No Value: Charles Mcdonough v. Dajour A Brown, Najoir J Byers

On December 14, 2021 a No Value was filed involving a dispute between Charles Mcdonough, and Dajour A Brown, Najoir J Byers, for Torts - Motor Vehicle in the District Court of Orange County.

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FILED: ORANGE COUNTY CLERK 06/14/2022 02:37 PM INDEX NO. EF008166-2021
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 06/14/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE

CHARLES MCDONOUGH, VERIFIED ANSWER TO
THIRD-PARTY
Plaintiff(s), COMPLAINT AND
COUNTERCLAIM
-against-
Index Number:
DAJOUR A. BROWN and NAJOIR J. BYERS, EF008166/21

Defendant(s),

DAJOUR A. BROWN and NAJOIR J. BYERS, Third-Party Action

Third-Party Plaintiff(s),

-against-

HEATHER FERRARA,

Third-Party Defendant(s),

The third-party defendant(s), Heather Ferrara, answering the Third-Party Complaint

herein:

First: Admit(s) each and every allegation in the paragraph(s) of the Third-Party

Complaint designated as follows: 5.

Second: Deny/denies each and every allegation in the paragraph(s) of the Third-Party

Complaint designated as follows: 6, 7 and 8.

Third: Deny/denies any knowledge or information sufficient to form a belief as to the

truth of any of the allegations contained in the paragraph(s) of the Third-Party Complaint

designated as follows: 1, 2, 3 and 4.

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The Third-Party Defendant(s), Heather Ferrara, Set(s) Forth
the Following Affirmative Defenses

Fourth: That whatever damage, personal injury, injury to property or wrongful death

the plaintiff(s) and/or the plaintiff(s)’s decedent may have sustained, if any, at the time and place

alleged in the Complaint herein, or any amendments thereto, was caused by the carelessness,

negligence, recklessness, assumption of risk and culpable conduct and want of care on the part of

the plaintiff(s) and/or the plaintiff(s)’s decedent; and if any carelessness, negligence,

recklessness or culpable conduct upon the part of the answering third-party defendant(s) caused

or contributed to such injury or wrongful death and damages to the plaintiff(s) and/or the

plaintiff’s decedent, such carelessness, negligence, recklessness or culpable conduct bore only a

slight proportion to the entire negligence and culpable conduct attributable to both the plaintiff(s)

and/or the plaintiff’s decedent in causing the accident and any damages sustained.

Fifth: The plaintiff(s) failed to mitigate damages allegedly suffered.

Sixth: Upon information and belief, some or all of the damages alleged in the

plaintiff(s)’s Complaint is/are barred and/or subject to the qualification of the provision of §

4545 of the CPLR.

Seventh: If it is determined that the plaintiff(s) failed to use available seat belts, the

third-party defendant(s) plead(s) said fact in mitigation of damages.

Eighth: In the event that any person or entity liable or claimed to be liable for the

injuries or damages alleged in this action has been given or may hereafter be given a release or

covenant not to sue, the answering third-party defendant(s) will be entitled to protection under

New York General Obligations Law 15-108 and the corresponding reduction of any damages

that may be determined to be due against the answering third-party defendant(s).

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Ninth: That the third-party action cannot be maintained due to payment and/or

release to plaintiff, Charles McDonough.

As and For a Full and Complete Counterclaim Against the
Defendant(s)/Third-Party Plaintiff(s), Najoir J. Byers and
Dajour A. Brown, the Third-Party Defendant(s) Respectfully
Allege(s)

Tenth: That if the plaintiff(s) herein recover(s) a judgment against the

defendant(s)/third-party plaintiff(s), said judgment will have been caused and brought about by

the primary negligence of the defendant(s)/third-party plaintiff(s), Najoir J. Byers and Dajour A.

Brown, in that the defendant(s)/third-party plaintiff(s), Najoir J. Byers and Dajour A. Brown,

conducted themselves in such a manner as to cause the accident and damages complained of and

were otherwise negligent in the premises and who were guilty of breaches of duty and/or

warranty and/or contract which duties were imposed by Statute and/or Agreement and/or implied

in laws and without any negligence or breach of any duty by the third-party defendant(s) whose

negligence, if any, was secondary in nature so that if the plaintiff(s) recover(s) a judgment

against the third-party defendant(s), then the third-party defendant(s), Heather Ferrara, should

have determination of ultimate responsibility and judgment over and against the

defendant(s)/third-party plaintiff(s), Najoir J. Byers and Dajour A. Brown, for the same amount

or such proportionate amount of any said judgment and damages as the defendant(s)/third-party

plaintiff(s), Najoir J. Byers and Dajour A. Brown, are found to have caused or be responsible for

together with all costs of investigation, disbursements, expenses, attorney’s fees, costs and

disbursements incurred in the defense of this action and in the conduct of the counterclaim.

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Wherefore, the third-party defendant(s), Heather Ferrara, demand(s) judgment as follows:

a. dismissing the Third-Party Complaint herein, together with the costs and

disbursements of this action; and

b. judgment over and against the defendant/third-party plaintiff(s), Najoir J.

Byers and Dajour A. Brown, for the full amount of any verdict or judgment recovered

against the answering third-party defendant(s), by the plaintiff(s), Charles McDonough,

or in such amount as the Court or Jury may direct in accordance with the relative

responsibilities and culpabilities of the parties.

Dated: Jericho, NY
June 14, 2022

MAINETTI, MAINETTI & Sincerely,
O'CONNOR, P.C. JAMES F. BUTLER & ASSOCIATES
Attorney(s) for Plaintiff(s) Attorney(s) for Third Party Defendant(s)
Charles McDonough Heather Ferrara
130 North Front Street P. O. Box 9040
Kingston, NY 12401 300 Jericho Quadrangle, Suite 260
(845) 600-0000 Jericho, NY 11753
alex@mainetti.law (516) 229-6000
File Number: 22NEWY17403
LAW OFFICES OF JENNIFER S. ADAMS Claim Number: 52-15F2-42Q
Attorney(s) for Defendant(s)/Third-Party
Plaintiff(s)
Dajour A. Brown, Najoir J. Byers
One Executive Boulevard, Suite 280
Yonkers, NY 10701
(914) 233-1880
rodney_mohammed@progressive.com

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STATE OF NEW YORK, COUNTY OF NASSAU

The undersigned, an attorney admitted to practice in the courts of New York State,

shows: affirmant is Rebecca L. Marks, an attorney in the law firm of James F. Butler &

Associates, attorneys of record for the third-party defendant(s), in the within action; affirmant

has read the foregoing Answer to Third-Party Complaint and Counterclaim and knows the

contents thereof; the same is true to affirmant’s own knowledge, except as to the matters therein

stated to be alleged on information and belief and that as to those matters affirmant believes it to

be true. This verification is made by affirmant and not by the third-party defendant(s), in that the

third-party defendant(s), is/are not within the county where undersigned has his/her office.

The grounds of affirmant’s belief as to all matters not stated upon affirmant’s knowledge

are as follows: investigations made relative to the subject matter, information and records in

his/her file.

The undersigned affirms that the foregoing statements are true, under the penalties of

perjury.

Dated: Jericho, NY
June 14, 2022

22NEWY17403 _______________________________________
REBECCA L. MARKS, ESQ.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE

CHARLES MCDONOUGH, THIRD-PARTY
DEMAND FOR
Plaintiff(s), BILL OF PARTICULARS

-against- Index Number:
EF008166/21
DAJOUR A. BROWN and NAJOIR J. BYERS,

Defendant(s),

DAJOUR A. BROWN and NAJOIR J. BYERS, Third-Party Action

Third-Party Plaintiff(s),

-against-

HEATHER FERRARA,

Third-Party Defendant(s),

Please take notice that pursuant to the applicable rules of the CPLR, the third-party

defendant(s) demand(s) that you serve upon the undersigned within twenty days:

1. The date, time of day of the claimed occurrence.

2. State the basis for the claim that this/these third-party defendant(s) is/are liable via

indemnification:

a. If it is claimed that the third-party defendant(s) is/are liable pursuant to the

operation of any statute, ordinance and/or law, state such laws and state how such laws

are applicable and how such laws obligate the third-party defendant to indemnify, hold

harmless and/or defend the impleading party, including any acts and omissions

constituting a violation of such laws;

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b. If it is claimed that the third-party defendant(s) is/are liable due to the

operation of any contract, hold harmless agreement, indemnification agreement and/or

warranty provision, state how such contract, hold harmless agreement, indemnification

agreement and/or warranty provision is applicable and state how such contract,

agreement and/or provision obligates the third-party defendant(s) to indemnify, hold

harmless and/or defend the impleading party/parties;

c. If it is claimed that the third-party defendant(s) is/are obligated to

indemnify, hold harmless and/or defend due to a breach of contract, warranty and/or

agreement, state each and every act and/or omission constituting the breach and provide

the date, time and place of each alleged breach of contract, warranty, agreement and/or

provision, including any acts and/or omissions constituting the alleged breach of contract,

warranty, agreement and/or provision and state the specific paragraph(s) or provision

claimed to have been breached.

3. If it is claimed that the third-party plaintiff(s) is/are entitled to indemnification

and/or defense due to the operation of any contract, hold harmless agreement, indemnification

agreement and/or warranty provision, state whether it will be claimed that such contract, hold

harmless agreement, indemnification agreement and/or warranty provision was oral or written,

and, if oral:

a. State the date that said agreement, contract and/or provision was entered

into;

b. State where such agreement, contract and/or provision was entered into;

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c. State the names and addresses of all parties to such agreement, contract

and/or provision and state who acted on behalf of each party in making said agreement,

contract and/or provision;

d. Set forth all the terms and conditions of the agreement, contract and/or

provision.

e. If in writing, set forth a full, true and complete copy of the agreement,

contract and/or provision and state which provisions obligate the third-party defendant to

indemnify, hold harmless and/or defend the impleading third-party plaintiffs.

4. State the basis for the claim that the impleading party/parties is/are entitled to

contribution from the third-party defendant(s).

a. State each and every act, omission and/or breach which is claimed entitles

the impleading party to contribution from the third-party defendant(s).

5. State the basis for the claim that the third-party defendant(s) are jointly and

severally liable.

6. If medical payments or lost earnings were obtained from any collateral source,

including, but not limited to workers’ compensation, no-fault, private health insurance, employee

benefit programs, prepaid health insurance, employee benefit programs, prepaid health plans or

other liability or first party coverage, state and/or provide:

a. the name of each organization that made such payments;

b. the amounts of each such payment and copies of receipts and/or cancelled

checks;

c. the date of each payment;

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d. the policy(ies) or contract number pursuant to which such payments were

made and a copy of such policy(ies);

e. the limits of coverage for such payments;

f. the premium amounts paid by the plaintiff(s) for such coverage;

g. the length of time such coverage remained or will remain in effect for; and

h. the amounts to be owed by plaintiff to continue such coverage.

7. State the basis for the claim that the impleading party/parties is/are entitled to

contribution from the third-party defendant(s).

8. If the third-party plaintiff(s) claim(s) a dangerous, unsafe and/or defective

condition was the cause of the alleged accident:

a. Describe the condition;

b. Set forth in what manner the condition described was dangerous, defective

and/or unsafe;

c. Specify the date and time when the condition was caused or treated;

d. Set forth the identity of the person or company and/or entity who caused

or created the condition.

9. If it is claimed that the third-party defendant(s) had/have actual notice of any

alleged condition:

a. State to whom and by whom such notice was given;

b. State whether such notice was oral or written and if oral, state the date,

manner and circumstances surrounding such notice and provide the sum and substance of

such notice;

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c. If written notice is claimed, provide a copy of the document allegedly

providing notice.

10. If constructive notice is claimed, state how long the dangerous and/or defective

condition existed and state the manner in which the third-party defendant(s) knew or should have

known of the condition.

11. State the amounts of any purported lien(s) or lawful lien(s) against plaintiff(s)’s

recovery and if any are known to the plaintiff(s), state the basis of said lien(s), the date(s) said

lien(s) were established, asserted, filed and/or perfected and state the name(s) of any

lienholder(s) or purported lienholder(s).

12. Give the name of the thoroughfare on which and the direction in which each

motor vehicle or pedestrian allegedly involved in the alleged accident was proceeding prior to

and at the time of the occurrence.

13. If personal or real property damage is claimed, set forth:

a. description of the property damaged;

b. date of purchase and price paid;

c. value of property at time of loss;

d. detailed list of repairs necessary and the cost thereof; and

14. salvage value recovered, if any.

Please take further notice, that in the event that the third-party plaintiff(s) has/have no

knowledge of any of the above matters, the third-party plaintiff(s) shall so state.

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Dated: Jericho, NY
June 14, 2022

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE

CHARLES MCDONOUGH, THIRD-PARTY NOTICE
OF DISCOVERY
Plaintiff(s), AND INSPECTION

-against- Index Number:
EF008166/21
DAJOUR A. BROWN and NAJOIR J. BYERS,

Defendant(s),

DAJOUR A. BROWN and NAJOIR J. BYERS, Third-Party Action

Third-Party Plaintiff(s),

-against-

HEATHER FERRARA,

Third-Party Defendant(s),

Please take notice that pursuant to CPLR 3101 and 3120, the plaintiff(s) and

defendant(s)-third party plaintiff(s) is/are hereby required to produce, furnish and permit

discovery by the third party defendant(s), third party defendant(s)’s attorneys, or representatives,

the following items and/or documents for inspection within 30 days from the date of this Notice

at 10 o’clock in the forenoon at the office of the third party defendant(s)’s attorneys:

1. Pursuant to Rule 2103(e) CPLR, supply the names and addresses of each party

and attorney appearing in this action.

2. A true and accurate copy of all the bills of particulars served by any party in this

action.

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3. Transcripts of depositions or copies of Notices of Depositions if depositions have

not yet been conducted.

4. All Notices to Admit and replies thereto.

5. All pleadings, motions, affirmations and Court Orders served in this case

(including Preliminary Conferences).

6. All Notices for Discovery and Inspection and replies thereto.

7. Index and calendar numbers.

8. A copy of any statement given by or on behalf of any answering party serving this

demand.

9. All correspondence to or from the third-party defendant(s) regarding this accident.

10. A copy of any contract, agreement, hold harmless agreement, indemnification

agreement or warranty alleged by any party to be in effect at the time of the occurrence.

11. Pursuant to Section 3101(e) of the CPLR, provide a copy of any statement given

by or on behalf of any answering defendant serving this demand.

12. Supply photographs under the control of the plaintiff(s) or plaintiff’s counsel

showing the condition of the motor vehicles allegedly involved herein before, during and/or after

the alleged occurrence.

13. Pursuant to CPLR 3101 and 4545(c), all documents, records, bills, invoices,

receipts or canceled checks concerning indemnification, payment and reimbursement, in whole

or in part, which the plaintiff(s) have/had received from collateral sources, including, but not

limited to, benefit programs for the cost of medical, custodial, and rehabilitation services, loss of

earnings and other economic loss which the plaintiff(s) will claim as special damages in this

action; along with duly executed and acknowledged authorizations enabling the undersigned to

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obtain the complete file compiled by the collateral source and in the event the plaintiff(s)

recovers judgment against the defendant(s), the amount of such judgment be reduced by such

amount(s) that may be established on trial, and as authorized by CPLR 4545(c).

14. Names and addresses of all ambulance (private and public) companies, taxicab

and/or public and/or private livery services which have conveyed the plaintiff(s) and whose

services allegedly were necessitated as a result of injuries incurred from the occurrence

complained of in this action. Should the costs of those services constitute an item claimed as and

for special damages in connection with the above-captioned lawsuit, supply the following

information for each identified provider specific dates of hire, time period hired, places of

departure and destination, and charges incurred for each episode of hire.

15. Supply photographs under the control of plaintiff(s) or plaintiff’s counsel showing

the accident situs before, during and after the alleged occurrence.

16. All photographs which will show any allegedly defective condition.

17. Provide any written report and/or statement of the subject accident prepared in the

regular course of business of any person, firm, corporation, association or other public or private

entity.

18. Names and addresses of any known witnesses either to the occurrence or to the

issue of notice.

19. If real or personal property damage is claimed by any party, provide copies of any

repair bills or estimates relating to the items of personal or real property damaged.

20. If real or personal property damage is claimed by any party, provide photographs

of the items of real or personal property claimed to be damaged showing the condition of such

property before, during and after the occurrence.

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21. If the plaintiff(s) was a student at the time of the occurrence complained of herein,

it is hereby requested that plaintiff furnish the undersigned with the names and addresses of all

schools attended by the plaintiff, along with duly executed and acknowledged authorizations

enabling the undersigned to obtain the complete file compiled by the relevant school authority in

connection with plaintiff’s status as a student in any school or school district attended by

plaintiff.

22. Provide duly acknowledged and written authorizations directed to the appropriate

party/business/employer of the plaintiff(s), to allow the answering defendant(s) to obtain the

employment records compiled on the plaintiff(s) for the time period from one (1) year prior to

the date of the occurrence to the present.

23.

a. If the plaintiff(s) is self-employed, provide an IRS Form 4506-T (Request

for Transcript of Tax Return) as well as copies of the plaintiff Federal, State and City

Income Tax Returns for the period commencing three years prior to the alleged

occurrence through the current tax year.

b. If the plaintiff(s) is not self-employed, please provide authorizations to

obtain plaintiff(s), employer’s records of plaintiff’s wages and copies of plaintiff’s W-2s

for the period commencing three (3) years prior to the alleged occurrence through the

current tax period.

24. Provide the names and addresses of all physicians or other health-care providers

of every description who have consulted, examined or treated the plaintiff(s) for each of the

conditions allegedly caused by or exacerbated by the occurrence described in the Complaint,

including the date(s) of such treatment or examination.

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25. Supply duly executed and acknowledged written authorizations to allow this

defendant to obtain the complete office medical records relating to the plaintiff(s) and narrative

reports of each healthcare provided identified in Demand No. 22 above.

26. Pursuant to the applicable rules of the Appellate Division of the Supreme Court

concerning the exchange of medical information, you are required to furnish copies of all

medical records, reports, diagnoses, prognoses, as well as hospital records, x-rays, CT and/or

NMR scan films, EEG, ECG, EMG and/or nerve conduction studies performed by or in the

possession of any doctors, therapists, technicians and/or facilities who have treated or examined

plaintiff(s) for the current condition, any pre-existing condition, and pre-existing condition or

conditions which were exacerbated by this accident and any other doctors, therapists, technicians

and/or health-care facilities identified in Demand No. 22 above.

27. Supply duly executed and acknowledged written authorizations directed to any

hospital, clinic or other health-care facility in which the plaintiff(s) herein is/are or was/were

treated or continued due to the occurrence set forth in the Complaint so as to permit the securing

of a copy of the entire hospital record or record, including x-rays, technicians’ reports and intra-

operative photographs.

28. Provide duly executed and acknowledged written authorizations to allow the

answering defendant(s) to obtain complete pharmacy or drug store records with respect to any

drugs prescribed for plaintiff(s) from one (1) year prior to the occurrence described in the

Complaint to the present.

29. Provide copies of any bills for services rendered by any doctors, therapists,

technicians and/or health-care facilities, including hospitals, for treatment rendered to the

plaintiff(s) in connection with the occurrence described in the Complaint.

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30. Names and addresses of all ambulance (private and public) companies, taxicab

and/or public and/or private livery services which have conveyed plaintiff(s) and whose services

allegedly were necessitated as a result of injuries incurred from the occurrence complained of in

this action. Should the costs of those services constitute an item claimed as and for special

damages in connection with the above-captioned lawsuit, supply the following information for

each identified provider: specific dates of hire, time period hired, places of departure and

destination and charges incurred for each episode of hire.

31. Copies of any purported or lawful liens against plaintiff’s recovery.

32. Provide duly executed and acknowledged written authorizations enabling the

undersigned to obtain the complete no-fault file(s) relating to the plaintiff(s).

33. Duly executed HIPAA complaint authorization permitting defense counsel to

obtain plaintiff(s)’s Medicare records.

34. Duly executed HIPAA complaint authorization permitting defense counsel to

obtain plaintiff(s)’s Medicaid records.

35. Any video recording of the events of the accident that is the subject of this

lawsuit, and any video of the plaintiff(s) showing plaintiff(s)’ physical condition as a result of the

accident.

36. The date and location of each and every accident or incident during the ten (10)

years prior to the subject accident or at any time subsequent to the subject Accident where the

plaintiff claimed and/or sustained injury to the same body part, member, function or system to

which injury has or will be claimed in the subject action.

37. To the extent that any accidents or incidents referred to in paragraph 36 are motor

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vehicle accident, provide the names and addresses of the owners and operators of the vehicles

involved in each such accident.

38. For each and every accident or incident referred to in paragraph 36 above, provide

the names and addresses of all doctors, hospitals, and all other medical providers who treated

and/or examined the plaintiff for injuries to the same body part, member, function or system to

which injury has or will be claimed in the subject action.

39. The name and address of any no-fault carrier, Worker’s Compensation provider,

or other collateral source provider who paid benefits to the plaintiff as a result of any medical

treatment and/or expenses relating to each and every accident referred to in paragraph 36 above.

40. To the extent that any of the accidents or incidents referred to in paragraph 36

resulted in a lawsuit, provide (a) the caption of the lawsuit including the index number and venue

of each action or lawsuit; (b) the name and address of the attorney who represented the plaintiff

in each action or lawsuit.

Please take further notice that this demand is to be continuing and the undersigned will

object at the time of trial to the testimony of any witness not so identified.

Please take further notice that this office does not consent to service by fax or email,

unless otherwise stipulated.

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Dated: Jericho, NY
June 14, 2022

Case Info

Judge

Sandra B Sciortino Track Judge’s New Case

Case No.

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Document Filed Date

June 14, 2022

Case Filing Date

December 14, 2021

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