen Carlin, being an attorney duly admitted to practice in the State of New York, affirms that I am a Deputy County Attorney of the County of Nassau herein, that I have read the foregoing Answer and know the contents thereof, and that the same is true to my own knowledge, except as to the matters herein stated to be alleged upon information and belief, and that as to those matters I believe itto be true. Deponent further says that the reason this verification is made by deponent and not by the County of Nassau is because the said County of Nassau is a Municipal corporation, and deponent an officer thereof, to wit itsDeputy County Attorney. The undersigned attorney hereby affirms that the foreg ing statements are true under the penalties of perjury. Dated: Mineola, NY March 25, 2019 Steph Carlin .. . .. . . 7 of 7