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FILED: DUTCHESS COUNTY CLERK 01/31/2022 03:53 PM INDEX NO. 2021-54993
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/31/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
a/s/o WINSTON R. MITCHELL, JR.,
Plaintiff,
-against- Index No.:2021-54993
NORTHSIDE INDUSTRIES LLC, OTIS THOMPSON, II,
CARMEL FRANCOISE AND FABIOLA LOUIS,
Defendants.
.................... .
Defendants, Northside Industries LLC and Otis Thompson, II (hereafter "answering
defendants") by and through their counsel, Burke, Scolamiero & Hurd, LLP, as and for a verified
answer to plaintifPs verified complaint, states upon information and belief:
"1"
1. Answering defendants deny the allegations of paragraph of the plaintiff"s
verified complaint for want of knowledge and information sufficient to form a belief as to the truth
thereof.
"2"
2. Answering defendants deny the allegations of paragraph of the plaintiff's
verified complaint for want of knowledge and information sufficient to form a belief as to the truth
thereof.
"3"
3. Answering denies the allegations of paragraph of the plaintiff's verified
complaint for want of knowledge and information sufficient to form a belief as to the truth thereof.
"4"
4. Answering defendants admit the allegations of paragraph of the plaintiff's
verified complaint.
"5"
5. Answering defendants admit the allegations of paragraph of the plaintifPs
verified complaint.
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"6"
6. Answering defendants deny the allegations of paragraph of the plaintiff s
verified complaint for want of knowledge and information sufficient to form a belief as to the truth
thereof.
"7"
7. Answering defendants deny the allegations of paragraph of the plaintiff s
verified complaint for want of knowledge and information sufficient to form a belief as to the truth
thereof.
"8"
8. Answering defendants admit the allegations of paragraph of the plamtiff s
verified complaint.
"9"
9. Answering defendants admit the allegations of paragraph of the plaintiff s
verified complaint.
"10"
10. Answering defendants deny the allegations of paragrapli of the plaintiff'sverified
complaint for want of knowledge and information sufficient to form a belief as to the truth thereof.
"11"
11. Answering defendants deny the allegations of paragraph of the plaintiff s
verified complaint for want of knowledge and information sufficient to form a belief as to the truth
thereof.
"12"
12. defendants the allegations of paragraph of the plaintiff s
Answering deny
verified complaint for want of knowledge and information sufficient to form a belief as to the truth
thereof.
"13"
13. Answering defendants deny the allegations of paragraph of the plaintiff's
verified complaint whereby itseeks to reallege and reaffirm paragraphs heretofore denied.
"14"
14. Answering defendants deny the allegations of paragraph of the plaintiff s
verified complaint.
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"15"
15. Answering defendants admit the allegations of paragraph of the plaintiff s
verified complaint.
"16"
16. Answering defendants deny the allegations of paragraph of the plaintiff's
verified complaint for want ofknowledge and information sufficient to form a belief as to the truth
thereof.
"17"
17. Answering defendants deny the allegations of paragraph of the plaintiff s
verified complaint.
"18"
18. Answering defendants deny the allegations of paragraph of the plaintiff s
verified complaint for want of knowledge and information sufficient to form a belief as to the truth
thereof.
"19"
19. Answering defendants deny the allegations of paragraph of the plaintiff s
verified complaint for want of knowledge and information sufficient to form a belief as to the truth
thereof.
"20"
20. Answering defendants deny the allegations of paragraph of the plaintiffs
verified complaint.
"21"
21. Answering defendants deny the allegations of paragraph of the plaintiff's
verified complaint.
"22"
22. Answering defendants deny the allegations of paragraph of the plaintiff s
verified complaint.
"23"
23. Answering defendants deny the allegations of paragraph of the plaintiff s
verified complaint.
"24"
24. Answering defendants deny the allegations of paragraph of the plaintiff s
verified complaint.
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25. Answering defendants deny each and every part of each and paragraphherein
every
not admitted.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
26. Whatever damages plaintiff may have sustained were caused in whole or in part, or
were contributed to, by the negligence, culpable conduct, assumption of the risk, and/or want of
care on the part of the plaintiff's subrogor or by someone over whom the answering defendants
had no control, and without any fault or negligence on the part of the answering defendants
contributing thereto.
27. By reason of the foregoing, the amount of damages otherwise recoverable by the
plaintiffs against the answering defendants, if any, must be diminished in proportion to such
culpable conduct attributable to the plaintiff's subrogor or such other parties in accordance with
the provisions of CPLR Article 14-A.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
28. This action is barred by the expiration of the applicable statute of limitations.
AS_AND FOR A THIRD AFFIRMATIVE DEFENSE
29. The verified complaint, in whole or in part, fails to state a cause of action upon
which relief may be granted as to these answering defendants.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE.
30. Plaintiff has failed to mitigate its damages.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
defendants'
31. If answering defendants are liable at all, answering liability is fifty
percent (50%) or less of the total liability assigned to all persons liable.
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32. By reason thereof, the of defendants to the plaintiff for non-
liability answering
defendants'
economic loss shall not exceed answering equitable share of liability, ifany, pursuant
to the provisions of CPLR Article 16, determined in accordance with the relative culpability for
each person causing or contributing to the total liability for non-economic.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
33. Upon information and belief, plaintiff's economic loss, if any, as specified in the
CPLR 4545 was replaced or indemnified, in whole or in part, from collateral sources, and the
answering defendants are entitled to have the Court consider the same in determining such
damages as provided in CPLR 4545.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
34. In the event of settlement by any other joint tortfeasor, answering defendants are
entitled to the full benefit of General Obligations Law Section 15-108 such that the claim by
plaintiffs shall be reduced to the extent of any amount stipulated by the release or the covenant, or
in the amount of consideration actually paid for it,or in the amount of the released tortfeasor's
equitable share of the damages under CPLR Article 16, whichever is greatest per General
Obligations Law Section 15-108.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
35. Due to plaintiff's spoliation of critical evidence, the verified complaint should be
dismissed as to defendant.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
36. The injuries and damages alleged in plaintiff's verified complaint were proximately
caused by an unforeseeable, independent, intervening, and/or superseding event(s) beyond the
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defendants'
control, and unrelated to any conduct, of answering defendents. actions or
Answering
omissions, if any, were superseded by the negligence, wrongful, and/or criminal conduct of others.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
37. The damages, if any, alleged in plaintiff s verified complaint were proximately
caused, either by plaintiff s subrogor or others over whom answering defendants had no control.
AS AND FOR A CROSS-CLAIM AGAINST THE
LOUIS"
DEFENDANTS, CARMEL FRANCOISE AND FABHOLA
38. Any damages sustained by the plaintiff herein as a result of the alleged incidents
described in the plaintiff's verified complaint were sustained in whole or in part by reason of the
negligence and culpable conduct of the plaintifFs subrogor and/or co-defendants, Carmel
Francoise and Fabiola Louis
39. If it is determined that the defendants, Northside Industries LLC and Otis
Thompson, II. are liable in any degree to the plaintiff, the defendants, Northside Industries, LLC
and Otis Thompson, II, are entitled to have the liability apportioned among and between the
defendants.
WHEREFORE, the answering defendants demand judgment dismissing the complaint of
the plaintiffherein with costs and further demands judgment pursuant to CPLR 3019 (b) and CPLR
Article 14 that the ultimate rights of the defendants, Northside Industries LLC and Otis Thompson,
II be determined as between themselves and the plaintiff's subrogor and the codefendants and that
the defendants, Northside Industries LLC and Otis Thompson II, have judgment over and against
the defendants for indemnification and/or contribution, in whole or in part, for the amount of any
sum which may be recovered herein against the defendants, Northside Industries LLC and Otis
attorneys'
Thompson, II, together with fees and the costs and disbursements of this action.
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NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/31/2022
DATED: January 31, 2022
BURKEr OL IERO &þURD, I P
BY: ..
SA J. SfVIALLACOMBE, E$Q.
Attorneys for Defendants, Northside Industries LLC
and Otis Thompson, II
Office and Post Office Address
7 Washington Avenue
PO Box 15085
Albany, New York 12212-5085
(518) 862-1386
TO: LAW OFFICES OF
STUART D. MARKOWITZ, P.C.
Attorneys for Plaintiffs
575 Jericho Tpk., Suite 210
Jericho, NY 11753
(516) 935 3500
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ATTORNEY'S_VERIFICATIOl¶
STATE OF NEW YORK }
} ss.:
COUNTY OF ALBANY }
The undersigned, an attorney admitted to practice in the Courts of the State of New York,
says that affirmant is a partner of the Law Offices of Burke, Scolamiero & Hurd, LLP, attorneys
for the defendants, Northside Industries LLC and Otis Thompson, II, herein; that she has read the
foregoing verified answer and knows the contents thereof; that the same is true to affinnant's
knowledge except as to the matters therein stated to be alleged upon information and belief, and
as to those matters she believes same to be true.
The reason this verification is made by affirmant and not by the defendants, is that the
defendants are not domiciled within the County of Albany, where affirmant maintains her law
office. The sources of affirmant's information and the grounds for her belief are reports and
correspondence from the defendants presently in the fileof this case in affirmant's office.
The undersigned affirms that the foregoing statements are true, under the penalties of
perjury.
Dated: January 31, 2022
Albany, New York
M li J. Smallacombe, Esq.
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FILED: DUTCHESS COUNTY CLERK 01/31/2022 03:53 PM INDEX NO. 2021-54993 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/31/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY a/s/o WINSTON R. MITCHELL, JR., Plaintiff, -against- Index No.:2021-54993 NORTHSIDE INDUSTRIES LLC, OTIS THOMPSON, II, CARMEL FRANCOISE AND FABIOLA LOUIS, Defendants. .................... . Defendants, Northside Industries LLC and Otis Thompson, II (hereafter "answering defendants") by and through their counsel, Burke, Scolamiero & Hurd, LLP, as and for a verified answer to plaintifPs verified complaint, states upon information and belief: "1" 1. Answering defendants deny the allegations of paragraph of the plaintiff"s verified complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. "2" 2. Answering defendants deny the allegations of paragraph of the plaintiff's verified complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. "3" 3. Answering denies the allegations of paragraph of the plaintiff's verified complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. "4" 4. Answering defendants admit the allegations of paragraph of the plaintiff's verified complaint. "5" 5. Answering defendants admit the allegations of paragraph of the plaintifPs verified complaint. AO645045.1 j 1 of 8 FILED: DUTCHESS COUNTY CLERK 01/31/2022 03:53 PM INDEX NO. 2021-54993 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/31/2022 "6" 6. Answering defendants deny the allegations of paragraph of the plaintiff s verified complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. "7" 7. Answering defendants deny the allegations of paragraph of the plaintiff s verified complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. "8" 8. Answering defendants admit the allegations of paragraph of the plamtiff s verified complaint. "9" 9. Answering defendants admit the allegations of paragraph of the plaintiff s verified complaint. "10" 10. Answering defendants deny the allegations of paragrapli of the plaintiff'sverified complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. "11" 11. Answering defendants deny the allegations of paragraph of the plaintiff s verified complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. "12" 12. defendants the allegations of paragraph of the plaintiff s Answering deny verified complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. "13" 13. Answering defendants deny the allegations of paragraph of the plaintiff's verified complaint whereby itseeks to reallege and reaffirm paragraphs heretofore denied. "14" 14. Answering defendants deny the allegations of paragraph of the plaintiff s verified complaint. [AO645045 Ij 2 of 8 FILED: DUTCHESS COUNTY CLERK 01/31/2022 03:53 PM INDEX NO. 2021-54993 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/31/2022 "15" 15. Answering defendants admit the allegations of paragraph of the plaintiff s verified complaint. "16" 16. Answering defendants deny the allegations of paragraph of the plaintiff's verified complaint for want ofknowledge and information sufficient to form a belief as to the truth thereof. "17" 17. Answering defendants deny the allegations of paragraph of the plaintiff s verified complaint. "18" 18. Answering defendants deny the allegations of paragraph of the plaintiff s verified complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. "19" 19. Answering defendants deny the allegations of paragraph of the plaintiff s verified complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. "20" 20. Answering defendants deny the allegations of paragraph of the plaintiffs verified complaint. "21" 21. Answering defendants deny the allegations of paragraph of the plaintiff's verified complaint. "22" 22. Answering defendants deny the allegations of paragraph of the plaintiff s verified complaint. "23" 23. Answering defendants deny the allegations of paragraph of the plaintiff s verified complaint. "24" 24. Answering defendants deny the allegations of paragraph of the plaintiff s verified complaint. (AO645045J j 3 of 8 FILED: DUTCHESS COUNTY CLERK 01/31/2022 03:53 PM INDEX NO. 2021-54993 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/31/2022 25. Answering defendants deny each and every part of each and paragraphherein every not admitted. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 26. Whatever damages plaintiff may have sustained were caused in whole or in part, or were contributed to, by the negligence, culpable conduct, assumption of the risk, and/or want of care on the part of the plaintiff's subrogor or by someone over whom the answering defendants had no control, and without any fault or negligence on the part of the answering defendants contributing thereto. 27. By reason of the foregoing, the amount of damages otherwise recoverable by the plaintiffs against the answering defendants, if any, must be diminished in proportion to such culpable conduct attributable to the plaintiff's subrogor or such other parties in accordance with the provisions of CPLR Article 14-A. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 28. This action is barred by the expiration of the applicable statute of limitations. AS_AND FOR A THIRD AFFIRMATIVE DEFENSE 29. The verified complaint, in whole or in part, fails to state a cause of action upon which relief may be granted as to these answering defendants. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE. 30. Plaintiff has failed to mitigate its damages. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE defendants' 31. If answering defendants are liable at all, answering liability is fifty percent (50%) or less of the total liability assigned to all persons liable. (A0645045 1j 4 of 8 FILED: DUTCHESS COUNTY CLERK 01/31/2022 03:53 PM INDEX NO. 2021-54993 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/31/2022 32. By reason thereof, the of defendants to the plaintiff for non- liability answering defendants' economic loss shall not exceed answering equitable share of liability, ifany, pursuant to the provisions of CPLR Article 16, determined in accordance with the relative culpability for each person causing or contributing to the total liability for non-economic. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 33. Upon information and belief, plaintiff's economic loss, if any, as specified in the CPLR 4545 was replaced or indemnified, in whole or in part, from collateral sources, and the answering defendants are entitled to have the Court consider the same in determining such damages as provided in CPLR 4545. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 34. In the event of settlement by any other joint tortfeasor, answering defendants are entitled to the full benefit of General Obligations Law Section 15-108 such that the claim by plaintiffs shall be reduced to the extent of any amount stipulated by the release or the covenant, or in the amount of consideration actually paid for it,or in the amount of the released tortfeasor's equitable share of the damages under CPLR Article 16, whichever is greatest per General Obligations Law Section 15-108. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 35. Due to plaintiff's spoliation of critical evidence, the verified complaint should be dismissed as to defendant. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 36. The injuries and damages alleged in plaintiff's verified complaint were proximately caused by an unforeseeable, independent, intervening, and/or superseding event(s) beyond the {A0645045 1) 5 of 8 FILED: DUTCHESS COUNTY CLERK 01/31/2022 03:53 PM INDEX NO. 2021-54993 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/31/2022 defendants' control, and unrelated to any conduct, of answering defendents. actions or Answering omissions, if any, were superseded by the negligence, wrongful, and/or criminal conduct of others. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 37. The damages, if any, alleged in plaintiff s verified complaint were proximately caused, either by plaintiff s subrogor or others over whom answering defendants had no control. AS AND FOR A CROSS-CLAIM AGAINST THE LOUIS" DEFENDANTS, CARMEL FRANCOISE AND FABHOLA 38. Any damages sustained by the plaintiff herein as a result of the alleged incidents described in the plaintiff's verified complaint were sustained in whole or in part by reason of the negligence and culpable conduct of the plaintifFs subrogor and/or co-defendants, Carmel Francoise and Fabiola Louis 39. If it is determined that the defendants, Northside Industries LLC and Otis Thompson, II. are liable in any degree to the plaintiff, the defendants, Northside Industries, LLC and Otis Thompson, II, are entitled to have the liability apportioned among and between the defendants. WHEREFORE, the answering defendants demand judgment dismissing the complaint of the plaintiffherein with costs and further demands judgment pursuant to CPLR 3019 (b) and CPLR Article 14 that the ultimate rights of the defendants, Northside Industries LLC and Otis Thompson, II be determined as between themselves and the plaintiff's subrogor and the codefendants and that the defendants, Northside Industries LLC and Otis Thompson II, have judgment over and against the defendants for indemnification and/or contribution, in whole or in part, for the amount of any sum which may be recovered herein against the defendants, Northside Industries LLC and Otis attorneys' Thompson, II, together with fees and the costs and disbursements of this action. [A0645045.1 j 6 of 8 FILED: DUTCHESS COUNTY CLERK 01/31/2022 03:53 PM INDEX NO. 2021-54993 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/31/2022 DATED: January 31, 2022 BURKEr OL IERO &þURD, I P BY: .. SA J. SfVIALLACOMBE, E$Q. Attorneys for Defendants, Northside Industries LLC and Otis Thompson, II Office and Post Office Address 7 Washington Avenue PO Box 15085 Albany, New York 12212-5085 (518) 862-1386 TO: LAW OFFICES OF STUART D. MARKOWITZ, P.C. Attorneys for Plaintiffs 575 Jericho Tpk., Suite 210 Jericho, NY 11753 (516) 935 3500 (A0645045.1} 7 of 8 FILED: DUTCHESS COUNTY CLERK 01/31/2022 03:53 PM INDEX NO. 2021-54993 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/31/2022 ATTORNEY'S_VERIFICATIOl¶ STATE OF NEW YORK } } ss.: COUNTY OF ALBANY } The undersigned, an attorney admitted to practice in the Courts of the State of New York, says that affirmant is a partner of the Law Offices of Burke, Scolamiero & Hurd, LLP, attorneys for the defendants, Northside Industries LLC and Otis Thompson, II, herein; that she has read the foregoing verified answer and knows the contents thereof; that the same is true to affinnant's knowledge except as to the matters therein stated to be alleged upon information and belief, and as to those matters she believes same to be true. The reason this verification is made by affirmant and not by the defendants, is that the defendants are not domiciled within the County of Albany, where affirmant maintains her law office. The sources of affirmant's information and the grounds for her belief are reports and correspondence from the defendants presently in the fileof this case in affirmant's office. The undersigned affirms that the foregoing statements are true, under the penalties of perjury. Dated: January 31, 2022 Albany, New York M li J. Smallacombe, Esq. |AO645045.1 ) 8 of 8