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FILED: NASSAU COUNTY CLERK 10/27/2023 02:24 PM INDEX NO. 607750/2023
NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------------------------------------------------------------x
DORIS CESPEDES Index No.: 607750/2023
Plaintiff,
-against- ANSWER TO AMENDED
COMPLAINT
GUSTAVO LEMUS SAYES
Defendant.
------------------------------------------------------------x
The Defendant GUSTAVO LEMUS SAYES, (also referred to as “this answering
Defendant”), by his attorney(s), McMAHON, MARTINE & GALLAGHER, LLP, as and for its
Answer to the Plaintiff’s Amended Complaint, respectfully alleges as follows upon information
and belief:
1. Denies knowledge or information thereof sufficient to form a belief as to each and
every allegation contained in paragraph: "1" of the Amended Complaint.
2. Admits each and every allegation thereof contained in paragraph: "2" of the
Amended Complaint.
3. Denies knowledge or information thereof sufficient to form a belief as to each and
every allegation contained in paragraph: "3" of the Amended Complaint, leaving
all questions of law and ultimate fact to the trial of this action.
4. Admits each and every allegation thereof contained in paragraph: "4" of the
Amended Complaint.
5. Admits each and every allegation thereof contained in paragraph: "5" of the
Amended Complaint.
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6. Denies knowledge or information thereof sufficient to form a belief as to each and
every allegation contained in paragraph: "6" of the Amended Complaint, leaving
all questions of law and ultimate fact to the trial of this action.
7. Denies knowledge or information thereof sufficient to form a belief as to each and
every allegation contained in paragraph: "7" of the Amended Complaint, leaving
all questions of law and ultimate fact to the trial of this action.
8. Denies knowledge or information thereof sufficient to form a belief as to each and
every allegation contained in paragraph: "8" of the Amended Complaint, leaving
all questions of law and ultimate fact to the trial of this action.
9. Denies knowledge or information thereof sufficient to form a belief as to each and
every allegation contained in paragraph: "9" of the Amended Complaint, leaving
all questions of law and ultimate fact to the trial of this action.
10. Denies knowledge or information thereof sufficient to form a belief as to each and
every allegation contained in paragraph: "10" of the Amended Complaint, leaving
all questions of law and ultimate fact to the trial of this action.
11. Denies each and every allegation contained in paragraph: "11" of the Amended
Complaint.
12. Denies each and every allegation contained in paragraph: "12" of the Amended
Complaint.
13. Denies each and every allegation contained in paragraph: "13" of the Amended
Complaint.
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE:
Upon information and belief, this answering Defendant was faced with a sudden condition
which could not have been reasonably anticipated, and which this answering Defendant did not
cause or contribute to by their own negligence, and the answering Defendant’s conduct in response
to the emergency was that of a reasonably prudent person.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE:
That the Plaintiff was guilty of culpable conduct, including contributory negligence and
assumption of the risk, which said conduct bars Plaintiff’s right of recovery or diminishes
Plaintiff’s right of recovery in proportion to which the said culpable conduct, negligence and/or
assumption of the risk attributable to Plaintiff bears to the cause of the damages, if any, or the
occurrence complained of by the Plaintiff.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE:
That the Plaintiff’s injuries were caused in whole or in part by the culpable conduct
attributable to third parties, and the amount of damages otherwise recoverable shall be diminished
in the proportion to which the culpable conduct attributable to third parties bears to the cause of
the damages, if any, of the occurrence complained of by Plaintiff, pursuant to CPLR 1601.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:
That allegations set forth in the Complaint are governed by Article 50 of the Civil Practice
Law and Rules.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:
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That Plaintiff did not suffer any serious injury as defined by Section§5102 of the Insurance
Law of the State of New York nor has the Plaintiff sustained any economic loss or non-economic
loss greater than the basic economic loss as defined in Sections §5102 and 5104 of the Insurance
Law of the State of New York.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:
In the event that any person or entity liable or claimed to be liable for the injury alleged in
this action has been given or may hereafter be given a release or covenant not to sue, this answering
Defendant is or will be entitled to protection under General Obligations Law § 15-108 and the
corresponding reduction of any damages which may be determined to be due against this
answering Defendant.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE:
Plaintiff’s Complaint is barred in whole or in part by applicable Statute of Limitations.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE:
That Plaintiff failed to use or misused seat belts, and such failure contributed to and/or
exacerbated Plaintiff alleged injuries.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE:
Plaintiff failed to mitigate damages.
WHEREFORE, the Defendant GUSTAVO LEMUS SAYES, judgment dismissing the
Plaintiff’s Amended Complaint, and further demands apportionment of responsibility for the
alleged occurrence as found by the Court or jury; together with the costs, disbursements, legal and
investigation fees incurred in the defense of this action.
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Dated: Brooklyn New York
October 27, 2023 Yours, Etc.
McMAHON, MARTINE & GALLAGHER, LLP
Attorneys for Defendant GUSTAVO LEMUS
SAYES
55 Washington Street, 7th Floor
Brooklyn, New York 11201
(212) 747-1230
Our File No.: 799.4367
TO: SEE ATTACHED RIDER
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STATE OF NEW YORK ) ATTORNEY’S VERIFICATION
)SS.:
COUNTY OF NASSAU )
I, the undersigned, an attorney admitted to practice in the Courts of the State of New
York state that I am a member of the law firm of McMAHON, MARTINE & GALLAGHER,
LLP, the attorneys for Defendant GUSTAVO LEMUS SAYES in the above-entitled action.
I have read the foregoing ANSWER TO AMENDED COMPLAINT and know the
contents thereof; it is true to my knowledge, except as to the matters therein stated to be alleged
upon information and belief, and as to those matters, I believe it to be true. The source of my
information and the grounds of my belief are statements, letters, and reports examined by me
relative to the matters referred to in the annexed ANSWER TO AMENDED COMPLAINT.
The reason this verification is made by me instead of by Defendant is that I am in
possession of the material information on which this action is based.
I affirm that the above is true under the penalties of perjury, pursuant to Rule 2106 of the
Civil Practice Law and Rules.
Dated: Brooklyn New York
October 27, 2023
ANTHONY MARTINE
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RIDER
LAW OFFICE OF COHEN & JAFFE, LLP
Attorneys for Plaintiff
2001 Marcus Avenue - Suite W295
Lake Success, New York 11042
Attn: Caitlin Mcnaughton, Esq.
(516) 358-6900
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NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU Index #607750/2023
DORIS CESPEDES
Plaintiff,
-against-
GUSTAVO LEMUS SAYES
Defendant.
ANSWER TO AMENDED COMPLAINT
McMAHON, MARTINE & GALLAGHER, LLP
ATTORNEYS FOR DEFENDANT GUSTAVO LEMUS SAYES
55 WASHINGTON STREET, SUITE 720
BROOKLYN, N.Y. 11201
(212) 747-1230
All Documents Contained Herein Certified Pursuant to Rule 130 By: ANTHONY MARTINE
ANTHONY MARTINE
STATE OF NEW YORK, COUNTY OF NASSAU ss: (If more than one box check - indicate after names type of service used)
I, Anthony Martine , being sworn, say: I am not a party to the action, am over 18 years of age and
reside at 55 Washington Street, Brooklyn, NY On October 26, 2023, I served the within ANSWER
TO AMENDED COMPLAINT
_X___ by transmitting the papers by electronic means through the New York State E-File System.
I received an email from the New York State E-File System indicating that the transmission
was received and delivered to all counsel in the action.
TO: SEE RIDER ATTACHED
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Preview
FILED: NASSAU COUNTY CLERK 10/27/2023 02:24 PM INDEX NO. 607750/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------x DORIS CESPEDES Index No.: 607750/2023 Plaintiff, -against- ANSWER TO AMENDED COMPLAINT GUSTAVO LEMUS SAYES Defendant. ------------------------------------------------------------x The Defendant GUSTAVO LEMUS SAYES, (also referred to as “this answering Defendant”), by his attorney(s), McMAHON, MARTINE & GALLAGHER, LLP, as and for its Answer to the Plaintiff’s Amended Complaint, respectfully alleges as follows upon information and belief: 1. Denies knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph: "1" of the Amended Complaint. 2. Admits each and every allegation thereof contained in paragraph: "2" of the Amended Complaint. 3. Denies knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph: "3" of the Amended Complaint, leaving all questions of law and ultimate fact to the trial of this action. 4. Admits each and every allegation thereof contained in paragraph: "4" of the Amended Complaint. 5. Admits each and every allegation thereof contained in paragraph: "5" of the Amended Complaint. 1 of 8 FILED: NASSAU COUNTY CLERK 10/27/2023 02:24 PM INDEX NO. 607750/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 6. Denies knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph: "6" of the Amended Complaint, leaving all questions of law and ultimate fact to the trial of this action. 7. Denies knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph: "7" of the Amended Complaint, leaving all questions of law and ultimate fact to the trial of this action. 8. Denies knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph: "8" of the Amended Complaint, leaving all questions of law and ultimate fact to the trial of this action. 9. Denies knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph: "9" of the Amended Complaint, leaving all questions of law and ultimate fact to the trial of this action. 10. Denies knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph: "10" of the Amended Complaint, leaving all questions of law and ultimate fact to the trial of this action. 11. Denies each and every allegation contained in paragraph: "11" of the Amended Complaint. 12. Denies each and every allegation contained in paragraph: "12" of the Amended Complaint. 13. Denies each and every allegation contained in paragraph: "13" of the Amended Complaint. 2 2 of 8 FILED: NASSAU COUNTY CLERK 10/27/2023 02:24 PM INDEX NO. 607750/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 AS AND FOR A FIRST AFFIRMATIVE DEFENSE: Upon information and belief, this answering Defendant was faced with a sudden condition which could not have been reasonably anticipated, and which this answering Defendant did not cause or contribute to by their own negligence, and the answering Defendant’s conduct in response to the emergency was that of a reasonably prudent person. AS AND FOR A SECOND AFFIRMATIVE DEFENSE: That the Plaintiff was guilty of culpable conduct, including contributory negligence and assumption of the risk, which said conduct bars Plaintiff’s right of recovery or diminishes Plaintiff’s right of recovery in proportion to which the said culpable conduct, negligence and/or assumption of the risk attributable to Plaintiff bears to the cause of the damages, if any, or the occurrence complained of by the Plaintiff. AS AND FOR A THIRD AFFIRMATIVE DEFENSE: That the Plaintiff’s injuries were caused in whole or in part by the culpable conduct attributable to third parties, and the amount of damages otherwise recoverable shall be diminished in the proportion to which the culpable conduct attributable to third parties bears to the cause of the damages, if any, of the occurrence complained of by Plaintiff, pursuant to CPLR 1601. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: That allegations set forth in the Complaint are governed by Article 50 of the Civil Practice Law and Rules. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: 3 3 of 8 FILED: NASSAU COUNTY CLERK 10/27/2023 02:24 PM INDEX NO. 607750/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 That Plaintiff did not suffer any serious injury as defined by Section§5102 of the Insurance Law of the State of New York nor has the Plaintiff sustained any economic loss or non-economic loss greater than the basic economic loss as defined in Sections §5102 and 5104 of the Insurance Law of the State of New York. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE: In the event that any person or entity liable or claimed to be liable for the injury alleged in this action has been given or may hereafter be given a release or covenant not to sue, this answering Defendant is or will be entitled to protection under General Obligations Law § 15-108 and the corresponding reduction of any damages which may be determined to be due against this answering Defendant. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE: Plaintiff’s Complaint is barred in whole or in part by applicable Statute of Limitations. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE: That Plaintiff failed to use or misused seat belts, and such failure contributed to and/or exacerbated Plaintiff alleged injuries. AS AND FOR A NINTH AFFIRMATIVE DEFENSE: Plaintiff failed to mitigate damages. WHEREFORE, the Defendant GUSTAVO LEMUS SAYES, judgment dismissing the Plaintiff’s Amended Complaint, and further demands apportionment of responsibility for the alleged occurrence as found by the Court or jury; together with the costs, disbursements, legal and investigation fees incurred in the defense of this action. 4 4 of 8 FILED: NASSAU COUNTY CLERK 10/27/2023 02:24 PM INDEX NO. 607750/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 Dated: Brooklyn New York October 27, 2023 Yours, Etc. McMAHON, MARTINE & GALLAGHER, LLP Attorneys for Defendant GUSTAVO LEMUS SAYES 55 Washington Street, 7th Floor Brooklyn, New York 11201 (212) 747-1230 Our File No.: 799.4367 TO: SEE ATTACHED RIDER 5 5 of 8 FILED: NASSAU COUNTY CLERK 10/27/2023 02:24 PM INDEX NO. 607750/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 STATE OF NEW YORK ) ATTORNEY’S VERIFICATION )SS.: COUNTY OF NASSAU ) I, the undersigned, an attorney admitted to practice in the Courts of the State of New York state that I am a member of the law firm of McMAHON, MARTINE & GALLAGHER, LLP, the attorneys for Defendant GUSTAVO LEMUS SAYES in the above-entitled action. I have read the foregoing ANSWER TO AMENDED COMPLAINT and know the contents thereof; it is true to my knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters, I believe it to be true. The source of my information and the grounds of my belief are statements, letters, and reports examined by me relative to the matters referred to in the annexed ANSWER TO AMENDED COMPLAINT. The reason this verification is made by me instead of by Defendant is that I am in possession of the material information on which this action is based. I affirm that the above is true under the penalties of perjury, pursuant to Rule 2106 of the Civil Practice Law and Rules. Dated: Brooklyn New York October 27, 2023 ANTHONY MARTINE 6 6 of 8 FILED: NASSAU COUNTY CLERK 10/27/2023 02:24 PM INDEX NO. 607750/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 RIDER LAW OFFICE OF COHEN & JAFFE, LLP Attorneys for Plaintiff 2001 Marcus Avenue - Suite W295 Lake Success, New York 11042 Attn: Caitlin Mcnaughton, Esq. (516) 358-6900 7 7 of 8 FILED: NASSAU COUNTY CLERK 10/27/2023 02:24 PM INDEX NO. 607750/2023 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 10/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Index #607750/2023 DORIS CESPEDES Plaintiff, -against- GUSTAVO LEMUS SAYES Defendant. ANSWER TO AMENDED COMPLAINT McMAHON, MARTINE & GALLAGHER, LLP ATTORNEYS FOR DEFENDANT GUSTAVO LEMUS SAYES 55 WASHINGTON STREET, SUITE 720 BROOKLYN, N.Y. 11201 (212) 747-1230 All Documents Contained Herein Certified Pursuant to Rule 130 By: ANTHONY MARTINE ANTHONY MARTINE STATE OF NEW YORK, COUNTY OF NASSAU ss: (If more than one box check - indicate after names type of service used) I, Anthony Martine , being sworn, say: I am not a party to the action, am over 18 years of age and reside at 55 Washington Street, Brooklyn, NY On October 26, 2023, I served the within ANSWER TO AMENDED COMPLAINT _X___ by transmitting the papers by electronic means through the New York State E-File System. I received an email from the New York State E-File System indicating that the transmission was received and delivered to all counsel in the action. TO: SEE RIDER ATTACHED 8 8 of 8