Preview
FILED: KINGS COUNTY CLERK 05/05/2023 10:40 AM INDEX NO. 508174/2023
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------------x Index # 508174/2023
JAMES GEOFFREY,
Plaintiff,
VERIFIED ANSWER
-against-
SMITELL LLC, SMITELL B-1 LLC,
and EXTELL DEVELOPMENT COMPANY,
Defendants.
____-------_____________--------------------- ___-- ___----------------Ç
Defendants, SMITELL LLC, SMITELL B-1 LLC and EXTELL DEVELOPMENT
COMPANY, by their attorneys, REBORE, THORPE & PISARELLO, P.C., as and for their
Verified Answer to Plaintiff's Verified Complaint, states:
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION:
FIRST: Deny knowledge or information sufficient to form a belief as to the
"1," "4," "5," "6," "7" "8"
allegations contained in paragraphs and of the complaint.
"2" "3"
SECOND: Deny each and every allegation contained in paragraphs and of the
complaint.
"9," "10," "11,"
THIRD: Deny each and every allegation contained in paragraphs
"12," "13" "14"
and of the complaint and respectfully refers all questions of law to the court.
AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
FOURTH: Denies knowledge or information sufficient to form a belief as to the
"15," "18," "19," "20," "21" "22,"
allegations contained in paragraphs and of the complaint.
"23," "24," "25,"
FIFTH: Deny each and every allegation contained in paragraphs
"26," "27" "28"
and of the complaint and respectfully refers all questions of law to the court.
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AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
SIXTH: Deny knowledge or information sufficient to form a belief as to the
"29"
allegations contained in paragraph of the complaint.
"31," "32," "33,"
SEVENTH: Deny each and every allegation contained in paragraphs
"34," "35" "36"
and of the complaint.
"37," "38," "39,"
EIGHTH: Deny each and every allegation contained in paragraphs
"40," "41" "42"
and of the complaint and respectfully refers all questions of law to the court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE:
NINTH: That the accident or occurrence referred to in the plaintiff's complaint and
the injuries claimed were caused in whole or in part by the carelessness, contributory negligence
or the assumption of risk of the plaintiff and these answering defendants demand that the plaintiff's
damages be accordingly diminished or denied.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE:
defendants'
TENTH: That these liability is limited pursuant to Article 16 of the CPLR.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE:
ELEVENTH: That if any past or future costs or expenses incurred or to be incurred by the
plaintiff which will be replaced or indemnified in whole or in part, from a collateral source as
defined in Section 4545 of the Civil Practice Law and Rules, including insurance, and if any such
damages are recoverable against these answering defendants, such damages shall be diminished
by the amount of the funds which plaintiff has received, or shall receive from such collateral source
or sources.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:
TWELFTH: That the negligence, fault and culpable conduct of the plaintiff herein caused
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the incident in which the plaintiff was allegedly injured and/or alleged injuries, if any, resulting
therefrom.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:
THIRTEENTH: That the plaintiff has failed to mitigate and/or reduce their damages
and losses, if any, as alleged in the complaint herein.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:
FOURTEENTH: That these answering defendants were without notice of any of the
purported conditions alleged in the Complaint.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE:
FIFTEENTH: That these answering defendants did not owe the plaintiff any of the duties
alleged in this lawsuit.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE:
SIXTEENTH: That any damages which may have been sustained by the plaintiff were
contributed to in whole or in part by the culpable conduct of third parties not under the control of
these answering defendants.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE:
SEVENTEENTH: That the injuries and damages alleged, all of which are denied by
these answering defendants, were caused by the intervening, interceding and superseding acts of
third parties not under the control of these answering defendants.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE:
EIGHTEENTH: That the action against these answering defendants cannot be
prosecuted due to the plaintiffs failure to name and likewise prosecute an indispensable party to
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this litigation.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE:
NINETEENTH: That if the plaintiff sustained damages as alleged, such damages
occurred while the plaintiff was engaged in an activity into which he entered, knowing the hazard,
risk and danger of the activity and he assumed the risks incidental to and attending the activity.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE:
TWENTIETH: That plaintiffs action is barred by recalcitrant worker defense.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE:
TWENTY-FIRST: That these defendants are not liable to the plaintiff as the plaintiffs
actions were the sole proximate cause of the alleged occurrence.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE:
TWENTY-SECOND: That the plaintiff was not injured as alleged in the Complaint as a
worker in a protected activity as enumerated by the New York State Labor Law.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE:
TWENTY-THIRD: That the plaintiff was not employed at the premises, nor lawfully
upon the premises, as required for a finding of liability under Labor Law Sections 200, 240(1) and
241(6).
WHEREFORE, defendants demand judgment dismissing the complaint, together with
costs and disbursements of this action.
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Dated: May 3, 2023
Fanningdale, New York
By: Timothy J. , III
REBORE, THO & PISARELLO, P.C.
Attorneys for De en ants
500 Bi-County B u vard
Suite 102
Farmingdale, NY 11735
(631) 249-6600
TO: KRENTSEL & GUZMAN, LLP
Attorneys for Plaintiff
17 Battery Place, Suite 604
New York, New York 10004
(212) 227-2900
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V E R I F I C A T I O N
I, the undersigned, an attorney duly admitted to practice in
the courts of New York State, state that I am a member of the firm
which is the attorney of record for defendants, SMITELL LLC,
SMITELL B-1 LLC and EXTELL DEVELOPMENT COMPANY, in the within
action; I have read the foregoing Answer and know the contents
thereof; the same is true to my own knowledge, except as to the
matters therein alleged to be on information and belief, and as to
those matters I believe them to be true. The reason this
verification is made by me and not by defendant, SMITELL LLC,
SMITELL B-1 LLC and EXTELL DEVELOPMENT COMPANY, is because said
defendants do not reside or maintain offices in the same county
within which your deponent maintains his office.
The grounds of my belief as to all matters not stated upon my
own knowledge are as follows: Based upon investigative file.
I hereby affirm that the foregoing statements are true, under
the penalties of perjury.
Dated: May , 2023.
Farmingdale, NY
Timothy J. Dun , III
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AFFIDAVIT OF SERVICE
I, the undersigned, being sworn say: I am not a party to the action, am over 18 years of age
and reside at Smithtown, New York.
On May
d 2023, I served the within Verified Answer by filing a copy via the NYSCEF
system to each of the following persons below:
KRENTSEL & GUZMAN, LLP
Attorneys for Plaintiff
17 Battery Place, Suite 604
New York, New York 10004
(212) 227-2900
llian G neola
Sworn to before me on
May , 2023 .
t(RISTA NOCH
State of
Notary Putsic,
1KO6137974
No.
Oualified in Sullolk
Commission Expires
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Preview
FILED: KINGS COUNTY CLERK 05/05/2023 10:40 AM INDEX NO. 508174/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------------------------x Index # 508174/2023 JAMES GEOFFREY, Plaintiff, VERIFIED ANSWER -against- SMITELL LLC, SMITELL B-1 LLC, and EXTELL DEVELOPMENT COMPANY, Defendants. ____-------_____________--------------------- ___-- ___----------------Ç Defendants, SMITELL LLC, SMITELL B-1 LLC and EXTELL DEVELOPMENT COMPANY, by their attorneys, REBORE, THORPE & PISARELLO, P.C., as and for their Verified Answer to Plaintiff's Verified Complaint, states: AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION: FIRST: Deny knowledge or information sufficient to form a belief as to the "1," "4," "5," "6," "7" "8" allegations contained in paragraphs and of the complaint. "2" "3" SECOND: Deny each and every allegation contained in paragraphs and of the complaint. "9," "10," "11," THIRD: Deny each and every allegation contained in paragraphs "12," "13" "14" and of the complaint and respectfully refers all questions of law to the court. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION FOURTH: Denies knowledge or information sufficient to form a belief as to the "15," "18," "19," "20," "21" "22," allegations contained in paragraphs and of the complaint. "23," "24," "25," FIFTH: Deny each and every allegation contained in paragraphs "26," "27" "28" and of the complaint and respectfully refers all questions of law to the court. 1 of 7 FILED: KINGS COUNTY CLERK 05/05/2023 10:40 AM INDEX NO. 508174/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2023 AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION SIXTH: Deny knowledge or information sufficient to form a belief as to the "29" allegations contained in paragraph of the complaint. "31," "32," "33," SEVENTH: Deny each and every allegation contained in paragraphs "34," "35" "36" and of the complaint. "37," "38," "39," EIGHTH: Deny each and every allegation contained in paragraphs "40," "41" "42" and of the complaint and respectfully refers all questions of law to the court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE: NINTH: That the accident or occurrence referred to in the plaintiff's complaint and the injuries claimed were caused in whole or in part by the carelessness, contributory negligence or the assumption of risk of the plaintiff and these answering defendants demand that the plaintiff's damages be accordingly diminished or denied. AS AND FOR A SECOND AFFIRMATIVE DEFENSE: defendants' TENTH: That these liability is limited pursuant to Article 16 of the CPLR. AS AND FOR A THIRD AFFIRMATIVE DEFENSE: ELEVENTH: That if any past or future costs or expenses incurred or to be incurred by the plaintiff which will be replaced or indemnified in whole or in part, from a collateral source as defined in Section 4545 of the Civil Practice Law and Rules, including insurance, and if any such damages are recoverable against these answering defendants, such damages shall be diminished by the amount of the funds which plaintiff has received, or shall receive from such collateral source or sources. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: TWELFTH: That the negligence, fault and culpable conduct of the plaintiff herein caused 2 of 7 FILED: KINGS COUNTY CLERK 05/05/2023 10:40 AM INDEX NO. 508174/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2023 the incident in which the plaintiff was allegedly injured and/or alleged injuries, if any, resulting therefrom. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: THIRTEENTH: That the plaintiff has failed to mitigate and/or reduce their damages and losses, if any, as alleged in the complaint herein. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE: FOURTEENTH: That these answering defendants were without notice of any of the purported conditions alleged in the Complaint. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE: FIFTEENTH: That these answering defendants did not owe the plaintiff any of the duties alleged in this lawsuit. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE: SIXTEENTH: That any damages which may have been sustained by the plaintiff were contributed to in whole or in part by the culpable conduct of third parties not under the control of these answering defendants. AS AND FOR A NINTH AFFIRMATIVE DEFENSE: SEVENTEENTH: That the injuries and damages alleged, all of which are denied by these answering defendants, were caused by the intervening, interceding and superseding acts of third parties not under the control of these answering defendants. AS AND FOR A TENTH AFFIRMATIVE DEFENSE: EIGHTEENTH: That the action against these answering defendants cannot be prosecuted due to the plaintiffs failure to name and likewise prosecute an indispensable party to 3 of 7 FILED: KINGS COUNTY CLERK 05/05/2023 10:40 AM INDEX NO. 508174/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2023 this litigation. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE: NINETEENTH: That if the plaintiff sustained damages as alleged, such damages occurred while the plaintiff was engaged in an activity into which he entered, knowing the hazard, risk and danger of the activity and he assumed the risks incidental to and attending the activity. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE: TWENTIETH: That plaintiffs action is barred by recalcitrant worker defense. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE: TWENTY-FIRST: That these defendants are not liable to the plaintiff as the plaintiffs actions were the sole proximate cause of the alleged occurrence. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE: TWENTY-SECOND: That the plaintiff was not injured as alleged in the Complaint as a worker in a protected activity as enumerated by the New York State Labor Law. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE: TWENTY-THIRD: That the plaintiff was not employed at the premises, nor lawfully upon the premises, as required for a finding of liability under Labor Law Sections 200, 240(1) and 241(6). WHEREFORE, defendants demand judgment dismissing the complaint, together with costs and disbursements of this action. 4 of 7 FILED: KINGS COUNTY CLERK 05/05/2023 10:40 AM INDEX NO. 508174/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2023 Dated: May 3, 2023 Fanningdale, New York By: Timothy J. , III REBORE, THO & PISARELLO, P.C. Attorneys for De en ants 500 Bi-County B u vard Suite 102 Farmingdale, NY 11735 (631) 249-6600 TO: KRENTSEL & GUZMAN, LLP Attorneys for Plaintiff 17 Battery Place, Suite 604 New York, New York 10004 (212) 227-2900 5 of 7 FILED: KINGS COUNTY CLERK 05/05/2023 10:40 AM INDEX NO. 508174/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2023 V E R I F I C A T I O N I, the undersigned, an attorney duly admitted to practice in the courts of New York State, state that I am a member of the firm which is the attorney of record for defendants, SMITELL LLC, SMITELL B-1 LLC and EXTELL DEVELOPMENT COMPANY, in the within action; I have read the foregoing Answer and know the contents thereof; the same is true to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matters I believe them to be true. The reason this verification is made by me and not by defendant, SMITELL LLC, SMITELL B-1 LLC and EXTELL DEVELOPMENT COMPANY, is because said defendants do not reside or maintain offices in the same county within which your deponent maintains his office. The grounds of my belief as to all matters not stated upon my own knowledge are as follows: Based upon investigative file. I hereby affirm that the foregoing statements are true, under the penalties of perjury. Dated: May , 2023. Farmingdale, NY Timothy J. Dun , III 6 of 7 FILED: KINGS COUNTY CLERK 05/05/2023 10:40 AM INDEX NO. 508174/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2023 AFFIDAVIT OF SERVICE I, the undersigned, being sworn say: I am not a party to the action, am over 18 years of age and reside at Smithtown, New York. On May d 2023, I served the within Verified Answer by filing a copy via the NYSCEF system to each of the following persons below: KRENTSEL & GUZMAN, LLP Attorneys for Plaintiff 17 Battery Place, Suite 604 New York, New York 10004 (212) 227-2900 llian G neola Sworn to before me on May , 2023 . t(RISTA NOCH State of Notary Putsic, 1KO6137974 No. Oualified in Sullolk Commission Expires 7 of 7