Preview
INDEX NO. 154027/2020
FILED: NEW YORK COUNTY CLERK 0870272022 10:45 AM
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/02/2022
EXHIBIT B
ELED-:. NEW: \ ¢K- COUN K- 08-702/2022 10:45 AM INDEX NO. 154027/2020
NYSCEF DUE. - NO- 12 RECEIVED NYSCEF:: 08/02/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
meme enna nana nnn emer
een nenmenanneennnetnnesunesenese Xx Index No.: 154027/2020 (ECF)
DENA NASH,
Plaintiffs,
VERIFIED ANSWER TO
Vv. COMPLAINT
UPRIGHT CITZENS BRIGADE, LLC
Defendant,
seer erneeeemsecemeareeec te were epee eer areemeenseereneese memes asin met ast
Defendant, Upright Citizens Brigade, LLC, by its attorneys, EUSTACE, PREZIOSO &
YAPCHANYK, answers the Complaint of the Plaintiffs by stating as follows:
1 Admits, upon information and belief, the allegations of paragraphs 2 and 3.
2 Denies, upon information and belief, the allegations of paragraphs 10, 11, 13 and 14.
3 Denies, upon information and belief, the allegations of paragraphs 4, 5, 6, 7 and 8 and
respectfully refers all questions of law to this Honorable Court.
4. Denies having knowledge or information sufficient to form a belief as to the truth of the
allegations of paragraphs 1 and 9.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
5 The injuries alleged to have been suffered by the Plaintiffs were caused, in whole or part,
by the conduct of Plaintiffs. Plaintiffs’ claims therefore are barred or diminished in the proportion that
such culpable conduct of Plaintiffs bears to the total culpable conduct causing the damages.
1 onF€ 20
FLED-:- NEW: YORK- COUN-FY CLER - OF 02/2022 10:45 AM INDEX NO. 154027/2020
NYSCEFP DOC: NO.- 12 RECEIVED NYSTEF:: 08/02/2022
AS AND FOR A SECOND AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
6. The injuries and damages alleged in te Complaint were caused or contributed to by the
culpable conduct including contributory negligence, assumption of the risk and/or product misuse of
persons over whom this Defendant had no authority or control.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
7 That this Court has not acquired personal jurisdiction over the person of this answering
Defendant.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
8 The Worker's Compensation Law of the State of New York is the exclusive remedy
against this Defendant and each cause of action in the complaint is barred by that law.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
9 Pursuant to CPLR Article 16, the liability of this Defendant to the Plaintiffs for non-
economic loss shall not exceed the equitable share of this Defendant determined in accordance with the
relative culpability of each person/party causing or contributing to the total liability for non-economic
loss.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
10. Upon information and belief the causes of action alleged in the Complaint of the
Plaintiffs fail to properly state, specify or allege a cause of action on which relief can be granted as a
matter of law.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
1. That the law suit is barred under the doctrine of Res Judicata.
2 AF 20
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NYSCEF DOC.- N&®.- 12 RECEIVED NYSCEFY: 08/02/2020
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
12. This action is barred by the principle of collateral estoppel.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
13. That the Plaintiffshave failed to comply with Section 3017(a) of the CPLR regarding the
demands for relief.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
14, That recovery, if any, on the Complaint of the Plaintiffs shall be reduced by the amounts
paid or reimbursed by collateral sources in accordance with CPLR 4545(c).
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
15. That prior to the commencement of this action, Plaintiffs duly executed a release and
discharged this answering Defendant from said claims which are the subject of this Complaint.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
16. That if it is determined that this answering Defendant is responsible for the acts alleged in
the Complaint then Plaintiffs failed to take appropriate action to mitigate any damages.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
17. The claim cannot be maintained because it has been discharged in bankruptcy.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
18. The injuries and damages alleged in the Complaint of the Plaintiffs were caused or
contributed to by Plaintiffs's culpable conduct in assuming the risk under the conditions and
circumstances existing.
2 nf 20
ELED-:-
NEW: YORK- COUN CLER - 08 02/2022 10:45 AM) INDEX NO. 154027/2020
NYSCEF
DOR - NO 12 RECELVED NYSCEF:: 08/02/2022
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE THIS
ANSWERING DEFENDANT ALLEGES AS FOLLOWS:
19. The injuries and damages alleged in the complaint and Third-Party complaint were
caused or contributed to by Plaintiff(s)' and/or Third-Party Plaintiff(s)' culpable conduct in assuming the
risk under the conditions and circumstances existing.
WHEREFORE, this Defendant demands judgment dismissing the Complaint, together
with costs and disbursements, and in the event any judgment or settlement is recovered herein
against this Defendant, then this Defendant further demands that such judgment be reduced by
the amount which is proportionate to the degree of culpability of any plaintiff, and this
Defendant further demands judgment against each other party on the respective crossclaims
and/or counterclaims.
DATED: December 29, 2020
New York, New York
Yours, ete.
EUSTACE, PREZIOSO & YAPCHANYK
Attorneys for Defendant
UPRIGHT CITIZENS BRIGADE, LLC
Office and Post Office Address
55 Water Street, 28th Floor
New York, New York 10041
(212) 612-4200
By:
==
Miles A. Linefsky
A n€ 20
FLED-:- NEW. YORK- COUN-FY CLERK ~ OF 0272022 10:45 AM INDEX NO. 154027/2020
NYSCER’ DUC. - NOP- 12 RECELVED NYSCEFR: 08/02/202D
To:
Steven B. Sarshik.
Attorneys for Plaintiff, Dena Nash
14 Wall Street, 20th Floor
New York, New York 10005
& nf 20
ELED-:- NEW: YORK- COUN-FY CLER - 08 02/20221 )-45 AM INDEX NO. 154027/2020
NYSCEP DUC.- N&.- 12 RECELVED NYSCERE: 08/02/2922
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
sagen tr eyperreranrerareareerereremmaynranetere metre sjnmvesi erm int aeen e of Index No.: 154027/2020 (ECF)
DENA NASH,
Plaintiffs, VERIFICATION
Vv.
UPRIGHT CITZENS BRIGADE, LLC
Defendant,
ptr ene nein nena n nner eer rennanernemrnnena nanan
Miles A. Linefsky, an attorney duly admitted to practice law before the Courts of New
York State, hereby affirms under the penalties of perjury pursuant to CPLR 2106:
I am a member of the firm of EUSTACE, PREZIOSO & YAPCHANYK, attorneys for
the Defendant, Upright Citizens Brigade, LLC.
I submit the following statement upon information and belief, based upon an inspection of the
records maintained by this office, which records I believe to be true.
That I have read the contents of the attached VERIFIED ANSWER TO COMPLAINT
for Defendant Upright Citizens Brigade, LLC and believe it to be true based on information
available or maintained by this firm. I make this verification because this Defendant is either a
foreign corporation or is not located in New York County.
DATED: December 29, 2020
New York, New York
Ht
Miles A. Linefsky
K nf 20
Preview
INDEX NO. 154027/2020 FILED: NEW YORK COUNTY CLERK 0870272022 10:45 AM NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 08/02/2022 EXHIBIT B ELED-:. NEW: \ ¢K- COUN K- 08-702/2022 10:45 AM INDEX NO. 154027/2020 NYSCEF DUE. - NO- 12 RECEIVED NYSCEF:: 08/02/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK meme enna nana nnn emer een nenmenanneennnetnnesunesenese Xx Index No.: 154027/2020 (ECF) DENA NASH, Plaintiffs, VERIFIED ANSWER TO Vv. COMPLAINT UPRIGHT CITZENS BRIGADE, LLC Defendant, seer erneeeemsecemeareeec te were epee eer areemeenseereneese memes asin met ast Defendant, Upright Citizens Brigade, LLC, by its attorneys, EUSTACE, PREZIOSO & YAPCHANYK, answers the Complaint of the Plaintiffs by stating as follows: 1 Admits, upon information and belief, the allegations of paragraphs 2 and 3. 2 Denies, upon information and belief, the allegations of paragraphs 10, 11, 13 and 14. 3 Denies, upon information and belief, the allegations of paragraphs 4, 5, 6, 7 and 8 and respectfully refers all questions of law to this Honorable Court. 4. Denies having knowledge or information sufficient to form a belief as to the truth of the allegations of paragraphs 1 and 9. AS AND FOR A FIRST AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 5 The injuries alleged to have been suffered by the Plaintiffs were caused, in whole or part, by the conduct of Plaintiffs. Plaintiffs’ claims therefore are barred or diminished in the proportion that such culpable conduct of Plaintiffs bears to the total culpable conduct causing the damages. 1 onF€ 20 FLED-:- NEW: YORK- COUN-FY CLER - OF 02/2022 10:45 AM INDEX NO. 154027/2020 NYSCEFP DOC: NO.- 12 RECEIVED NYSTEF:: 08/02/2022 AS AND FOR A SECOND AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 6. The injuries and damages alleged in te Complaint were caused or contributed to by the culpable conduct including contributory negligence, assumption of the risk and/or product misuse of persons over whom this Defendant had no authority or control. AS AND FOR A THIRD AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 7 That this Court has not acquired personal jurisdiction over the person of this answering Defendant. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 8 The Worker's Compensation Law of the State of New York is the exclusive remedy against this Defendant and each cause of action in the complaint is barred by that law. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 9 Pursuant to CPLR Article 16, the liability of this Defendant to the Plaintiffs for non- economic loss shall not exceed the equitable share of this Defendant determined in accordance with the relative culpability of each person/party causing or contributing to the total liability for non-economic loss. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 10. Upon information and belief the causes of action alleged in the Complaint of the Plaintiffs fail to properly state, specify or allege a cause of action on which relief can be granted as a matter of law. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 1. That the law suit is barred under the doctrine of Res Judicata. 2 AF 20 ELED-:- NEI RK- COUN-FY ( .. 08-/702720 LO :-45 AM INDEX NO. 154027/2020 NYSCEF DOC.- N&®.- 12 RECEIVED NYSCEFY: 08/02/2020 AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 12. This action is barred by the principle of collateral estoppel. AS AND FOR A NINTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 13. That the Plaintiffshave failed to comply with Section 3017(a) of the CPLR regarding the demands for relief. AS AND FOR A TENTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 14, That recovery, if any, on the Complaint of the Plaintiffs shall be reduced by the amounts paid or reimbursed by collateral sources in accordance with CPLR 4545(c). AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 15. That prior to the commencement of this action, Plaintiffs duly executed a release and discharged this answering Defendant from said claims which are the subject of this Complaint. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 16. That if it is determined that this answering Defendant is responsible for the acts alleged in the Complaint then Plaintiffs failed to take appropriate action to mitigate any damages. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 17. The claim cannot be maintained because it has been discharged in bankruptcy. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 18. The injuries and damages alleged in the Complaint of the Plaintiffs were caused or contributed to by Plaintiffs's culpable conduct in assuming the risk under the conditions and circumstances existing. 2 nf 20 ELED-:- NEW: YORK- COUN CLER - 08 02/2022 10:45 AM) INDEX NO. 154027/2020 NYSCEF DOR - NO 12 RECELVED NYSCEF:: 08/02/2022 AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE THIS ANSWERING DEFENDANT ALLEGES AS FOLLOWS: 19. The injuries and damages alleged in the complaint and Third-Party complaint were caused or contributed to by Plaintiff(s)' and/or Third-Party Plaintiff(s)' culpable conduct in assuming the risk under the conditions and circumstances existing. WHEREFORE, this Defendant demands judgment dismissing the Complaint, together with costs and disbursements, and in the event any judgment or settlement is recovered herein against this Defendant, then this Defendant further demands that such judgment be reduced by the amount which is proportionate to the degree of culpability of any plaintiff, and this Defendant further demands judgment against each other party on the respective crossclaims and/or counterclaims. DATED: December 29, 2020 New York, New York Yours, ete. EUSTACE, PREZIOSO & YAPCHANYK Attorneys for Defendant UPRIGHT CITIZENS BRIGADE, LLC Office and Post Office Address 55 Water Street, 28th Floor New York, New York 10041 (212) 612-4200 By: == Miles A. Linefsky A n€ 20 FLED-:- NEW. YORK- COUN-FY CLERK ~ OF 0272022 10:45 AM INDEX NO. 154027/2020 NYSCER’ DUC. - NOP- 12 RECELVED NYSCEFR: 08/02/202D To: Steven B. Sarshik. Attorneys for Plaintiff, Dena Nash 14 Wall Street, 20th Floor New York, New York 10005 & nf 20 ELED-:- NEW: YORK- COUN-FY CLER - 08 02/20221 )-45 AM INDEX NO. 154027/2020 NYSCEP DUC.- N&.- 12 RECELVED NYSCERE: 08/02/2922 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK sagen tr eyperreranrerareareerereremmaynranetere metre sjnmvesi erm int aeen e of Index No.: 154027/2020 (ECF) DENA NASH, Plaintiffs, VERIFICATION Vv. UPRIGHT CITZENS BRIGADE, LLC Defendant, ptr ene nein nena n nner eer rennanernemrnnena nanan Miles A. Linefsky, an attorney duly admitted to practice law before the Courts of New York State, hereby affirms under the penalties of perjury pursuant to CPLR 2106: I am a member of the firm of EUSTACE, PREZIOSO & YAPCHANYK, attorneys for the Defendant, Upright Citizens Brigade, LLC. I submit the following statement upon information and belief, based upon an inspection of the records maintained by this office, which records I believe to be true. That I have read the contents of the attached VERIFIED ANSWER TO COMPLAINT for Defendant Upright Citizens Brigade, LLC and believe it to be true based on information available or maintained by this firm. I make this verification because this Defendant is either a foreign corporation or is not located in New York County. DATED: December 29, 2020 New York, New York Ht Miles A. Linefsky K nf 20