Preview
FILED: KINGS COUNTY CLERK 09/02/2021 02:29 PM INDEX NO. 514355/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/02/2021
“EXHIBIT D”
“EXHIBIT D”
FILED: KINGS COUNTY CLERK 09/02/2021 02:29 PM INDEX NO. 514355/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/02/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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BRITNEY TUSA QUINGA, AS ADMINISTRATOR
OF THE ESTATE OF LEONEL G TUSA INDEX NO.: 514463/2021
MASAQUIZA, DECEASED,
VERIFIED ANSWER,
Plaintiff(s), BILL OF PARTICULARS &
COMBINED DEMANDS
- against -
Our File No.: 1031106-01
FTL 1001, LLC, RIGO LIMO-AUTO CORP., Case ID No.: 117432
AND PAUDY A. NUNEZ-ARIAS,
Defendant(s).
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The Defendant(s) FTL 1001, LLC, RIGO LIMO-AUTO CORP., and PAUDY A. NUNEZ-
ARIAS by their attorneys, BAKER, MCEVOY & MOSKOVITS, P.C. answering the Complaint
of the Plaintiff herein, respectfully shows and alleges upon information and belief, as follows:
VERIFIED ANSWER
Deny(ies) each and every allegation in the paragraphs of the Complaint designated as
follows: 2, 26, 27, 28, 29, 30, 31, 32, 33.
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: 1, 3, 4, 5, 6,
7, 8, 9, 13, 14, 15, 18, 19, 20, 21, 22, 24.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
The Court lacks personal jurisdiction over the answering Defendant(s) in that the summons
and complaint was not served upon the Defendant(s), and if the summons was served, it was not
effected in accordance with the applicable provisions of Article 3 of the CPLR governing the
service of process.
SECOND 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.
FILED: KINGS COUNTY CLERK 09/02/2021 02:29 PM INDEX NO. 514355/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/02/2021
THIRD 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).
FOURTH 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.
FIFTH AFFIRMATIVE DEFENSE
If Plaintiff(s) suffered injury and damage in the manner and at the time and place alleged
in the Complaint, which Defendant(s) deny, and if it 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.
SIXTH AFFIRMATIVE DEFENSE
If it 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 theory of
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 of America, 65 N.Y.2d 189.
SEVENTH AFFIRMATIVE DEFENSE
Upon information and belief, plaintiff(s) failed to mitigate damages.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff(s) damages, if any, are limited by the offset provisions of Section 15-108 of the
General Obligations Law.
FILED: KINGS COUNTY CLERK 09/02/2021 02:29 PM INDEX NO. 514355/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/02/2021
NINTH 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 Vehicle
Safety and Responsibility,” 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 costs, expenses and
attorneys’ fees.
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, 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: August 19, 2021
Brooklyn, N.Y.
BAKER, MCEVOY & MOSKOVITS, PC
Ronit Z. Moskovits, Esq.
Attorney(s) for the Defendant
FTL 1001, LLC, RIGO LIMO-AUTO CORP.,
and PAUDY A. NUNEZ-ARIAS
One MetroTech Center, 8th Floor
Brooklyn, New York 11201
Tel: 212-857-8230
MICHELSTEIN &ASHMAN, PLLC
Attorney(s) for the Plaintiff(s)
BRITNEY TUSA QUINGA, AS ADMINISTRATOR OF THE
ESTATE OF LEONEL G TUSA MASAQUIZA, DECEASED
485 MADISON AVENUE, 16TH FLOOR
NEW YORK, NY 10022
Tel: (212) 588-0880
FILED: KINGS COUNTY CLERK 09/02/2021 02:29 PM INDEX NO. 514355/2021
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/02/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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BRITNEY TUSA QUINGA, AS ADMINISTRATOR INDEX NO.: 514463/2021
OF THE ESTATE OF LEONEL G TUSA
MASAQUIZA, DECEASED, ATTORNEY VERIFICATION
Plaintiff(s), Our File No.: 1031106
Case ID No.: 117432
- against -
FTL 1001, LLC, RIGO LIMO-AUTO CORP.,
AND PAUDY A. NUNEZ-ARIAS,
Defendant(s).
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I, RONIT Z. MOSKOVITS, 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 & 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 & MOSKOVITS,
P.C. maintain their offices for the practice of law when this VERIFIED ANSWER, BILL OF
PARTICULARS, & COMBINED DEMANDS was drafted.
4. The grounds of Affirmant’s belief as to all matters not stated upon Affirmant’s
knowledge is as follows: BOOKS AND RECORDS MAINTAINED BY THE FIRM OF BAKER,
MCEVOY & MOSKOVITS, P.C. AND INFORMATION SUPPLIED BY AMERICAN
TRANSIT INSURANCE COMPANY.
Dated: August 19, 2021
Brooklyn, NY
Ronit Z. Moskovits, Esq.
Preview
FILED: KINGS COUNTY CLERK 09/02/2021 02:29 PM INDEX NO. 514355/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/02/2021 “EXHIBIT D” “EXHIBIT D” FILED: KINGS COUNTY CLERK 09/02/2021 02:29 PM INDEX NO. 514355/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/02/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------X BRITNEY TUSA QUINGA, AS ADMINISTRATOR OF THE ESTATE OF LEONEL G TUSA INDEX NO.: 514463/2021 MASAQUIZA, DECEASED, VERIFIED ANSWER, Plaintiff(s), BILL OF PARTICULARS & COMBINED DEMANDS - against - Our File No.: 1031106-01 FTL 1001, LLC, RIGO LIMO-AUTO CORP., Case ID No.: 117432 AND PAUDY A. NUNEZ-ARIAS, Defendant(s). -----------------------------------------------------------------X The Defendant(s) FTL 1001, LLC, RIGO LIMO-AUTO CORP., and PAUDY A. NUNEZ- ARIAS by their attorneys, BAKER, MCEVOY & MOSKOVITS, P.C. answering the Complaint of the Plaintiff herein, respectfully shows and alleges upon information and belief, as follows: VERIFIED ANSWER Deny(ies) each and every allegation in the paragraphs of the Complaint designated as follows: 2, 26, 27, 28, 29, 30, 31, 32, 33. 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: 1, 3, 4, 5, 6, 7, 8, 9, 13, 14, 15, 18, 19, 20, 21, 22, 24. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE The Court lacks personal jurisdiction over the answering Defendant(s) in that the summons and complaint was not served upon the Defendant(s), and if the summons was served, it was not effected in accordance with the applicable provisions of Article 3 of the CPLR governing the service of process. SECOND 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. FILED: KINGS COUNTY CLERK 09/02/2021 02:29 PM INDEX NO. 514355/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/02/2021 THIRD 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). FOURTH 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. FIFTH AFFIRMATIVE DEFENSE If Plaintiff(s) suffered injury and damage in the manner and at the time and place alleged in the Complaint, which Defendant(s) deny, and if it 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. SIXTH AFFIRMATIVE DEFENSE If it 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 theory of 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 of America, 65 N.Y.2d 189. SEVENTH AFFIRMATIVE DEFENSE Upon information and belief, plaintiff(s) failed to mitigate damages. EIGHTH AFFIRMATIVE DEFENSE Plaintiff(s) damages, if any, are limited by the offset provisions of Section 15-108 of the General Obligations Law. FILED: KINGS COUNTY CLERK 09/02/2021 02:29 PM INDEX NO. 514355/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/02/2021 NINTH 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 Vehicle Safety and Responsibility,” 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 costs, expenses and attorneys’ fees. 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, 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: August 19, 2021 Brooklyn, N.Y. BAKER, MCEVOY & MOSKOVITS, PC Ronit Z. Moskovits, Esq. Attorney(s) for the Defendant FTL 1001, LLC, RIGO LIMO-AUTO CORP., and PAUDY A. NUNEZ-ARIAS One MetroTech Center, 8th Floor Brooklyn, New York 11201 Tel: 212-857-8230 MICHELSTEIN &ASHMAN, PLLC Attorney(s) for the Plaintiff(s) BRITNEY TUSA QUINGA, AS ADMINISTRATOR OF THE ESTATE OF LEONEL G TUSA MASAQUIZA, DECEASED 485 MADISON AVENUE, 16TH FLOOR NEW YORK, NY 10022 Tel: (212) 588-0880 FILED: KINGS COUNTY CLERK 09/02/2021 02:29 PM INDEX NO. 514355/2021 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 09/02/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------X BRITNEY TUSA QUINGA, AS ADMINISTRATOR INDEX NO.: 514463/2021 OF THE ESTATE OF LEONEL G TUSA MASAQUIZA, DECEASED, ATTORNEY VERIFICATION Plaintiff(s), Our File No.: 1031106 Case ID No.: 117432 - against - FTL 1001, LLC, RIGO LIMO-AUTO CORP., AND PAUDY A. NUNEZ-ARIAS, Defendant(s). -----------------------------------------------------------------X I, RONIT Z. MOSKOVITS, 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 & 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 & MOSKOVITS, P.C. maintain their offices for the practice of law when this VERIFIED ANSWER, BILL OF PARTICULARS, & COMBINED DEMANDS was drafted. 4. The grounds of Affirmant’s belief as to all matters not stated upon Affirmant’s knowledge is as follows: BOOKS AND RECORDS MAINTAINED BY THE FIRM OF BAKER, MCEVOY & MOSKOVITS, P.C. AND INFORMATION SUPPLIED BY AMERICAN TRANSIT INSURANCE COMPANY. Dated: August 19, 2021 Brooklyn, NY Ronit Z. Moskovits, Esq.