Preview
FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020
"C"
EXHIBIT
FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
___._________________________________________________------X
E.Q. and L.M.Q., both infants under the age of 14 years by
Their father and natural guardian, MIGEUL ANGEL
ESPEJO QUEZADA, A.H., an infant under the age of 14
Years by his mother and natural guardian, ELVIRA
RODRIGUEZ, and MIGUEL ANGEL ESPEJO
QUEZADA and LILIA ROBLES, individually, VERIFIED ANSWER
Plaintiffs,
Index No.: 526694/19
-against-
JOSE D. GARCIA and AUTO DRIVING CORONA.,
Defendants.
-----------------------------------------------------------------X
S I R S:
PLEASE TAKE NOTICE that the Defendants JOSE D. GARCIA and CORONA AUTO
DRIVING SCHOOL LLC s/h/a AUTO DRIVING CORONA, by their attorneys, Peknic, Peknic
& Schaefer, LLC. answering the plaintiffs Verified Complaint, herein alleges:
ANSWERING PLAIN_TIFFS VERIFIED COMPLAINT
1. Denies having knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 26.
2. Denies the second paragraph numbered 15 but admits CORONA AUTO DRIVING
SCHOOL LLC was and is a business corporation registered with the State of New York.
3. Denies paragraph 16 but admits CORONA AUTO DRIVING SCHOOL LLC was and is a
business corporation registered with the State of New York with its Principal Place of
Business at 104-07 Corona Avenue, Queens, New York 11368.
4. Denies paragraph 17 but admits CORONA AUTO DRIVING SCHOOL LLC was the
registered owner of a 2001 TOYOTA motor vehicle.
5. Denies paragraph 18 but admits CORONA AUTO DRIVING SCHOOL LLC was the
registered owner of a 2001 TOYOTA SEDAN bearing New York State license plate
number JFZ5702.
6. Denies paragraph 19 but admits defendant JOSE D. GARCIA operated the aforesaid 2001
TOYOTA SEDAN bearing New York State license plate number JFZ5702 with the
FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020
permission and consent of its owner, defendant CORONA AUTO DRIVING SCHOOL
LLC.
7. Denies paragraph 20 but admits defendant JOSE D. GARCIA was an employee of
defendant CORONA AUTO DRIVING SCHOOL LLC.
8. Denies each and every allegation contained in paragraphs: 21, 22, 23, and 25.
9. Denies each and every allegation contained in paragraph: 24 and refers all questions of law to
the Honorable Court.
ANSWERING PLAINTIFF E.Q.'s FIRST CAUSE OF ACTION
10. Responding to the paragraph numbered 27, the above defendants repeat and reiterate each
and every admission, denial and other response heretofore made to the preceding paragraphs
numbered 1-26, with the same force and effect as if set forth at length herein.
11. Denies each and every allegation contained in paragraphs: 28, 29, 30, 31 and 33.
12. Denies each and every allegation contained in paragraphs: 32, 34, 35 and 36 and refers all
questions of law to the Court.
ANSWERING PLAINTIFF L.M.Q.'s FIRST CAUSE OF ACTION
13. Responding to the paragraph numbered 37, the above defendants repeat and reiterate each
and every admission, denial and other response heretofore made to the preceding paragraphs
numbered 1-36, with the same force and effect as if set forth at length herein.
14. Denies each and every allegation contained in paragraphs: 38, 39, 40, 41 and 43.
15. Denies each and every allegation contained in paragraphs: 42, 44, 45 and 46 and refers all
questions of law to the Court.
ANSWERING PLAINTIFF A.H.'s FIRST CAUSE OF ACTION
16. Responding to the paragraph numbered 47, the above defendants repeat and reiterate each
and every admission, denial and other response heretofore made to the preceding paragraphs
numbered 1-46, with the same force and effect as if set forth at length herein.
17. Denies each and every allegation contained in paragraphs: 48, 49, 50, 51 and 53.
18. Denies each and every allegation contained in paragraphs: 52, 54, 55 and 56 and refers all
questions of law to the Court.
ANSWERING PLAINTIFF MIGUEL ANGEL ESPEJOOUEZADA's
FIRST CAUSE OF ACTION
19. Responding to the paragraph numbered 57, the above defendants repeat and reiterate each
FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020
and every admission, denial and other response heretofore made to the paragraphs
preceding
numbered 1-56, with the same force and effect as if set forth at length herein.
20. Denies each and allegation contained in paragraphs: 58, 59, 60, 61 and 63.
every
21. Denies each and allegation contained in paragraphs: 62, 64, 65 and 66 and refers all
every
questions of law to the Court.
ROBLES'
ANSWERING PLAINTIFF LILIA
FIRST CAUSE OF ACTION
22. Responding to the paragraph numbered 67, the above defendants repeat and reiterate each
and every admission, denial and other response heretofore made to the paragraphs
preceding
numbered 1-66, with the same force and effect as if set forth at length herein.
23. Denies each and every allegation contained in paragraphs: 68, 69, 70, 71 and 73.
24. Denies each and every allegation contained in paragraphs: 72, 74, 75 and 76 and refers all
questions of law to the Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
25. The damages and injuries alleged the plaintiffs were brought about, caused and/or
by
contributed to by the culpable conduct of the plaintiffs and any award for damages and
injuries sustained by plaintiffs should be diminished in the proportion plaintiffs culpable
conduct bears to all other conduct contributing to the damages of the plaintiffs.
'
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
26. Plaintiffs recovery, if any, shall be reduced the amount of collateral payments
by any
received, in accordance with CPLR 4545.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
27. Plaintiffs failed to take all reasonable measures to reduce, mitigate and/or minimize the
damages alleged.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
28. The plaintiffs Complaint must be dismissed for failure to allege a cause of action under
which relief can be granted under New York State Law.
FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
29. Upon information and belief, plaintiffs economic loss, if any, as specified in Section 4545 of
the CPLR, was or will be replaced and indemnified, in whole or in part, from collateral
sources, and these answering defendants are entitled to have the Court consider the same in
determining such special damages as provided in Section 4545 of the CPLR.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
plaintiffs'
30. The infant plaintiffs and plaintiffs Complaints must be dismissed for failure to
injury"
sustain a "serious pursuant to Section 5102(d) of the New York State Insurance Law.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
31. The plaintiffs Complaint must be dismissed based upon the Court's lack of jurisdiction over
the answering Defendants JOSE D. GARCIA and CORONA AUTO DRIVING SCHOOL
LLC s/h/a AUTO DRIVING CORONA, due to improper service of the above defendants.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
32. That the plaintiffs damages must be mitigated plaintiffs violation of Section of
by 1229(c)
the Vehicle and Traffic Law in that plaintiffs did not use the seat belts or restraining devices
or infant restraining devices and that the damages claimed to have been sustained were
caused by the lack of use of said seat belts and/or devices and/or infant
restraining
restraining services. Further, plaintiffs did not avail themselves of the protective devices
and/or seat belts to mitigate the injuries alleged herein.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
33. The plaintiffs complaint must be dismissed as the injuries alleged are not related to
causally
the subject motor vehicle accident and pre-existed the date of the subject accident.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
plaintiffs'
34. The complaint must be dismissed based upon improper venue.
FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020
AS AND FOR A COUNTERCLAIM AGAINST THE PLAINTIFF
MIGUEL ANGEL ESPEJO QUEZADA
35. That if the Plaintiffs were caused to sustain injuries and damages as alleged in the complaint,
the alleged injuries and damages arose from the negligence of the Plaintiff MIGUEL ANGEL
ESPEJO QUEZADA, including but not limited to the negligent operation and maintenance of his
vehicle and in failing to ensure the back seat infant plaintiffs were properly secured with the available
seatbelts, restraining devices and/or car seats, and the Defendants JOSE D. GARCIA and
CORONA AUTO DR1VING SCHOOL LLC s/h/a AUTO DRIVING CORONA hereby
demands indemnification, in whole or in part over and against said plaintiff.
WHEREFORE, Defendants JOSE D. GARCIA and CORONA AUTO DRIVING
SCHOOL LLC s/h/a AUTO DRIVING CORONA, demand judgment dismissing the complaint,
or in the alternative, demand indemnification over and against plaintiff, together with costs and
disbursements of this action.
Dated: Long Beach, New York
December 30, 2019
SEAN W. SCHAEFER, Q.
PEKNIC, PEKNIC & HAEFER, LLC
AttorneysforDefendants
1005 West Beech Street
Long Beach, New York 11561
Tel.: (516) 432-9400 x13
Fax: (516) 432-5396
Our File No.: LNCR/014/19
To: KHAVINSON & ASSOCIATES, P.C.
AttorneysforPlaintzy
1601 Gravesend Neck Road, Suite #903
Brooklyn, New York 11229
Tel.: (718) 421-3815
Your File No.: E-06536
FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019
NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020
VERIFICATION
SEAN W. SCHAEFER, an attorney admitted to practice law in the Courts of this State is
the attorney of record for the Defendants JOSE D. GARCIA and CORONA AUTO DRIVING
SCHOOL LLC s/h/a AUTO DRIVING CORONA, in the within action and states:
That your affirmant has read the foregoing Verified Answer and knows the contents thereof;
that the same is true to your affirmant's own knowledge except as to the matters which are stated
therein to be alleged upon information and belief, and as to those matters your affirmant believes
them to be true. The grounds of my belief as to all matters not stated upon my own knowledge are
based on information contained in my file, correspondence, etc.
That the reason this verification in made by affirmant and not by the aforesaid defendants is
because said defendants do not reside within the county where your affirmant maintains his office.
The undersigned affirms that the foregoing statement is true, under penalties of perjury.
Dated: Long Beach, New York
December 30, 2019
Sean W. Schaefer
Attorney at Law
Preview
FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020 "C" EXHIBIT FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ___._________________________________________________------X E.Q. and L.M.Q., both infants under the age of 14 years by Their father and natural guardian, MIGEUL ANGEL ESPEJO QUEZADA, A.H., an infant under the age of 14 Years by his mother and natural guardian, ELVIRA RODRIGUEZ, and MIGUEL ANGEL ESPEJO QUEZADA and LILIA ROBLES, individually, VERIFIED ANSWER Plaintiffs, Index No.: 526694/19 -against- JOSE D. GARCIA and AUTO DRIVING CORONA., Defendants. -----------------------------------------------------------------X S I R S: PLEASE TAKE NOTICE that the Defendants JOSE D. GARCIA and CORONA AUTO DRIVING SCHOOL LLC s/h/a AUTO DRIVING CORONA, by their attorneys, Peknic, Peknic & Schaefer, LLC. answering the plaintiffs Verified Complaint, herein alleges: ANSWERING PLAIN_TIFFS VERIFIED COMPLAINT 1. Denies having knowledge or information sufficient to form a belief as to the allegations contained in paragraphs: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 26. 2. Denies the second paragraph numbered 15 but admits CORONA AUTO DRIVING SCHOOL LLC was and is a business corporation registered with the State of New York. 3. Denies paragraph 16 but admits CORONA AUTO DRIVING SCHOOL LLC was and is a business corporation registered with the State of New York with its Principal Place of Business at 104-07 Corona Avenue, Queens, New York 11368. 4. Denies paragraph 17 but admits CORONA AUTO DRIVING SCHOOL LLC was the registered owner of a 2001 TOYOTA motor vehicle. 5. Denies paragraph 18 but admits CORONA AUTO DRIVING SCHOOL LLC was the registered owner of a 2001 TOYOTA SEDAN bearing New York State license plate number JFZ5702. 6. Denies paragraph 19 but admits defendant JOSE D. GARCIA operated the aforesaid 2001 TOYOTA SEDAN bearing New York State license plate number JFZ5702 with the FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020 permission and consent of its owner, defendant CORONA AUTO DRIVING SCHOOL LLC. 7. Denies paragraph 20 but admits defendant JOSE D. GARCIA was an employee of defendant CORONA AUTO DRIVING SCHOOL LLC. 8. Denies each and every allegation contained in paragraphs: 21, 22, 23, and 25. 9. Denies each and every allegation contained in paragraph: 24 and refers all questions of law to the Honorable Court. ANSWERING PLAINTIFF E.Q.'s FIRST CAUSE OF ACTION 10. Responding to the paragraph numbered 27, the above defendants repeat and reiterate each and every admission, denial and other response heretofore made to the preceding paragraphs numbered 1-26, with the same force and effect as if set forth at length herein. 11. Denies each and every allegation contained in paragraphs: 28, 29, 30, 31 and 33. 12. Denies each and every allegation contained in paragraphs: 32, 34, 35 and 36 and refers all questions of law to the Court. ANSWERING PLAINTIFF L.M.Q.'s FIRST CAUSE OF ACTION 13. Responding to the paragraph numbered 37, the above defendants repeat and reiterate each and every admission, denial and other response heretofore made to the preceding paragraphs numbered 1-36, with the same force and effect as if set forth at length herein. 14. Denies each and every allegation contained in paragraphs: 38, 39, 40, 41 and 43. 15. Denies each and every allegation contained in paragraphs: 42, 44, 45 and 46 and refers all questions of law to the Court. ANSWERING PLAINTIFF A.H.'s FIRST CAUSE OF ACTION 16. Responding to the paragraph numbered 47, the above defendants repeat and reiterate each and every admission, denial and other response heretofore made to the preceding paragraphs numbered 1-46, with the same force and effect as if set forth at length herein. 17. Denies each and every allegation contained in paragraphs: 48, 49, 50, 51 and 53. 18. Denies each and every allegation contained in paragraphs: 52, 54, 55 and 56 and refers all questions of law to the Court. ANSWERING PLAINTIFF MIGUEL ANGEL ESPEJOOUEZADA's FIRST CAUSE OF ACTION 19. Responding to the paragraph numbered 57, the above defendants repeat and reiterate each FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020 and every admission, denial and other response heretofore made to the paragraphs preceding numbered 1-56, with the same force and effect as if set forth at length herein. 20. Denies each and allegation contained in paragraphs: 58, 59, 60, 61 and 63. every 21. Denies each and allegation contained in paragraphs: 62, 64, 65 and 66 and refers all every questions of law to the Court. ROBLES' ANSWERING PLAINTIFF LILIA FIRST CAUSE OF ACTION 22. Responding to the paragraph numbered 67, the above defendants repeat and reiterate each and every admission, denial and other response heretofore made to the paragraphs preceding numbered 1-66, with the same force and effect as if set forth at length herein. 23. Denies each and every allegation contained in paragraphs: 68, 69, 70, 71 and 73. 24. Denies each and every allegation contained in paragraphs: 72, 74, 75 and 76 and refers all questions of law to the Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 25. The damages and injuries alleged the plaintiffs were brought about, caused and/or by contributed to by the culpable conduct of the plaintiffs and any award for damages and injuries sustained by plaintiffs should be diminished in the proportion plaintiffs culpable conduct bears to all other conduct contributing to the damages of the plaintiffs. ' AS AND FOR A SECOND AFFIRMATIVE DEFENSE 26. Plaintiffs recovery, if any, shall be reduced the amount of collateral payments by any received, in accordance with CPLR 4545. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 27. Plaintiffs failed to take all reasonable measures to reduce, mitigate and/or minimize the damages alleged. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 28. The plaintiffs Complaint must be dismissed for failure to allege a cause of action under which relief can be granted under New York State Law. FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 29. Upon information and belief, plaintiffs economic loss, if any, as specified in Section 4545 of the CPLR, was or will be replaced and indemnified, in whole or in part, from collateral sources, and these answering defendants are entitled to have the Court consider the same in determining such special damages as provided in Section 4545 of the CPLR. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE plaintiffs' 30. The infant plaintiffs and plaintiffs Complaints must be dismissed for failure to injury" sustain a "serious pursuant to Section 5102(d) of the New York State Insurance Law. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 31. The plaintiffs Complaint must be dismissed based upon the Court's lack of jurisdiction over the answering Defendants JOSE D. GARCIA and CORONA AUTO DRIVING SCHOOL LLC s/h/a AUTO DRIVING CORONA, due to improper service of the above defendants. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 32. That the plaintiffs damages must be mitigated plaintiffs violation of Section of by 1229(c) the Vehicle and Traffic Law in that plaintiffs did not use the seat belts or restraining devices or infant restraining devices and that the damages claimed to have been sustained were caused by the lack of use of said seat belts and/or devices and/or infant restraining restraining services. Further, plaintiffs did not avail themselves of the protective devices and/or seat belts to mitigate the injuries alleged herein. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 33. The plaintiffs complaint must be dismissed as the injuries alleged are not related to causally the subject motor vehicle accident and pre-existed the date of the subject accident. AS AND FOR A TENTH AFFIRMATIVE DEFENSE plaintiffs' 34. The complaint must be dismissed based upon improper venue. FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020 AS AND FOR A COUNTERCLAIM AGAINST THE PLAINTIFF MIGUEL ANGEL ESPEJO QUEZADA 35. That if the Plaintiffs were caused to sustain injuries and damages as alleged in the complaint, the alleged injuries and damages arose from the negligence of the Plaintiff MIGUEL ANGEL ESPEJO QUEZADA, including but not limited to the negligent operation and maintenance of his vehicle and in failing to ensure the back seat infant plaintiffs were properly secured with the available seatbelts, restraining devices and/or car seats, and the Defendants JOSE D. GARCIA and CORONA AUTO DR1VING SCHOOL LLC s/h/a AUTO DRIVING CORONA hereby demands indemnification, in whole or in part over and against said plaintiff. WHEREFORE, Defendants JOSE D. GARCIA and CORONA AUTO DRIVING SCHOOL LLC s/h/a AUTO DRIVING CORONA, demand judgment dismissing the complaint, or in the alternative, demand indemnification over and against plaintiff, together with costs and disbursements of this action. Dated: Long Beach, New York December 30, 2019 SEAN W. SCHAEFER, Q. PEKNIC, PEKNIC & HAEFER, LLC AttorneysforDefendants 1005 West Beech Street Long Beach, New York 11561 Tel.: (516) 432-9400 x13 Fax: (516) 432-5396 Our File No.: LNCR/014/19 To: KHAVINSON & ASSOCIATES, P.C. AttorneysforPlaintzy 1601 Gravesend Neck Road, Suite #903 Brooklyn, New York 11229 Tel.: (718) 421-3815 Your File No.: E-06536 FILED: KINGS COUNTY CLERK 02/17/2020 03:27 PM INDEX NO. 526694/2019 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 02/17/2020 VERIFICATION SEAN W. SCHAEFER, an attorney admitted to practice law in the Courts of this State is the attorney of record for the Defendants JOSE D. GARCIA and CORONA AUTO DRIVING SCHOOL LLC s/h/a AUTO DRIVING CORONA, in the within action and states: That your affirmant has read the foregoing Verified Answer and knows the contents thereof; that the same is true to your affirmant's own knowledge except as to the matters which are stated therein to be alleged upon information and belief, and as to those matters your affirmant believes them to be true. The grounds of my belief as to all matters not stated upon my own knowledge are based on information contained in my file, correspondence, etc. That the reason this verification in made by affirmant and not by the aforesaid defendants is because said defendants do not reside within the county where your affirmant maintains his office. The undersigned affirms that the foregoing statement is true, under penalties of perjury. Dated: Long Beach, New York December 30, 2019 Sean W. Schaefer Attorney at Law