Preview
FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012
NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021
EXHIBIT “B”
FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012
NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021
2012C0004434FL
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
--- ----------------------- -X Index No. 038664/12
JOHN VENTO, a minor by his mother and
natural guardian KIMBERLY VENTO and
KIMBERLY VENTO individually, ANSWER, CROSS-CLAIM,
DEMAND FOR BILL OF
Plaintiff, PARTICULARS AND
-against- VARIOUS DEMANDS
DARNELL M. EDWARDS, ISLANDWIDE
TRANSPORTATION INCORPORATED
and THE TOWN OF BROOKHAVEN,
Defendants.
----------------------------- ------X
The defendant, DARNELL M. EDWARDS, by his attorneys, LAW OFFICES OF FRANK J.
LAURINO, answering the Complaint herein, alleges upon information and belief as follows:
ANSWERING THE FIRST CAUSE OF ACTION
1. Denies any knowledge or information sufficient to form a belief as to the allegations
"13" "20"
contained in the paragraphs marked "1", "4", "5", "6", "9", "10", and of the complaint
herein.
2. Denies any knowledge or information sufficient to form a belief as to the allegations
"2"
contained in the paragraph marked of the complaint herein except admits that at all times
hereinafter mentioned, defendant, DARNELL M. EDWARDS, resided at 643 Granny Road, Medford,
NY 11763.
3. Denies any knowledge or information sufficient to form a belief as to the allegations
"3"
contained in the paragraph marked of the complaint herein except admits that at alltimes herein
mentioned, defendant, DARNELL M. EDWARDS, was the operator ofthe 2003 Ford motor vehicle
bearing New York license plate number 1132OLV.
"15" "19"
4. Denies the allegations contained in the paragraphs marked "7", "12", through
"21"
and of the complaint herein.
"8"
5. Denies the allegations contained in the paragraph marked of the complaint herein
except admits that upon information and belief, at all times hereinafter mentioned, the defendant,
DARNELL M. EDWARDS, was the operator of the 2003 Ford motor vehicle bearing New York State
license plate number 1132OLV with the knowledge, permission, consent and acquiescence, both
express and implied of its owner.
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6. Denies any knowledge or information sufficient to form a belief as to the allegations
"11"
contained in the paragraph marked of the complaint herein except admits that on or about April 5,
2012, defendant, DARNELL M. EDWARDS, was operating the 2003 Ford on Plandome Road.
7. Denies any knowledge or information sufficient to form a belief as to the allegations
"14"
contained in the paragraph marked of the complaint herein except admits that on or about April 5,
2012, at the aforementioned location, the 2003 Ford motor vehicle operated by defendant, DARNELL
M. EDWARDS, came into contact with a mim motorbike.
ANSWERING THE SECOND CAUSE OF ACTION
"22"
7. Answering paragraph the defendant, DARNELL M. EDWARDS repeats,
reiterates and realleges each and every admission and denial heretofore made in answer to paragraphs
"1" "21"
through inclusive of the complaint herein, with the same force and effect as if herein set forth
in detail.
8. Denies any knowledge or information sufficient to form a belief as to the allegations
"23" "47" "48"
contained in the paragraphs marked through "45", and of the complaint herein.
"49"
9. Denies each and every allegation contained in the paragraphs marked "46", and
"50"
of the complaint herein.
ANSWERING THE THIRD CAUSE OF ACTION
"51"
10. Answering paragraph the defendant, DARNELL M. EDWARDS repeats,
reiterates and realleges each and every admission and denial heretofore made in answer to paragraphs
"1" "50"
through inclusive of the complaint herein, with the same force and effect as if herein set forth
in detail.
11. Denies any knowledge or information sufficient to form a belief as to the allegations
"52"
contained in the paragraphs marked of the complaint herein.
"53" "54"
12. Denies each and every allegation contained in the paragraphs marked and of
the complaint herein.
AS AND FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
If the Plaintiff sustained any injuries and/or damages at the time and place alleged in the
complaint, the Plaintiff assumed the risk inherent in the activity in which Plairitiffwas then engaged
and further such injuries and/or damages were caused by reason of the culpable conduct and/or
negligence of the Plaintiff without any negligence on the part of the Defendmt contributing thereto.
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AS AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
That the said action is barred and precluded by virtue of Article 51, Sections 5101, 5102, 5103
and 5104 of the New York State Insurance Law.
AS AND FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
Upon information and belief, any past or future costs or expenses incurred or to be incurred by
the Plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings or
other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or
in part from the collateral source as defined in Section 4545(c) of the New York Civil Practice Law
and Rules. If any damages are recoverable against this said answering Defendant, the amount of such
damages shall be diminished by the amount of the funds which Plaintiff has or shall receive from such
collateral source.
AS AND FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
That Plaintiff is guilty of negligence as a matter of law in that he violated the Vehicle and
Traffic Law in riding a motorcycle without the proper seating capacity.
AS AND FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
The Plaintiff is guilty of negligence as a matter of law in that he violated the Vehicle and
Traffic Law in riding on a motorcycle without wearing a protective helmet.
AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
The Plaintiff assumed the risk inherent in riding on a motorcycle.
AS AND FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
The Plaintiff failed to use a protective helmet. As a result his injuries were aggravated thereby.
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AS AND FOR AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE
TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY
ALLEGES UPON INFORMATION AND BELIEF:
Plaintiffs'
recovery must be offset by a settlement pursuant to General Obligations Law
Section15-108.
AS AND FOR A CROSS-COMPLAINT AGAINST THE CO-DEFENDANTS,
ISLANDWIDE TRANSPORTATION INCORPORATED and THE TOWN OF
BROOKHAVEN, THE DEFENDANT, DARNELL M. EDWARDS,
UPON INFORMATION AND BELIEF, ALLEGES:
That if the Plaintiffs sustained damages as alleged in the complaint through any fault other than
his/her then such damages were sustained due to the and active and sole fault of the Co-
own, primary
Defendants, ISLANDWIDE TRANSPORTATION INCORPORATED and THE TOWN OF
BROOKHAVEN, and the fault, if any, of this answering Defendant was secondary and passive only;
and if the Plaintiffs should obtain and/or recover judgment against this answering Defendant, then the
co-defendants ISLANDWIDE TRANSPORTATION INCORPORATED and THE TOWN OF
BROOKHAVEN, shall be liable over this answering Defendant for the full amount of said judgment or
for any part thereof obtained and/or recovered on the basis of apportionment of respoñsibility for the
alleged occurrence as found by the Court and/or Jury.
Further, by reason, of this action, the said answering Defendant has incurred, and will in the
future incur, costs and expenses including counsel fees.
WHEREFORE, the Defendant, DARNELL M. EDWARDS, demands judgment dismissing
plaintiff s complaint or, alternatively, judgment over and against the co-defendants, ISLANDWIDE
TRANSPORTATION INCORPORATED and THE TOWN OF BROOKHAVEN, for the full amount
of any judgment obtained and/or recovered against this answering Defendant by the Plaintiffs or any
part of such judgment obtained and/or apportionment of responsibility between the Defendant, together
with the costs, disbursements and expenses of this action, including attorney's fees.
Dated: Bethpage, New York
February 27, 2013
Yours, etc.
LAW OFFICE OF FRANK J. LAURINO
Attorneys for Defendant
DARNELL M. EDWARDS
Office and P.O. Address
999 Stewart Avenue
Bethpage, New York 11714
Telephone: (516) 349-0111
File No.: 2012C0004434FL
FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012
NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021
TO: Weitzman & Kletzkin, Esq
Attorneys for Plaintiffs
845 Third Ave
Sixth Floor
New York, NY 10022
(646) 290-5270
ISLANDWIDE TRANSPORTATION INCORPORATED
1618 Main Street
Port Jefferson, NY 11777
THE TOWN OF BROOKHAVEN
One Independence Hill
Farmingdale, NY 11738
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ATTORNEY'S VERIFICATION
The undersigned, an attorney admitted to practice in the Courts of New York State, hereby
affirms as true under all the penalties of perjury that affirmant is associated with the LAW OFFICES
OF FRANK J. LAURINO, attorneys of record for the Defendant, DARNELL M. EDWARDS, in the
within action; that affirmant has read the foregoing ANSWER and knows the contents thereof; that the
same is true to affirmant's own knowledge, except as to the matter therein stated to be alleged upon
information and belief, and that as to those matters affirmant believes them to be true. Affirmant
further states that the reason this verification is made by affirmant and not by Defendant, is because
Defendant resides outside the County of affirmant's office.
The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are as
follows:
Investigations and information received by affirmant in the course of representing Defendant.
Dated: Bethpage, New York
February 27, 2013
Donald Malone
FILED
FILED: : SU F FOLK
SUFFOLK COUNTY
COUNTY CLERK
CLERK 03/12/2021 04:39 PM INDEX
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NYSCEF
NYSCEF DOC.
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304 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 03/12/2021
03/06/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
------------------- -----------------------------------------X
JOHN VENTO, a minor by his Mother and
Natural Guardian KIMBERLY VENTO and Index No. 38664/12
KIMBERLY VENTO individually,
Plaintiffs, VERIFIED ANSWER
- against -
DARNELL M. EDWARDS, ISLANDWIDE
TRANSPORTATION INCORPORATED and
THE TOWN OF BROOKHAVEN,
Defendants.
-------------------------------------- --------------------X
Defendant, THE TOWN OF BROOKHAVEN, by its attorneys, DEVITT SPELLMAN
plaintiffs'
BARRETT, LLP, as and for its Answer to the Complaint, upon information and belief,
states as follows:
ANSWERING THE FIRST CAUSE OF ACTION
FIRST: Denies having any knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraphs numbered and designated as "1", "2", "3",
"14"
"4", "5", "6", "7", "8", "11","12", "13", and "17".
SECOND: Denies each and every allegation contained in paragraphs numbered and
"19"
designated as "9", "15", "16", "18", and "21".
THIRD: Denies each and every allegation contained in paragraphs numbered and
"10"
designated as and "20", and leaves all questions of law for the Court.
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ANSWERING THE SECOND CAUSE OF ACTION
"22"
FOURTH: Answering paragraph of the Complaint, defendant repeats, reiterates
and realleges 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.
FIFTH: Denies each and every allegation contained in paragraph numbered and
designated as "24", except admits that the Town of Brookhaven received a Notice of Claim, and
leaves allquestions of law for the Court.
SIXTH: Denies each and every allegation contained in paragraphs numbered and
"35"
designated as "26", "27", "31", "32", "33", "34", and "36", and leaves all questions of law
for the Court.
SEVENTH: Denies having any knowledge or information sufficient to form a belief as
"29"
to the truth of the allegations contained in paragraphs numbered and designated as "28",
and "30".
EIGHTH: Denies each and every allegation contained in paragraphs numbered and
"49"
designated as "37", "38", "39", "40", "41", "42", "43", "44", "45", "46", "47", "48", and
"50".
ANSWERING THE THIRD CAUSE OF ACTION
"51"
NINTH: Answering paragraph of the Complaint, defendant repeats, reiterates
and realleges 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: Denies having any knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraph numbered and designated as "52".
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ELEVENTH: Denies each and every allegation contained in paragraphs numbered and
"53"
designated as and "54".
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
TWELFTH: 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
determining any equitable share herein and if the answering defendant's liability is 50% or less
of the total liability assigned, then the answering defendant's liability for non economic loss shall
not exceed the equitable share as determined by the answering defendant's percentage of liability
for non economic loss pursuant to Civil Practice Law and Rules Article 16.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
THIRTEENTH: 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
plaintiffs'
FOURTEENTH: The Complaint failsto state a cause of action.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
FIFTEENTH: 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 defendant.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
SIXTEENTH: 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
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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 SIXTH AFFIRMATIVE DEFENSE
SEVENTEENTH: That plaintiffs failed to take those steps necessary to mitigate their
damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
EIGHTEENTH: That the defendant, THE TOWN OF BROOKHAVEN, did not receive
written notice of the alleged defective or dangerous conditions as required by Section 65-A of
the Town Law of the State of New York and the Town Code of the Town of Brookhaven.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
NINETEENTH: That the defendant, THE TOWN OF BROOKHAVEN, did not receive
written notice of the alleged dangerous or defective conditions as required by law.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
TWENTIETH: That the plaintiff did not use or failed to properly use the seat belts
provided, and that the damages claimed to have been sustained were caused by the lack of use of
the seat belts, and plaintiff did not avail himself of the protective device to mitigate the injuries
herein.
TWENTY-FIRST: That the plaintiff by not fastening the available automobile seat belts
acted unreasonably and disregarded his own best interest and accordingly, contributed to the
happening of the accident and the injuries sustained in said accident.
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AS AND FOR A TENTH AFFIRMATIVE DEFENSE
TWENTY-SECOND: That the plaintiff did not use or failed to properly use a helmet,
and that the damages claimed to have been sustained were caused by the lack of use of a helmet,
and plaintiff did not avail himself of the protective device to mitigate the injuries herein.
TWENTY-THIRD: That the plaintiff by not wearing a helmet acted unreasonably and
disregarded his own best interest and accordingly, contributed to the happening of the accident
and the injuries sustained in said accident.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
TWENTY-FOURTH: That this action is barred by the doctrines of qualified and/or
absolute immunity for discretionary acts.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
TWENTY-FIFTH: That the plaintiff did not use or failed to properly use a helmet in
violation of the Vehicle and Traffic Law.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
TWENTY-SIXTH: That any derivative claim for damages or expenses incurred or to be
incurred by the plaintiffs for medical care, dental care, custodial care, property damage, loss of
services, rehabilitative services, loss of earnings or other economic loss were sustained or
incurred, in whole or in part, by the negligence of the plaintiff(s) asserting such derivative claim.
AS AND FOR A FIRST CROSS CLAIM AGAINST
DEFENDANTS, DARNELL M. EDWARDS AND
ISLANDWIDE TRANSPORTATION INCORPORATED,
THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
TWENTY-SEVENTH: That ifthe plaintiffs sustained the injuries in the manner alleged,
allof which has been denied by this cross-claiming defendant, then such injuries were caused in
whole or in part by the negligence of the co-defendants above named.
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TWENTY-EIGHTH: That by reason of the foregoing, this answering defendant is or will
be entitled to have judgment over and against the co-defendants in whole or in part as to any sum
awarded to plaintiff against this answering defendant.
WHEREFORE, defendant, THE TOWN OF BROOKHAVEN, demands judgment
dismissing the complaint herein, or in the event that the plaintiffs recover any sum of money
over and against this that this defendant demands judgment over and against the co-
defendant,
defendants above named, as to any such amount, together with the costs and disbursements of
this action.
Dated: Smithtown, New York
February 19, 2013
Yours, etc.,
DEVITT SPELLMAN BARRETT, LLP
Attorneys for Defendant
THE TOWN OF BROOKHAVEN
50 Route 111, Suite 314
Smithtown, New York 11787
(631) 724-8833
WJB/eo'r
Our File No. TB6707W3
TO: WEITZMAN & KLETZKIN, LLP
Attorneys for Plaintiffs
845 Third Avenue, Sixth Floor
New York, NY 10022
(646) 290-5270
DARNELL M. EDWARDS
643 Granny Road
Medford, NY 11763
ISLANDWIDE TRANSPORTATION INCORPORATED
1618 Main Street
Port Jefferson, NY 11777
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NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021
VERIFICATION
STATE OF NEW YORK )
ss.:
COUNTY OF SUFFOLK )
WILLIAM J. BARRETT, being duly sworn, deposes and says:
1. That the Town of Brookhaven is a subdivision of the State of New York, to wit:
a municipal corporation.
2. That your deponent is special counsel for the Town of Brookhaven and attorney
of record in this proceeding.
3. That your deponent has examined all of the documents and other evidence in the
above-entitled action and is now acquainted with the facts herein.
4. That pursuant to §3020 of the C.P.L.R., your deponent has read the foregoing
Answer and knows the contents thereof, that the same is true to deponent's own knowledge,
except as to those matters therein stated to be alleged on information and belief, and as to those
matters therein stated to be alleged on information and belief, depo t belie s itto e true.
WILLIA . BA TT
Sworn to before me this
day of February, 2013.
otary Public
EU7_ABETH O'ROURKE
Notary Public,State ofNew York
No. 010-4727439
Qualified inSuffolk County
Commission Expires
FILED:
FILED : SUFFOLK
SUFFOLK COUNTY
COUNTY CLERK
CLERK 03/12/2021
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NYSCEF
NYSCEF DOC.
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304 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 03/12/2021
04/18/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
---- ------------------------------------------- ----X
JOHN VENTO, a minor by his Mother and Natural
Guardian, KIMBERLY VENTO and KIMBERLY VENTO,
individually,
Plaintiff, VERIFIED ANSWER
-against- Index No. 38664/12
DARNELL M. EDWARDS, ISLANDWIDE
TRANSPORTATION INCORPORATED and THE
TOWN OF BROOKHAVEN,
Defendants.
-- ----------------------------------X
The Defendant, ISLANDWIDE TRANSPORTATION INCORPORATED by their
attorneys, ESTRIN BENN & LANE, LLC, answering the Verified Complaint of the Plaintiffs
herein, respectfully shows to the Court and alleges:
ANSWERING THE FIRST CAUSE OF ACTION
"14"
1. Answering the paragraphs of the complaint marked "1", "2", "3", "9", "10", "13",
"15"
and deny knowledge or information sufficient to form a belief as to the truth of each and
every allegation set forth therein.
2. Answering the paragraphs of the complaint marked "5", "6", "7", "8", "11", "12", "16",
"20" "21""
"17, "18", "19", and deny each and every allegation set forth therein.
"4"
3. Answering the paragraph of the corsplaint marked admit that ISLANDWIDE
TRANSPORATION INC. incorrectly sued herein as ISLANDWIDE TRANSPORTATION
INCORPORATED is a domestic business corporation.
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ANSWERING THE SECOND CAUSE OF ACTION
4. With respect to the allegations of paragraph "22", Defendant, repeãts, reiterates and
"1"
reallege each and every respective response and statement contained in Paragraphs through
"21", with the same force and effect as though fully set forth herein at length.
5. Answerhig the paragraphs of the complaint marked "23", "24", "25", "26", "27", "28",
"29", "30", "31", "32", "33", "34", "35", "36", "37", "38", "39", "40", "41", "42", "43", "44",
"47" "48" "49"
"45", "46", and deny knowledge or information sufficient to form a belief as to
the truth of each and every allegation set forth therein.
"50"
6. Answering the paragraphs of the complaint marked deny each and every allegation
set forth therein.
ANSWERING T_HE THIRD CAUSE OF ACTION
7. With respect to the allegations of paragraph "51", Defendant, repeats, reiterates and
"1"
reallege each and every respective response and statement contained in Paragraphs through
"50", with the same force and effect as though fully set forth herein at length.
8. the paragraph of the complaint marked knowledge or information
Answering "52"deny
sufficient to form a belief as to the truth of each and every allegation set forth therein.
"53" "54"
9. Answering the paragraphs of the complaint marked and deny each and every
allegation set forth therein.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE:
10. Upon information and belief, any injuries and/or damages which have been
may
sustained by the plaintiffs at the time
Preview
FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 EXHIBIT “B” FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 2012C0004434FL SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --- ----------------------- -X Index No. 038664/12 JOHN VENTO, a minor by his mother and natural guardian KIMBERLY VENTO and KIMBERLY VENTO individually, ANSWER, CROSS-CLAIM, DEMAND FOR BILL OF Plaintiff, PARTICULARS AND -against- VARIOUS DEMANDS DARNELL M. EDWARDS, ISLANDWIDE TRANSPORTATION INCORPORATED and THE TOWN OF BROOKHAVEN, Defendants. ----------------------------- ------X The defendant, DARNELL M. EDWARDS, by his attorneys, LAW OFFICES OF FRANK J. LAURINO, answering the Complaint herein, alleges upon information and belief as follows: ANSWERING THE FIRST CAUSE OF ACTION 1. Denies any knowledge or information sufficient to form a belief as to the allegations "13" "20" contained in the paragraphs marked "1", "4", "5", "6", "9", "10", and of the complaint herein. 2. Denies any knowledge or information sufficient to form a belief as to the allegations "2" contained in the paragraph marked of the complaint herein except admits that at all times hereinafter mentioned, defendant, DARNELL M. EDWARDS, resided at 643 Granny Road, Medford, NY 11763. 3. Denies any knowledge or information sufficient to form a belief as to the allegations "3" contained in the paragraph marked of the complaint herein except admits that at alltimes herein mentioned, defendant, DARNELL M. EDWARDS, was the operator ofthe 2003 Ford motor vehicle bearing New York license plate number 1132OLV. "15" "19" 4. Denies the allegations contained in the paragraphs marked "7", "12", through "21" and of the complaint herein. "8" 5. Denies the allegations contained in the paragraph marked of the complaint herein except admits that upon information and belief, at all times hereinafter mentioned, the defendant, DARNELL M. EDWARDS, was the operator of the 2003 Ford motor vehicle bearing New York State license plate number 1132OLV with the knowledge, permission, consent and acquiescence, both express and implied of its owner. FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 6. Denies any knowledge or information sufficient to form a belief as to the allegations "11" contained in the paragraph marked of the complaint herein except admits that on or about April 5, 2012, defendant, DARNELL M. EDWARDS, was operating the 2003 Ford on Plandome Road. 7. Denies any knowledge or information sufficient to form a belief as to the allegations "14" contained in the paragraph marked of the complaint herein except admits that on or about April 5, 2012, at the aforementioned location, the 2003 Ford motor vehicle operated by defendant, DARNELL M. EDWARDS, came into contact with a mim motorbike. ANSWERING THE SECOND CAUSE OF ACTION "22" 7. Answering paragraph the defendant, DARNELL M. EDWARDS repeats, reiterates and realleges each and every admission and denial heretofore made in answer to paragraphs "1" "21" through inclusive of the complaint herein, with the same force and effect as if herein set forth in detail. 8. Denies any knowledge or information sufficient to form a belief as to the allegations "23" "47" "48" contained in the paragraphs marked through "45", and of the complaint herein. "49" 9. Denies each and every allegation contained in the paragraphs marked "46", and "50" of the complaint herein. ANSWERING THE THIRD CAUSE OF ACTION "51" 10. Answering paragraph the defendant, DARNELL M. EDWARDS repeats, reiterates and realleges each and every admission and denial heretofore made in answer to paragraphs "1" "50" through inclusive of the complaint herein, with the same force and effect as if herein set forth in detail. 11. Denies any knowledge or information sufficient to form a belief as to the allegations "52" contained in the paragraphs marked of the complaint herein. "53" "54" 12. Denies each and every allegation contained in the paragraphs marked and of the complaint herein. AS AND FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: If the Plaintiff sustained any injuries and/or damages at the time and place alleged in the complaint, the Plaintiff assumed the risk inherent in the activity in which Plairitiffwas then engaged and further such injuries and/or damages were caused by reason of the culpable conduct and/or negligence of the Plaintiff without any negligence on the part of the Defendmt contributing thereto. FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 AS AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: That the said action is barred and precluded by virtue of Article 51, Sections 5101, 5102, 5103 and 5104 of the New York State Insurance Law. AS AND FOR A THIRD SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: Upon information and belief, any past or future costs or expenses incurred or to be incurred by the Plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from the collateral source as defined in Section 4545(c) of the New York Civil Practice Law and Rules. If any damages are recoverable against this said answering Defendant, the amount of such damages shall be diminished by the amount of the funds which Plaintiff has or shall receive from such collateral source. AS AND FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: That Plaintiff is guilty of negligence as a matter of law in that he violated the Vehicle and Traffic Law in riding a motorcycle without the proper seating capacity. AS AND FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: The Plaintiff is guilty of negligence as a matter of law in that he violated the Vehicle and Traffic Law in riding on a motorcycle without wearing a protective helmet. AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: The Plaintiff assumed the risk inherent in riding on a motorcycle. AS AND FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: The Plaintiff failed to use a protective helmet. As a result his injuries were aggravated thereby. FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 AS AND FOR AN EIGHTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE TO THE ENTIRE ACTION, THE DEFENDANT RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: Plaintiffs' recovery must be offset by a settlement pursuant to General Obligations Law Section15-108. AS AND FOR A CROSS-COMPLAINT AGAINST THE CO-DEFENDANTS, ISLANDWIDE TRANSPORTATION INCORPORATED and THE TOWN OF BROOKHAVEN, THE DEFENDANT, DARNELL M. EDWARDS, UPON INFORMATION AND BELIEF, ALLEGES: That if the Plaintiffs sustained damages as alleged in the complaint through any fault other than his/her then such damages were sustained due to the and active and sole fault of the Co- own, primary Defendants, ISLANDWIDE TRANSPORTATION INCORPORATED and THE TOWN OF BROOKHAVEN, and the fault, if any, of this answering Defendant was secondary and passive only; and if the Plaintiffs should obtain and/or recover judgment against this answering Defendant, then the co-defendants ISLANDWIDE TRANSPORTATION INCORPORATED and THE TOWN OF BROOKHAVEN, shall be liable over this answering Defendant for the full amount of said judgment or for any part thereof obtained and/or recovered on the basis of apportionment of respoñsibility for the alleged occurrence as found by the Court and/or Jury. Further, by reason, of this action, the said answering Defendant has incurred, and will in the future incur, costs and expenses including counsel fees. WHEREFORE, the Defendant, DARNELL M. EDWARDS, demands judgment dismissing plaintiff s complaint or, alternatively, judgment over and against the co-defendants, ISLANDWIDE TRANSPORTATION INCORPORATED and THE TOWN OF BROOKHAVEN, for the full amount of any judgment obtained and/or recovered against this answering Defendant by the Plaintiffs or any part of such judgment obtained and/or apportionment of responsibility between the Defendant, together with the costs, disbursements and expenses of this action, including attorney's fees. Dated: Bethpage, New York February 27, 2013 Yours, etc. LAW OFFICE OF FRANK J. LAURINO Attorneys for Defendant DARNELL M. EDWARDS Office and P.O. Address 999 Stewart Avenue Bethpage, New York 11714 Telephone: (516) 349-0111 File No.: 2012C0004434FL FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 TO: Weitzman & Kletzkin, Esq Attorneys for Plaintiffs 845 Third Ave Sixth Floor New York, NY 10022 (646) 290-5270 ISLANDWIDE TRANSPORTATION INCORPORATED 1618 Main Street Port Jefferson, NY 11777 THE TOWN OF BROOKHAVEN One Independence Hill Farmingdale, NY 11738 FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 ATTORNEY'S VERIFICATION The undersigned, an attorney admitted to practice in the Courts of New York State, hereby affirms as true under all the penalties of perjury that affirmant is associated with the LAW OFFICES OF FRANK J. LAURINO, attorneys of record for the Defendant, DARNELL M. EDWARDS, in the within action; that affirmant has read the foregoing ANSWER and knows the contents thereof; that the same is true to affirmant's own knowledge, except as to the matter therein stated to be alleged upon information and belief, and that as to those matters affirmant believes them to be true. Affirmant further states that the reason this verification is made by affirmant and not by Defendant, is because Defendant resides outside the County of affirmant's office. The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are as follows: Investigations and information received by affirmant in the course of representing Defendant. Dated: Bethpage, New York February 27, 2013 Donald Malone FILED FILED: : SU F FOLK SUFFOLK COUNTY COUNTY CLERK CLERK 03/12/2021 04:39 PM INDEX INDEX NO. NO. 038664/2012 038664 /2012 03/06/2013| NYSCEF NYSCEF DOC. DOC. NO. NO. 3 304 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/12/2021 03/06/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ------------------- -----------------------------------------X JOHN VENTO, a minor by his Mother and Natural Guardian KIMBERLY VENTO and Index No. 38664/12 KIMBERLY VENTO individually, Plaintiffs, VERIFIED ANSWER - against - DARNELL M. EDWARDS, ISLANDWIDE TRANSPORTATION INCORPORATED and THE TOWN OF BROOKHAVEN, Defendants. -------------------------------------- --------------------X Defendant, THE TOWN OF BROOKHAVEN, by its attorneys, DEVITT SPELLMAN plaintiffs' BARRETT, LLP, as and for its Answer to the Complaint, upon information and belief, states as follows: ANSWERING THE FIRST CAUSE OF ACTION FIRST: Denies having any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs numbered and designated as "1", "2", "3", "14" "4", "5", "6", "7", "8", "11","12", "13", and "17". SECOND: Denies each and every allegation contained in paragraphs numbered and "19" designated as "9", "15", "16", "18", and "21". THIRD: Denies each and every allegation contained in paragraphs numbered and "10" designated as and "20", and leaves all questions of law for the Court. FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 ANSWERING THE SECOND CAUSE OF ACTION "22" FOURTH: Answering paragraph of the Complaint, defendant repeats, reiterates and realleges 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. FIFTH: Denies each and every allegation contained in paragraph numbered and designated as "24", except admits that the Town of Brookhaven received a Notice of Claim, and leaves allquestions of law for the Court. SIXTH: Denies each and every allegation contained in paragraphs numbered and "35" designated as "26", "27", "31", "32", "33", "34", and "36", and leaves all questions of law for the Court. SEVENTH: Denies having any knowledge or information sufficient to form a belief as "29" to the truth of the allegations contained in paragraphs numbered and designated as "28", and "30". EIGHTH: Denies each and every allegation contained in paragraphs numbered and "49" designated as "37", "38", "39", "40", "41", "42", "43", "44", "45", "46", "47", "48", and "50". ANSWERING THE THIRD CAUSE OF ACTION "51" NINTH: Answering paragraph of the Complaint, defendant repeats, reiterates and realleges 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: Denies having any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph numbered and designated as "52". FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 ELEVENTH: Denies each and every allegation contained in paragraphs numbered and "53" designated as and "54". AS AND FOR A FIRST AFFIRMATIVE DEFENSE TWELFTH: 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 determining any equitable share herein and if the answering defendant's liability is 50% or less of the total liability assigned, then the answering defendant's liability for non economic loss shall not exceed the equitable share as determined by the answering defendant's percentage of liability for non economic loss pursuant to Civil Practice Law and Rules Article 16. AS AND FOR A SECOND AFFIRMATIVE DEFENSE THIRTEENTH: 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 plaintiffs' FOURTEENTH: The Complaint failsto state a cause of action. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE FIFTEENTH: 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 defendant. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE SIXTEENTH: 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 FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 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 SIXTH AFFIRMATIVE DEFENSE SEVENTEENTH: That plaintiffs failed to take those steps necessary to mitigate their damages. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE EIGHTEENTH: That the defendant, THE TOWN OF BROOKHAVEN, did not receive written notice of the alleged defective or dangerous conditions as required by Section 65-A of the Town Law of the State of New York and the Town Code of the Town of Brookhaven. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE NINETEENTH: That the defendant, THE TOWN OF BROOKHAVEN, did not receive written notice of the alleged dangerous or defective conditions as required by law. AS AND FOR A NINTH AFFIRMATIVE DEFENSE TWENTIETH: That the plaintiff did not use or failed to properly use the seat belts provided, and that the damages claimed to have been sustained were caused by the lack of use of the seat belts, and plaintiff did not avail himself of the protective device to mitigate the injuries herein. TWENTY-FIRST: That the plaintiff by not fastening the available automobile seat belts acted unreasonably and disregarded his own best interest and accordingly, contributed to the happening of the accident and the injuries sustained in said accident. FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 AS AND FOR A TENTH AFFIRMATIVE DEFENSE TWENTY-SECOND: That the plaintiff did not use or failed to properly use a helmet, and that the damages claimed to have been sustained were caused by the lack of use of a helmet, and plaintiff did not avail himself of the protective device to mitigate the injuries herein. TWENTY-THIRD: That the plaintiff by not wearing a helmet acted unreasonably and disregarded his own best interest and accordingly, contributed to the happening of the accident and the injuries sustained in said accident. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE TWENTY-FOURTH: That this action is barred by the doctrines of qualified and/or absolute immunity for discretionary acts. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE TWENTY-FIFTH: That the plaintiff did not use or failed to properly use a helmet in violation of the Vehicle and Traffic Law. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE TWENTY-SIXTH: That any derivative claim for damages or expenses incurred or to be incurred by the plaintiffs for medical care, dental care, custodial care, property damage, loss of services, rehabilitative services, loss of earnings or other economic loss were sustained or incurred, in whole or in part, by the negligence of the plaintiff(s) asserting such derivative claim. AS AND FOR A FIRST CROSS CLAIM AGAINST DEFENDANTS, DARNELL M. EDWARDS AND ISLANDWIDE TRANSPORTATION INCORPORATED, THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: TWENTY-SEVENTH: That ifthe plaintiffs sustained the injuries in the manner alleged, allof which has been denied by this cross-claiming defendant, then such injuries were caused in whole or in part by the negligence of the co-defendants above named. FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 TWENTY-EIGHTH: That by reason of the foregoing, this answering defendant is or will be entitled to have judgment over and against the co-defendants in whole or in part as to any sum awarded to plaintiff against this answering defendant. WHEREFORE, defendant, THE TOWN OF BROOKHAVEN, demands judgment dismissing the complaint herein, or in the event that the plaintiffs recover any sum of money over and against this that this defendant demands judgment over and against the co- defendant, defendants above named, as to any such amount, together with the costs and disbursements of this action. Dated: Smithtown, New York February 19, 2013 Yours, etc., DEVITT SPELLMAN BARRETT, LLP Attorneys for Defendant THE TOWN OF BROOKHAVEN 50 Route 111, Suite 314 Smithtown, New York 11787 (631) 724-8833 WJB/eo'r Our File No. TB6707W3 TO: WEITZMAN & KLETZKIN, LLP Attorneys for Plaintiffs 845 Third Avenue, Sixth Floor New York, NY 10022 (646) 290-5270 DARNELL M. EDWARDS 643 Granny Road Medford, NY 11763 ISLANDWIDE TRANSPORTATION INCORPORATED 1618 Main Street Port Jefferson, NY 11777 FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 VERIFICATION STATE OF NEW YORK ) ss.: COUNTY OF SUFFOLK ) WILLIAM J. BARRETT, being duly sworn, deposes and says: 1. That the Town of Brookhaven is a subdivision of the State of New York, to wit: a municipal corporation. 2. That your deponent is special counsel for the Town of Brookhaven and attorney of record in this proceeding. 3. That your deponent has examined all of the documents and other evidence in the above-entitled action and is now acquainted with the facts herein. 4. That pursuant to §3020 of the C.P.L.R., your deponent has read the foregoing Answer and knows the contents thereof, that the same is true to deponent's own knowledge, except as to those matters therein stated to be alleged on information and belief, and as to those matters therein stated to be alleged on information and belief, depo t belie s itto e true. WILLIA . BA TT Sworn to before me this day of February, 2013. otary Public EU7_ABETH O'ROURKE Notary Public,State ofNew York No. 010-4727439 Qualified inSuffolk County Commission Expires FILED: FILED : SUFFOLK SUFFOLK COUNTY COUNTY CLERK CLERK 03/12/2021 0 4 /18 /2 013 04:39 PM INDEX INDEX NO. NO. 038664/2012 038664/2012 NYSCEF NYSCEF DOC. DOC. NO. NO. 12 304 RECEIVED RECEIVED NYSCEF: NYSCEF: 03/12/2021 04/18/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ---- ------------------------------------------- ----X JOHN VENTO, a minor by his Mother and Natural Guardian, KIMBERLY VENTO and KIMBERLY VENTO, individually, Plaintiff, VERIFIED ANSWER -against- Index No. 38664/12 DARNELL M. EDWARDS, ISLANDWIDE TRANSPORTATION INCORPORATED and THE TOWN OF BROOKHAVEN, Defendants. -- ----------------------------------X The Defendant, ISLANDWIDE TRANSPORTATION INCORPORATED by their attorneys, ESTRIN BENN & LANE, LLC, answering the Verified Complaint of the Plaintiffs herein, respectfully shows to the Court and alleges: ANSWERING THE FIRST CAUSE OF ACTION "14" 1. Answering the paragraphs of the complaint marked "1", "2", "3", "9", "10", "13", "15" and deny knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth therein. 2. Answering the paragraphs of the complaint marked "5", "6", "7", "8", "11", "12", "16", "20" "21"" "17, "18", "19", and deny each and every allegation set forth therein. "4" 3. Answering the paragraph of the corsplaint marked admit that ISLANDWIDE TRANSPORATION INC. incorrectly sued herein as ISLANDWIDE TRANSPORTATION INCORPORATED is a domestic business corporation. FILED: SUFFOLK COUNTY CLERK 03/12/2021 04:39 PM INDEX NO. 038664/2012 NYSCEF DOC. NO. 304 RECEIVED NYSCEF: 03/12/2021 ANSWERING THE SECOND CAUSE OF ACTION 4. With respect to the allegations of paragraph "22", Defendant, repeãts, reiterates and "1" reallege each and every respective response and statement contained in Paragraphs through "21", with the same force and effect as though fully set forth herein at length. 5. Answerhig the paragraphs of the complaint marked "23", "24", "25", "26", "27", "28", "29", "30", "31", "32", "33", "34", "35", "36", "37", "38", "39", "40", "41", "42", "43", "44", "47" "48" "49" "45", "46", and deny knowledge or information sufficient to form a belief as to the truth of each and every allegation set forth therein. "50" 6. Answering the paragraphs of the complaint marked deny each and every allegation set forth therein. ANSWERING T_HE THIRD CAUSE OF ACTION 7. With respect to the allegations of paragraph "51", Defendant, repeats, reiterates and "1" reallege each and every respective response and statement contained in Paragraphs through "50", with the same force and effect as though fully set forth herein at length. 8. the paragraph of the complaint marked knowledge or information Answering "52"deny sufficient to form a belief as to the truth of each and every allegation set forth therein. "53" "54" 9. Answering the paragraphs of the complaint marked and deny each and every allegation set forth therein. AS AND FOR A FIRST AFFIRMATIVE DEFENSE: 10. Upon information and belief, any injuries and/or damages which have been may sustained by the plaintiffs at the time