Preview
FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
_____________________________________________________________________Ç
BRIAN COMER and BRITINEY DAVIS, VERIFIED ANSWER TO
AMENDED COMPLAINT
Plaintiffs,
Index No. EF004587-2021
-against-
JOHN J. LEASE III individually and as an officer of NORTH
PLANK DEVELOPMENT COMPANY, LLC and as an
officer of JOHN J. LEASE MANAGEMENT, INC.; NORTH
PLANK DEVELOPMENT COMPANY, LLC; JOHN J.
LEASE MANAGEMENT, INC. and JACK SMITH as an
agent for NORTH PLANK DEVELOPMENT COMPANY,
LLC and as an agent for JOHN J. LEASE MANAGEMENT,
INC.,
Defendants.
_____________________________________________________________________Ç
Defendants JOHN J. LEASE III individually and as an officer of NORTH PLANK
DEVELOPMENT COMPANY, LLC and NORTH PLANK DEVELOPMENT COMPANY,
LLC, by their attorneys, PILLINGER MILLER TARALLO, LLP, upon information and belief,
answer the Amended Complaint of plaintiffs as follows:
1. Deny any knowledge or information sufficient to form a belief as to the truth of
"1"
the allegations contained in the paragraph of the Amended Complaint herein designated as:
and refers all questions of fact to the trier of fact.
2. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Amended Complaint herein designated as: "2";
"3"
and refers all questions of fact to the trier of fact.
3. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Amended Complaint herein designated as: "4";
"8"
"5"; "6"; "7"; and "9"and refers all questions of fact to the trier of fact.
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4. Deny each and every allegation contained in the paragraphs of the Amended
Complaint herein designated as: "10".
5. Deny any knowledge or information sufficient to form a belief as to the truth of
"11"
the allegations contained in the paragraph of the Amended Complaint herein designated as:
and refers all questions of fact to the trier of fact.
6. Deny each and every allegation contained in the paragraphs of the Amended
"14"
Complaint herein designated as: "12", "13", and "15"and refers all questions of law and
fact to the trier of fact.
7. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Amended Complaint herein designated as: 16";
"17" "20" "23" "24"
,"18", "19", , "21", "22", and and refers all questions of fact to the trier of
fact.
8. Deny each and every allegation contained in the paragraphs of the Amended
Complaint herein designated as: "25".
9. Deny any knowledge or information sufficient to form a belief as to the truth of
"26"
the allegations contained in the paragraph of the Amended Complaint herein designated as:
"27"
and and refers all questions of fact to a trier of fact.
10. Deny each and every allegation contained in the paragraphs of the Amended
"28"
Complaint herein designated as: and refers all questions of law to the Court.
11. Deny any knowledge or information sufficient to form a belief as to the truth of
"29"
the allegations contained in the paragraph of the Amended Complaint herein designated as:
"30"
and and refers all questions of fact to a trier of fact.
12. Deny each and every allegation contained in the paragraphs of the Amended
Complaint herein designated as: "31".
13. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Amended Complaint herein designated as: "32".
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14. Deny each and every allegation contained in the paragraphs of the Amended
"33"
Complaint herein designated as: and refers all questions of law to the Court.
15. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Amended Complaint herein designated as: "34";
"41"
"35"; "36"; "37"; "38"; "39"; "40"; and and refers all question of law to the Court and all
issue of fact to the trier of fact.
16. Deny each and every allegation contained in the paragraphs of the Amended
Complaint herein designated as: "42", "43"; "44"; "45"; "46"; "47"; "48"; "49"; "50"; "51";
"57"
"52"; "53"; "54"; "55"; "56", and and refers all questions of law to the Court and issues of
fact to the trier of fact.
17. Deny any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraph of the Amended Complaint herein designated as "58".
18. Deny each and every allegation contained in the paragraphs of the Amended
Complaint herein designated as: "60"; "61"; "62"; "63"; "65"; "66"; "67"; "69"; "70"; "71";
"73"; "74"; "76"; "77"; "78"; "79"; "80"; "81"; "83"; "84"; "85"; "86"; "88"; "89"; "91"; "92";
"93"; "94"; "96"; "97"; "98"; "100"; "101"; "102"; "103"; "105"; "106"; "107"; "108"; and
"109"
and refers all issues of fact to the trier of fact and issue of law to the Court.
19. Repeat, reiterate and reallege each and every response heretofore made herein as
and for its Answer to the allegations contained in the paragraph of the Amended Complaint
herein designated as: "59"; "64"; "68"; "72"; "75"; "82"; "87"; "90"; "95"; "99"; and "104".
PLEASE TAKE NOTICE that affirmative defenses are set forth as follows:
AS AND FOR A FIRST AFFIRMATIVE DEFENSE:
20. That the liability of this answering defendant is limited under the terms of Article
Sixteen of the C.P.L.R.
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AS AND FOR A SECOND AFFIRMATIVE DEFENSE:
21. That the amount recoverable shall be diminished in the proportion which the
culpable conduct attributable to plaintiff bears to the culpable conduct which caused the
damages, including, but not limited to, plaintiff's contributory negligence and/or assumption of
the risk.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE:
22. That there is no personal jurisdiction over this answering defendant as service of
process has not been personally made within the State of New York nor pursuant to statutory
authority.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:
23. That this answering defendant had no notice of the alleged dangerous and/or
defective condition.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:
24. That there exists no proximate causation between any alleged acts or breach of
duty by this answering defendant and plaintiff's alleged injuries and/or Causes of Action herein.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE:
25. That although this answering defendant specifically denies liability for the
occurrence and damages complained of, if this answering defendant is found liable for such
occurrence and damages, this answering defendant's share of liability is fifty percent (50%) or
less of the total liability assigned to all persons or entities liable and, pursuant to Section 1601 of
the Civil Practice Law and Rules, the liability of this answering defendant to plaintiff for the
non-economic loss shall not exceed this answering defendant's equitable share determined in
accordance with the relative culpability of each person causing or contributing to the total
liability for non-economic loss.
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AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE:
26. That upon information and belief, future costs and/or expenses incurred, or to be
incurred by plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of
earnings and/or other economic loss, has been, or with reasonable certainty will 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.
27. If any damages are recoverable against this answering defendant, the amount of
such damages shall be diminished by the amount of funds which plaintiff has or shall receive
from such collateral source.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE:
28. That the within Complaint fails to state a claim or Cause of Action upon which
relief can be granted.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE:
29. That there is no proximate cause between the acts of this answering defendant and
plaintiff's alleged injuries/damages.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE:
30. That the injuries, losses or damages alleged in the Complaint were caused and/or
contributed to by the contributory fault, lack of care, culpable conduct and negligence of plaintiff
and/or other individuals or entities and/or independent contractors for whose conduct this
answering defendant is not responsible.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE:
31. That plaintiff, through the exercise of reasonable care, could have discovered the
alleged defect, apprehended the danger and avoided the injury.
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AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE:
32. That the injuries, losses, damages and occurrences alleged in the Complaint were
the result of an independent, superseding and/or intervening cause or causes over which this
answering defendant had no control or right of control and in no way participated.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE:
33. That the negligence, fault and culpable conduct of plaintiff herein and/or third
parties over whom this answering defendant had no control or right of control, caused the
incident in which plaintiff was injured and/or injuries resulting therefrom.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE:
34. That plaintiff failed and/or refused to take reasonable steps to avoid, minimize
and/or mitigate plaintiff's injuries and/or damages.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE:
35. That the within Complaint fails to meet the pleading requirements as set forth in
the CPLR.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE:
36. Any judgment entered in favor of plaintiff should be reduced pursuant to GOL
15-108 by the amount of any settlement, release, covenant not to sue or covenant not to enforce a
judgment or the amount of consideration paid by any person or entity liable to plaintiff for the
injuries alleged in the Complaint.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE:
37. To the extent that plaintiff failed to obtain coverage available to plaintiff as an
individual or as a family member, which plaintiff is eligible to obtain, then plaintiff has failed to
mitigate plaintiff's damages and cannot recover for such failure.
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WHEREFORE, defendant demands judgment dismissing the Complaint of plaintiffs
against it, together with the costs and disbursements of this action.
Dated: Elmsford, New York
March 7, 2023
Yours, etc.,
PILLINGER MILLER TARALLO, LLP
MICHAEL NERI
Attorneys for Defendants
JOHN J. LEASE III individually and as an officer of
NORTH PLANK DEVELOPMENT COMPANY, LLC
and NORTH PLANK DEVELOPMENT COMPANY,
LLC
555 Taxter Road, 5th Floor
Elmsford, NY 10523
(914) 703-6300
PMT File No. GUARD-00179/MN
TO:
GUNILLA P. FARINGER, ESQ.
Attorney for Plaintiffs
Brian Comer and Brittney Davis
34 South Broadway, Suite 710
White Plains, NY 10601
(914) 574-3708
JOHN J. LEASE III individually and as an officer of JOHN J.
LEASE MANAGEMENT, INC.
5020 Route 9W
Newburgh, NY 12550
JOHN J. LEASE MANAGEMENT, INC.
5020 Route 9W
Newburgh, NY 12550
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JACK SMITH as an agent for NORTH PLANK DEVELOPMENT
COMPANY, LLC and as an agent for JOHN J. LEASE
MANAGEMENT, INC.
13 New Road (Garage)
Newburgh, NY 12250
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VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF WESTCHESTER )
MICHAEL NERI, an attorney duly admitted to practice law in the State of New York,
hereby affirms the truth of the following under penalty of perjury and pursuant to CPLR 2106:
I am member of Pillinger Miller Tarallo, LLP, and I have read the contents of the
foregoing and it is true of my own knowledge, except as to the matters therein stated to be
alleged on information and belief and that as to those matters I believe them to be true.
( X ) I make this verification because JOHN J. LEASE III individually
and as an officer of NORTH PLANK DEVELOPMENT
COMPANY, LLC, resides outside of the county where Pillinger
Miller Tarallo, LLP maintains its office.
( ) I make this verification because JOHN J. LEASE III individually
and as an officer of NORTH PLANK DEVELOPMENT
COMPANY, LLC, is a corporation and Pillinger Miller Tarallo,
LLP, is its attorney in this action and my knowledge is based
upon all facts and corporation records available and in my
possession.
Dated: Elmsford, New York
March 7, 2023
MioAu4 #ers
MICHAEL NERI
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VERIFICATION
STATE OF NEW YORK )
) ss:
COUNTY OF WESTCHESTER )
MICHAEL NERI, an attorney duly admitted to practice law in the State of New York,
hereby affirms the truth of the following under penalty of perjury and pursuant to CPLR 2106:
I am member of Pillinger Miller Tarallo, LLP, and I have read the contents of the
foregoing and it is true of my own knowledge, except as to the matters therein stated to be
alleged on information and belief and that as to those matters I believe them to be true.
( X ) I make this verification because NORTH PLANK
DEVELOPMENT COMPANY, LLC resides outside of the
county where Pillinger Miller Tarallo, LLP maintains its office.
( ) I make this verification because NORTH PLANK
DEVELOPMENT COMPANY, LLC, is a corporation and
Pillinger Miller Tarallo, LLP, is its attorney in this action and my
knowledge is based upon all facts and corporation records
available and in my possession.
Dated: Elmsford, New York
March 7, 2023
MICHAEL NERI
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STATE OF NEW YORK )
) ss:
COUNTY OF WESTCHESTER )
AFFIDAVIT OF SERVICE
ANITA R. SGUEGLIA, being duly sworn, deposes and says that deponent is employed by
Pillinger Miller Tarallo, LLP, the attorney for Defendants JOHN J. LEASE III individually and as an
officer of NORTH PLANK DEVELOPMENT COMPANY, LLC and NORTH PLANK
DEVELOPMENT COMPANY, LLC, is over the age of eighteen and is not a party to this action.
On March 7, 2023, deponent served the within VERIFIED ANSWER TO AMENDED
COMPLAINT upon:
GUNILLA P. FARINGER, ESQ.
Attorney for Plaintiffs Brian Comer and Brittney Davis
34 South Broadway, Suite 710
White Plains, New York 10601
(914) 574-3708
JOHN J. LEASE III individually and as an officer of JOHN J.
LEASE MANAGEMENT, INC.
5020 Route 9W
Newburgh, NY 12550
JOHN J. LEASE MANAGEMENT, INC.
5020 Route 9W
Newburgh, NY 12550
JACK SMITH as an agent for NORTH PLANK
DEVELOPMENT COMPANY, LLC and as an agent for JOHN
J. LEASE MANAGEMENT, INC.
13 New Road (Garage)
Newburgh, NY 12250
the addresses designated by said attorneys for that purpose by depositing a true copy of same enclosed in
a postpaid properly addressed wrapper in - a post office - official
depository under the exclusive care and
custody of the United States post office department within the State ofNew York.
ANITA R. SGUEGLIA
Sworn to before me .
fvlarch 7, 2023.
NOTARY PUBLIC
DEBRA L.CASTIGLlONE
NOTARY PUBLIC,STATEOF NEWYORK
Registation No.01CA4808725 ..
Qualified in Westchester County
Commission Expires April 02, 2023
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FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE _____________________________________________________________________Ç BRIAN COMER and BRITINEY DAVIS, VERIFIED ANSWER TO AMENDED COMPLAINT Plaintiffs, Index No. EF004587-2021 -against- JOHN J. LEASE III individually and as an officer of NORTH PLANK DEVELOPMENT COMPANY, LLC and as an officer of JOHN J. LEASE MANAGEMENT, INC.; NORTH PLANK DEVELOPMENT COMPANY, LLC; JOHN J. LEASE MANAGEMENT, INC. and JACK SMITH as an agent for NORTH PLANK DEVELOPMENT COMPANY, LLC and as an agent for JOHN J. LEASE MANAGEMENT, INC., Defendants. _____________________________________________________________________Ç Defendants JOHN J. LEASE III individually and as an officer of NORTH PLANK DEVELOPMENT COMPANY, LLC and NORTH PLANK DEVELOPMENT COMPANY, LLC, by their attorneys, PILLINGER MILLER TARALLO, LLP, upon information and belief, answer the Amended Complaint of plaintiffs as follows: 1. Deny any knowledge or information sufficient to form a belief as to the truth of "1" the allegations contained in the paragraph of the Amended Complaint herein designated as: and refers all questions of fact to the trier of fact. 2. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Amended Complaint herein designated as: "2"; "3" and refers all questions of fact to the trier of fact. 3. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Amended Complaint herein designated as: "4"; "8" "5"; "6"; "7"; and "9"and refers all questions of fact to the trier of fact. 1 of 12 FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023 4. Deny each and every allegation contained in the paragraphs of the Amended Complaint herein designated as: "10". 5. Deny any knowledge or information sufficient to form a belief as to the truth of "11" the allegations contained in the paragraph of the Amended Complaint herein designated as: and refers all questions of fact to the trier of fact. 6. Deny each and every allegation contained in the paragraphs of the Amended "14" Complaint herein designated as: "12", "13", and "15"and refers all questions of law and fact to the trier of fact. 7. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Amended Complaint herein designated as: 16"; "17" "20" "23" "24" ,"18", "19", , "21", "22", and and refers all questions of fact to the trier of fact. 8. Deny each and every allegation contained in the paragraphs of the Amended Complaint herein designated as: "25". 9. Deny any knowledge or information sufficient to form a belief as to the truth of "26" the allegations contained in the paragraph of the Amended Complaint herein designated as: "27" and and refers all questions of fact to a trier of fact. 10. Deny each and every allegation contained in the paragraphs of the Amended "28" Complaint herein designated as: and refers all questions of law to the Court. 11. Deny any knowledge or information sufficient to form a belief as to the truth of "29" the allegations contained in the paragraph of the Amended Complaint herein designated as: "30" and and refers all questions of fact to a trier of fact. 12. Deny each and every allegation contained in the paragraphs of the Amended Complaint herein designated as: "31". 13. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Amended Complaint herein designated as: "32". Page 2 of 12 FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023 14. Deny each and every allegation contained in the paragraphs of the Amended "33" Complaint herein designated as: and refers all questions of law to the Court. 15. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Amended Complaint herein designated as: "34"; "41" "35"; "36"; "37"; "38"; "39"; "40"; and and refers all question of law to the Court and all issue of fact to the trier of fact. 16. Deny each and every allegation contained in the paragraphs of the Amended Complaint herein designated as: "42", "43"; "44"; "45"; "46"; "47"; "48"; "49"; "50"; "51"; "57" "52"; "53"; "54"; "55"; "56", and and refers all questions of law to the Court and issues of fact to the trier of fact. 17. Deny any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraph of the Amended Complaint herein designated as "58". 18. Deny each and every allegation contained in the paragraphs of the Amended Complaint herein designated as: "60"; "61"; "62"; "63"; "65"; "66"; "67"; "69"; "70"; "71"; "73"; "74"; "76"; "77"; "78"; "79"; "80"; "81"; "83"; "84"; "85"; "86"; "88"; "89"; "91"; "92"; "93"; "94"; "96"; "97"; "98"; "100"; "101"; "102"; "103"; "105"; "106"; "107"; "108"; and "109" and refers all issues of fact to the trier of fact and issue of law to the Court. 19. Repeat, reiterate and reallege each and every response heretofore made herein as and for its Answer to the allegations contained in the paragraph of the Amended Complaint herein designated as: "59"; "64"; "68"; "72"; "75"; "82"; "87"; "90"; "95"; "99"; and "104". PLEASE TAKE NOTICE that affirmative defenses are set forth as follows: AS AND FOR A FIRST AFFIRMATIVE DEFENSE: 20. That the liability of this answering defendant is limited under the terms of Article Sixteen of the C.P.L.R. Page 3 of 12 FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023 AS AND FOR A SECOND AFFIRMATIVE DEFENSE: 21. That the amount recoverable shall be diminished in the proportion which the culpable conduct attributable to plaintiff bears to the culpable conduct which caused the damages, including, but not limited to, plaintiff's contributory negligence and/or assumption of the risk. AS AND FOR A THIRD AFFIRMATIVE DEFENSE: 22. That there is no personal jurisdiction over this answering defendant as service of process has not been personally made within the State of New York nor pursuant to statutory authority. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: 23. That this answering defendant had no notice of the alleged dangerous and/or defective condition. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: 24. That there exists no proximate causation between any alleged acts or breach of duty by this answering defendant and plaintiff's alleged injuries and/or Causes of Action herein. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE: 25. That although this answering defendant specifically denies liability for the occurrence and damages complained of, if this answering defendant is found liable for such occurrence and damages, this answering defendant's share of liability is fifty percent (50%) or less of the total liability assigned to all persons or entities liable and, pursuant to Section 1601 of the Civil Practice Law and Rules, the liability of this answering defendant to plaintiff for the non-economic loss shall not exceed this answering defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss. P a g e 4 of 12 FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE: 26. That upon information and belief, future costs and/or expenses incurred, or to be incurred by plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings and/or other economic loss, has been, or with reasonable certainty will 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. 27. If any damages are recoverable against this answering defendant, the amount of such damages shall be diminished by the amount of funds which plaintiff has or shall receive from such collateral source. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE: 28. That the within Complaint fails to state a claim or Cause of Action upon which relief can be granted. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE: 29. That there is no proximate cause between the acts of this answering defendant and plaintiff's alleged injuries/damages. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE: 30. That the injuries, losses or damages alleged in the Complaint were caused and/or contributed to by the contributory fault, lack of care, culpable conduct and negligence of plaintiff and/or other individuals or entities and/or independent contractors for whose conduct this answering defendant is not responsible. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE: 31. That plaintiff, through the exercise of reasonable care, could have discovered the alleged defect, apprehended the danger and avoided the injury. Page 5 of 12 FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023 AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE: 32. That the injuries, losses, damages and occurrences alleged in the Complaint were the result of an independent, superseding and/or intervening cause or causes over which this answering defendant had no control or right of control and in no way participated. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE: 33. That the negligence, fault and culpable conduct of plaintiff herein and/or third parties over whom this answering defendant had no control or right of control, caused the incident in which plaintiff was injured and/or injuries resulting therefrom. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE: 34. That plaintiff failed and/or refused to take reasonable steps to avoid, minimize and/or mitigate plaintiff's injuries and/or damages. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE: 35. That the within Complaint fails to meet the pleading requirements as set forth in the CPLR. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE: 36. Any judgment entered in favor of plaintiff should be reduced pursuant to GOL 15-108 by the amount of any settlement, release, covenant not to sue or covenant not to enforce a judgment or the amount of consideration paid by any person or entity liable to plaintiff for the injuries alleged in the Complaint. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE: 37. To the extent that plaintiff failed to obtain coverage available to plaintiff as an individual or as a family member, which plaintiff is eligible to obtain, then plaintiff has failed to mitigate plaintiff's damages and cannot recover for such failure. P a g e 6 of 12 FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023 WHEREFORE, defendant demands judgment dismissing the Complaint of plaintiffs against it, together with the costs and disbursements of this action. Dated: Elmsford, New York March 7, 2023 Yours, etc., PILLINGER MILLER TARALLO, LLP MICHAEL NERI Attorneys for Defendants JOHN J. LEASE III individually and as an officer of NORTH PLANK DEVELOPMENT COMPANY, LLC and NORTH PLANK DEVELOPMENT COMPANY, LLC 555 Taxter Road, 5th Floor Elmsford, NY 10523 (914) 703-6300 PMT File No. GUARD-00179/MN TO: GUNILLA P. FARINGER, ESQ. Attorney for Plaintiffs Brian Comer and Brittney Davis 34 South Broadway, Suite 710 White Plains, NY 10601 (914) 574-3708 JOHN J. LEASE III individually and as an officer of JOHN J. LEASE MANAGEMENT, INC. 5020 Route 9W Newburgh, NY 12550 JOHN J. LEASE MANAGEMENT, INC. 5020 Route 9W Newburgh, NY 12550 Page 7 of 12 FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023 JACK SMITH as an agent for NORTH PLANK DEVELOPMENT COMPANY, LLC and as an agent for JOHN J. LEASE MANAGEMENT, INC. 13 New Road (Garage) Newburgh, NY 12250 Page 8 of 12 FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023 VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF WESTCHESTER ) MICHAEL NERI, an attorney duly admitted to practice law in the State of New York, hereby affirms the truth of the following under penalty of perjury and pursuant to CPLR 2106: I am member of Pillinger Miller Tarallo, LLP, and I have read the contents of the foregoing and it is true of my own knowledge, except as to the matters therein stated to be alleged on information and belief and that as to those matters I believe them to be true. ( X ) I make this verification because JOHN J. LEASE III individually and as an officer of NORTH PLANK DEVELOPMENT COMPANY, LLC, resides outside of the county where Pillinger Miller Tarallo, LLP maintains its office. ( ) I make this verification because JOHN J. LEASE III individually and as an officer of NORTH PLANK DEVELOPMENT COMPANY, LLC, is a corporation and Pillinger Miller Tarallo, LLP, is its attorney in this action and my knowledge is based upon all facts and corporation records available and in my possession. Dated: Elmsford, New York March 7, 2023 MioAu4 #ers MICHAEL NERI 9 of 12 FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023 VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF WESTCHESTER ) MICHAEL NERI, an attorney duly admitted to practice law in the State of New York, hereby affirms the truth of the following under penalty of perjury and pursuant to CPLR 2106: I am member of Pillinger Miller Tarallo, LLP, and I have read the contents of the foregoing and it is true of my own knowledge, except as to the matters therein stated to be alleged on information and belief and that as to those matters I believe them to be true. ( X ) I make this verification because NORTH PLANK DEVELOPMENT COMPANY, LLC resides outside of the county where Pillinger Miller Tarallo, LLP maintains its office. ( ) I make this verification because NORTH PLANK DEVELOPMENT COMPANY, LLC, is a corporation and Pillinger Miller Tarallo, LLP, is its attorney in this action and my knowledge is based upon all facts and corporation records available and in my possession. Dated: Elmsford, New York March 7, 2023 MICHAEL NERI 10 of 12 FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 03/08/2023 STATE OF NEW YORK ) ) ss: COUNTY OF WESTCHESTER ) AFFIDAVIT OF SERVICE ANITA R. SGUEGLIA, being duly sworn, deposes and says that deponent is employed by Pillinger Miller Tarallo, LLP, the attorney for Defendants JOHN J. LEASE III individually and as an officer of NORTH PLANK DEVELOPMENT COMPANY, LLC and NORTH PLANK DEVELOPMENT COMPANY, LLC, is over the age of eighteen and is not a party to this action. On March 7, 2023, deponent served the within VERIFIED ANSWER TO AMENDED COMPLAINT upon: GUNILLA P. FARINGER, ESQ. Attorney for Plaintiffs Brian Comer and Brittney Davis 34 South Broadway, Suite 710 White Plains, New York 10601 (914) 574-3708 JOHN J. LEASE III individually and as an officer of JOHN J. LEASE MANAGEMENT, INC. 5020 Route 9W Newburgh, NY 12550 JOHN J. LEASE MANAGEMENT, INC. 5020 Route 9W Newburgh, NY 12550 JACK SMITH as an agent for NORTH PLANK DEVELOPMENT COMPANY, LLC and as an agent for JOHN J. LEASE MANAGEMENT, INC. 13 New Road (Garage) Newburgh, NY 12250 the addresses designated by said attorneys for that purpose by depositing a true copy of same enclosed in a postpaid properly addressed wrapper in - a post office - official depository under the exclusive care and custody of the United States post office department within the State ofNew York. ANITA R. SGUEGLIA Sworn to before me . fvlarch 7, 2023. NOTARY PUBLIC DEBRA L.CASTIGLlONE NOTARY PUBLIC,STATEOF NEWYORK Registation No.01CA4808725 .. Qualified in Westchester County Commission Expires April 02, 2023 11 of 12 FILED: ORANGE COUNTY CLERK 03/08/2023 10:14 AM INDEX NO. EF004587-2021 NYSCEF DOC. NO. 55