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FILED: KINGS COUNTY CLERK 02/06/2023 03:59 PM INDEX NO. 522897/2020
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/06/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------------------------------X INDEX NO.: 522897/2020
PATRICK FORD,
VERIFIED ANSWER,
Plaintiff(s), BILL OF PARTICULARS &
COMBINED DEMANDS
- against -
Our File No.: 1084880
YSMAEL A. TORRES, Case ID No.: 114201
Your File No.: 2000032
Defendant(s).
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The Defendant(s) YSMAEL A. TORRES by their/his/her attorneys, BAKER, MCEVOY
& MOSKOVITS, P.C. answering the Complaint of the Plaintiff herein, respectfully shows and
alleges upon information and belief, as follows:
VERIFIED ANSWER
Deny(ies) each and every allegation in the paragraphs of the Complaint designated as
follows: 10, 11, 12, 13, 14, 16.
Deny(ies) any knowledge or information thereof, sufficient to form a belief as to the truth
of the allegations contained in the paragraphs of the Complaint designated as follows:2, 3, 7, 8, 9,
15.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
By reason of the provisions of Article 51 of the New York Comprehensive Motor Vehicle
Insurance Reparations Act, Sections 5101 to 5108, this Court lacks jurisdiction over the subject
matter of this action and Plaintiff(s) is/are expressly prohibited from maintaining this action.
SECOND AFFIRMATIVE DEFENSE
Pursuant to the C.P.L.R. Sections 1411 and 1412, any damages sustained by the Plaintiff(s)
was/were caused by the culpable conduct of Plaintiff(s), including contributory negligence or
assumption of the risk, and not by the culpable conduct or negligence of the answering
Defendant(s).
THIRD AFFIRMATIVE DEFENSE
Pursuant to C.P.L.R. 4545, Plaintiff's recovery should be reduced by any amounts received
or that will be received by Plaintiff(s) from collateral sources of payment.
FILED: KINGS COUNTY CLERK 02/06/2023 03:59 PM INDEX NO. 522897/2020
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/06/2023
FOURTH AFFIRMATIVE DEFENSE
If Plaintiff(s) suffered injury and damage in the manner and at the time and place alleged
in the Complaint, which Defendant(s) deny, and if it is determined that said injury and damage
were caused by and contributed to the Plaintiff's failure to use or properly use seat belts, shoulder
harness(es) or other restraining devices, pursuant to the authority of Spier V. Barker, 35 N.Y.2d
444, 363 N.Y.S.2d 916, Defendant(s) pleads Plaintiff’s failure to mitigate damages.
FIFTH AFFIRMATIVE DEFENSE
If it is determined that Plaintiff(s) or any party to this lawsuit has proceeded to arbitration
with respect to any issue related to this action that results in an adverse ruling to said Plaintiff(s)
or party, then the answering Defendant(s) pleads said adverse ruling or award on the theory of
collateral estoppel under the authority of Matter of American Insurance Co. (Messenger-Aetna
Cas. & Sur. Co.), 43 N.Y.2d 184, 401 N.Y.S.2d 36; Altman v. Queens Tr. Corp., 94 Misc.2d 549,
405 N.Y.S.2d 212; Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219, 501
N.Y.S.2d 784; c.f. Baldwin v. Brooks, 83 A.D.2d 85, 443 N.Y.S.2d 906; Clemmens v. Apple, 65
N.Y.2d 746 and Schultz v. Boyscouts of America, 65 N.Y.2d 189.
SIXTH AFFIRMATIVE DEFENSE
Upon information and belief, plaintiff(s) failed to mitigate damages.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff(s) damages, if any, are limited by the offset provisions of Section 15-108 of the
General Obligations Law.
RESERVATION OF RIGHTS
Defendant(s) reserve(s) the right to amend the answer, defenses, and/or any counterclaims
and cross claims at a later date.
WHEREFORE, Defendant(s) demand(s) judgment dismissing the Complaint in its entirety
or diminishing the damages recoverable by Plaintiff(s) in proportion to the culpable conduct
attributable to Plaintiff(s), together with the costs, disbursements, and attorney’s fees of this action.
FILED: KINGS COUNTY CLERK 02/06/2023 03:59 PM INDEX NO. 522897/2020
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/06/2023
Dated: December 30, 2020
Brooklyn, N.Y.
BAKER, MCEVOY & MOSKOVITS, PC
Ronit Z. Moskovits, Esq.
Attorney(s) for the Defendant
YSMAEL A. TORRES
One MetroTech Center, 8th Floor
Brooklyn, New York 11201
Tel: 212-857-8230
CASSISI & CASSISI, PC
Attorney(s) for the Plaintiff(s)
PATRICK FORD
155 FIRST STREET, SUITE. 101
MINEOLA, NY 11501
Tel: (516) 294-5050
Preview
FILED: KINGS COUNTY CLERK 02/06/2023 03:59 PM INDEX NO. 522897/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/06/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------X INDEX NO.: 522897/2020 PATRICK FORD, VERIFIED ANSWER, Plaintiff(s), BILL OF PARTICULARS & COMBINED DEMANDS - against - Our File No.: 1084880 YSMAEL A. TORRES, Case ID No.: 114201 Your File No.: 2000032 Defendant(s). -----------------------------------------------------------------X The Defendant(s) YSMAEL A. TORRES by their/his/her attorneys, BAKER, MCEVOY & MOSKOVITS, P.C. answering the Complaint of the Plaintiff herein, respectfully shows and alleges upon information and belief, as follows: VERIFIED ANSWER Deny(ies) each and every allegation in the paragraphs of the Complaint designated as follows: 10, 11, 12, 13, 14, 16. Deny(ies) any knowledge or information thereof, sufficient to form a belief as to the truth of the allegations contained in the paragraphs of the Complaint designated as follows:2, 3, 7, 8, 9, 15. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE By reason of the provisions of Article 51 of the New York Comprehensive Motor Vehicle Insurance Reparations Act, Sections 5101 to 5108, this Court lacks jurisdiction over the subject matter of this action and Plaintiff(s) is/are expressly prohibited from maintaining this action. SECOND AFFIRMATIVE DEFENSE Pursuant to the C.P.L.R. Sections 1411 and 1412, any damages sustained by the Plaintiff(s) was/were caused by the culpable conduct of Plaintiff(s), including contributory negligence or assumption of the risk, and not by the culpable conduct or negligence of the answering Defendant(s). THIRD AFFIRMATIVE DEFENSE Pursuant to C.P.L.R. 4545, Plaintiff's recovery should be reduced by any amounts received or that will be received by Plaintiff(s) from collateral sources of payment. FILED: KINGS COUNTY CLERK 02/06/2023 03:59 PM INDEX NO. 522897/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/06/2023 FOURTH AFFIRMATIVE DEFENSE If Plaintiff(s) suffered injury and damage in the manner and at the time and place alleged in the Complaint, which Defendant(s) deny, and if it is determined that said injury and damage were caused by and contributed to the Plaintiff's failure to use or properly use seat belts, shoulder harness(es) or other restraining devices, pursuant to the authority of Spier V. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, Defendant(s) pleads Plaintiff’s failure to mitigate damages. FIFTH AFFIRMATIVE DEFENSE If it is determined that Plaintiff(s) or any party to this lawsuit has proceeded to arbitration with respect to any issue related to this action that results in an adverse ruling to said Plaintiff(s) or party, then the answering Defendant(s) pleads said adverse ruling or award on the theory of collateral estoppel under the authority of Matter of American Insurance Co. (Messenger-Aetna Cas. & Sur. Co.), 43 N.Y.2d 184, 401 N.Y.S.2d 36; Altman v. Queens Tr. Corp., 94 Misc.2d 549, 405 N.Y.S.2d 212; Dermatossian v. New York City Transit Authority, 67 N.Y.2d 219, 501 N.Y.S.2d 784; c.f. Baldwin v. Brooks, 83 A.D.2d 85, 443 N.Y.S.2d 906; Clemmens v. Apple, 65 N.Y.2d 746 and Schultz v. Boyscouts of America, 65 N.Y.2d 189. SIXTH AFFIRMATIVE DEFENSE Upon information and belief, plaintiff(s) failed to mitigate damages. SEVENTH AFFIRMATIVE DEFENSE Plaintiff(s) damages, if any, are limited by the offset provisions of Section 15-108 of the General Obligations Law. RESERVATION OF RIGHTS Defendant(s) reserve(s) the right to amend the answer, defenses, and/or any counterclaims and cross claims at a later date. WHEREFORE, Defendant(s) demand(s) judgment dismissing the Complaint in its entirety or diminishing the damages recoverable by Plaintiff(s) in proportion to the culpable conduct attributable to Plaintiff(s), together with the costs, disbursements, and attorney’s fees of this action. FILED: KINGS COUNTY CLERK 02/06/2023 03:59 PM INDEX NO. 522897/2020 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/06/2023 Dated: December 30, 2020 Brooklyn, N.Y. BAKER, MCEVOY & MOSKOVITS, PC Ronit Z. Moskovits, Esq. Attorney(s) for the Defendant YSMAEL A. TORRES One MetroTech Center, 8th Floor Brooklyn, New York 11201 Tel: 212-857-8230 CASSISI & CASSISI, PC Attorney(s) for the Plaintiff(s) PATRICK FORD 155 FIRST STREET, SUITE. 101 MINEOLA, NY 11501 Tel: (516) 294-5050