Preview
FILED: KINGS COUNTY CLERK 12/28/2023 01:22 PM INDEX NO. 534919/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 12/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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MUHAMMAD AMER,
Index No. 534919/2023
Plaintiff, OSMOSE UTILITIES
SERVICES, INC.’S AND
-against- KEVIN CRUZ’S ANSWER
TO PLAINTIFF’S
OSMOSE UTILITIES SERVICES, INC. and COMPLAINT
KEVIN CRUZ
Defendants.
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Defendants, OSMOSE UTILITIES SERVICES, INC. and KEVIN CRUZ (“Answer
Defendants”) by and through their undersigned counsel, upon information and belief, hereby
respond to the allegations in Plaintiff’s Complaint and assert their affirmative defenses as follows:
AS AND FOR A FIRST CAUSE OF ACTION
ON BEHALF OF PLAINTIFF
1. Answering Defendants lack knowledge or information sufficient to form a belief as
to the truthfulness of the allegations set forth in Paragraphs “1” and “17” of Plaintiff’s Complaint,
and therefore, deny the same.
2. Answering Defendants admit the allegations contained in Paragraph “2” of the
Plaintiff’s Complaint.
3. Answering Defendants admit that Osmose is a Delaware corporation registered to
do business in the State of New York but deny the remaining allegations contained in Paragraphs
“3”, “4”, “5”, “6”, “7”, “8” and “9” of the Plaintiff’s Complaint and refer all questions of law to
this Honorable Court for a determination.
4. Answering Defendants deny the allegations set forth in Paragraphs “10”, “18”, “19”
and “21” of the Plaintiff’s Complaint.
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5. Answering Defendants admit that on or about August 26, 2023, Kevin Cruz was
operating a motor vehicle bearing Georgia license plate number XEN045 but deny the remaining
allegations contained in Paragraphs”11”, “12”, “15” and “16” of the Plaintiff’s Complaint and refer
all questions of law to this Honorable Court for a determination.
6. Answering Defendants admit that Kevin Cruz maintained the motor vehicle bearing
Georgia license plate number XEN045 but deny the remaining allegations contained in Paragraphs
“13” and “14” of the Plaintiff’s Complaint and refer all questions of law to this Honorable Court
for a determination.
7. Answering Defendants deny the allegations contained in Paragraphs “20”, “22”,
“23”, “24”, “25” and “26” of the Plaintiff’s Complaint and refer all questions of law to this
Honorable Court for a determination.
AFFIRMATIVE DEFENSES
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
8. The Complaint should be dismissed, in whole or in part, because it fails to state a
claim upon which relief can be granted.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
9. Plaintiff failed to join necessary and indispensable parties and, therefore, his
Complaint must be dismissed.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
10. Answering Defendants are not a proper party to this action.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
11. That any injuries sustained or suffered by Plaintiff, as stated in his Complaint,
were caused in whole or in part by the comparative negligence, fault and/or want of care of
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Plaintiff and the amount of damages awarded therein, if any, should be denied or diminished in
proportion to the amount of said culpable conduct and negligence of Plaintiff.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
12. If Plaintiff sustained damages as alleged, such damages occurred while Plaintiff
engaged in an activity into which they entered, knowing the hazard, risk and danger of the
activity and they assumed the risks incidental to and attending the activity.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
13. The damages complained of were proximately caused by intervening or
superseding or intentional conduct or negligence of third persons or entities other than these
Answering Defendants and by persons over whom these Answering Defendants exercised no
control. Therefore, Plaintiff is not entitled to recovery against these Answering Defendants in
this action.
AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE
14. Answering Defendants discharged, according to law and due care, each and every
duty, if any, which they may have owed Plaintiff.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
15. The injuries and damages alleged were caused by the culpable conduct or fault of
some third person or persons over whom these Answering Defendants neither had nor exercised
control.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
16. Plaintiff and/or other third parties’ contributory and/or comparative negligence was
the sole cause of the accident at issue.
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AS AND FOR AN TENTH AFFIRMATIVE DEFENSE
17. Answering Defendants breached no duty owed to Plaintiff.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
18. Plaintiff failed and/or refused to take reasonable steps to avoid, minimize and/or
mitigate their alleged injuries and/or damages, and therefore, the alleged injuries and damages,
if any, should be proportionately reduced or barred.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
19. Plaintiff’s causes of action may be barred, in whole or in part, by the principles of
release, laches, estoppel and waiver.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
20. In the event that Plaintiff recovers judgment against Answering Defendants, in
whole or in part, for the damages allegedly sustained by plaintiff, Answering Defendants are
entitled, pursuant to CPLR 4545 to a set-off or reduction for any damages awarded for economic
loss, and for any such past or future costs or expenses which were or will, with reasonable
certainty, be reimbursed or indemnified in whole or in part from any collateral source including,
but not limited to, insurance.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
21. That in the event any award is made to Plaintiff, the Answering Defendants are
entitled to a set-off with respect to the amounts of any and all payments made to plaintiff in
settlement of any claims arising out of the claims of damages or injuries alleged in this action
pursuant to N.Y. Obligations Law §15-108.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
22. The damages alleged to have been sustained by Plaintiff were caused in whole or
in part by the culpable conduct of Plaintiff or other parties without any culpable conduct on the
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part of Answering Defendants and, therefore, the amount of damages, if any, recovered by
Plaintiff should be reduced pursuant to CPLR Articles 14, 14-A and 16 in that proportion to
which the culpable conduct attributed to plaintiff or others bears to the culpable conduct which
caused said purported damages.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
23. Answering Defendants assert that in accordance with the limitations of joint and
several liability in Article 16 of the CPLR, they cannot be held liable in excess of their
proportionate share of liability for non-economic damages.
AS AND FOR AN SEVENTEENTH AFFIRMATIVE DEFENSE
24. That Plaintiff’s alleged causes of action in the Complaint, are time barred in that
this action was not commenced within the period of the applicable Statute of Limitations.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
25. Plaintiff lacks capacity to sue.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
26. Plaintiff’s claims are barred under the doctrines of res judicata and collateral
estoppel.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
27. Plaintiff’s claims are barred, enjoined and estopped by Plaintiff’s discharge in
bankruptcy.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
28. Any alleged negligent or culpable conduct of these Answering Defendants, none
being admitted, was so insubstantial as to be a proximate or substantial contributing cause of
Plaintiff’s alleged damages.
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AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
29. Plaintiff’s action is barred by Article 51 of the New York Insurance Law.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
30. Plaintiff’s alleged injuries do not meet the criteria of “serious injury” as defined in
New York State Insurance Law §5102(d) nor has Plaintiffs claimed damages greater than
$50,000. Therefore, pursuant to New York State Insurance Law §5104(a), Plaintiff’s cause of
action is barred.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
31. Any damages suffered by the Plaintiff were the result of culpable conduct or fault
of third parties for whose conduct this Answering Defendants is not legally responsible.
AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
32. Upon information and belief, all or part of the damages Plaintiff alleges he suffered,
were or will be paid, in whole or in part, from collateral sources and the Answering Defendants
are entitled to have the Court consider such collateral sources pursuant to CPLR § 4545.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
33. Upon information and belief, Plaintiff either failed to use, failed to use properly, or
misused the helmet as a result of which the alleged injuries were sustained or aggravated.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
34. Plaintiff assumed all risks attendant with their conduct and failed to act as
reasonable and prudent people with regard to their own safety and well-being.
AS AND FOR THE TWENTY-EIGHTH AFFIRMATIVE DEFENSE
35. To the extent they do not conflict with the preceding defenses, the Answering
Defendants assert those affirmative defenses raised by the other Defendants to this action.
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AS AND FOR THE TWENTY-NINTH AFFIRMATIVE DEFENSE
36. The Answering Defendants hereby give notice that they intend to rely on any other
defense that may become available or appear during the proceedings in this case including but
not limited to any spoliation of evidence and hereby reserves its right to amend their answer and
affirmative defenses to assert any such defense. Answering Defendants reserve their right to
assert any and all additional defenses as may be revealed by further investigation and discovery.
JURY DEMAND
37. The Answering Defendants demand a trial by jury on all issues so triable.
WHEREFORE, Defendants Osmose Utilities Services, Inc. and Kevin Cruz respectfully
requests this Court dismiss the Plaintiff’s Complaint with prejudice, together with costs and
disbursements of this action, including reasonable attorneys’ fees and further demands that the
ultimate rights of the Answering Defendants be determined in this action, and that the Answering
Defendants has judgment over and against Plaintiff for all or a part of any verdict or judgment
which may be obtained herein against the Answering Defendants, together with the costs and
disbursements of this action, and to award other relief as this Court deems just and proper.
Dated: New York, New York
December 28, 2023
Yours, etc.,
LITTLETON PARK JOYCE UGHETTA & KELLY LLP
By:
Michael H. Bai
Attorneys for Defendants Osmose Utilities Services,
Inc. and Kevin Cruz
39 Broadway, 29th Floor
New York, New York 10006
Tel. (212) 404-5777
michael.bai@littletonpark.com
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To: Michael L. Salomon, Esq.
Law Offices of Zemsky and Salomon, P.C.
Attorneys for Plaintiff
33 Front Street, Suite 207
Hempstead, New York 11550
(516) 485-3800
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Preview
FILED: KINGS COUNTY CLERK 12/28/2023 01:22 PM INDEX NO. 534919/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 12/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------------X MUHAMMAD AMER, Index No. 534919/2023 Plaintiff, OSMOSE UTILITIES SERVICES, INC.’S AND -against- KEVIN CRUZ’S ANSWER TO PLAINTIFF’S OSMOSE UTILITIES SERVICES, INC. and COMPLAINT KEVIN CRUZ Defendants. -----------------------------------------------------------------------X Defendants, OSMOSE UTILITIES SERVICES, INC. and KEVIN CRUZ (“Answer Defendants”) by and through their undersigned counsel, upon information and belief, hereby respond to the allegations in Plaintiff’s Complaint and assert their affirmative defenses as follows: AS AND FOR A FIRST CAUSE OF ACTION ON BEHALF OF PLAINTIFF 1. Answering Defendants lack knowledge or information sufficient to form a belief as to the truthfulness of the allegations set forth in Paragraphs “1” and “17” of Plaintiff’s Complaint, and therefore, deny the same. 2. Answering Defendants admit the allegations contained in Paragraph “2” of the Plaintiff’s Complaint. 3. Answering Defendants admit that Osmose is a Delaware corporation registered to do business in the State of New York but deny the remaining allegations contained in Paragraphs “3”, “4”, “5”, “6”, “7”, “8” and “9” of the Plaintiff’s Complaint and refer all questions of law to this Honorable Court for a determination. 4. Answering Defendants deny the allegations set forth in Paragraphs “10”, “18”, “19” and “21” of the Plaintiff’s Complaint. 1 of 8 FILED: KINGS COUNTY CLERK 12/28/2023 01:22 PM INDEX NO. 534919/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 12/28/2023 5. Answering Defendants admit that on or about August 26, 2023, Kevin Cruz was operating a motor vehicle bearing Georgia license plate number XEN045 but deny the remaining allegations contained in Paragraphs”11”, “12”, “15” and “16” of the Plaintiff’s Complaint and refer all questions of law to this Honorable Court for a determination. 6. Answering Defendants admit that Kevin Cruz maintained the motor vehicle bearing Georgia license plate number XEN045 but deny the remaining allegations contained in Paragraphs “13” and “14” of the Plaintiff’s Complaint and refer all questions of law to this Honorable Court for a determination. 7. Answering Defendants deny the allegations contained in Paragraphs “20”, “22”, “23”, “24”, “25” and “26” of the Plaintiff’s Complaint and refer all questions of law to this Honorable Court for a determination. AFFIRMATIVE DEFENSES AS AND FOR A FIRST AFFIRMATIVE DEFENSE 8. The Complaint should be dismissed, in whole or in part, because it fails to state a claim upon which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 9. Plaintiff failed to join necessary and indispensable parties and, therefore, his Complaint must be dismissed. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 10. Answering Defendants are not a proper party to this action. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 11. That any injuries sustained or suffered by Plaintiff, as stated in his Complaint, were caused in whole or in part by the comparative negligence, fault and/or want of care of 2 of 8 FILED: KINGS COUNTY CLERK 12/28/2023 01:22 PM INDEX NO. 534919/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 12/28/2023 Plaintiff and the amount of damages awarded therein, if any, should be denied or diminished in proportion to the amount of said culpable conduct and negligence of Plaintiff. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 12. If Plaintiff sustained damages as alleged, such damages occurred while Plaintiff engaged in an activity into which they entered, knowing the hazard, risk and danger of the activity and they assumed the risks incidental to and attending the activity. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 13. The damages complained of were proximately caused by intervening or superseding or intentional conduct or negligence of third persons or entities other than these Answering Defendants and by persons over whom these Answering Defendants exercised no control. Therefore, Plaintiff is not entitled to recovery against these Answering Defendants in this action. AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE 14. Answering Defendants discharged, according to law and due care, each and every duty, if any, which they may have owed Plaintiff. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 15. The injuries and damages alleged were caused by the culpable conduct or fault of some third person or persons over whom these Answering Defendants neither had nor exercised control. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 16. Plaintiff and/or other third parties’ contributory and/or comparative negligence was the sole cause of the accident at issue. 3 of 8 FILED: KINGS COUNTY CLERK 12/28/2023 01:22 PM INDEX NO. 534919/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 12/28/2023 AS AND FOR AN TENTH AFFIRMATIVE DEFENSE 17. Answering Defendants breached no duty owed to Plaintiff. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 18. Plaintiff failed and/or refused to take reasonable steps to avoid, minimize and/or mitigate their alleged injuries and/or damages, and therefore, the alleged injuries and damages, if any, should be proportionately reduced or barred. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 19. Plaintiff’s causes of action may be barred, in whole or in part, by the principles of release, laches, estoppel and waiver. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 20. In the event that Plaintiff recovers judgment against Answering Defendants, in whole or in part, for the damages allegedly sustained by plaintiff, Answering Defendants are entitled, pursuant to CPLR 4545 to a set-off or reduction for any damages awarded for economic loss, and for any such past or future costs or expenses which were or will, with reasonable certainty, be reimbursed or indemnified in whole or in part from any collateral source including, but not limited to, insurance. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 21. That in the event any award is made to Plaintiff, the Answering Defendants are entitled to a set-off with respect to the amounts of any and all payments made to plaintiff in settlement of any claims arising out of the claims of damages or injuries alleged in this action pursuant to N.Y. Obligations Law §15-108. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 22. The damages alleged to have been sustained by Plaintiff were caused in whole or in part by the culpable conduct of Plaintiff or other parties without any culpable conduct on the 4 of 8 FILED: KINGS COUNTY CLERK 12/28/2023 01:22 PM INDEX NO. 534919/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 12/28/2023 part of Answering Defendants and, therefore, the amount of damages, if any, recovered by Plaintiff should be reduced pursuant to CPLR Articles 14, 14-A and 16 in that proportion to which the culpable conduct attributed to plaintiff or others bears to the culpable conduct which caused said purported damages. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 23. Answering Defendants assert that in accordance with the limitations of joint and several liability in Article 16 of the CPLR, they cannot be held liable in excess of their proportionate share of liability for non-economic damages. AS AND FOR AN SEVENTEENTH AFFIRMATIVE DEFENSE 24. That Plaintiff’s alleged causes of action in the Complaint, are time barred in that this action was not commenced within the period of the applicable Statute of Limitations. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 25. Plaintiff lacks capacity to sue. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 26. Plaintiff’s claims are barred under the doctrines of res judicata and collateral estoppel. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 27. Plaintiff’s claims are barred, enjoined and estopped by Plaintiff’s discharge in bankruptcy. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 28. Any alleged negligent or culpable conduct of these Answering Defendants, none being admitted, was so insubstantial as to be a proximate or substantial contributing cause of Plaintiff’s alleged damages. 5 of 8 FILED: KINGS COUNTY CLERK 12/28/2023 01:22 PM INDEX NO. 534919/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 12/28/2023 AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 29. Plaintiff’s action is barred by Article 51 of the New York Insurance Law. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 30. Plaintiff’s alleged injuries do not meet the criteria of “serious injury” as defined in New York State Insurance Law §5102(d) nor has Plaintiffs claimed damages greater than $50,000. Therefore, pursuant to New York State Insurance Law §5104(a), Plaintiff’s cause of action is barred. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 31. Any damages suffered by the Plaintiff were the result of culpable conduct or fault of third parties for whose conduct this Answering Defendants is not legally responsible. AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 32. Upon information and belief, all or part of the damages Plaintiff alleges he suffered, were or will be paid, in whole or in part, from collateral sources and the Answering Defendants are entitled to have the Court consider such collateral sources pursuant to CPLR § 4545. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 33. Upon information and belief, Plaintiff either failed to use, failed to use properly, or misused the helmet as a result of which the alleged injuries were sustained or aggravated. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 34. Plaintiff assumed all risks attendant with their conduct and failed to act as reasonable and prudent people with regard to their own safety and well-being. AS AND FOR THE TWENTY-EIGHTH AFFIRMATIVE DEFENSE 35. To the extent they do not conflict with the preceding defenses, the Answering Defendants assert those affirmative defenses raised by the other Defendants to this action. 6 of 8 FILED: KINGS COUNTY CLERK 12/28/2023 01:22 PM INDEX NO. 534919/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 12/28/2023 AS AND FOR THE TWENTY-NINTH AFFIRMATIVE DEFENSE 36. The Answering Defendants hereby give notice that they intend to rely on any other defense that may become available or appear during the proceedings in this case including but not limited to any spoliation of evidence and hereby reserves its right to amend their answer and affirmative defenses to assert any such defense. Answering Defendants reserve their right to assert any and all additional defenses as may be revealed by further investigation and discovery. JURY DEMAND 37. The Answering Defendants demand a trial by jury on all issues so triable. WHEREFORE, Defendants Osmose Utilities Services, Inc. and Kevin Cruz respectfully requests this Court dismiss the Plaintiff’s Complaint with prejudice, together with costs and disbursements of this action, including reasonable attorneys’ fees and further demands that the ultimate rights of the Answering Defendants be determined in this action, and that the Answering Defendants has judgment over and against Plaintiff for all or a part of any verdict or judgment which may be obtained herein against the Answering Defendants, together with the costs and disbursements of this action, and to award other relief as this Court deems just and proper. Dated: New York, New York December 28, 2023 Yours, etc., LITTLETON PARK JOYCE UGHETTA & KELLY LLP By: Michael H. Bai Attorneys for Defendants Osmose Utilities Services, Inc. and Kevin Cruz 39 Broadway, 29th Floor New York, New York 10006 Tel. (212) 404-5777 michael.bai@littletonpark.com 7 of 8 FILED: KINGS COUNTY CLERK 12/28/2023 01:22 PM INDEX NO. 534919/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 12/28/2023 To: Michael L. Salomon, Esq. Law Offices of Zemsky and Salomon, P.C. Attorneys for Plaintiff 33 Front Street, Suite 207 Hempstead, New York 11550 (516) 485-3800 8 of 8