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FILED: ERIE COUNTY CLERK 08/07/2017 11:50 AM INDEX NO. 807367/2017
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 08/07/2017
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
______________________________________________
GARY GRAY
ANSWER
Plaintiff,
vs. Index No. 807367/2017
NORTH SEA MINING & MINERALS, LTD.,
DAVID R. EVERETT d/b/a D R EVERETT
CONSTRUCTION, and FREDERICK FLICK,
Defendants.
_______________________________________________
The Defendant, North Sea Mining & Minerals, Ltd., by its attorneys LIPPES & LIPPES,
Richard J. Lippes, of counsel, for its Answer to the Plaintiff’s Complaint states the following:
1. Defendant admits those allegations in paragraphs 2, 3, 4, 5, 7, 11 and 27.
2. Defendant denies those allegations in paragraphs 15, 22, 23, 24, 25, 26, 29, 30,
31, 32, 35, 36, 37, 38, 41, 42, 43 and 45.
3. Defendant does not have sufficient information to admit or deny the allegations in
paragraphs 1, 6, 9, 10, 19, 20, 21, 34 and 46.
4. As to paragraph 8, Defendant admits that David R. Everett individually and/or
doing business as D R Everett Construction supplied services in the State of New York, but lacks
sufficient information to admit or deny whether or not David R. Everett individually and/or
doing business as D R Everett Construction entered into contracts to supply any goods and/or
services in the State of New York.
5. As to paragraph 12, Defendant denies that it ever entered into a written lease
agreement with Morgan Materials Inc.
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6. As to paragraph 13, Defendant denies that it ever entered into a written lease
agreement with Morgan Materials Inc.
7. As to paragraph 14, Defendant denies ever entering into a written lease agreement
with Morgan Materials Inc.
8. As to paragraph 16, Defendant denies that David R. Everett individually and/or
doing business as D R Everett Construction ever contracted with the Defendant.
9. As to paragraph 17, Defendant admits that David R. Everett individually and/or
doing business as D R Everett Construction performed certain services for Morgan Materials
Inc., but deny that they entered into any written contract with Morgan Materials, Inc.
10. Defendant denies that David R. Everett individually and/or doing business as D R
Everett Construction has ever entered into a written contract with Morgan Materials Inc.
11. As to paragraph 18, Defendant admits that David R. Everett individually and/or
doing business as D R Everett Construction performed certain services for Morgan Materials
Inc., but deny that they ever entered into a written contract.
12. As to paragraph 28, admit that Morgan Materials Inc. was responsible for the
inspection, maintenance and upkeep and/or repair of the premises located at 380 Vulcan Street,
City of Buffalo, County of Erie, State of New York, but deny that Morgan Materials Inc. is a
Defendant in the instant lawsuit.
13. As to paragraph 33, admit that David R. Everett Construction d/b/a D R Everett
Construction provided services for Morgan Materials Inc. on a periodic basis, but deny that
Morgan Materials Inc. ever entered into a written contract with David R. Everett d/b/a D R
Everett Construction.
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14. As to paragraph 39, Defendant admits that Plaintiff Gary Gray was a forklift
operator employed by Morgan Materials Inc., but deny that the forklift he was operating were
caused to strike raised railway rails partially embedded in and/or around the floor surface of
Aisle Six of the warehouse located at 380 Vulcan Street, City of Buffalo, County of Erie, State of
New York, or that the forks of the forklift hit the ground due to a dangerous, hazardous, unsafe,
and defective condition existing thereat, which caused Plaintiff, Gary Gray, to suffer serious,
painful and permanent injuries. Defendant avers that the accident that occurred to Plaintiff Gary
Gray was entirely the fault of Gary Gray in improperly and negligently operating the forklift.
15. As to paragraph 40, Defendant denies that the occurrence and injuries caused to
Plaintiff Gary Gray were caused wholly and solely by reason of the negligence, carelessness
and/or recklessness of the Defendant North Sea Mining & Minerals, Ltd., and aver that the
accident was entirely caused by the negligence on the part of the Plaintiff.
16. As to paragraph 44, Defendant denies that the injury caused to the Plaintiff, Gary
Gray, was the result of any negligence, carelessness or recklessness on the part of the Defendant,
and lacks sufficient information to either admit or deny the extent of Plaintiff Gary Gray’s
injuries.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
17. Plaintiff’s Complaint fails to state a cause of action.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
18. Plaintiff’s Complaint in whole or in part is barred by the applicable statute of
limitations and any claims or causes of action hereunder are therefore time barred.
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AS AND FOR A THIRD AFFIRMATIVE DEFENSE
19. Plaintiff failed to include a necessary and indispensable party to this action and as
such the Complaint must be dismissed.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
20. Defendant is not a proper party to this action.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
21. Defendant did not breach any duty owed to the Plaintiff.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
22. Any fault on the part of Defendant, which Defendant denies, does not constitute
proximate cause of any injury or damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
23. Any injuries suffered by the Plaintiff was caused by the superseding and
intervening acts, fault, omissions, negligence, or other culpable conduct of Plaintiff or others
who Defendant has had no control, and not for any act, omission, negligence, or culpable
conduct on the part of Defendant.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
24. Plaintiff’s recovery, if any, should be barred or reduced in proportion that their
culpable conduct, including contributory negligence or assumption of risk, bears to the total
culpable conduct found to have caused their damages or injuries.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
25. Plaintiff’s recovery should be limited to the extent he has received or will receive
payment through any collateral sources, pursuant to CPLR § 4545.
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WHEREFORE, Defendant demands judgment dismissing the Complaint in its entirety,
and granting them reasonable costs and attorney’s fees, and for such other and further relief as
the Court deems just and proper.
DATED: Buffalo, New York
August 7, 2017
____________________________________
RICHARD J. LIPPES, ESQ., of Counsel
LIPPES & LIPPES
1109 Delaware Avenue
Buffalo, New York 14209
Telephone: (716) 884-4800
Attorneys for Defendant NORTH SEA MINING &
MINERALS, LTD.
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Preview
FILED: ERIE COUNTY CLERK 08/07/2017 11:50 AM INDEX NO. 807367/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 08/07/2017 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE ______________________________________________ GARY GRAY ANSWER Plaintiff, vs. Index No. 807367/2017 NORTH SEA MINING & MINERALS, LTD., DAVID R. EVERETT d/b/a D R EVERETT CONSTRUCTION, and FREDERICK FLICK, Defendants. _______________________________________________ The Defendant, North Sea Mining & Minerals, Ltd., by its attorneys LIPPES & LIPPES, Richard J. Lippes, of counsel, for its Answer to the Plaintiff’s Complaint states the following: 1. Defendant admits those allegations in paragraphs 2, 3, 4, 5, 7, 11 and 27. 2. Defendant denies those allegations in paragraphs 15, 22, 23, 24, 25, 26, 29, 30, 31, 32, 35, 36, 37, 38, 41, 42, 43 and 45. 3. Defendant does not have sufficient information to admit or deny the allegations in paragraphs 1, 6, 9, 10, 19, 20, 21, 34 and 46. 4. As to paragraph 8, Defendant admits that David R. Everett individually and/or doing business as D R Everett Construction supplied services in the State of New York, but lacks sufficient information to admit or deny whether or not David R. Everett individually and/or doing business as D R Everett Construction entered into contracts to supply any goods and/or services in the State of New York. 5. As to paragraph 12, Defendant denies that it ever entered into a written lease agreement with Morgan Materials Inc. 1 of 5 FILED: ERIE COUNTY CLERK 08/07/2017 11:50 AM INDEX NO. 807367/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 08/07/2017 6. As to paragraph 13, Defendant denies that it ever entered into a written lease agreement with Morgan Materials Inc. 7. As to paragraph 14, Defendant denies ever entering into a written lease agreement with Morgan Materials Inc. 8. As to paragraph 16, Defendant denies that David R. Everett individually and/or doing business as D R Everett Construction ever contracted with the Defendant. 9. As to paragraph 17, Defendant admits that David R. Everett individually and/or doing business as D R Everett Construction performed certain services for Morgan Materials Inc., but deny that they entered into any written contract with Morgan Materials, Inc. 10. Defendant denies that David R. Everett individually and/or doing business as D R Everett Construction has ever entered into a written contract with Morgan Materials Inc. 11. As to paragraph 18, Defendant admits that David R. Everett individually and/or doing business as D R Everett Construction performed certain services for Morgan Materials Inc., but deny that they ever entered into a written contract. 12. As to paragraph 28, admit that Morgan Materials Inc. was responsible for the inspection, maintenance and upkeep and/or repair of the premises located at 380 Vulcan Street, City of Buffalo, County of Erie, State of New York, but deny that Morgan Materials Inc. is a Defendant in the instant lawsuit. 13. As to paragraph 33, admit that David R. Everett Construction d/b/a D R Everett Construction provided services for Morgan Materials Inc. on a periodic basis, but deny that Morgan Materials Inc. ever entered into a written contract with David R. Everett d/b/a D R Everett Construction. 2 2 of 5 FILED: ERIE COUNTY CLERK 08/07/2017 11:50 AM INDEX NO. 807367/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 08/07/2017 14. As to paragraph 39, Defendant admits that Plaintiff Gary Gray was a forklift operator employed by Morgan Materials Inc., but deny that the forklift he was operating were caused to strike raised railway rails partially embedded in and/or around the floor surface of Aisle Six of the warehouse located at 380 Vulcan Street, City of Buffalo, County of Erie, State of New York, or that the forks of the forklift hit the ground due to a dangerous, hazardous, unsafe, and defective condition existing thereat, which caused Plaintiff, Gary Gray, to suffer serious, painful and permanent injuries. Defendant avers that the accident that occurred to Plaintiff Gary Gray was entirely the fault of Gary Gray in improperly and negligently operating the forklift. 15. As to paragraph 40, Defendant denies that the occurrence and injuries caused to Plaintiff Gary Gray were caused wholly and solely by reason of the negligence, carelessness and/or recklessness of the Defendant North Sea Mining & Minerals, Ltd., and aver that the accident was entirely caused by the negligence on the part of the Plaintiff. 16. As to paragraph 44, Defendant denies that the injury caused to the Plaintiff, Gary Gray, was the result of any negligence, carelessness or recklessness on the part of the Defendant, and lacks sufficient information to either admit or deny the extent of Plaintiff Gary Gray’s injuries. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 17. Plaintiff’s Complaint fails to state a cause of action. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 18. Plaintiff’s Complaint in whole or in part is barred by the applicable statute of limitations and any claims or causes of action hereunder are therefore time barred. 3 3 of 5 FILED: ERIE COUNTY CLERK 08/07/2017 11:50 AM INDEX NO. 807367/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 08/07/2017 AS AND FOR A THIRD AFFIRMATIVE DEFENSE 19. Plaintiff failed to include a necessary and indispensable party to this action and as such the Complaint must be dismissed. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 20. Defendant is not a proper party to this action. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 21. Defendant did not breach any duty owed to the Plaintiff. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 22. Any fault on the part of Defendant, which Defendant denies, does not constitute proximate cause of any injury or damages. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 23. Any injuries suffered by the Plaintiff was caused by the superseding and intervening acts, fault, omissions, negligence, or other culpable conduct of Plaintiff or others who Defendant has had no control, and not for any act, omission, negligence, or culpable conduct on the part of Defendant. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 24. Plaintiff’s recovery, if any, should be barred or reduced in proportion that their culpable conduct, including contributory negligence or assumption of risk, bears to the total culpable conduct found to have caused their damages or injuries. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 25. Plaintiff’s recovery should be limited to the extent he has received or will receive payment through any collateral sources, pursuant to CPLR § 4545. 4 4 of 5 FILED: ERIE COUNTY CLERK 08/07/2017 11:50 AM INDEX NO. 807367/2017 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 08/07/2017 WHEREFORE, Defendant demands judgment dismissing the Complaint in its entirety, and granting them reasonable costs and attorney’s fees, and for such other and further relief as the Court deems just and proper. DATED: Buffalo, New York August 7, 2017 ____________________________________ RICHARD J. LIPPES, ESQ., of Counsel LIPPES & LIPPES 1109 Delaware Avenue Buffalo, New York 14209 Telephone: (716) 884-4800 Attorneys for Defendant NORTH SEA MINING & MINERALS, LTD. 5 5 of 5