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NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021
E
"A"
EXHIBIT
FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E
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FILED: BRONX COUNTY CLERK 12 / 2 0 / 2 019 0 2 : 16 PM|
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/20/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
-------------------------------------------------------------------------X Filed:
TYKIMA THOMPSON,
INDEX NO.
Plaintiff,
Plaintiff designates Bronx
-against- as the place of trial.
County
EVEREST SCAFFOLDING INC. and JADERLYN A. S U M M O N 8
GALAN SANTAMARIA,
The basis of venue is the
Defendants. County where accident
---------------------------- ----------------------------------X occurred
To the above-named Defendant:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve
a copy of your answer on the plaintiffs attorneys within 20 days after the service of this
summons, exclusive of the day of service of this summons, or within 30 days after service of this
summons is complete if this summons is not personally delivered to you within the State of New
York.
In case of your failure to answer this summons, a judgment by default will be taken
against you for the relief demanded in the complaint, together with the costs of this action.
Dated: New York, New York
December 19, 2019
Alexander Kran IH, Esq.
LEAV & STElNBERG, L.L.P.
Attorneys for Plaintiff
75 Broad Street, Suite 1601
New York, New York 10004
Tel: (212) 766-5222
SEE R1DER ATTACHED
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EVEREST SCAFFOLDING INC.
1150 Longwood Avenue
Brotu, NY 10474
JADERLYN A. GALAN SANTAMARIA
451S Park Avenue
Bronx, NY 10457
PLEASE FORWARD TO YOUR INSURANCE COMPANY
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
____..____________....._________________________________________---··--------X
TYKIMA THOMPSON, INDEX NO. .
Plaintiff,
VERIFIED COMPLAINT
-against-
EVEREST SCAFFOLDING INC. and JADERLYN A.
GALAN SANTAMARIA,
Defendants.
__________________.._..._________________________________________________..X
Plaintiff, by her attorneys, LEAV & STEINBERG, L.L.P., as and for their Verified
Complaint, respectfully alleges, upon information and belief:
1. The plaintiff TYKIMA THOMPSON at all times herein mentioned was and still
M is a resident of the County of Bronx and the State of New York.
2. The defendant EVEREST SCAFFOLDING INC. at all times herein mentioned,
was and still is a domestic business corporation organized and existing under the laws of the
State of New York, with its principal place of business situated in the County of Bronx, City and
State of New York.
3. The defendant JADERLYN A. GALAN SANTAMARIA at all times herein
mentioned, was and still is a resident of the County of Bronx, and the State of New York.
4. The defendant, EVEREST SCAFFOLDING INC. at all times herein mentioned
conducted and carried on business in the County of Bronx and the State of New York.
5. At all times herein mentioned, defendant EVEREST SCAFFOLDING INC.
transacted business within the State of New York.
6. At all times herein mentioned, defendant EVEREST SCAFFOLDING INC.
derived substantial revenue from goods used or consumed or services rendered in the State of
New York.
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7. At all times herein mentioned, defendant EVEREST SCAFFOLDING INC.
expected or should reasonably have expected its acts to have consequences in the State of New
York.
8, At all times herein mentioned, defendant EVEREST SCAFFOLDING INC.
derived substantial revenue from interstate or international commerce.
9. On or about March 26, 2018, defendant EVEREST SCAFFOLDING INC. was
.s the owner of a certain 2003 pick-up truck, bearing New York State license plate number
90472MC,
10. On or about March 26, 2018, defendant EVEREST SCAFFOLDING INC, was
the titled owner of a certain 2003 pick-up truck, bearing New York license plate number
90472MC.
11. On or about March 26, 2018, defendant EVEREST SCAFFOLDING INC. was
the lessee of a certain 2003 pick-up truck, bearing New York license plate number 90472MC.
12. On or about March 26, 2018, defendant EVEREST SCAFFOLDING INC. was
O the lessor of a certain 2003 pick-up truck, bearing New York license plate number 90472MC.
13. On or about March 26, 2018, EVEREST SCAFFOLDING INC. maintained a
\ certain 2003 pick-up truck, bearing New York license plate number 90472MC.
14. On or about March 26, 2018, EVEREST SCAFFOLDING INC. controlled a
\ certain 2003 pick-up truck, bearing New York license plate number 90472MC.
15. On or about March 26, 2018, defendant, JADERLYN A. GALAN
SANTAMARIA, was the operator of a certain 2003 pick-up truck, bearing New York license
plate number 90472MC.
16. On or about March 26, 2018, the 2003 pick-up truck, bearing New York license
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plate number 90472MC, was being operated by defendant, JADERLYN A. GALAN
SANTAMARIA, with the express knowledge, consent and/or on the business of its owner.
17. On or about March 26, 2018, defendant JADERLYN A. GALAN
SANTAMARIA maintained a certain 2003 pick-up truck, bearing New York license plate
number 90472MC.
18. On or about March 26, 2018, defendant JADERLYN A. GALAN
SANTAMARIA controlled a certain 2003 pick-up truck, bearing New York license plate number
90472MC.
19. On or about March 26, 2018, the plaintiff TYKIMA THOMPSON was operating
\ a certain 2017 Infiniti, bearing Connecticut license plate number AJ22192.
156th
20. That at all times herein mentioned, East Street at or near the intersection of
Truxton Street, was and still is a public roadway and/or thoroughfare in the County of Bronx,
City and State of New York.
21. On or about March 26, 2018, the vehicle owned by defendant EVEREST
SCAFFOLDING INC. and operated by defendant JADERLYN A. GALAN SANTAMARIA
156th
came into gontact with the vehicle operated by plaintiff TYKIMA THOMPSON, at East
Street at or near the intersection of Truxton Street, in the County of Bronx, City and State of
New York.
defendants'
22. Solely as a result of EVEREST SCAFFOLDING INC. and
JADERLYN A. GALAN SANTAMARIA negligence, carelessness and recklessness, plaintiff
TYKIMA THOMPSON was caused to suffer severe and serious personal injuries to mind and
body, and further, plaintiff was subjected to great physical pain and mental anguish, as a result of
defendant's negligence, carelessness and recklessness in causing this accident.
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i-
F
23. The aforesaid occurrence was caused by the negligence of defendants, without
any culpable conduct on the part of the plaintiff TYKIMA THOMPSON.
24. That by reason of the foregoing, plaintiff TYKIMA THOMPSON sustained
injuries to her head, limbs, body and nervous system and has been rendered sick, sore, lame and
disabled and upon information and belief, some of these injuries are pennanent; she has been
confined to bed and home for some time; she has been unable to pursue her usual occupation and
recreation activities for some time and upon information and belief, such disability is continumg;
she has been compelled to submit herself to the bospital and medical care and attention in an
endeavor to cure or alleviate her injuries for which medical and hospital expenses have been
incurred and will continue to be incurred and he has been compelled to suffer physical pain,
mental anguish and emotional distress.
25. As a result of the foregoing, plaintiff TYKIMA THOMPSON sustained serious
personal injuries as defined in Section 5102(d) of the Insurance Law of the State of New York
and/or economic loss greater than basic economic loss as defined in Section 5102(a) of the
Insurance Law of the State of New York.
26. This action falls within one or more of the exceptions set forth in Section 1602 of
the Civil Practice Law and Rules.
defendants'
27. Due to the negligence, plaintiff is entitled to damages in such which
exceeds the jurisdictional limits of all lower Courts which may otherwise have jurisdiction.
WHEREFORE, plaintiff demands judgment awarding damages in an amount exceeding
the monetary jurisdictional limits of all lower courts which would otherwise have jurisdiction,
together with the interest, costs and disbursements of this action, and such other and further relief
as to this Court seems just and proper.
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Dated: New York, New York
December 19, 2019
By: Alexan cr Kran III
LEAV & STEINBERG,L.L.P.
Attorneys for Flaintiff
75 Broad Street, Suite 1601
New York, New York 10004
Tel: (212) 766-5222
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
-------------------------------------------------------------------------X
TYKTMA THOMPSON, INDEX NO. p
Plaintiff,
ATTORNEY'S
-against- VERIFICATION
EVEREST SCAFFOLDING INC. and JADERLYN A.
GALAN SANTAMARIA,
Defendants.
------------------------------------------------------------------------X
Alexander Kran III, an attorney duly admitted to practice law in the State of New York,
makes the following affirmation under the penalty of peijury:
I am the firm of LEAV & STElNBERG, L.L.P., the attorneys of record for the plaintiff.
I have read the foregoing Complaint and know the contents thereof; the same is true to
my own knowledge except as to the matters therein stated to be alleged on inR>rmation and belief
and that as to those matters, I helieve them to be true.
This verification is made by affirmant and not by plaintiff because he is not in the County
ofNew York, which is the County where your affirmant maintains offices.
The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge
are correspondence had with the said plaintiff, information contained in the said plaintiff's file,
which is in affinnant's possession, and other pertinent data relating thereto.
Dated: New York, New York
December 19, 2019
Alexander Kran Ill, Esq.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
Index No.
-- -- - ------- --- ------ ---- ----- -- - - ----------- -- - --- -------- ---- - -
TYKIMA THOMPSON,
Plaintiff,
-against-
EVEREST SCAFFOLDING INC. and JADERLYN A.
GALAN SANTAMARIA,
Defendants.
_____ ______--____________-___________-_____________
SUMMONS and VERIFIED COMPLAINT
_____________----___---______________________________
LEAV & STEINBERG, L.L.P.
Attorneys for Plaintiff
75 Broad Street, Suite 1601
New York, New York 10004
Tel: (212) 766-5222
Fax: (212) 693-2377
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
---------------------------------------------------------------------X Index No. 35123/19E
TYKIMA THOMPSON,
Plaintiff,
VERIFIED ANSWER
-against-
EVEREST SCAFFOLDING INC. and JADERLYN A.
GALAN SANTAMARIA,
Defendants.
------------------------ -------------------------X
The defendants, EVEREST SCAFFOLDING INC. and JADERLYN A. GALAN
SANTAMARIA, by their attorneys, PICCIANO & SCAHILL, P.C., as and for their Verified
Answer, hereby allege as follows:
FIRST: Deny having knowledge or information sufficient to form a belief as to each
"1"
and every allegation set forth in paragraphs enumerated through "8", "10", "13", "14",
"17", "19", "20", "26".
SECOND: Deny each and every allegation set forth in paragraphs enumerated "11",
"23"
"12", "21", "22", , "24", "25", "27".
AS AND FOR A FIRST SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE
THIRD: The Plaintif f has failed to obtain personal jurisdiction over the defendants,
EVEREST SCAFFOLDING INC. and JADERLYN A. GALAN SANTAMARIA.
AS AND FOR A SECOND SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE
FOURTH: If it be determined that the Plaintiff failed to use available seat belts and/or
harness, defendants plead said fact as an absolute defense on the issue of liability and in
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mitigation of damages.
AS AND FOR A THIRD SEPARATE AND
DISTINCT A_FFIRMATIVE DEFENSE
FIFTH: That whatever damages, personal or property, or wrongful death plaintiff
may have sustained, if any, at the time and place alleged in the complaint, or any
amendments thereto, if not caused in whole by the carelessness, negligence, assumption
of risk and culpable conduct of the plaintiff, and/or plaintiff's intestate, were then caused
for the most part by the carelessness, negligence, culpable conduct and want of care on
the part of the plaintiff and/or plaintiff's intestate; and, if any carelessness, negligence or
culpable conduct upon the part of defendant caused or contributed to such injury or
wrongful death, such on the part of defendant bore only a slight proportion to the entire
negligence, carelessness and culpable conduct attributable to both plaintiff and defendant
in causing the accident and any resulting injury.
AS AND FOR A FOURTH SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE
SIXTH: In the event Plaintiff recovers a verdict or judgment against these
defendants, then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by
those amounts which have been, or will, with reasonable certainty, replace or indemnify
Plaintiff, in whole or in part, for any past or future claimed economic loss, from any collateral
workers'
source such as insurance, social security, compensation or employee benefits
programs.
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AS AND FOR A FIFTH SEPARATE AND
DISTINCT AFFIRMATIVE DEFENS_E
injury"
SEVENTH: The accident described in the Complaint did not result in a "serious
to Plaintiff as so defined in and by Section 5102(d) of the Insurance Law of the State of
New York, and as such, Plaintiff had and has no right to institute, maintain or prosecute this
action and is barred from doing so.
The Plaintiff did not sustain serious injury as defined by Section 5102(d) and her
exclusive remedy therefore is confined and limited to the benefits and provisions of Article
51 of the Insurance Law of the State of New York.
AS AND FOR A SIXTH SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE
EIGHTH: The plaintiff's claims are barred by the emergency doctrine. Due to
sudden and unexpected actions of the plaintiff, co-defendant, as yet unidentified party, or
other emergency, the defendant was left without time to contemplate or weigh alternative
courses of action and therefore cannot reasonably be held to the standard of care required
of one who has had a fuli opportunity to reflect and therefore was not negligent.
AS AND FOR A SEVENTH SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE
NINTH: The plaintiff's cause of action is barred and/or non-actionable pursuant
Workers'
to the provisions of the New York State Compensation Law, Sections 11 and 29.
WHEREFORE, the defendants, EVEREST SCAFFOLDING INC. and JADERLYN A.
GALAN SANTAMARIA, demand judgment dismissing the complaint herein together with the
costs and disbursements of this action.
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NYSCEF DOC. NO. 14
Preview
FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 E "A" EXHIBIT FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 INDEX NO. 35123/2019E FILED: BRONX COUNTY CLERK 12 / 2 0 / 2 019 0 2 : 16 PM| NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/20/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -------------------------------------------------------------------------X Filed: TYKIMA THOMPSON, INDEX NO. Plaintiff, Plaintiff designates Bronx -against- as the place of trial. County EVEREST SCAFFOLDING INC. and JADERLYN A. S U M M O N 8 GALAN SANTAMARIA, The basis of venue is the Defendants. County where accident ---------------------------- ----------------------------------X occurred To the above-named Defendant: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy of your answer on the plaintiffs attorneys within 20 days after the service of this summons, exclusive of the day of service of this summons, or within 30 days after service of this summons is complete if this summons is not personally delivered to you within the State of New York. In case of your failure to answer this summons, a judgment by default will be taken against you for the relief demanded in the complaint, together with the costs of this action. Dated: New York, New York December 19, 2019 Alexander Kran IH, Esq. LEAV & STElNBERG, L.L.P. Attorneys for Plaintiff 75 Broad Street, Suite 1601 New York, New York 10004 Tel: (212) 766-5222 SEE R1DER ATTACHED 1 of 9 FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 |F ILED INDEX NO. 35123/2019E : BRONX COUNTY CLERK 12 / 2 0 /2 019 0 2 : 16 PM| NYSCEF DOC, NO. 1 RECEIVED NYSCEF: 12/20/2019 EVEREST SCAFFOLDING INC. 1150 Longwood Avenue Brotu, NY 10474 JADERLYN A. GALAN SANTAMARIA 451S Park Avenue Bronx, NY 10457 PLEASE FORWARD TO YOUR INSURANCE COMPANY 2 of 9 FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 |F ILED : BRONX COUNTY CLERK INDEX NO. 35123/2019E 12 / 2 0 / 2 019 0 2 : 16 PM) NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/20/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ____..____________....._________________________________________---··--------X TYKIMA THOMPSON, INDEX NO. . Plaintiff, VERIFIED COMPLAINT -against- EVEREST SCAFFOLDING INC. and JADERLYN A. GALAN SANTAMARIA, Defendants. __________________.._..._________________________________________________..X Plaintiff, by her attorneys, LEAV & STEINBERG, L.L.P., as and for their Verified Complaint, respectfully alleges, upon information and belief: 1. The plaintiff TYKIMA THOMPSON at all times herein mentioned was and still M is a resident of the County of Bronx and the State of New York. 2. The defendant EVEREST SCAFFOLDING INC. at all times herein mentioned, was and still is a domestic business corporation organized and existing under the laws of the State of New York, with its principal place of business situated in the County of Bronx, City and State of New York. 3. The defendant JADERLYN A. GALAN SANTAMARIA at all times herein mentioned, was and still is a resident of the County of Bronx, and the State of New York. 4. The defendant, EVEREST SCAFFOLDING INC. at all times herein mentioned conducted and carried on business in the County of Bronx and the State of New York. 5. At all times herein mentioned, defendant EVEREST SCAFFOLDING INC. transacted business within the State of New York. 6. At all times herein mentioned, defendant EVEREST SCAFFOLDING INC. derived substantial revenue from goods used or consumed or services rendered in the State of New York. 3 of 9 FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 INDEX NO. 35123/2019E (FILED: BRONX COUNTY CLERK 12 / 2 0 / 2 0 19 02:16 PM| NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/20/2019 7. At all times herein mentioned, defendant EVEREST SCAFFOLDING INC. expected or should reasonably have expected its acts to have consequences in the State of New York. 8, At all times herein mentioned, defendant EVEREST SCAFFOLDING INC. derived substantial revenue from interstate or international commerce. 9. On or about March 26, 2018, defendant EVEREST SCAFFOLDING INC. was .s the owner of a certain 2003 pick-up truck, bearing New York State license plate number 90472MC, 10. On or about March 26, 2018, defendant EVEREST SCAFFOLDING INC, was the titled owner of a certain 2003 pick-up truck, bearing New York license plate number 90472MC. 11. On or about March 26, 2018, defendant EVEREST SCAFFOLDING INC. was the lessee of a certain 2003 pick-up truck, bearing New York license plate number 90472MC. 12. On or about March 26, 2018, defendant EVEREST SCAFFOLDING INC. was O the lessor of a certain 2003 pick-up truck, bearing New York license plate number 90472MC. 13. On or about March 26, 2018, EVEREST SCAFFOLDING INC. maintained a \ certain 2003 pick-up truck, bearing New York license plate number 90472MC. 14. On or about March 26, 2018, EVEREST SCAFFOLDING INC. controlled a \ certain 2003 pick-up truck, bearing New York license plate number 90472MC. 15. On or about March 26, 2018, defendant, JADERLYN A. GALAN SANTAMARIA, was the operator of a certain 2003 pick-up truck, bearing New York license plate number 90472MC. 16. On or about March 26, 2018, the 2003 pick-up truck, bearing New York license 4 of 9 FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 INDEX NO. 35123/2019E FILED: BRONX COUNTY CLERK 12 / 2 0 / 2 0 19 0 2 : 16 PM) NYSCEF DOC, NO. 1 RECEIVED NYSCEF: 12/20/2019 plate number 90472MC, was being operated by defendant, JADERLYN A. GALAN SANTAMARIA, with the express knowledge, consent and/or on the business of its owner. 17. On or about March 26, 2018, defendant JADERLYN A. GALAN SANTAMARIA maintained a certain 2003 pick-up truck, bearing New York license plate number 90472MC. 18. On or about March 26, 2018, defendant JADERLYN A. GALAN SANTAMARIA controlled a certain 2003 pick-up truck, bearing New York license plate number 90472MC. 19. On or about March 26, 2018, the plaintiff TYKIMA THOMPSON was operating \ a certain 2017 Infiniti, bearing Connecticut license plate number AJ22192. 156th 20. That at all times herein mentioned, East Street at or near the intersection of Truxton Street, was and still is a public roadway and/or thoroughfare in the County of Bronx, City and State of New York. 21. On or about March 26, 2018, the vehicle owned by defendant EVEREST SCAFFOLDING INC. and operated by defendant JADERLYN A. GALAN SANTAMARIA 156th came into gontact with the vehicle operated by plaintiff TYKIMA THOMPSON, at East Street at or near the intersection of Truxton Street, in the County of Bronx, City and State of New York. defendants' 22. Solely as a result of EVEREST SCAFFOLDING INC. and JADERLYN A. GALAN SANTAMARIA negligence, carelessness and recklessness, plaintiff TYKIMA THOMPSON was caused to suffer severe and serious personal injuries to mind and body, and further, plaintiff was subjected to great physical pain and mental anguish, as a result of defendant's negligence, carelessness and recklessness in causing this accident. 5 of 9 FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 INDEX NO. 35123/2019E (FILED : BRONX COUNTY CLERK 12 / 2 0 / 2 0 19 0 2 : 16 PM) NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/20/2019 i- F 23. The aforesaid occurrence was caused by the negligence of defendants, without any culpable conduct on the part of the plaintiff TYKIMA THOMPSON. 24. That by reason of the foregoing, plaintiff TYKIMA THOMPSON sustained injuries to her head, limbs, body and nervous system and has been rendered sick, sore, lame and disabled and upon information and belief, some of these injuries are pennanent; she has been confined to bed and home for some time; she has been unable to pursue her usual occupation and recreation activities for some time and upon information and belief, such disability is continumg; she has been compelled to submit herself to the bospital and medical care and attention in an endeavor to cure or alleviate her injuries for which medical and hospital expenses have been incurred and will continue to be incurred and he has been compelled to suffer physical pain, mental anguish and emotional distress. 25. As a result of the foregoing, plaintiff TYKIMA THOMPSON sustained serious personal injuries as defined in Section 5102(d) of the Insurance Law of the State of New York and/or economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law of the State of New York. 26. This action falls within one or more of the exceptions set forth in Section 1602 of the Civil Practice Law and Rules. defendants' 27. Due to the negligence, plaintiff is entitled to damages in such which exceeds the jurisdictional limits of all lower Courts which may otherwise have jurisdiction. WHEREFORE, plaintiff demands judgment awarding damages in an amount exceeding the monetary jurisdictional limits of all lower courts which would otherwise have jurisdiction, together with the interest, costs and disbursements of this action, and such other and further relief as to this Court seems just and proper. 6 of 9 FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 FILED: BRONX COUNTY CLERK 12 /2 0 /2 02 : 16 INDEX NO. 35123/2019E 019 PM| NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/20/2019 Dated: New York, New York December 19, 2019 By: Alexan cr Kran III LEAV & STEINBERG,L.L.P. Attorneys for Flaintiff 75 Broad Street, Suite 1601 New York, New York 10004 Tel: (212) 766-5222 7 of 9 FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 INDEX NO. 35123/2019E |FILED: BRONX COUNTY CLERK 12/2 0 /2 019 02 : 16 PM| NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/20/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX -------------------------------------------------------------------------X TYKTMA THOMPSON, INDEX NO. p Plaintiff, ATTORNEY'S -against- VERIFICATION EVEREST SCAFFOLDING INC. and JADERLYN A. GALAN SANTAMARIA, Defendants. ------------------------------------------------------------------------X Alexander Kran III, an attorney duly admitted to practice law in the State of New York, makes the following affirmation under the penalty of peijury: I am the firm of LEAV & STElNBERG, L.L.P., the attorneys of record for the plaintiff. I have read the foregoing Complaint and know the contents thereof; the same is true to my own knowledge except as to the matters therein stated to be alleged on inR>rmation and belief and that as to those matters, I helieve them to be true. This verification is made by affirmant and not by plaintiff because he is not in the County ofNew York, which is the County where your affirmant maintains offices. The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are correspondence had with the said plaintiff, information contained in the said plaintiff's file, which is in affinnant's possession, and other pertinent data relating thereto. Dated: New York, New York December 19, 2019 Alexander Kran Ill, Esq. 8 of 9 FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 INDEX NO. 35123/2019E FILED: BRONX COUNTY CLERK 12 / 2 0 /2 019 0 2 : 16 PM| NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/20/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX Index No. -- -- - ------- --- ------ ---- ----- -- - - ----------- -- - --- -------- ---- - - TYKIMA THOMPSON, Plaintiff, -against- EVEREST SCAFFOLDING INC. and JADERLYN A. GALAN SANTAMARIA, Defendants. _____ ______--____________-___________-_____________ SUMMONS and VERIFIED COMPLAINT _____________----___---______________________________ LEAV & STEINBERG, L.L.P. Attorneys for Plaintiff 75 Broad Street, Suite 1601 New York, New York 10004 Tel: (212) 766-5222 Fax: (212) 693-2377 9 of 9 FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------------------------------------X Index No. 35123/19E TYKIMA THOMPSON, Plaintiff, VERIFIED ANSWER -against- EVEREST SCAFFOLDING INC. and JADERLYN A. GALAN SANTAMARIA, Defendants. ------------------------ -------------------------X The defendants, EVEREST SCAFFOLDING INC. and JADERLYN A. GALAN SANTAMARIA, by their attorneys, PICCIANO & SCAHILL, P.C., as and for their Verified Answer, hereby allege as follows: FIRST: Deny having knowledge or information sufficient to form a belief as to each "1" and every allegation set forth in paragraphs enumerated through "8", "10", "13", "14", "17", "19", "20", "26". SECOND: Deny each and every allegation set forth in paragraphs enumerated "11", "23" "12", "21", "22", , "24", "25", "27". AS AND FOR A FIRST SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE THIRD: The Plaintif f has failed to obtain personal jurisdiction over the defendants, EVEREST SCAFFOLDING INC. and JADERLYN A. GALAN SANTAMARIA. AS AND FOR A SECOND SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE FOURTH: If it be determined that the Plaintiff failed to use available seat belts and/or harness, defendants plead said fact as an absolute defense on the issue of liability and in FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 mitigation of damages. AS AND FOR A THIRD SEPARATE AND DISTINCT A_FFIRMATIVE DEFENSE FIFTH: That whatever damages, personal or property, or wrongful death plaintiff may have sustained, if any, at the time and place alleged in the complaint, or any amendments thereto, if not caused in whole by the carelessness, negligence, assumption of risk and culpable conduct of the plaintiff, and/or plaintiff's intestate, were then caused for the most part by the carelessness, negligence, culpable conduct and want of care on the part of the plaintiff and/or plaintiff's intestate; and, if any carelessness, negligence or culpable conduct upon the part of defendant caused or contributed to such injury or wrongful death, such on the part of defendant bore only a slight proportion to the entire negligence, carelessness and culpable conduct attributable to both plaintiff and defendant in causing the accident and any resulting injury. AS AND FOR A FOURTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE SIXTH: In the event Plaintiff recovers a verdict or judgment against these defendants, then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have been, or will, with reasonable certainty, replace or indemnify Plaintiff, in whole or in part, for any past or future claimed economic loss, from any collateral workers' source such as insurance, social security, compensation or employee benefits programs. FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/06/2021 AS AND FOR A FIFTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENS_E injury" SEVENTH: The accident described in the Complaint did not result in a "serious to Plaintiff as so defined in and by Section 5102(d) of the Insurance Law of the State of New York, and as such, Plaintiff had and has no right to institute, maintain or prosecute this action and is barred from doing so. The Plaintiff did not sustain serious injury as defined by Section 5102(d) and her exclusive remedy therefore is confined and limited to the benefits and provisions of Article 51 of the Insurance Law of the State of New York. AS AND FOR A SIXTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE EIGHTH: The plaintiff's claims are barred by the emergency doctrine. Due to sudden and unexpected actions of the plaintiff, co-defendant, as yet unidentified party, or other emergency, the defendant was left without time to contemplate or weigh alternative courses of action and therefore cannot reasonably be held to the standard of care required of one who has had a fuli opportunity to reflect and therefore was not negligent. AS AND FOR A SEVENTH SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE NINTH: The plaintiff's cause of action is barred and/or non-actionable pursuant Workers' to the provisions of the New York State Compensation Law, Sections 11 and 29. WHEREFORE, the defendants, EVEREST SCAFFOLDING INC. and JADERLYN A. GALAN SANTAMARIA, demand judgment dismissing the complaint herein together with the costs and disbursements of this action. FILED: BRONX COUNTY CLERK 01/06/2021 11:03 AM INDEX NO. 35123/2019E NYSCEF DOC. NO. 14