Preview
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
- -------------------------------------------------------- X
MARIA PASCUAL,
Plaintiff, Index No.: 513521/2023
-against-
VERIFIED ANSWER
JOSE R. BECO, RODNEY BRANCH TO PLAINTIFF'S
and MEMORIAL SLOAN VERIFIED
KETTERING CANCER CENTER, COMPLAINT
Defendants.
- -------------------------------------------------------- X
Defendants RODNEY BRANCH and MEMORIAL SLOAN KETTERING CANCER
CENTER (hereinafter as "Answering Co-Defendants"), by their attorneys, Katz & Rychik,
P.C., as and for their Verified Answer to Plaintiff MARIA PASCUAL'S (hereinafter
"Plaintiff') Verified Complaint e-filed on May 5, 2023, alleges upon information and belief, as
follows:
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
ON BEHALF OF THE ANSWERING CO-DEFENDANTS:
1. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "1" of the Verified Complaint.
2. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "2" of the Verified Complaint.
3. Admit the truth of the allegations contained in paragraph "3" of the Verified
Complaint.
4. Admit the truth of the allegations contained in paragraph "4" of the Verified
Complaint.
1
1 of 12
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
5. Deny the truth of the allegations contained in paragraph "5" of the Verified
Complaint.
5. Admit the truth of the allegations contained in paragraph "5" of the Verified
Complaint.
6. Admit the truth of the allegations contained in paragraph "6" of the Verified
Complaint.
7. Admit the truth of the allegations contained in paragraph "7" of the Verified
Complaint.
8. Admit the truth of the allegations contained in paragraph "8" of the Verified
Complaint.
9. Admit the truth of the allegations contained in paragraph "9" of the Verified
Complaint.
10. Admit the truth of the allegations contained in paragraph "1O" of the Verified
Complaint.
11. Deny the truth of the allegations contained in paragraph "11" of the Verified
Complaint, but leaves all questions of law to the Court.
12. Deny the truth of the allegations contained in paragraph "12" of the Verified
Complaint, but leaves all questions of law to the Court.
13. Deny the truth of the allegations contained in paragraph "13" of the Verified
Complaint, but leaves all questions of law to the Court.
14. Admit the truth of the allegations contained in paragraph "14" of the Verified
Complaint.
2
2 of 12
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
15. Admit the truth of the allegations contained in paragraph "15" of the Verified
Complaint.
16. Deny the truth of the allegations contained in paragraph "16" of the Verified
Complaint, but leaves all questions of law to the Court.
17. Deny the truth of the allegations contained in paragraph "17" of the Verified
Complaint, but leaves all questions of law to the Court.
18. Deny the truth of the allegations contained in paragraph "18" of the Verified
Complaint, but leaves all questions of law to the Court.
19. Deny the truth of the allegations contained in paragraph "19" of the Verified
Complaint, but leaves all questions of law to the Court.
20. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "20" of the Verified Complaint, but leaves all questions of
law to the Court.
21. Admit, upon information and belief, as to Answering Co-Defendant RODNEY
BRANCH the truth of the allegations contained in paragraph "21" of the Verified Complaint.
22. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "22" of the Verified Complaint, but leaves all questions of
law to the Court.
23. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "23" of the Verified Complaint, but leaves all questions of
law to the Court.
24. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "24" of the Verified Complaint, but leaves all questions of
law to the Court.
3
3 of 12
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
25. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "25" of the Verified Complaint, but leaves all questions of
law to the Court.
26. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "26" of the Verified Complaint, but leaves all questions of
law to the Court.
27. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "27" of the Verified Complaint, but leaves all questions of
law to the Court.
28. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "28" of the Verified Complaint, but leaves all questions of
law to the Court.
29. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "29" of the Verified Complaint, but leaves all questions of
law to the Court.
30. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph "3O" of the Verified Complaint, but leaves all questions of
law to the Court.
31. Deny as to Answering Co-Defendants RODNEY BRANCH and MEMORIAL
SLOAN KETTERING CANCER CENTER, the truth of the allegations contained in
paragraph "31" of the Verified Complaint.
32. Deny as to Answering Co-Defendants RODNEY BRANCH and MEMORIAL
SLOAN KETTERING CANCER CENTER, the truth of the allegations contained in
paragraph "32" of the Verified Complaint.
33. Deny the truth of the allegations contained in paragraph "33" of the Verified
4
4 of 12
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
Complaint.
34. Deny the truth of the allegations contained in paragraph "34" of the Verified
Complaint.
35. Deny the truth of the allegations contained in paragraph "35" of the Verified
Complaint.
36. Deny the truth of the allegations contained in paragraph "36" of the Verified
Complaint.
37. Deny the truth of the allegations contained in paragraph "37" of the Verified
Complaint.
38. Deny the truth of the allegations contained in paragraph "38" of the Verified
Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
39. All damages allegedly sustained by Plaintiff in the Verified Complaint were
caused in whole or in part by the culpable conduct, negligence, acts of omission and/or
commission or lack of care of Plaintiff and/or parties other than Answering Co-Defendants for
whose conduct Answering Co-Defendants are not responsible, have no control over, or have no
legal relation with and as such all claims should be dismissed as against Answering Co-
Defendants.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
40. Plaintiff did not sustain "serious injuries" as defined by § 5102(d) of the New York
Insurance Law.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
41. Plaintiff is not entitled to recover damages by reason of their individual failure to
take reasonable steps to mitigate their damages.
5
5 of 12
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
42. . Plaintiff cannot set forth any damages sustained as a result of Answering Co-
Defendants actions or conduct.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
43. Answering Co-Defendants did not have exclusive custody or control of the
location where the damages are alleged to have occurred.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
44. The incident, injuries, and damages complained of were caused by and the result
of Plaintiffs failure to exercise reasonable and ordinary care, caution, or vigilance.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
45. All damages and risks incident to the allegations in the Complaint were open,
obvious and apparent, and were known and assumed by the Plaintiff.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
46. At all times relevant hereto, Answering Co-Defendants did not act in a negligent,
reckless or careless manner or in violation of any law, code, rule or regulation.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
47. Answering Co-Defendants did not cause or create and had no actual or
constructive notice of the acts or occurrences in the Verified Complaint.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
48. Plaintiff caused or exacerbated any alleged incident which caused Plaintiffs
alleged injuries.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
49. In accordance with CPLR § 1601 et seq., the liability of Answering Co-
Defendants, if any, to Plaintiff for non-economic loss is to its equitable share, determined in
accordance with the relative culpability of all persons or entities contributing to the total liability
6
6 of 12
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
for non-economic loss, including named parties and others over whom Plaintiff could have
obtained personal jurisdiction with due diligence.
AS AND FOR A TWELFTH AFFIRMATIVE
DEFENSE
50. In the event Plaintiff recovers a verdict or judgment against Answering Co-
Defendants then said verdict or judgment must be reduced 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, for the cost of medical care, dental care, custodial care or
rehabilitation services, and/or loss of earning from any collateral source such as insurance, social
security, workers' compensation or employee benefit program, pursuant to CPLR § 4545.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
51. In the event that Plaintiff recovers a verdict or judgment against Answering Co-
Defendants then said verdict or judgment must be reduced by the amount of Plaintiffs
comparative negligence herein.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
52. Plaintiffs causes of action are barred by New York Insurance Law§§ 5102 and
5104 in that Plaintiff and Answering Co-Defendants are "covered persons" and Insurance Law
§5104 states that in any action by or on behalf of a "covered person" for personal injuries arising
out of negligence in the use or operation of a motor vehicle in this state, there shall be no right
to recovery for a non-economic loss, except in the case of "serious injury" or economic loss
greater than basis economic loss as defined in said Insurance Law.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
53. The Court lacks personal jurisdiction over the Answering Co-Defendants.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
54. The Plaintiffs claims are barred by the emergency doctrine. Due to sudden and
unexpected actions of the Plaintiff, as yet unidentified party, or other emergency, the defendant
7
7 of 12
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
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 full opportunity to
reflect and therefore was not negligent.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
55. Upon information and belief, the injuries sustained by Plaintiff were caused
and/or increased by reason of the failure of plaintiff to use a seatbelt or other available restraint.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
56. That upon information and belief, the injuries allegedly sustained by plaintiff
were the result of superseding and/or intervening acts of negligence by persons over whom Co-
Defendants had neither control nor the right to control.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
57. The accident described in the Verified Complaint did not result in a "serious
injury" 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.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
58. Plaintiffs Verified Complaint fails to set out a claim with sufficient particularity
to permit Co-Defendants to determine all applicable defenses. Answering Co-Defendants
therefore reserve their right to amend and supplement this Verified Answer with additional
defenses once such information is ascertained.
AS AND FOR A CROSS-CLAIM AGAINST THIRD PARTY DEFENDANT JOSE R. BECO,
CO-DEFENDANTS RODNEY BRANCH AND MEMORIAL SLOAN KETTERING ALLEGE
AS FOLLOWS:
59. That if Plaintiff was caused to sustain injuries and/or damages as alleged in the
Verified Complaint and in the manner alleged therein, same was occasioned through the sole
carelessness, recklessness, acts, omissions, negligence and/or breaches of contract and/or duty
8
8 of 12
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
and/or obligation and/or statue and/or warranty and/or strict liability and/or nuisance and/or
trespass of Plaintiff, in which event Answering Co-Defendants RODNEY BRANCH AND
MEMORIAL SLOAN KETTERING would be entitled to judgment dismissing the Verified
Complaint; but, in the event Plaintiff is found to be entitled to judgment, that said injuries and/or
damages were occasioned through the sole carelessness, recklessness, acts, omissions,
negligence and/or breaches of contract and/or duty and/or obligation and/or statute and/or
warranty and/or strict liability and/or nuisance and/or trespass in fact and/or implied in law by
Co-Defendant JOSE R. BECO, and not Answering Co-Defendants RODNEY BRANCH AND
MEMO AL SLOAN KETTERING CANCER CENTER, in which event Plaintiff MARIA
PASCUAL would be entitled to judgment over and against Answering Co-Defendants
RODNEY BRANCH AND MEMORIAL SLOAN KETTERING CANCER CENTER, for all or
so much of any judgment as may be rendered; or if it be found that the said injuries and/or
damages were occasioned through the combined carelessness, recklessness, acts, omissions,
negligence and/or breaches of contract and/or duty and/or obligation and/or warranty and/or
strict liability and/or nuisance and/or trespass of Co-Defendant JOSE R. BECO, then would be
entitled, on the basis of all the facts and the law, to an adjudication of the comparative
negligence/culpable conduct of relative responsibilities of JOSE R. BECO as the case may be,
and upon such adjudication to an apportionment of damages in accordance with such findings,
be same pursuant to common law or statute, and JOSE R. BECO will be liable over jointly and
severally to DEFENDANTS RODNEY BRANCH AND MEMORIAL SLOAN KETTERING
CANCER CENTER and to fully indemnify and hold DEFENDANTS RODNEY BRANCH
AND MEMORIAL SLOAN KETTERING CANCER CENTER harmless for the full or
apportioned amount of any judgment herein recovered against DEFENDANTS RODNEY
BRANCH AND MEMORIAL SLOAN KETTERING CANCER CENTER in this action,
including all costs or investigation, disbursements, expenses and attorneys' fees incurred in the
9
9 of 12
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
defense of this action and in the conduct of this crossclaim.
WHEREFORE, Answering Co-Defendants deny that Plaintiff MARIA PASCUAL
are entitled to a judgment or any other relief against it, including, but not limited to, the
relief requested in the PRAYER FOR RELIEF and/or WHEREFORE clauses of the Complaint,
and Answering Co-Defendants respectfully request that the Court enter judgment:
(a) Dismissing the Complaint with prejudice and granting the Answering Co-
Defendants RODNEY BRANCH AND MEMORIAL SLOAN KETTERING CANCER
CENTER the costs incurred in defending this lawsuit, including reasonable attorneys' fees, as
permitted by statute, rule of court or otherwise; and
(b) That the ultimate rights of Defendants RODNEY BRANCH AND MEMORIAL
SLOAN KETTERING CANCER CENTER be determined as between themselves in that the
Answering Co-Defendants have judgment over and against Co-Defendant JOSE R. BECO and
Plaintiff MARIA PASCUAL for indemnification and/or contribution in whole or in part, for the
amount of any sum which may be recovered herein against Co-Defendant JOSE R. BECO and
Plaintiff MARIA PASCUAL, together with attorneys' fees and the costs and disbursements of
this action; and;
JURY DEMAND
60. Answering Co- Defendants demand a trial by jury on all issues.
WHEREFORE, the Answering Co-Defendants demand judgment against Plaintiff,
dismissing the Verified Complaint, including fees and costs, and such other relief as the Court
may deem equitable, necessary and just.
10
10 of 12
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
Dated: New York, New York
July 14, 2023
KATZ & RYCHIK P.C.
By: _
Bennett R. Katz, Esq.
Attorneys for Answering
Co-Defendants
RODNEY BRANCH and
MEMORIAL SLOAN
KETTERING CANCER
CENTER.,
40 Wall Street, 30th Floor
New York, New York 10005
(212) 766-4700
bkatz@katzrychik.com
To: MARVIN BEN-ARON
LAW OFFICE OF MARVIN BEN-ARON
ATTORNEYS FOR PLAINTIFF
2713 Coney Island Avenue, 3rd Floor
Brooklyn, New York 11235
(718) 372-2511
To: JOSE R. BECO
261 Stockholm Street, #3B
Brooklyn, NY 11237
11
11 of 12
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023
ATTORNEY'S VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BENNETT R. KATZ, ESQ., an attorney at law, affirms, under the penalties of perjury,
as follows:
That I am a Member of the law firm of KATZ & RYCHIK P.C. attorneys for Answering
Co-Defendants RODNEY BRANCH and MEMORIAL SLOAN KETTERING CANCER CENTER,
the within action; that deponent has read the foregoing Verified Answer, and knows the contents
thereof; that the same is true to deponent' s own knowledge except as to the matters therein stated
upon information and belief and, as to those matters, deponent believes them to be true.
Deponent further states that the grounds for deponent' s belief as to all matters not stated
upon deponent' s knowledge, and the source of deponent' s knowledge as to all the matters therein
stated, is the evidence in deponent' s possession.
Deponent further states that the reason why this verification is not made by Answering Co-
Defendants RODNEY BRANCH and MEMORIAL SLOAN KETTERING CANCER
CENTER is that said Answering Co-Defendants are not now located within the county where
deponent' s firm has its office.
Dated: New York, New York
July 14, 2023
Bennett R. Katz, Esq.
12
12 of 12
Preview
FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS - -------------------------------------------------------- X MARIA PASCUAL, Plaintiff, Index No.: 513521/2023 -against- VERIFIED ANSWER JOSE R. BECO, RODNEY BRANCH TO PLAINTIFF'S and MEMORIAL SLOAN VERIFIED KETTERING CANCER CENTER, COMPLAINT Defendants. - -------------------------------------------------------- X Defendants RODNEY BRANCH and MEMORIAL SLOAN KETTERING CANCER CENTER (hereinafter as "Answering Co-Defendants"), by their attorneys, Katz & Rychik, P.C., as and for their Verified Answer to Plaintiff MARIA PASCUAL'S (hereinafter "Plaintiff') Verified Complaint e-filed on May 5, 2023, alleges upon information and belief, as follows: AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION ON BEHALF OF THE ANSWERING CO-DEFENDANTS: 1. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "1" of the Verified Complaint. 2. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "2" of the Verified Complaint. 3. Admit the truth of the allegations contained in paragraph "3" of the Verified Complaint. 4. Admit the truth of the allegations contained in paragraph "4" of the Verified Complaint. 1 1 of 12 FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 5. Deny the truth of the allegations contained in paragraph "5" of the Verified Complaint. 5. Admit the truth of the allegations contained in paragraph "5" of the Verified Complaint. 6. Admit the truth of the allegations contained in paragraph "6" of the Verified Complaint. 7. Admit the truth of the allegations contained in paragraph "7" of the Verified Complaint. 8. Admit the truth of the allegations contained in paragraph "8" of the Verified Complaint. 9. Admit the truth of the allegations contained in paragraph "9" of the Verified Complaint. 10. Admit the truth of the allegations contained in paragraph "1O" of the Verified Complaint. 11. Deny the truth of the allegations contained in paragraph "11" of the Verified Complaint, but leaves all questions of law to the Court. 12. Deny the truth of the allegations contained in paragraph "12" of the Verified Complaint, but leaves all questions of law to the Court. 13. Deny the truth of the allegations contained in paragraph "13" of the Verified Complaint, but leaves all questions of law to the Court. 14. Admit the truth of the allegations contained in paragraph "14" of the Verified Complaint. 2 2 of 12 FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 15. Admit the truth of the allegations contained in paragraph "15" of the Verified Complaint. 16. Deny the truth of the allegations contained in paragraph "16" of the Verified Complaint, but leaves all questions of law to the Court. 17. Deny the truth of the allegations contained in paragraph "17" of the Verified Complaint, but leaves all questions of law to the Court. 18. Deny the truth of the allegations contained in paragraph "18" of the Verified Complaint, but leaves all questions of law to the Court. 19. Deny the truth of the allegations contained in paragraph "19" of the Verified Complaint, but leaves all questions of law to the Court. 20. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "20" of the Verified Complaint, but leaves all questions of law to the Court. 21. Admit, upon information and belief, as to Answering Co-Defendant RODNEY BRANCH the truth of the allegations contained in paragraph "21" of the Verified Complaint. 22. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "22" of the Verified Complaint, but leaves all questions of law to the Court. 23. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "23" of the Verified Complaint, but leaves all questions of law to the Court. 24. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "24" of the Verified Complaint, but leaves all questions of law to the Court. 3 3 of 12 FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 25. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "25" of the Verified Complaint, but leaves all questions of law to the Court. 26. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "26" of the Verified Complaint, but leaves all questions of law to the Court. 27. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "27" of the Verified Complaint, but leaves all questions of law to the Court. 28. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "28" of the Verified Complaint, but leaves all questions of law to the Court. 29. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "29" of the Verified Complaint, but leaves all questions of law to the Court. 30. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph "3O" of the Verified Complaint, but leaves all questions of law to the Court. 31. Deny as to Answering Co-Defendants RODNEY BRANCH and MEMORIAL SLOAN KETTERING CANCER CENTER, the truth of the allegations contained in paragraph "31" of the Verified Complaint. 32. Deny as to Answering Co-Defendants RODNEY BRANCH and MEMORIAL SLOAN KETTERING CANCER CENTER, the truth of the allegations contained in paragraph "32" of the Verified Complaint. 33. Deny the truth of the allegations contained in paragraph "33" of the Verified 4 4 of 12 FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 Complaint. 34. Deny the truth of the allegations contained in paragraph "34" of the Verified Complaint. 35. Deny the truth of the allegations contained in paragraph "35" of the Verified Complaint. 36. Deny the truth of the allegations contained in paragraph "36" of the Verified Complaint. 37. Deny the truth of the allegations contained in paragraph "37" of the Verified Complaint. 38. Deny the truth of the allegations contained in paragraph "38" of the Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 39. All damages allegedly sustained by Plaintiff in the Verified Complaint were caused in whole or in part by the culpable conduct, negligence, acts of omission and/or commission or lack of care of Plaintiff and/or parties other than Answering Co-Defendants for whose conduct Answering Co-Defendants are not responsible, have no control over, or have no legal relation with and as such all claims should be dismissed as against Answering Co- Defendants. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 40. Plaintiff did not sustain "serious injuries" as defined by § 5102(d) of the New York Insurance Law. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 41. Plaintiff is not entitled to recover damages by reason of their individual failure to take reasonable steps to mitigate their damages. 5 5 of 12 FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 42. . Plaintiff cannot set forth any damages sustained as a result of Answering Co- Defendants actions or conduct. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 43. Answering Co-Defendants did not have exclusive custody or control of the location where the damages are alleged to have occurred. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 44. The incident, injuries, and damages complained of were caused by and the result of Plaintiffs failure to exercise reasonable and ordinary care, caution, or vigilance. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 45. All damages and risks incident to the allegations in the Complaint were open, obvious and apparent, and were known and assumed by the Plaintiff. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 46. At all times relevant hereto, Answering Co-Defendants did not act in a negligent, reckless or careless manner or in violation of any law, code, rule or regulation. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 47. Answering Co-Defendants did not cause or create and had no actual or constructive notice of the acts or occurrences in the Verified Complaint. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 48. Plaintiff caused or exacerbated any alleged incident which caused Plaintiffs alleged injuries. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 49. In accordance with CPLR § 1601 et seq., the liability of Answering Co- Defendants, if any, to Plaintiff for non-economic loss is to its equitable share, determined in accordance with the relative culpability of all persons or entities contributing to the total liability 6 6 of 12 FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 for non-economic loss, including named parties and others over whom Plaintiff could have obtained personal jurisdiction with due diligence. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 50. In the event Plaintiff recovers a verdict or judgment against Answering Co- Defendants then said verdict or judgment must be reduced 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, for the cost of medical care, dental care, custodial care or rehabilitation services, and/or loss of earning from any collateral source such as insurance, social security, workers' compensation or employee benefit program, pursuant to CPLR § 4545. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 51. In the event that Plaintiff recovers a verdict or judgment against Answering Co- Defendants then said verdict or judgment must be reduced by the amount of Plaintiffs comparative negligence herein. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 52. Plaintiffs causes of action are barred by New York Insurance Law§§ 5102 and 5104 in that Plaintiff and Answering Co-Defendants are "covered persons" and Insurance Law §5104 states that in any action by or on behalf of a "covered person" for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right to recovery for a non-economic loss, except in the case of "serious injury" or economic loss greater than basis economic loss as defined in said Insurance Law. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 53. The Court lacks personal jurisdiction over the Answering Co-Defendants. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 54. The Plaintiffs claims are barred by the emergency doctrine. Due to sudden and unexpected actions of the Plaintiff, as yet unidentified party, or other emergency, the defendant 7 7 of 12 FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 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 full opportunity to reflect and therefore was not negligent. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 55. Upon information and belief, the injuries sustained by Plaintiff were caused and/or increased by reason of the failure of plaintiff to use a seatbelt or other available restraint. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 56. That upon information and belief, the injuries allegedly sustained by plaintiff were the result of superseding and/or intervening acts of negligence by persons over whom Co- Defendants had neither control nor the right to control. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 57. The accident described in the Verified Complaint did not result in a "serious injury" 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. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 58. Plaintiffs Verified Complaint fails to set out a claim with sufficient particularity to permit Co-Defendants to determine all applicable defenses. Answering Co-Defendants therefore reserve their right to amend and supplement this Verified Answer with additional defenses once such information is ascertained. AS AND FOR A CROSS-CLAIM AGAINST THIRD PARTY DEFENDANT JOSE R. BECO, CO-DEFENDANTS RODNEY BRANCH AND MEMORIAL SLOAN KETTERING ALLEGE AS FOLLOWS: 59. That if Plaintiff was caused to sustain injuries and/or damages as alleged in the Verified Complaint and in the manner alleged therein, same was occasioned through the sole carelessness, recklessness, acts, omissions, negligence and/or breaches of contract and/or duty 8 8 of 12 FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 and/or obligation and/or statue and/or warranty and/or strict liability and/or nuisance and/or trespass of Plaintiff, in which event Answering Co-Defendants RODNEY BRANCH AND MEMORIAL SLOAN KETTERING would be entitled to judgment dismissing the Verified Complaint; but, in the event Plaintiff is found to be entitled to judgment, that said injuries and/or damages were occasioned through the sole carelessness, recklessness, acts, omissions, negligence and/or breaches of contract and/or duty and/or obligation and/or statute and/or warranty and/or strict liability and/or nuisance and/or trespass in fact and/or implied in law by Co-Defendant JOSE R. BECO, and not Answering Co-Defendants RODNEY BRANCH AND MEMO AL SLOAN KETTERING CANCER CENTER, in which event Plaintiff MARIA PASCUAL would be entitled to judgment over and against Answering Co-Defendants RODNEY BRANCH AND MEMORIAL SLOAN KETTERING CANCER CENTER, for all or so much of any judgment as may be rendered; or if it be found that the said injuries and/or damages were occasioned through the combined carelessness, recklessness, acts, omissions, negligence and/or breaches of contract and/or duty and/or obligation and/or warranty and/or strict liability and/or nuisance and/or trespass of Co-Defendant JOSE R. BECO, then would be entitled, on the basis of all the facts and the law, to an adjudication of the comparative negligence/culpable conduct of relative responsibilities of JOSE R. BECO as the case may be, and upon such adjudication to an apportionment of damages in accordance with such findings, be same pursuant to common law or statute, and JOSE R. BECO will be liable over jointly and severally to DEFENDANTS RODNEY BRANCH AND MEMORIAL SLOAN KETTERING CANCER CENTER and to fully indemnify and hold DEFENDANTS RODNEY BRANCH AND MEMORIAL SLOAN KETTERING CANCER CENTER harmless for the full or apportioned amount of any judgment herein recovered against DEFENDANTS RODNEY BRANCH AND MEMORIAL SLOAN KETTERING CANCER CENTER in this action, including all costs or investigation, disbursements, expenses and attorneys' fees incurred in the 9 9 of 12 FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 defense of this action and in the conduct of this crossclaim. WHEREFORE, Answering Co-Defendants deny that Plaintiff MARIA PASCUAL are entitled to a judgment or any other relief against it, including, but not limited to, the relief requested in the PRAYER FOR RELIEF and/or WHEREFORE clauses of the Complaint, and Answering Co-Defendants respectfully request that the Court enter judgment: (a) Dismissing the Complaint with prejudice and granting the Answering Co- Defendants RODNEY BRANCH AND MEMORIAL SLOAN KETTERING CANCER CENTER the costs incurred in defending this lawsuit, including reasonable attorneys' fees, as permitted by statute, rule of court or otherwise; and (b) That the ultimate rights of Defendants RODNEY BRANCH AND MEMORIAL SLOAN KETTERING CANCER CENTER be determined as between themselves in that the Answering Co-Defendants have judgment over and against Co-Defendant JOSE R. BECO and Plaintiff MARIA PASCUAL for indemnification and/or contribution in whole or in part, for the amount of any sum which may be recovered herein against Co-Defendant JOSE R. BECO and Plaintiff MARIA PASCUAL, together with attorneys' fees and the costs and disbursements of this action; and; JURY DEMAND 60. Answering Co- Defendants demand a trial by jury on all issues. WHEREFORE, the Answering Co-Defendants demand judgment against Plaintiff, dismissing the Verified Complaint, including fees and costs, and such other relief as the Court may deem equitable, necessary and just. 10 10 of 12 FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 Dated: New York, New York July 14, 2023 KATZ & RYCHIK P.C. By: _ Bennett R. Katz, Esq. Attorneys for Answering Co-Defendants RODNEY BRANCH and MEMORIAL SLOAN KETTERING CANCER CENTER., 40 Wall Street, 30th Floor New York, New York 10005 (212) 766-4700 bkatz@katzrychik.com To: MARVIN BEN-ARON LAW OFFICE OF MARVIN BEN-ARON ATTORNEYS FOR PLAINTIFF 2713 Coney Island Avenue, 3rd Floor Brooklyn, New York 11235 (718) 372-2511 To: JOSE R. BECO 261 Stockholm Street, #3B Brooklyn, NY 11237 11 11 of 12 FILED: KINGS COUNTY CLERK 07/18/2023 11:28 AM INDEX NO. 513521/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 07/18/2023 ATTORNEY'S VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) BENNETT R. KATZ, ESQ., an attorney at law, affirms, under the penalties of perjury, as follows: That I am a Member of the law firm of KATZ & RYCHIK P.C. attorneys for Answering Co-Defendants RODNEY BRANCH and MEMORIAL SLOAN KETTERING CANCER CENTER, the within action; that deponent has read the foregoing Verified Answer, and knows the contents thereof; that the same is true to deponent' s own knowledge except as to the matters therein stated upon information and belief and, as to those matters, deponent believes them to be true. Deponent further states that the grounds for deponent' s belief as to all matters not stated upon deponent' s knowledge, and the source of deponent' s knowledge as to all the matters therein stated, is the evidence in deponent' s possession. Deponent further states that the reason why this verification is not made by Answering Co- Defendants RODNEY BRANCH and MEMORIAL SLOAN KETTERING CANCER CENTER is that said Answering Co-Defendants are not now located within the county where deponent' s firm has its office. Dated: New York, New York July 14, 2023 Bennett R. Katz, Esq. 12 12 of 12