Preview
FILED: BRONX COUNTY CLERK 08/04/2023 04:42 PM INDEX NO. 807199/2023E
NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
...__..---_.........--......----______________................___-_____--___..................x
DAVID ADAMES,
Index No.: 807199/2023E
Plaintiff,
- against -
VERIFIED ANSWER
MICHAEL EDWARD MARTIN and A. DUlE PYLE, INC.,
Defendants.
______..............________..____..__..__.....___________________....___________________Ç
The defendants, MICHAEL EDWARD MARTIN and A. DUlE PYLE, INC., by their
attorneys, SOBEL PEVZNER, LLC, answering the Complaint of the plaintiff(s), allege
upon information and belief:
ANSWERING AN ALLEGED FIRST CAUSE OF ACTION
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
1. Defendants deny having knowledge or information sufficient to form a belief
"7" "53"
as to each and every allegation contained in paragraphs "1", "2", and of the
Complaint.
2. Defendants deny each and every allegation contained in paragraphs "3",
"54" "66"
"5", "9", "10", "11", "12", through "64", all inclusive, and through "71", all inclusive,
of the Complaint.
3. Defendants deny having knowledge or information sufficient to form a belief
"13"
as to each and every allegation contained in paragraphs "6", "8", through "45", all
"50" "51"
inclusive, "49", and of the Complaint, and respectfully refer all questions of law
to this Honorable Court.
ANSWERING AN ALLEGED SECOND CAUSE OF ACTION
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
4. Defendants repeat, reiterate and reallege answers to each and every
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"1" "71"
allegation contained in paragraphs through of the Complaint.
5. Defendants deny having knowledge or information sufficient to form a belief
"74"
as to each and every allegation contained in paragraphs through "79", all inclusive,
of the Complaint, and respectfully refer all questions of law to this Honorable Court.
"80"
6. Defendants deny each and every allegation contained in paragraphs
through "86", all inclusive, of the Complaint.
ANSWERING AN ALLEGED THIRD CAUSE OF ACTION
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
7. Defendants repeat, reiterate and reallege answers to each and every
"1" "86"
allegation contained in paragraphs through of the Complaint.
8. Defendants deny having knowledge or information sufficient to form a belief
"88" "92"
as to each and every allegation contained in paragraphs and of the Complaint.
"89"
9. Defendants deny each and every allegation contained in paragraphs
through "93", all inclusive, of the Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
10. That if the plaintiff(s) sustained the injuries and damages alleged in the
Complaint, the same were wholly caused by the culpable conduct of and/or assumption
of the risk of the plaintiff(s) and the answering defendants are entitled to judgment
dismissing the Complaint.
11. That if the plaintiff(s) sustained the injuries and damages alleged in the
Complaint, the same were caused, if not in whole, then in part, by the culpable conduct
and/or assumption of the risk of the plaintiff(s) and the answering defendants are entitled
to judgment assessing and fixing the degree to which the culpable conduct of the
plaintiff(s) contributed to the said injuries and damages and the proportion to which such
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damages shall be diminished thereby.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
PURSUANT TO ARTICLE 16
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
12. In the event that the plaintiff(s) recovers any judgment against the
answering defendants, then the defendants demand that any such judgment be
diminished in accordance with Article 16 of the CPLR and more particularly Section 1601
thereof.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
13. The plaintiff's sole and exclusive remedy 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 FOURTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
14. The plaintiff's sole and exclusive remedy is confined and limited to the
benefits and provisions of Article XVIII of the Insurance Law of the State of New York.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
15. Upon information and belief, that, if the occurrence in question happened
as alleged in the plaintiff's Complaint, and if the plaintiff(s) failed to make use of an
available restraining device in his vehicle, then the injuries alleged in said Complaint were
sustained, enhanced, and/or exacerbated as a result of the failure of the plaintiff(s) to
make use of the aforementioned restraining device and the defendants will be entitled to
a reduction of the amount of damages to be recovered by the plaintiff(s) to the extent that
those injuries, their enhancement, and/or exacerbation were the result of the failure.
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
16. Upon information and belief, any part or future costs and/or expenses
incurred or to be incurred by the plaintiff(s) for medical care, dental care, custodial care
or rehabilitation services, loss of earnings or other economic loss, has been or will with
reasonable certainty be placed 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.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
17. The plaintiff(s) did not sustain serious injury as defined by Section 5102 of
the Insurance Law of the State of New York, and exclusive remedy therefore is confined
and limited to the benefits and provisions of Article XVlll of the Insurance Law of the State
of New York.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
18. If any damages are recoverable against the answering defendants, the
amount of such damages shall be diminished by the amount of the funds which plaintiff(s)
has or shall receive from any available collateral source.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
19. Upon information and belief, that the injuries and/or damages, if any,
sustained by the plaintiff(s) at the time and place, or on the occasion referred to in the
plaintiffs'
Complaint, and which it is alleged was the cause of the injuries of the plaintiff(s),
were sustained or so suffered or caused by the negligent act or acts of the plaintiff(s)
himself/herself.
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AS AND FOR A TENTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
20. Recovery is barred in this action, in whole or in part, by the contributory
and/or comparative negligence, or other acts, of the plaintiff(s).
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
21. That plaintiff(s) failed to mitigate, obviate, diminish or otherwise act to
lessen or reduce the injuries, damages and disabilities alleged in the Complaint.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
22. The plaintiff(s) did not sustain serious injury as defined by Section 671 of
the Insurance Law of the State of New York, and exclusive remedy therefore is confined
and limited to the benefits and provisions of Article XVlll of the Insurance Law of the State
of New York.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
23. The plaintiff's own negligence was the sole proximate cause of the injuries
and/or damages alleged in the Complaint.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
24. That the occurrence alleged herein was spontaneous and unavoidable and
could not have been caused by the answering defendants.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
25. That upon information and belief, the damages claimed were caused or
contributed to by subsequent and/or intervening acts of negligence by parties other than
the answering defendants.
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AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
26. That all the dangers and risks incident to the situation referred to in plaintiffs
Complaint were open, obvious and apparent, and were known and assumed by
plaintiff(s).
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
27. That in the event plaintiff(s) has or should be in the future, settle any portion
plaintiffs'
of the claims arising from the allegations contained in Complaint with any
currently named or still to be named defendant(s), the respective rights of the remaining
parties should be determined pursuant to Section 15-108 of the General Obligations Law.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
28. The answering defendants cannot be held liable for an accident occurring
prior to the cessation of a snowstorm and/or rainstorm. Upon information and belief, as
this accident occurred during the progress of a snowstorm and/or rainstorm, the
Complaint cannot sustain a cause of action as the result thereof, nor establish any theory
of negligence as against the answering defendants.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
29. The relief sought by the plaintiff(s) is barred as a result of the superseding
and intervening acts or omissions constituting negligence.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
30. Plaintiff(s) suffered no damages, and any claim of damages by plaintiff(s)
are speculative.
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AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
31. That if the plaintiff(s) sustained injuries and/or damages in the manner
alleged, said injuries and/or damages were caused by the negligence of parties over
whom the answering defendants were not obligated to exercise supervision or control.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
32. That the Court has no personal jurisdiction over the answering defendants.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
plaintiffs'
33. That the plaintiff(s) and/or decedent has failed to mitigate their
damages by not availing themselves of the benefits of The Patient Protection and
Affordable Care Act (Public Law 111-148) and The Health Care and Education
Affordability Reconciliation Act (Public Law 111-152), which would permit them to obtain
health care required to remediate and/or resolve all claimed accident-
all necessary treat,
plaintiffs'
related injuries and sequelae. Therefore, claims for future medical care must be
dismissed.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
34. Upon information and belief, the answering defendant, MICHAEL EDWARD
MARTIN, was faced with an emergency/sudden situation, which could not have been
reasonably anticipated, and in response to that situation, answering defendant acted in a
reasonably prudent manner under the circumstances.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
35. Plaintiff(s) failed to seek prompt, adequate and proper medical care.
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AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
ANSWERING DEFENDANTS SET FORTH AND ALLEGE
36. Upon information and belief, plaintiffs alleged injuries and/or damages were
caused by pre-existing medical and health conditions.
37. Answering defendants reserve the right to plead any additional Affirmative
Defenses as they become known or available during the pendency of this litigation.
WHEREFORE, the answering defendants, MICHAEL EDWARD MARTIN and A.
DUlE PYLE, INC., demand judgment dismissing the Complaint in its entirety, or in the
alternative, for judgment diminishing the damages recoverable by the plaintiff(s) herein,
in proportion to the culpable conduct and negligence attributable to the plaintiff(s),
together with the costs and disbursement for this action.
Dated: Huntington, NY
August 4, 2023
Yours, etc.,
SOBEL PEVZN
By:
AARON C. GRO , ESQ.
Attorneys for efendants:
MICHAEL EDWA IN and
A. DUIE PYLE, INC.
464 New York Avenue, Suite 100
Huntington, New York 11743
Tel: 631-549-4677
File No.: DP-16138
TO: ELEFTERAKIS, ELEFTERAKIS & PANEK
Attorneys for Plaintiff:
DAVID ADAMES
38th
80 Pine Street, FlOOr
New York, NY 10005
Tel: 212-532-1116
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
___.....................________--________________------______....._______________.._Ç
DAVID ADAMES,
Index No.: 807199/2023E
Plaintiff,
- against -
VERIFICATION
MICHAEL EDWARD MARTIN and A. DUIE PYLE, INC.,
Defendants.
__..............__________________--.,_______________--___________...._______........---Ç
I, AARON C. GROSS, an attorney admitted to practice in the Courts of New York
State, state that I am the attorney for the defendant 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 it to be true. The reason this verification is made by me and
defendants'
not by the answering defendants, is that the principal place of residence, and
principal place of business, respectively, are in a County other than the County wherein I
maintain my office.
The grounds of my belief as to all matters not stated upon my own knowledge are
as follows: Contents of file, which constitutes attorney's work product.
I affirm that the foregoing statements are true, under penalties of perjury.
Dated: Huntington, New York
August 4, 2023
AARON C.G OSS, ESQ
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FILED: BRONX COUNTY CLERK 08/04/2023 04:42 PM INDEX NO. 807199/2023E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ...__..---_.........--......----______________................___-_____--___..................x DAVID ADAMES, Index No.: 807199/2023E Plaintiff, - against - VERIFIED ANSWER MICHAEL EDWARD MARTIN and A. DUlE PYLE, INC., Defendants. ______..............________..____..__..__.....___________________....___________________Ç The defendants, MICHAEL EDWARD MARTIN and A. DUlE PYLE, INC., by their attorneys, SOBEL PEVZNER, LLC, answering the Complaint of the plaintiff(s), allege upon information and belief: ANSWERING AN ALLEGED FIRST CAUSE OF ACTION ANSWERING DEFENDANTS SET FORTH AND ALLEGE 1. Defendants deny having knowledge or information sufficient to form a belief "7" "53" as to each and every allegation contained in paragraphs "1", "2", and of the Complaint. 2. Defendants deny each and every allegation contained in paragraphs "3", "54" "66" "5", "9", "10", "11", "12", through "64", all inclusive, and through "71", all inclusive, of the Complaint. 3. Defendants deny having knowledge or information sufficient to form a belief "13" as to each and every allegation contained in paragraphs "6", "8", through "45", all "50" "51" inclusive, "49", and of the Complaint, and respectfully refer all questions of law to this Honorable Court. ANSWERING AN ALLEGED SECOND CAUSE OF ACTION ANSWERING DEFENDANTS SET FORTH AND ALLEGE 4. Defendants repeat, reiterate and reallege answers to each and every 1 of 9 FILED: BRONX COUNTY CLERK 08/04/2023 04:42 PM INDEX NO. 807199/2023E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/04/2023 "1" "71" allegation contained in paragraphs through of the Complaint. 5. Defendants deny having knowledge or information sufficient to form a belief "74" as to each and every allegation contained in paragraphs through "79", all inclusive, of the Complaint, and respectfully refer all questions of law to this Honorable Court. "80" 6. Defendants deny each and every allegation contained in paragraphs through "86", all inclusive, of the Complaint. ANSWERING AN ALLEGED THIRD CAUSE OF ACTION ANSWERING DEFENDANTS SET FORTH AND ALLEGE 7. Defendants repeat, reiterate and reallege answers to each and every "1" "86" allegation contained in paragraphs through of the Complaint. 8. Defendants deny having knowledge or information sufficient to form a belief "88" "92" as to each and every allegation contained in paragraphs and of the Complaint. "89" 9. Defendants deny each and every allegation contained in paragraphs through "93", all inclusive, of the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 10. That if the plaintiff(s) sustained the injuries and damages alleged in the Complaint, the same were wholly caused by the culpable conduct of and/or assumption of the risk of the plaintiff(s) and the answering defendants are entitled to judgment dismissing the Complaint. 11. That if the plaintiff(s) sustained the injuries and damages alleged in the Complaint, the same were caused, if not in whole, then in part, by the culpable conduct and/or assumption of the risk of the plaintiff(s) and the answering defendants are entitled to judgment assessing and fixing the degree to which the culpable conduct of the plaintiff(s) contributed to the said injuries and damages and the proportion to which such 2 of 9 FILED: BRONX COUNTY CLERK 08/04/2023 04:42 PM INDEX NO. 807199/2023E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/04/2023 damages shall be diminished thereby. AS AND FOR A SECOND AFFIRMATIVE DEFENSE PURSUANT TO ARTICLE 16 ANSWERING DEFENDANTS SET FORTH AND ALLEGE 12. In the event that the plaintiff(s) recovers any judgment against the answering defendants, then the defendants demand that any such judgment be diminished in accordance with Article 16 of the CPLR and more particularly Section 1601 thereof. AS AND FOR A THIRD AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 13. The plaintiff's sole and exclusive remedy 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 FOURTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 14. The plaintiff's sole and exclusive remedy is confined and limited to the benefits and provisions of Article XVIII of the Insurance Law of the State of New York. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 15. Upon information and belief, that, if the occurrence in question happened as alleged in the plaintiff's Complaint, and if the plaintiff(s) failed to make use of an available restraining device in his vehicle, then the injuries alleged in said Complaint were sustained, enhanced, and/or exacerbated as a result of the failure of the plaintiff(s) to make use of the aforementioned restraining device and the defendants will be entitled to a reduction of the amount of damages to be recovered by the plaintiff(s) to the extent that those injuries, their enhancement, and/or exacerbation were the result of the failure. 3 of 9 FILED: BRONX COUNTY CLERK 08/04/2023 04:42 PM INDEX NO. 807199/2023E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/04/2023 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 16. Upon information and belief, any part or future costs and/or expenses incurred or to be incurred by the plaintiff(s) for medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, has been or will with reasonable certainty be placed 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. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 17. The plaintiff(s) did not sustain serious injury as defined by Section 5102 of the Insurance Law of the State of New York, and exclusive remedy therefore is confined and limited to the benefits and provisions of Article XVlll of the Insurance Law of the State of New York. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 18. If any damages are recoverable against the answering defendants, the amount of such damages shall be diminished by the amount of the funds which plaintiff(s) has or shall receive from any available collateral source. AS AND FOR A NINTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 19. Upon information and belief, that the injuries and/or damages, if any, sustained by the plaintiff(s) at the time and place, or on the occasion referred to in the plaintiffs' Complaint, and which it is alleged was the cause of the injuries of the plaintiff(s), were sustained or so suffered or caused by the negligent act or acts of the plaintiff(s) himself/herself. 4 of 9 FILED: BRONX COUNTY CLERK 08/04/2023 04:42 PM INDEX NO. 807199/2023E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/04/2023 AS AND FOR A TENTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 20. Recovery is barred in this action, in whole or in part, by the contributory and/or comparative negligence, or other acts, of the plaintiff(s). AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 21. That plaintiff(s) failed to mitigate, obviate, diminish or otherwise act to lessen or reduce the injuries, damages and disabilities alleged in the Complaint. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 22. The plaintiff(s) did not sustain serious injury as defined by Section 671 of the Insurance Law of the State of New York, and exclusive remedy therefore is confined and limited to the benefits and provisions of Article XVlll of the Insurance Law of the State of New York. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 23. The plaintiff's own negligence was the sole proximate cause of the injuries and/or damages alleged in the Complaint. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 24. That the occurrence alleged herein was spontaneous and unavoidable and could not have been caused by the answering defendants. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 25. That upon information and belief, the damages claimed were caused or contributed to by subsequent and/or intervening acts of negligence by parties other than the answering defendants. 5 of 9 FILED: BRONX COUNTY CLERK 08/04/2023 04:42 PM INDEX NO. 807199/2023E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/04/2023 AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 26. That all the dangers and risks incident to the situation referred to in plaintiffs Complaint were open, obvious and apparent, and were known and assumed by plaintiff(s). AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 27. That in the event plaintiff(s) has or should be in the future, settle any portion plaintiffs' of the claims arising from the allegations contained in Complaint with any currently named or still to be named defendant(s), the respective rights of the remaining parties should be determined pursuant to Section 15-108 of the General Obligations Law. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 28. The answering defendants cannot be held liable for an accident occurring prior to the cessation of a snowstorm and/or rainstorm. Upon information and belief, as this accident occurred during the progress of a snowstorm and/or rainstorm, the Complaint cannot sustain a cause of action as the result thereof, nor establish any theory of negligence as against the answering defendants. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 29. The relief sought by the plaintiff(s) is barred as a result of the superseding and intervening acts or omissions constituting negligence. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 30. Plaintiff(s) suffered no damages, and any claim of damages by plaintiff(s) are speculative. 6 of 9 FILED: BRONX COUNTY CLERK 08/04/2023 04:42 PM INDEX NO. 807199/2023E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/04/2023 AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 31. That if the plaintiff(s) sustained injuries and/or damages in the manner alleged, said injuries and/or damages were caused by the negligence of parties over whom the answering defendants were not obligated to exercise supervision or control. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 32. That the Court has no personal jurisdiction over the answering defendants. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE plaintiffs' 33. That the plaintiff(s) and/or decedent has failed to mitigate their damages by not availing themselves of the benefits of The Patient Protection and Affordable Care Act (Public Law 111-148) and The Health Care and Education Affordability Reconciliation Act (Public Law 111-152), which would permit them to obtain health care required to remediate and/or resolve all claimed accident- all necessary treat, plaintiffs' related injuries and sequelae. Therefore, claims for future medical care must be dismissed. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 34. Upon information and belief, the answering defendant, MICHAEL EDWARD MARTIN, was faced with an emergency/sudden situation, which could not have been reasonably anticipated, and in response to that situation, answering defendant acted in a reasonably prudent manner under the circumstances. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 35. Plaintiff(s) failed to seek prompt, adequate and proper medical care. 7 of 9 FILED: BRONX COUNTY CLERK 08/04/2023 04:42 PM INDEX NO. 807199/2023E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/04/2023 AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE ANSWERING DEFENDANTS SET FORTH AND ALLEGE 36. Upon information and belief, plaintiffs alleged injuries and/or damages were caused by pre-existing medical and health conditions. 37. Answering defendants reserve the right to plead any additional Affirmative Defenses as they become known or available during the pendency of this litigation. WHEREFORE, the answering defendants, MICHAEL EDWARD MARTIN and A. DUlE PYLE, INC., demand judgment dismissing the Complaint in its entirety, or in the alternative, for judgment diminishing the damages recoverable by the plaintiff(s) herein, in proportion to the culpable conduct and negligence attributable to the plaintiff(s), together with the costs and disbursement for this action. Dated: Huntington, NY August 4, 2023 Yours, etc., SOBEL PEVZN By: AARON C. GRO , ESQ. Attorneys for efendants: MICHAEL EDWA IN and A. DUIE PYLE, INC. 464 New York Avenue, Suite 100 Huntington, New York 11743 Tel: 631-549-4677 File No.: DP-16138 TO: ELEFTERAKIS, ELEFTERAKIS & PANEK Attorneys for Plaintiff: DAVID ADAMES 38th 80 Pine Street, FlOOr New York, NY 10005 Tel: 212-532-1116 8 of 9 FILED: BRONX COUNTY CLERK 08/04/2023 04:42 PM INDEX NO. 807199/2023E NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 08/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ___.....................________--________________------______....._______________.._Ç DAVID ADAMES, Index No.: 807199/2023E Plaintiff, - against - VERIFICATION MICHAEL EDWARD MARTIN and A. DUIE PYLE, INC., Defendants. __..............__________________--.,_______________--___________...._______........---Ç I, AARON C. GROSS, an attorney admitted to practice in the Courts of New York State, state that I am the attorney for the defendant 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 it to be true. The reason this verification is made by me and defendants' not by the answering defendants, is that the principal place of residence, and principal place of business, respectively, are in a County other than the County wherein I maintain my office. The grounds of my belief as to all matters not stated upon my own knowledge are as follows: Contents of file, which constitutes attorney's work product. I affirm that the foregoing statements are true, under penalties of perjury. Dated: Huntington, New York August 4, 2023 AARON C.G OSS, ESQ 9 of 9