Preview
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/09/2023
EXHIBIT 2
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023
NYSCEF
FILED:
DOC. NO. 18
NASSAU COUNTY CLERK
RECEIVED
INDEX NYSCEF:
NO. 11/09/2023
607676/2023
06/23/2023 01:26 PM|
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/23/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
______________________________________Ç
ROBIN ELLIS, Index: 607676/2023
Plaintiff,
-against- VERIFIED ANSWER
THE VILLAGE OF ROCKVILLE CENTRE and
MICHAEL E. OSWALD,
Defendants
________________________________________Ç
The defendants, THE VILLAGE OF ROCKVILLE CENTRE and MICHAEL
E. OSWALD, by HAMMILL, O'BRIEN, CROUTIER, DEMPSEY, PENDER & KOEHLER,
P.C., as and for their Answer to the Verified Complaint of the plaintiff herein, respectfully
show to this Court and allege as follows:
1. Deny knowledge and information sufficient to form a belief as to the truth
"1"
of each and every allegation contained in paragraph of the Verified Complaint herein.
"2" "3"
2. Admit each and every allegation contained in paragraphs and of
the Verified Complaint herein.
3. Deny knowledge and information sufficient to form a belief as to the truth
"4"
of each and every allegation contained in paragraph of the Verified Complaint herein
and respectfully refer all questions of law to this Honorable Court.
ANSWERING THE FIRST CAUSE OF ACTION
"5"
4. In response to paragraph of the Complaint, defendants repeat and
reiterate each and every denial herein before made with the same force and effect as if
"1" "4"
same were more fully set forth herein in answer to paragraphs through of the
Verified Complaint herein.
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5. Deny knowledge and information sufficient to form a belief as to the truth
"6" "7"
of each and every allegation contained in paragraphs and of the Verified Complaint
herein except admit that a paper purporting to be a Notice of Claim was received by the
defendant and refer all questions relating to the legal sufficiency of said Notice to the Court
at time of trial.
6. Admit each and every allegation contained in paragraphs "8", "10","13",
"20" "22"
'15", "18", "19", and of the Verified Complaint herein.
7. Deny knowledge and information sufficient to form a belief as to the truth
"21"
of each and every allegation contained in paragraphs "9", "11", "12", "16", "17", of the
Verified Complaint herein and respectfully refers to all questions of law to this Honorable
Court.
8. Deny upon information and belief each and every allegation contained in
"26" "27"
paragraphs "14", and of the Verified Complaint herein.
9. Deny knowledge and information sufficient to form a belief as to the truth
"23" "24"
of each and every allegation contained in paragraphs and of the Verified
Complaint herein.
10. Deny upon information and belief each and every allegation contained in
"25"
paragraph of the Verified Complaint herein and respectfully refer all questions of law
to this Honorable Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
11.That the plaintiff's action is barred and the sole and exclusive remedy is
confined and limited to the benefits and provisions of New York State Insurance Law
§5104 due to plaintiff not sustaining a serious injury as that term is defined in Insurance
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NYSCEF DOC. NO. 18 RECEIVED
INDEX NYSCEF:
NO. 60767 11/09/2023
6/2023
FILED : NASSAU COUNTY CLERK 06/23/2023 01:26 PM|
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/23/2023
Law §5102(d).
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
12.lf it be determined that plaintiff failed to use a seatbelt, defendants plead
said fact as a complete and/or partial defense and in mitigation of damages.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
13.That if the plaintiff sustained any personal injuries or property damage,
such injuries or damages were caused by his/her own negligence, wholly or partially, and
without any negligence on the part of these answering defendants.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
14. Upon information and belief, any past or future costs or expenses
incurred or to be incurred by the plaintiff for medical care, dental care, custodial care,
property damage or rehabilitative services, loss of earnings or other economic loss, has
been or will with reasonable certainty be replaced 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 FIFTH AFFIRMATIVE DEFENSE
15.That if the plaintiff sustained any damages as alleged in the complaint,
such injuries or damages were caused, aggravated or contributed to by the plaintiffs
failure to take reasonable efforts to mitigate damages, and any award made to the plaintiff
must be reduced in such proportion and to the extent that the injuries complained of were
caused, aggravated or contributed to by said failure to mitigate damages.
WHEREFORE, the defendants, THE VILLAGE OF ROCKVILLE CENTRE
and MICHAEL E. OSWALD, demand judgment dismissing the Verified Complaint herein
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/23/2023
on the merits and if the plaintiff is found to have contributed to the accident, that any
damages be reduced in proportion to which the plaintiff is found to have contributed to the
accident and damage.
Dated: Syosset, New York
June 23, 2023
Yours, etc.,
Auchael }.Jende
MICHAEL J. PENDER, ESQ.
HAMMILL, O'BRIEN, CROUTIER,
DEMPSEY, PENDER & KOEHLER, P.C.
Attorneys for Defendants
THE VILLAGE OF ROCKVILLE CENTRE
and MICHAEL E. OSWALD
6851 Jericho Turnpike, Suite 250
Syosset, New York 11791
(516) 746-0707
File: 45-0184N
TO: LAW OFFICE OF COHEN & JAFFE, LLP
Attorneys for Plaintiff
2001 Marcus Avenue, Suite W295
Lake Success, New York 11042
(516) 358-6900
tcs(dtcohenjaffe.com
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Preview
FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/09/2023 EXHIBIT 2 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF FILED: DOC. NO. 18 NASSAU COUNTY CLERK RECEIVED INDEX NYSCEF: NO. 11/09/2023 607676/2023 06/23/2023 01:26 PM| NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/23/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ______________________________________Ç ROBIN ELLIS, Index: 607676/2023 Plaintiff, -against- VERIFIED ANSWER THE VILLAGE OF ROCKVILLE CENTRE and MICHAEL E. OSWALD, Defendants ________________________________________Ç The defendants, THE VILLAGE OF ROCKVILLE CENTRE and MICHAEL E. OSWALD, by HAMMILL, O'BRIEN, CROUTIER, DEMPSEY, PENDER & KOEHLER, P.C., as and for their Answer to the Verified Complaint of the plaintiff herein, respectfully show to this Court and allege as follows: 1. Deny knowledge and information sufficient to form a belief as to the truth "1" of each and every allegation contained in paragraph of the Verified Complaint herein. "2" "3" 2. Admit each and every allegation contained in paragraphs and of the Verified Complaint herein. 3. Deny knowledge and information sufficient to form a belief as to the truth "4" of each and every allegation contained in paragraph of the Verified Complaint herein and respectfully refer all questions of law to this Honorable Court. ANSWERING THE FIRST CAUSE OF ACTION "5" 4. In response to paragraph of the Complaint, defendants repeat and reiterate each and every denial herein before made with the same force and effect as if "1" "4" same were more fully set forth herein in answer to paragraphs through of the Verified Complaint herein. 3 3 of 26 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF FILED: DOC. NO. 18 NASSAU COUNTY CLERK 06/23/2023 01:26 RECEIVED INDEX NYSCEF: NO. 11/09/2023 607676/2023 PM| NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/23/2023 5. Deny knowledge and information sufficient to form a belief as to the truth "6" "7" of each and every allegation contained in paragraphs and of the Verified Complaint herein except admit that a paper purporting to be a Notice of Claim was received by the defendant and refer all questions relating to the legal sufficiency of said Notice to the Court at time of trial. 6. Admit each and every allegation contained in paragraphs "8", "10","13", "20" "22" '15", "18", "19", and of the Verified Complaint herein. 7. Deny knowledge and information sufficient to form a belief as to the truth "21" of each and every allegation contained in paragraphs "9", "11", "12", "16", "17", of the Verified Complaint herein and respectfully refers to all questions of law to this Honorable Court. 8. Deny upon information and belief each and every allegation contained in "26" "27" paragraphs "14", and of the Verified Complaint herein. 9. Deny knowledge and information sufficient to form a belief as to the truth "23" "24" of each and every allegation contained in paragraphs and of the Verified Complaint herein. 10. Deny upon information and belief each and every allegation contained in "25" paragraph of the Verified Complaint herein and respectfully refer all questions of law to this Honorable Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 11.That the plaintiff's action is barred and the sole and exclusive remedy is confined and limited to the benefits and provisions of New York State Insurance Law §5104 due to plaintiff not sustaining a serious injury as that term is defined in Insurance 4 4 of 26 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF DOC. NO. 18 RECEIVED INDEX NYSCEF: NO. 60767 11/09/2023 6/2023 FILED : NASSAU COUNTY CLERK 06/23/2023 01:26 PM| NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/23/2023 Law §5102(d). AS AND FOR A SECOND AFFIRMATIVE DEFENSE 12.lf it be determined that plaintiff failed to use a seatbelt, defendants plead said fact as a complete and/or partial defense and in mitigation of damages. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 13.That if the plaintiff sustained any personal injuries or property damage, such injuries or damages were caused by his/her own negligence, wholly or partially, and without any negligence on the part of these answering defendants. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 14. Upon information and belief, any past or future costs or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care, property damage or rehabilitative services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced 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 FIFTH AFFIRMATIVE DEFENSE 15.That if the plaintiff sustained any damages as alleged in the complaint, such injuries or damages were caused, aggravated or contributed to by the plaintiffs failure to take reasonable efforts to mitigate damages, and any award made to the plaintiff must be reduced in such proportion and to the extent that the injuries complained of were caused, aggravated or contributed to by said failure to mitigate damages. WHEREFORE, the defendants, THE VILLAGE OF ROCKVILLE CENTRE and MICHAEL E. OSWALD, demand judgment dismissing the Verified Complaint herein 5 5 of 26 FILED: NASSAU COUNTY CLERK 11/09/2023 03:10 PM INDEX NO. 607676/2023 NYSCEF FILED: DOC. NO. 18 NASSAU COUNTY CLERK 06/23/2023 01:26 RECEIVED INDEX NYSCEF: NO. 11/09/2023 607676/2023 PM) NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/23/2023 on the merits and if the plaintiff is found to have contributed to the accident, that any damages be reduced in proportion to which the plaintiff is found to have contributed to the accident and damage. Dated: Syosset, New York June 23, 2023 Yours, etc., Auchael }.Jende MICHAEL J. PENDER, ESQ. HAMMILL, O'BRIEN, CROUTIER, DEMPSEY, PENDER & KOEHLER, P.C. Attorneys for Defendants THE VILLAGE OF ROCKVILLE CENTRE and MICHAEL E. OSWALD 6851 Jericho Turnpike, Suite 250 Syosset, New York 11791 (516) 746-0707 File: 45-0184N TO: LAW OFFICE OF COHEN & JAFFE, LLP Attorneys for Plaintiff 2001 Marcus Avenue, Suite W295 Lake Success, New York 11042 (516) 358-6900 tcs(dtcohenjaffe.com 6 6 of 26