Preview
FILED: NASSAU COUNTY CLERK 02/03/2023 03:13 PM INDEX NO. 617067/2019
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 02/03/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
LUIS E. RIVERA, Index No.:617067/19E
Plaintiff, VERIFIED ANSWER
-against-
YVETTE GAYLE, .
Defendant.
The defendant, YVETTE GAYLE,by her attorneys, KELLY,RODE & KELLY,LLP,
answering the Complaint of the plaintiff herein:
ANSWERING EACH AND EVERY CAUSE
OF ACTION OF THE COMPLAINT
FIRST: Denies any knowledge or information sufficient to form a beliefas
to the truth ofthe allegations contained in paragraph numbered "1","4","6”,"7",”8","H","20”,
and "23" ofthe Comijlaint.
i
SECOND: Denies any knowledge or information sufficient to form a belief as
to the truth ofthe allegations contained in paragraph numbered "10" ofthe Complaint except to
admit contact between the vehicles.
THIRD: Denies any knowledge or information sufficient to form a beliefas
to the truth ofthe allegations contained in paragraphs numbered "21",and "22" ofthe Complaint
and refers all questions oflaw to the Court.
FOURTH: ’ Denies each and every allegation contained in.paragraph numbered
'3" ofthe Complaint.
FILED: NASSAU COUNTY CLERK 02/03/2023 03:13 PM INDEX NO. 617067/2019
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 02/03/2023
FIFTH: Denies, upon information and belief, each and every allegation
contained in paragraphs numbered "13","14","15","16","17","18","19", and "24" ofthe
Complaint.
SIXTH: Repeats, reiterates and realleges each and every admission and
denial heretofore made to the allegations contained in the paragraphs mentioned in paragraph
numbered "12" ofthe Complaint with the same force and effect as if here repeated and again set
forth at length.
FOR A FIRST,SEPARATE AND COMPLETE DEFENSE
THE DEFENDANT RESPECTFULLY SHOWS THIS COURT,
UPON INFORMATION AND BELIEF:
SEVENTH: That the answering defendants, iffound to be at all liable, are
entitled to a limitation ofthat liability pursuant to Article 16 ofthe CPLR.
FOR A SECOND,SEPARATE AND COMPLETE DEFENSE
THE DEFENDANT RESPECTFULLY SHOWS THIS COURT,
UPON INFORMATION AND BELIEF:
EIGHTH: That any injuries or damages sustained by the plaintiff were
occasioned through the negligence and culpable conduct on the part ofthe plaintiff.
FOR A THIRD,SEPARATE AND COMPLETE DEFENSE
THE DEFENDANT RESPECTFULLY SHOWS THIS COURT,
UPON INFORMATION AND BELIEF:
NINTH: That the defendant was faced with an emergency and that he/she
was not negligent since without any opportunity for deliberation, he/she acted as a reasonably
prudent person would act under the same emergency circumstances.
FOR A FOURTH,SEPARATE AND COMPLETE DEFENSE
THE DEFENDANT RESPECTFULLY SHOWS THIS COURT,
UPON INFORMATION AND BELIEF:
TENTH: If any damages are recoverable against the answering defendant(s).
FILED: NASSAU COUNTY CLERK 02/03/2023 03:13 PM INDEX NO. 617067/2019
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 02/03/2023
the amount ofsuch damages shall be reduced by the amount of benefits which plaintiff(s) have or
will receive from collateral sources pursuant to the provisions of Civil Practice Law and Rules
Section 4545(c)for any past, present or future cost or expense incurred or to be incurred by the
plaintiff(s) for medical care, dental care, custodial care or rehabilitation services, loss ofearnings
or any and all other economic loss that was or will, with reasonable certainty, be replaced or
indemnified in whole or in part, by collateral sources.
FOR A FIFTH,SEPARATE AND COMPLETE DEFENSE
THE DEFENDANT RESPECTFULLY SHOWS THIS COURT,
UPON INFORMATION AND BELIEF:
ELEVENTH: The action, in whole or in part, is barred by assumption of risk.
FOR A SDCTH,SEPARATE AND COMPLETE DEFENSE
THE DEFENDANT RESPECTFULLY SHOWS THIS COURT,
UPON INFORMATION AND BELIEF:
TWELFTH: That the party making claims failed to mitigate damages.
FOR A SEVENTH,SEPARATE AND COMPLETE DEFENSE
THE DEFENDANT RESPECTFULLY SHOWS THIS COURT,
UPON INFORMATION AND BELIEF:
THIRTEENTH: The plaintiff has not sustained a “serious injury” as defined in
Section 5102(d) ofthe Insurance Law of the State ofNew York and is thereby not entitled.
pursuant to Section 5104(a)of the Insurance Law ofthe State of New York, to commence and
maintain this action.
FOR A EIGHTH,SEPARATE AND COMPLETE DEFENSE
THE DEFENDANT RESPECTFULLY SHOWS THIS COURT,
UPON INFORMATION AND BELIEF:
FOURTEENTH: That the plaintiffs damages should be reduced as a result ofthe
failure to utilize available safety devices and restraints.
FILED: NASSAU COUNTY CLERK 02/03/2023 03:13 PM INDEX NO. 617067/2019
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 02/03/2023
WHEREFORE,the defendant, YVETTE GAYLE,demand judgment against the
plaintiff dismissing the Complaint herein, together with costs and disbursements of this action.
Dated: Mineo.a, New York
March 2, 2020
Yours, etc.
KELLY,RODE & KELLY,LLP
BY:
AMMAR S, JAB^
Attorneys for Defendant
330 Old Countiy Road - Suite 305
Mineola, New York 11501
(516)739-0400
Our File No.: HMW/ASJ 158730-326
TO: ALEX YADG AROV & ASSOCIATES,P.C.
Attorneys for l^laintiff
One Cross Island Plaza
Suite 203
Rosedale, New York 11422
(718)276-2800
FILED: NASSAU COUNTY CLERK 02/03/2023 03:13 PM INDEX NO. 617067/2019
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 02/03/2023
STATE OF NEW YORK)
)ss.:
COUNTY OF NASSAU)
YVETTE GAYLE, being duly sworn, deposes and says;
I am a defendant in the within action;
I have read the foregoing ANSWER and know the contents thereof and that the same is
true to my own knowledge, except as to those statements therein alleged to be upon information and
belief and as to those statements, I believe it to be true.
J
■m
X 'Vj^ETTE OAYL
V Sworn to before me this
day of ^ ,2020
Public
JAYLEN JAMES GEOfiGE
Notary Public - State of New York
NO, 0iaE6397876
qualifiod In Queens County
OurFileNo.:HMW/ASJ 158730-326 My Commutlon Expires Sep 16, 2023
Preview
FILED: NASSAU COUNTY CLERK 02/03/2023 03:13 PM INDEX NO. 617067/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 02/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU LUIS E. RIVERA, Index No.:617067/19E Plaintiff, VERIFIED ANSWER -against- YVETTE GAYLE, . Defendant. The defendant, YVETTE GAYLE,by her attorneys, KELLY,RODE & KELLY,LLP, answering the Complaint of the plaintiff herein: ANSWERING EACH AND EVERY CAUSE OF ACTION OF THE COMPLAINT FIRST: Denies any knowledge or information sufficient to form a beliefas to the truth ofthe allegations contained in paragraph numbered "1","4","6”,"7",”8","H","20”, and "23" ofthe Comijlaint. i SECOND: Denies any knowledge or information sufficient to form a belief as to the truth ofthe allegations contained in paragraph numbered "10" ofthe Complaint except to admit contact between the vehicles. THIRD: Denies any knowledge or information sufficient to form a beliefas to the truth ofthe allegations contained in paragraphs numbered "21",and "22" ofthe Complaint and refers all questions oflaw to the Court. FOURTH: ’ Denies each and every allegation contained in.paragraph numbered '3" ofthe Complaint. FILED: NASSAU COUNTY CLERK 02/03/2023 03:13 PM INDEX NO. 617067/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 02/03/2023 FIFTH: Denies, upon information and belief, each and every allegation contained in paragraphs numbered "13","14","15","16","17","18","19", and "24" ofthe Complaint. SIXTH: Repeats, reiterates and realleges each and every admission and denial heretofore made to the allegations contained in the paragraphs mentioned in paragraph numbered "12" ofthe Complaint with the same force and effect as if here repeated and again set forth at length. FOR A FIRST,SEPARATE AND COMPLETE DEFENSE THE DEFENDANT RESPECTFULLY SHOWS THIS COURT, UPON INFORMATION AND BELIEF: SEVENTH: That the answering defendants, iffound to be at all liable, are entitled to a limitation ofthat liability pursuant to Article 16 ofthe CPLR. FOR A SECOND,SEPARATE AND COMPLETE DEFENSE THE DEFENDANT RESPECTFULLY SHOWS THIS COURT, UPON INFORMATION AND BELIEF: EIGHTH: That any injuries or damages sustained by the plaintiff were occasioned through the negligence and culpable conduct on the part ofthe plaintiff. FOR A THIRD,SEPARATE AND COMPLETE DEFENSE THE DEFENDANT RESPECTFULLY SHOWS THIS COURT, UPON INFORMATION AND BELIEF: NINTH: That the defendant was faced with an emergency and that he/she was not negligent since without any opportunity for deliberation, he/she acted as a reasonably prudent person would act under the same emergency circumstances. FOR A FOURTH,SEPARATE AND COMPLETE DEFENSE THE DEFENDANT RESPECTFULLY SHOWS THIS COURT, UPON INFORMATION AND BELIEF: TENTH: If any damages are recoverable against the answering defendant(s). FILED: NASSAU COUNTY CLERK 02/03/2023 03:13 PM INDEX NO. 617067/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 02/03/2023 the amount ofsuch damages shall be reduced by the amount of benefits which plaintiff(s) have or will receive from collateral sources pursuant to the provisions of Civil Practice Law and Rules Section 4545(c)for any past, present or future cost or expense incurred or to be incurred by the plaintiff(s) for medical care, dental care, custodial care or rehabilitation services, loss ofearnings or any and all other economic loss that was or will, with reasonable certainty, be replaced or indemnified in whole or in part, by collateral sources. FOR A FIFTH,SEPARATE AND COMPLETE DEFENSE THE DEFENDANT RESPECTFULLY SHOWS THIS COURT, UPON INFORMATION AND BELIEF: ELEVENTH: The action, in whole or in part, is barred by assumption of risk. FOR A SDCTH,SEPARATE AND COMPLETE DEFENSE THE DEFENDANT RESPECTFULLY SHOWS THIS COURT, UPON INFORMATION AND BELIEF: TWELFTH: That the party making claims failed to mitigate damages. FOR A SEVENTH,SEPARATE AND COMPLETE DEFENSE THE DEFENDANT RESPECTFULLY SHOWS THIS COURT, UPON INFORMATION AND BELIEF: THIRTEENTH: The plaintiff has not sustained a “serious injury” as defined in Section 5102(d) ofthe Insurance Law of the State ofNew York and is thereby not entitled. pursuant to Section 5104(a)of the Insurance Law ofthe State of New York, to commence and maintain this action. FOR A EIGHTH,SEPARATE AND COMPLETE DEFENSE THE DEFENDANT RESPECTFULLY SHOWS THIS COURT, UPON INFORMATION AND BELIEF: FOURTEENTH: That the plaintiffs damages should be reduced as a result ofthe failure to utilize available safety devices and restraints. FILED: NASSAU COUNTY CLERK 02/03/2023 03:13 PM INDEX NO. 617067/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 02/03/2023 WHEREFORE,the defendant, YVETTE GAYLE,demand judgment against the plaintiff dismissing the Complaint herein, together with costs and disbursements of this action. Dated: Mineo.a, New York March 2, 2020 Yours, etc. KELLY,RODE & KELLY,LLP BY: AMMAR S, JAB^ Attorneys for Defendant 330 Old Countiy Road - Suite 305 Mineola, New York 11501 (516)739-0400 Our File No.: HMW/ASJ 158730-326 TO: ALEX YADG AROV & ASSOCIATES,P.C. Attorneys for l^laintiff One Cross Island Plaza Suite 203 Rosedale, New York 11422 (718)276-2800 FILED: NASSAU COUNTY CLERK 02/03/2023 03:13 PM INDEX NO. 617067/2019 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 02/03/2023 STATE OF NEW YORK) )ss.: COUNTY OF NASSAU) YVETTE GAYLE, being duly sworn, deposes and says; I am a defendant in the within action; I have read the foregoing ANSWER and know the contents thereof and that the same is true to my own knowledge, except as to those statements therein alleged to be upon information and belief and as to those statements, I believe it to be true. J ■m X 'Vj^ETTE OAYL V Sworn to before me this day of ^ ,2020 Public JAYLEN JAMES GEOfiGE Notary Public - State of New York NO, 0iaE6397876 qualifiod In Queens County OurFileNo.:HMW/ASJ 158730-326 My Commutlon Expires Sep 16, 2023