Preview
FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
_________________________________________________Ç
LOGAN RYAN, an infant, by his mother and natural
guardian, KRISTIN RYAN, and KRISTIN RYAN, Index No. 63290/2014
individually,
Plaintiffs, NOTICE OF
CERTIFICATION
- against -
THREE VILLAGE CENTRAL SCHOOL DISTRICT
and DON CAPPABIANCA,
Defendants.
__.._______________________________________Ç
S I R S :
PLEASE TAKE NOTICE, that pursuant to 22 NYCRR Section 130-1.1-a, the annexed papers,
VERIFIED ANSWER, DEMAND FOR BILL OF PARTICULARS, COMBINED DEMANDS, DEMAND
PURSUANT TO MEDICARE/MEDICAID MANDATORY REPORTING LAW, DEMAND FOR
PRODUCTION AS TO PRIOR AND SUBSEQUENT RELATED INJURIES AND CONDITIONS,
DEMAND PURSUANT TO CPLR §306-C, NOTICE OF EBT and NOTICE OF REFUSAL TO ACCEPT
SERVICE OF PAPERS BY FAX, are being certified that to the best of the undersigned's knowledge,
infonmation and belief,fonned afteran inquiry reasonable under the circumstances, the presentation of these
paper(s) or contentions therein isnot frivolous as defined in subsection (c) of Section 130-1.1.
Dated: Smithtown, New York
June 20, 2014
Yours, etc.,
DEVITT SPELLMAN BARRETT, LLP
Attorneys for Defendants
50 Route 111, Suite 314
Smithtown, New York 11787
(631) 724-8833
WJB/eo'r
Our File No. 1$Y6873 3
By:
ILL BARRETT
FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022
TO:
DELL & DEAN, PLLC
Attorneys for Plaintiffs
1325 Franldin Avenue, Suite 100
Garden City, NY 11530
(516) 880-9700
FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
_______________________________________________________________________Ç
LOGAN RYAN, an infant, by his mother and natural
guardian, KRISTIN RYAN, and KRISTIN RYAN, Index No. 63290/2014
individually,
Plaintiffs, VERIFIED ANSWER
- against -
THREE VILLAGE CENTRAL SCHOOL DISTRICT
and DON CAPPABIANCA,
Defendants.
_______________________________________________________________________Ç
Defendants, THREE VILLAGE CENTRAL SCHOOL DISTRICT and DON
CAPPABIANCA, by their attorneys, DEVITT SPELLMAN BARRETT, LLP, as and for their
plaintiffs'
Answer to the Verified Complaint, upon infonnation and belief, state as follows:
ANSWERING THE FIRST CAUSE OF ACTION
FIRST: Deny having any knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraph numbered and designated as "1".
SECOND: Deny each and every allegation contained in paragraph numbered and
"3"
designated as except admit that the District received aNotice of Claim, and leave allquestions of
law for the Court.
THIRD: Deny each and every allegation contained in paragraphs numbered and
"15"
designated as "5", "8", "11", "14", and "22", and leave all questions of law for the Court.
FOURTH: Deny each and every allegation contained in paragraphs numbered and
"21"
designated as "9", "12", "13", "16", "17", "18", "19", "20", and "23".
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NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022
FIFTH: Deny each and every allegation contained in paragraph numbered and
"10"
designated as except admit that the defendant Don Cappabianca was acting within the course of
his employment, and leave all questions of law for the Court.
ANSWERING THE SECOND CAUSE OF ACTION
"24"
SIXTH: Answering paragraph of the complaint, defendants repeat, reiterate and
reallege each and every admission and denial heretofore made to paragraphs set forth therein with the
same force and effect as if more fully set forth herein.
SEVENTH: Deny each and every allegation contained in paragraphs numbered and
"25"
designated as and "26", and leave all questions of law for the Court.
EIGHTH: Deny each and every allegation contained in paragraphs numbered and
"27"
designated as and "28".
ANSWERING THE THIRD CAUSE OF ACTION
"29"
NINTH: Answering paragraph of the complaint, defendants repeat, reiterate and
reallege each and every admission and denial heretofore made to paragraphs set forth therein with the
same force and effect as if more fully set forth herein.
TENTH: Deny each and every allegation contained in paragraphs numbered and
"34"
designated as "30", "31", "32", "33", and "35".
ANSWERING THE FOURTH CAUSE OF ACTION
"36"
ELEVENTH: Answering paragraph of the complaint, defendants repeat, reiterate and
reallege each and every admission and denial heretofore made to paragraphs set forth therein with the
same force and effect as if more fully set forth herein.
TWELFTH: Deny each and every allegation contained in paragraph numbered and
designated as "37", and leave all questions of law for the Court.
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NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022
THIRTEENTH: Deny each and every allegation contained in paragraphs numbered and
"39"
designated as "38", and "40".
ANSWERING THE FIFTH CAUSE OF ACTION
"41"
FOURTEENTH: Answering paragraph of the complaint, defendants repeat, reiterate
and reallege each and every admission and denial heretofore made to paragraphs set forth therein
with the same force and effect as if more fully set forth herein.
FIFTEENTH: Deny each and every allegation contained in paragraph numbered and
designated as "42", and leave all questions of law for the Court.
SIXTEENTH: Deny each and every allegation contained in paragraphs numbered and
"44"
designated as "43", and "45".
ANSWERING THE SIXTH CAUSE OF ACTION
"46"
SEVENTEENTH: Answering paragraph of the complaint, defendants repeat, reiterate
and reallege each and every admission and denial heretofore made to paragraphs set forth therein
with the same force and effect as if more fully set forth herein.
EIGHTEENTH: Deny having any knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph numbered and designated as "47".
NINETEENTH: Deny each and every allegation contained in paragraphs numbered and
"48"
designated as and "49".
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
TWENTIETH: That ifthe plaintiffs recover herein against two or more tort-feasors jointly
liable and/or if the culpable conduct of any person not a party to this action is considered in
defendants'
determining any equitable share herein and ifthe answering liability is 50% or less ofthe
defendants'
total liability assigned, then the answering liability for non economic loss shall not
FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022
defendants'
exceed the equitable share as determined by the answering percentage of liabilityfor non
economic loss pursuant to Civil Practice Law and Rules Article 16.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
TWENTY-FIRST: That the occurrence was caused or contributed to by the negligence of the
plaintiffs herein and the damages which they are entitled to are diminished by the amount of their
negligence which contributed to the occurrence.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
TWENTY-SECOND: That any damages sustained by the plaintiffs were caused by the
culpable conduct of the plaintiffs including contributory negligence or assumption of risk,and not by
the culpable conduct or negligence of the answering defendants.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
TWENTY-THIRD: Upon information and belief, any past or future costs or expenses
incurred or to be incurred by the plaintiffs for medical care, dental care, custodial care, property
damage or rehabilitative services, loss of earnings or other economic loss, has been or will be with
reasonable certainty be replaced or indemnified in whole or in part from a collateral source as
defined in Section 4545(c) of the New York Civil Practice Law and Rules.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
plaintiffs'
TWENTY-FOURTH: The Complaint fails to state a cause of action.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
TWENTY-FIFTH: That plaintiffs failed to take those steps necessary to mitigate their
damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
plaintiffs'
TWENTY-SIXTH: That this court has no jurisdiction over this matter in that the
FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022
action was not properly commenced within the applicable Statute of Limitations.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
TWENTY-SEVENTH: That the actions of this answering defendant were provoked by the
plaintiff's assault upon him.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
TWENTY-EIGHTH: That this answering defendant's actions were justified by the facts and
circumstances presented.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
TWENTY-NINTH: That, at all times, this answering defendant acted in self-defense.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
THIRTIETH: The complaint must be dismissed in that the plaintiff initiated the event
described in the complaint involving another student.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
THIRTY-FIRST: The complaint must be dismissed in that the plaintiff was a voluntary
participant in the event described in the complaint involving another student.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
THIRTY-SECOND: The complaint must be dismissed in that the plaintiff, by hisaggressive
and threatening words and actions, prolonged and made worse the event described in the complaint
involving another student.
WHEREFORE, defendants, THREE VILLAGE CENTRAL SCHOOL DISTRICT and DON
CAPPABIANCA, demand judgment dismissing the complaint herein, together with the costs and
FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022
disbursements of this action.
Dated: Smithtown, New York
June 20, 2014
Yours, etc.,
DEVITT SPELLMAN BARRETT, LLP
Attorneys for Defendants
50 Route 111, Suite 314
Smithtown, New York 11787
(631) 724-8833
WJB/eo'r
Our File No. NY6873W3
TO:
DELL & DEAN, PLLC
Attorneys for Plaintiffs
1325 Frattlin Avenue, Suite 100
Garden City, NY 11530
(516) 880-9700
FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014
NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022
VERIFICATION
STATE OF NEW YORK )
ss.:
COUNTY OF SUFFOLK )
being duly sworn, deposes and says:
Û I CMCCCS
I am the E-& of the THREE VILLAGE
defendant,
CENTRAL SCHOOL DISTRICT, a municipal corporation and a party to the within action; I have
read the foregoing Verified Answer and know the contents thereof; and the same is true to my own
knowledge, except as to the matters therein stated to be alleged upon infonnation and belief and as to
those matters I believe itto be true. This Verification is made by me because the above party is a
municipal corporation, and I am an officer thereof.
Sworn to before me this
day of June, 2014.
Notary Public
MINE EVCIMEN
- Stateof New York
Public
Notary
No. 01EV4800321
Qualified In SuffolkCounty
Commission Expires January 31,202
My
Re: Ryan v. Three Village CSD and Cappabianca (File No. NY6873W3)
Preview
FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK _________________________________________________Ç LOGAN RYAN, an infant, by his mother and natural guardian, KRISTIN RYAN, and KRISTIN RYAN, Index No. 63290/2014 individually, Plaintiffs, NOTICE OF CERTIFICATION - against - THREE VILLAGE CENTRAL SCHOOL DISTRICT and DON CAPPABIANCA, Defendants. __.._______________________________________Ç S I R S : PLEASE TAKE NOTICE, that pursuant to 22 NYCRR Section 130-1.1-a, the annexed papers, VERIFIED ANSWER, DEMAND FOR BILL OF PARTICULARS, COMBINED DEMANDS, DEMAND PURSUANT TO MEDICARE/MEDICAID MANDATORY REPORTING LAW, DEMAND FOR PRODUCTION AS TO PRIOR AND SUBSEQUENT RELATED INJURIES AND CONDITIONS, DEMAND PURSUANT TO CPLR §306-C, NOTICE OF EBT and NOTICE OF REFUSAL TO ACCEPT SERVICE OF PAPERS BY FAX, are being certified that to the best of the undersigned's knowledge, infonmation and belief,fonned afteran inquiry reasonable under the circumstances, the presentation of these paper(s) or contentions therein isnot frivolous as defined in subsection (c) of Section 130-1.1. Dated: Smithtown, New York June 20, 2014 Yours, etc., DEVITT SPELLMAN BARRETT, LLP Attorneys for Defendants 50 Route 111, Suite 314 Smithtown, New York 11787 (631) 724-8833 WJB/eo'r Our File No. 1$Y6873 3 By: ILL BARRETT FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022 TO: DELL & DEAN, PLLC Attorneys for Plaintiffs 1325 Franldin Avenue, Suite 100 Garden City, NY 11530 (516) 880-9700 FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK _______________________________________________________________________Ç LOGAN RYAN, an infant, by his mother and natural guardian, KRISTIN RYAN, and KRISTIN RYAN, Index No. 63290/2014 individually, Plaintiffs, VERIFIED ANSWER - against - THREE VILLAGE CENTRAL SCHOOL DISTRICT and DON CAPPABIANCA, Defendants. _______________________________________________________________________Ç Defendants, THREE VILLAGE CENTRAL SCHOOL DISTRICT and DON CAPPABIANCA, by their attorneys, DEVITT SPELLMAN BARRETT, LLP, as and for their plaintiffs' Answer to the Verified Complaint, upon infonnation and belief, state as follows: ANSWERING THE FIRST CAUSE OF ACTION FIRST: Deny having any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph numbered and designated as "1". SECOND: Deny each and every allegation contained in paragraph numbered and "3" designated as except admit that the District received aNotice of Claim, and leave allquestions of law for the Court. THIRD: Deny each and every allegation contained in paragraphs numbered and "15" designated as "5", "8", "11", "14", and "22", and leave all questions of law for the Court. FOURTH: Deny each and every allegation contained in paragraphs numbered and "21" designated as "9", "12", "13", "16", "17", "18", "19", "20", and "23". FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022 FIFTH: Deny each and every allegation contained in paragraph numbered and "10" designated as except admit that the defendant Don Cappabianca was acting within the course of his employment, and leave all questions of law for the Court. ANSWERING THE SECOND CAUSE OF ACTION "24" SIXTH: Answering paragraph of the complaint, defendants repeat, reiterate and reallege each and every admission and denial heretofore made to paragraphs set forth therein with the same force and effect as if more fully set forth herein. SEVENTH: Deny each and every allegation contained in paragraphs numbered and "25" designated as and "26", and leave all questions of law for the Court. EIGHTH: Deny each and every allegation contained in paragraphs numbered and "27" designated as and "28". ANSWERING THE THIRD CAUSE OF ACTION "29" NINTH: Answering paragraph of the complaint, defendants repeat, reiterate and reallege each and every admission and denial heretofore made to paragraphs set forth therein with the same force and effect as if more fully set forth herein. TENTH: Deny each and every allegation contained in paragraphs numbered and "34" designated as "30", "31", "32", "33", and "35". ANSWERING THE FOURTH CAUSE OF ACTION "36" ELEVENTH: Answering paragraph of the complaint, defendants repeat, reiterate and reallege each and every admission and denial heretofore made to paragraphs set forth therein with the same force and effect as if more fully set forth herein. TWELFTH: Deny each and every allegation contained in paragraph numbered and designated as "37", and leave all questions of law for the Court. FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022 THIRTEENTH: Deny each and every allegation contained in paragraphs numbered and "39" designated as "38", and "40". ANSWERING THE FIFTH CAUSE OF ACTION "41" FOURTEENTH: Answering paragraph of the complaint, defendants repeat, reiterate and reallege each and every admission and denial heretofore made to paragraphs set forth therein with the same force and effect as if more fully set forth herein. FIFTEENTH: Deny each and every allegation contained in paragraph numbered and designated as "42", and leave all questions of law for the Court. SIXTEENTH: Deny each and every allegation contained in paragraphs numbered and "44" designated as "43", and "45". ANSWERING THE SIXTH CAUSE OF ACTION "46" SEVENTEENTH: Answering paragraph of the complaint, defendants repeat, reiterate and reallege each and every admission and denial heretofore made to paragraphs set forth therein with the same force and effect as if more fully set forth herein. EIGHTEENTH: Deny having any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph numbered and designated as "47". NINETEENTH: Deny each and every allegation contained in paragraphs numbered and "48" designated as and "49". AS AND FOR A FIRST AFFIRMATIVE DEFENSE TWENTIETH: That ifthe plaintiffs recover herein against two or more tort-feasors jointly liable and/or if the culpable conduct of any person not a party to this action is considered in defendants' determining any equitable share herein and ifthe answering liability is 50% or less ofthe defendants' total liability assigned, then the answering liability for non economic loss shall not FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022 defendants' exceed the equitable share as determined by the answering percentage of liabilityfor non economic loss pursuant to Civil Practice Law and Rules Article 16. AS AND FOR A SECOND AFFIRMATIVE DEFENSE TWENTY-FIRST: That the occurrence was caused or contributed to by the negligence of the plaintiffs herein and the damages which they are entitled to are diminished by the amount of their negligence which contributed to the occurrence. AS AND FOR A THIRD AFFIRMATIVE DEFENSE TWENTY-SECOND: That any damages sustained by the plaintiffs were caused by the culpable conduct of the plaintiffs including contributory negligence or assumption of risk,and not by the culpable conduct or negligence of the answering defendants. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE TWENTY-THIRD: Upon information and belief, any past or future costs or expenses incurred or to be incurred by the plaintiffs for medical care, dental care, custodial care, property damage or rehabilitative services, loss of earnings or other economic loss, has been or will be with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in Section 4545(c) of the New York Civil Practice Law and Rules. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE plaintiffs' TWENTY-FOURTH: The Complaint fails to state a cause of action. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE TWENTY-FIFTH: That plaintiffs failed to take those steps necessary to mitigate their damages. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE plaintiffs' TWENTY-SIXTH: That this court has no jurisdiction over this matter in that the FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022 action was not properly commenced within the applicable Statute of Limitations. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE TWENTY-SEVENTH: That the actions of this answering defendant were provoked by the plaintiff's assault upon him. AS AND FOR A NINTH AFFIRMATIVE DEFENSE TWENTY-EIGHTH: That this answering defendant's actions were justified by the facts and circumstances presented. AS AND FOR A TENTH AFFIRMATIVE DEFENSE TWENTY-NINTH: That, at all times, this answering defendant acted in self-defense. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE THIRTIETH: The complaint must be dismissed in that the plaintiff initiated the event described in the complaint involving another student. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE THIRTY-FIRST: The complaint must be dismissed in that the plaintiff was a voluntary participant in the event described in the complaint involving another student. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE THIRTY-SECOND: The complaint must be dismissed in that the plaintiff, by hisaggressive and threatening words and actions, prolonged and made worse the event described in the complaint involving another student. WHEREFORE, defendants, THREE VILLAGE CENTRAL SCHOOL DISTRICT and DON CAPPABIANCA, demand judgment dismissing the complaint herein, together with the costs and FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022 disbursements of this action. Dated: Smithtown, New York June 20, 2014 Yours, etc., DEVITT SPELLMAN BARRETT, LLP Attorneys for Defendants 50 Route 111, Suite 314 Smithtown, New York 11787 (631) 724-8833 WJB/eo'r Our File No. NY6873W3 TO: DELL & DEAN, PLLC Attorneys for Plaintiffs 1325 Frattlin Avenue, Suite 100 Garden City, NY 11530 (516) 880-9700 FILED: SUFFOLK COUNTY CLERK 11/10/2022 11:14 AM INDEX NO. 063290/2014 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 11/10/2022 VERIFICATION STATE OF NEW YORK ) ss.: COUNTY OF SUFFOLK ) being duly sworn, deposes and says: Û I CMCCCS I am the E-& of the THREE VILLAGE defendant, CENTRAL SCHOOL DISTRICT, a municipal corporation and a party to the within action; I have read the foregoing Verified Answer and know the contents thereof; and the same is true to my own knowledge, except as to the matters therein stated to be alleged upon infonnation and belief and as to those matters I believe itto be true. This Verification is made by me because the above party is a municipal corporation, and I am an officer thereof. Sworn to before me this day of June, 2014. Notary Public MINE EVCIMEN - Stateof New York Public Notary No. 01EV4800321 Qualified In SuffolkCounty Commission Expires January 31,202 My Re: Ryan v. Three Village CSD and Cappabianca (File No. NY6873W3)