Preview
FILED: ORANGE COUNTY CLERK 03/22/2022 03:30 PM INDEX NO. EF008166-2021
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/22/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
CHARLES MCDONOUGH,
Plaintiff(s), Index No.: EF008166/2021
-against- NOTICE OF APPEARANCE
AND ANSWER
DAJOUR A. BROWN and NAJOIR J. BYERS,
Defendant(s).
PLEASE TAKE NOTICE, that the above-named Defendants, Dajour A. Brown and
Najoir J. Byers, hereby appear in this action, and that the undersigned has been retained as
attorneys for said Defendants and demand that you serve all papers in this proceeding upon them
at the address stated below.
PLEASE TAKE FURTHER NOTICE, that the said Defendants hereby interpose the
following Answer to the Plaintiff's Complaint.
The Defendants deny knowledge or information sufficient to form a belief as to the
allegations contained in Paragraphs numbered 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 17, 18, 20, 21, 22,
23, 24, 25, 26, 27 and 28.
The Defendants deny upon information and belief as to the allegations contained in
Paragraphs numbered 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39.
The Defendants admit the allegations contained in Paragraphs numbered 2, 3, 14, 15, 16
and 19.
The Defendants denies each and every allegation in the complaint not previously
admitted, denied, or otherwise controverted.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
That any verdict in the within action, for past, present and future medical care, dental
care, custodial care, or rehabilitation services, loss of earnings or other economic loss, should be
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/22/2022
reduced by the amount that any such expense has or will with reasonable certainty be replaced or
indemnified in whole or in part from any collateral source, in accordance with the provisions and
limitations of Section 4545(c) of the CPLR.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
Plaintiff has failed to sustain a serious physical injury as defined by Article 51 of the
Insurance Law of the State of New York.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
Plaintiff is limited to recovery for basic economic loss as provided for by the no-fault
provisions of Article 51 of the Insurance Law of the State of New York.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
Any damages sustained by the Plaintiff were caused by the culpable conduct of the
Plaintiff, including contributory negligence or assumption of risk, and not by the culpable
conduct or negligence of this answering Defendants.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
Upon information and belief, Plaintiff failed to use or misused available seatbelts, and
thereby contributed to the alleged injuries.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
The Plaintiff has a duty to mitigate all damages with specific reference to future medical
damages and, under the Patient Protection and Affordable Care Act, has a federally mandated
mechanism in which to do so.
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AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
Plaintiff has an obligation to mitigate any and all damages and having failed to do so is
therefore charged with said failure to mitigate.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
That pursuant to General Obligations Law Section 15-108 this Defendants are entitled to
and demands a set off against any judgment that may be recovered by the Plaintiff herein to the
extent of any amount previously paid by and on behalf of any third party to the Plaintiff in
settlement of their action or in the amount of this aforesaid Defendants' equitable share of
damages under Article 14 of the CPLR, whichever is greater.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
That the Defendants were confronted by an emergency situation.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
That the Court lacks jurisdiction over the person of the Defendants.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
That the Court lacks jurisdiction over the subject matter as alleged in the Complaint.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
The Complaint fails to state a cause of action.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS:
The automobile accident which is the basis of Plaintiff's action was caused and/or
contributed by the actions of a third party over whom this Defendants have no control.
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WHEREFORE, the answering Defendants demand judgment dismissing the Complaint
herein, together with the costs and disbursements of this action, and any and all other relief this
Court deems reasonable and just.
DATED: Williamsville, NY
March 22, 2022
Respectfully submitted,
___________________________
Shayna D. Gorski, Esq.
LAW OFFICES OF JENNIFER S. ADAMS
Attorney for Defendants
Dajour A. Brown and Najoir J. Byers
One Executive Boulevard, Suite 280
Yonkers, NY 10701
Telephone: (716) 810-1320
Our File No.: 205112378-001
TO: Joseph M. Pugliese, Esq.
MAINETTI & MAINETTI, P.C.
Attorney for Plaintiff
Charles McDonough
130 N. Front Street
Kingston, NY 12401
(845) 600-0000
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/22/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
Index No.: EF008166/2021
CHARLES MCDONOUGH,
ATTORNEY VERIFICATION
Plaintiff(s),
-against-
DAJOUR A. BROWN and NAJOIR J. BYERS,
Defendant(s).
STATE OF NEW YORK }
}
COUNTY OF ERIE }
Shayna D. Gorski, Esq., says that: I am the attorney of record or of counsel with the attorneys
of record for the DEFENDANTS, DAJOUR A. BROWN AND NAJOIR J. BYERS. I have read the
annexed NOTICE OF APPEARANCE AND VERIFIED ANSWER, DEMAND FOR
VERIFIED BILL OF PARTICULARS, DEMAND FOR SPECIFIC RELIEF REQUESTED,
COMBINED DEMAND FOR DISCOVERY AND INSPECTION, NOTICE TO TAKE
DEPOSITION, NOTICE FOR INDEPENDENT MEDICAL EXAMINATIONS AND CPLR
2103 NOTICE and know the contents thereof and the same are true to my knowledge, except
those matters therein which are stated to be alleged on information and belief, and as to those
matters I believe them to be true. My belief, as to those matters therein not stated upon
knowledge, is based upon the following: Discussions with the Defendants and/or review of
notes and/or documents in our files.
The reason I make this verification, instead of Defendants, is that the Defendants do not
presently reside in the County where your Deponent has an office.
That the sources of your Deponent's information and the grounds of my belief as to the
matters so alleged herein are investigations had by the Defendants, their agents, servants and
representatives into the subject matter hereof and correspondence relating thereto, reports of
which investigations and copies of which correspondence are in the possession of your
Deponent.
I affirm that the foregoing statements are true under penalties of perjury.
Dated: Williamsville, NY
March 22, 2022
By:
Shayna D. Gorski, Esq.
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Preview
FILED: ORANGE COUNTY CLERK 03/22/2022 03:30 PM INDEX NO. EF008166-2021 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/22/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE CHARLES MCDONOUGH, Plaintiff(s), Index No.: EF008166/2021 -against- NOTICE OF APPEARANCE AND ANSWER DAJOUR A. BROWN and NAJOIR J. BYERS, Defendant(s). PLEASE TAKE NOTICE, that the above-named Defendants, Dajour A. Brown and Najoir J. Byers, hereby appear in this action, and that the undersigned has been retained as attorneys for said Defendants and demand that you serve all papers in this proceeding upon them at the address stated below. PLEASE TAKE FURTHER NOTICE, that the said Defendants hereby interpose the following Answer to the Plaintiff's Complaint. The Defendants deny knowledge or information sufficient to form a belief as to the allegations contained in Paragraphs numbered 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27 and 28. The Defendants deny upon information and belief as to the allegations contained in Paragraphs numbered 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39. The Defendants admit the allegations contained in Paragraphs numbered 2, 3, 14, 15, 16 and 19. The Defendants denies each and every allegation in the complaint not previously admitted, denied, or otherwise controverted. AS AND FOR A FIRST AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: That any verdict in the within action, for past, present and future medical care, dental care, custodial care, or rehabilitation services, loss of earnings or other economic loss, should be 1 of 5 FILED: ORANGE COUNTY CLERK 03/22/2022 03:30 PM INDEX NO. EF008166-2021 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/22/2022 reduced by the amount that any such expense has or will with reasonable certainty be replaced or indemnified in whole or in part from any collateral source, in accordance with the provisions and limitations of Section 4545(c) of the CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: Plaintiff has failed to sustain a serious physical injury as defined by Article 51 of the Insurance Law of the State of New York. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: Plaintiff is limited to recovery for basic economic loss as provided for by the no-fault provisions of Article 51 of the Insurance Law of the State of New York. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: Any damages sustained by the Plaintiff were caused by the culpable conduct of the Plaintiff, including contributory negligence or assumption of risk, and not by the culpable conduct or negligence of this answering Defendants. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: Upon information and belief, Plaintiff failed to use or misused available seatbelts, and thereby contributed to the alleged injuries. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: The Plaintiff has a duty to mitigate all damages with specific reference to future medical damages and, under the Patient Protection and Affordable Care Act, has a federally mandated mechanism in which to do so. 2 of 5 FILED: ORANGE COUNTY CLERK 03/22/2022 03:30 PM INDEX NO. EF008166-2021 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/22/2022 AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: Plaintiff has an obligation to mitigate any and all damages and having failed to do so is therefore charged with said failure to mitigate. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: That pursuant to General Obligations Law Section 15-108 this Defendants are entitled to and demands a set off against any judgment that may be recovered by the Plaintiff herein to the extent of any amount previously paid by and on behalf of any third party to the Plaintiff in settlement of their action or in the amount of this aforesaid Defendants' equitable share of damages under Article 14 of the CPLR, whichever is greater. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: That the Defendants were confronted by an emergency situation. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: That the Court lacks jurisdiction over the person of the Defendants. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: That the Court lacks jurisdiction over the subject matter as alleged in the Complaint. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: The Complaint fails to state a cause of action. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANTS ALLEGE AS FOLLOWS: The automobile accident which is the basis of Plaintiff's action was caused and/or contributed by the actions of a third party over whom this Defendants have no control. 3 of 5 FILED: ORANGE COUNTY CLERK 03/22/2022 03:30 PM INDEX NO. EF008166-2021 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/22/2022 WHEREFORE, the answering Defendants demand judgment dismissing the Complaint herein, together with the costs and disbursements of this action, and any and all other relief this Court deems reasonable and just. DATED: Williamsville, NY March 22, 2022 Respectfully submitted, ___________________________ Shayna D. Gorski, Esq. LAW OFFICES OF JENNIFER S. ADAMS Attorney for Defendants Dajour A. Brown and Najoir J. Byers One Executive Boulevard, Suite 280 Yonkers, NY 10701 Telephone: (716) 810-1320 Our File No.: 205112378-001 TO: Joseph M. Pugliese, Esq. MAINETTI & MAINETTI, P.C. Attorney for Plaintiff Charles McDonough 130 N. Front Street Kingston, NY 12401 (845) 600-0000 4 of 5 FILED: ORANGE COUNTY CLERK 03/22/2022 03:30 PM INDEX NO. EF008166-2021 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 03/22/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE Index No.: EF008166/2021 CHARLES MCDONOUGH, ATTORNEY VERIFICATION Plaintiff(s), -against- DAJOUR A. BROWN and NAJOIR J. BYERS, Defendant(s). STATE OF NEW YORK } } COUNTY OF ERIE } Shayna D. Gorski, Esq., says that: I am the attorney of record or of counsel with the attorneys of record for the DEFENDANTS, DAJOUR A. BROWN AND NAJOIR J. BYERS. I have read the annexed NOTICE OF APPEARANCE AND VERIFIED ANSWER, DEMAND FOR VERIFIED BILL OF PARTICULARS, DEMAND FOR SPECIFIC RELIEF REQUESTED, COMBINED DEMAND FOR DISCOVERY AND INSPECTION, NOTICE TO TAKE DEPOSITION, NOTICE FOR INDEPENDENT MEDICAL EXAMINATIONS AND CPLR 2103 NOTICE and know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon the following: Discussions with the Defendants and/or review of notes and/or documents in our files. The reason I make this verification, instead of Defendants, is that the Defendants do not presently reside in the County where your Deponent has an office. That the sources of your Deponent's information and the grounds of my belief as to the matters so alleged herein are investigations had by the Defendants, their agents, servants and representatives into the subject matter hereof and correspondence relating thereto, reports of which investigations and copies of which correspondence are in the possession of your Deponent. I affirm that the foregoing statements are true under penalties of perjury. Dated: Williamsville, NY March 22, 2022 By: Shayna D. Gorski, Esq. 5 of 5