Preview
FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023
EXHIBIT B
FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023
INDEX No. 607750/2023
FILED : NASSAU COUNTY CLERK 06/14/2023 03:S/ PM)
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
-------------------------x
DORIS CESPEDES Index No.: 607750/2023
Plaintiff,
-against-
VERIFIED ANSWER
TO VERIFIED COMPLAINT
GUSTAVO LEMUS SAYES
Defendant.
------------------------x
The Defendant GUSTAVO LEMUS SAYES, (also referred to as "this answering
Defendant"), by attorney(s), McMAHON, MARTINE & GALLAGHER, LLP, as and for its
Verified Answer to the Plaintiff's Verified 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".
2. Admits each and every allegation thereof contained in paragraph: "2".
3. Denies knowledge or infonnation thereof sufficient to form a belief as to each and
every allegation contained in paragraph: "3", leaving all questions of law and
ultimate fact to the trial of this action.
4. Denies each and every allegation contained in paragraph: "4".
5. Admits each and every allegation thereof contained in paragraph: "5".
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FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023
INDEX NO. 607750/2023
|FILED : NASSAU COUNTY CLERK 06/14/2023 03: 57 PN|
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023
6. Denies knowledge or information thereof sufficient to form a belief as to each and
every allegation contained in paragraph: "6", 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", 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", leaving all questions of law and
ultimate fact to the trial of this action.
9. Denies knowledge or infounation thereof sufficient to form a belief as to each and
every allegation contained in paragraph: "9", 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", leaving all questions of law and
ultimate fact to the trial of this action.
11. Denies each and every allegation contained in paragraph: "11".
12. Denies each and every allegation contained in paragraph: "12".
13. Denies each and every allegation contained in paragraph: "13".
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
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FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023
INDEX No. 607750/2023
FILED : NASSAU COUNTY CLERK :
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023
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:
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.
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FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023
INDEX NO. 607750/2023
FILED : NASSAU COUNTY CLERK 06/14/2023 03:57 PM)
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023
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, demands judgment
dismissing the Plaintiff's Complaint, and further demand 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.
Dated: Brooklyn New York
Jmie 14, 2023 Yours, Etc.
McMAHON, MARTINE & GALLAGHER, LLP
Attorneys for Defendant
55 Washington Street, 7th Floor
Brooklyn, New York 1I201
(212) 747-1230
Our File No.: 799.4367
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FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023
INDEX NO. 607750/2023
E'ILED : NASSAU COUNTY CLERK 06/1472023 03:57 PN|
NYSC E F DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023
TO: SEE ATTACHED RIDER
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FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023
INDEX NO. 607750/2023
FILED : NASSAU COUNTY CLERK -0-6(14(2023 03:57 PM)
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023
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 VERIF1ED ANSWER TO VERIFIED 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 VERIFIED ANSWER TO VERIFIED
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
June 14, 2023
/s/4NTHONY MARTINE
ANTHONY MARTINE
McMAHON, MARTINE & GALLAGHER, LLP
Attorneys for Defendant
55 Washington Street, 7th Floor
Brooklyn, New York 11201
(212) 747-1230
Our File No.: 799.4367
6
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FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023
NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023
INDEX NO. 607750/2023
FILED : NASSAU COUNTY CLERK :
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023
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
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Preview
FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023 EXHIBIT B FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023 INDEX No. 607750/2023 FILED : NASSAU COUNTY CLERK 06/14/2023 03:S/ PM) NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------x DORIS CESPEDES Index No.: 607750/2023 Plaintiff, -against- VERIFIED ANSWER TO VERIFIED COMPLAINT GUSTAVO LEMUS SAYES Defendant. ------------------------x The Defendant GUSTAVO LEMUS SAYES, (also referred to as "this answering Defendant"), by attorney(s), McMAHON, MARTINE & GALLAGHER, LLP, as and for its Verified Answer to the Plaintiff's Verified 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". 2. Admits each and every allegation thereof contained in paragraph: "2". 3. Denies knowledge or infonnation thereof sufficient to form a belief as to each and every allegation contained in paragraph: "3", leaving all questions of law and ultimate fact to the trial of this action. 4. Denies each and every allegation contained in paragraph: "4". 5. Admits each and every allegation thereof contained in paragraph: "5". 1 of 8 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023 INDEX NO. 607750/2023 |FILED : NASSAU COUNTY CLERK 06/14/2023 03: 57 PN| NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023 6. Denies knowledge or information thereof sufficient to form a belief as to each and every allegation contained in paragraph: "6", 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", 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", leaving all questions of law and ultimate fact to the trial of this action. 9. Denies knowledge or infounation thereof sufficient to form a belief as to each and every allegation contained in paragraph: "9", 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", leaving all questions of law and ultimate fact to the trial of this action. 11. Denies each and every allegation contained in paragraph: "11". 12. Denies each and every allegation contained in paragraph: "12". 13. Denies each and every allegation contained in paragraph: "13". 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 2 2 of 8 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023 INDEX No. 607750/2023 FILED : NASSAU COUNTY CLERK : NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023 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: 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. 3 3 of 8 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023 INDEX NO. 607750/2023 FILED : NASSAU COUNTY CLERK 06/14/2023 03:57 PM) NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023 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, demands judgment dismissing the Plaintiff's Complaint, and further demand 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. Dated: Brooklyn New York Jmie 14, 2023 Yours, Etc. McMAHON, MARTINE & GALLAGHER, LLP Attorneys for Defendant 55 Washington Street, 7th Floor Brooklyn, New York 1I201 (212) 747-1230 Our File No.: 799.4367 4 4 of 8 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023 INDEX NO. 607750/2023 E'ILED : NASSAU COUNTY CLERK 06/1472023 03:57 PN| NYSC E F DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023 TO: SEE ATTACHED RIDER 5 5 of 8 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023 INDEX NO. 607750/2023 FILED : NASSAU COUNTY CLERK -0-6(14(2023 03:57 PM) NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023 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 VERIF1ED ANSWER TO VERIFIED 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 VERIFIED ANSWER TO VERIFIED 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 June 14, 2023 /s/4NTHONY MARTINE ANTHONY MARTINE McMAHON, MARTINE & GALLAGHER, LLP Attorneys for Defendant 55 Washington Street, 7th Floor Brooklyn, New York 11201 (212) 747-1230 Our File No.: 799.4367 6 6 of 8 FILED: NASSAU COUNTY CLERK 11/09/2023 09:45 AM INDEX NO. 607750/2023 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 11/09/2023 INDEX NO. 607750/2023 FILED : NASSAU COUNTY CLERK : NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/14/2023 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