Preview
FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF MADISON
FRANK PENNISI, TRACI PENNISI,
Plaintiffs, ANSWER
vs. Index No. EF2023-1739
ONEIDA PEDIATRIC GROUP, P.C.,
BIG EARL’S TREE STUMP REMOVAL, INC.,
Defendants.
Defendant, BIG EARL’S TREE STUMP REMOVAL, INC, by and through its
attorneys, Smith, Sovik, Kendrick & Sugnet, P.C., answer Plaintiffs’ Complaint as
follows:
1. DENIES ANY KNOWLEDGE OR INFORMATION sufficient to
form a belief as to the truth of the allegations contained in paragraphs 1, 2, 4, 5, 6, 7
and 10 of Plaintiffs’ Complaint.
2. ADMITS the allegations contained in paragraph 3 of Plaintiffs’
Complaint.
3. DENIES IN THE FORM ALLEGED the allegations contained in
paragraphs 8 and 9 of Plaintiffs’ Complaint.
4. DENIES the allegations contained in paragraph 11 of Plaintiffs’
Complaint insofar as to the allegations pertain to Defendant BIG EARL’S TREE
STUMP REMOVAL, INC. Otherwise, Defendant DENIES ANY KNOWLEDGE
OR INFORMATION sufficient to form a belief as to the truth of the allegations
{S1974246.1}
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FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024
contained in paragraph 11 of Plaintiffs’ Complaint
5. DENIES the allegations contained in paragraphs 12, 13 and 15 of
Plaintiffs’ Complaint.
6. The allegations contained in paragraph 14 of Plaintiffs’ Complaint call
for a conclusion of law and therefore there is no response required, otherwise
Defendant DENIES IN THE FORM ALLEGED the allegations contained in
paragraph 14 of Plaintiffs’ Complaint.
FOR A SECOND, SEPARATE AND DISTINCT
CAUSE OF ACTION
7. In response to paragraph 16 of Plaintiffs’ Complaint, Defendant
restates and incorporates by reference their answers to the allegations contained in
paragraphs 1 through 15 of the Complaint.
8. DENIES the allegations contained in paragraph 17 of Plaintiffs’
Complaint.
GENERAL DENIAL
9. Defendants DENY all other allegations not specifically admitted
herein.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
10. The Complaint fails to state a cause of action upon which relief may be
granted.
{S1974246.1}
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FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
11. This Court does not have jurisdiction of this action by reason of
Plaintiffs’ failure to obtain or have personal jurisdiction of this answering
Defendant.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
12. Plaintiffs’ action is barred by reason of the expiration of the applicable
statute of limitations.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
13. Plaintiffs are barred from recovery based on the doctrine of express
assumption of risk.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
14. Upon information and belief, an open and obvious condition existed
and, as such, no liability for this claim exists.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
15. That the relative culpability of each person who is or may be liable to
contribute any liability for the damages alleged by the Plaintiffs in this action
should be determined in accordance with the decisional and statutory law of the
State of New York, in such cases made and provided, and the equitable share of
each person liable for contribution should be determined and apportioned in
accordance with the relative culpability of each person, if any, pursuant to Article
14 of the Civil Practice Law and Rules.
{S1974246.1}
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FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
16. That pursuant to §4545 and other applicable sections of the CPLR, the
Defendant is entitled to a set off against the amount of any verdict of any monies
collected from a collateral source of payment as set forth in said law.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
17. In the event of any prior or subsequent settlement entered into
between Plaintiffs and another person or persons liable, or claimed to be liable, in
tort for the same injury complained of herein, Defendant asserts all relevant
provisions of General Obligations Law §15-108.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
18. To the extent that the damages of Plaintiffs, if any, were caused or
contributed to, in whole or in part, by intervening and superseding causative
factors, the claims of Plaintiffs against the answering Defendant should be barred.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
19. Plaintiffs failed to mitigate their damages.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
20. Upon information and belief, Defendant has neither actual nor
constructive notice of the alleged defective or dangerous condition referenced in the
Complaint and as such no liability for Plaintiffs’ claims exists.
{S1974246.1}
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FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024
AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT ONEIDA
PEDIATRIC GROUP, P.C., DEFENDANT BIG EARL’S TREE STUMP
REMOVAL, INC., ALLEGES UPON INFORMATION AND BELIEF:
21. If Plaintiffs recover against Defendant, BIG EARL’S TREE STUMP
REMOVAL, INC, their liability will have arisen in whole or in part because of the
negligence, carelessness and/or breach of contract of Co-Defendant who will be
liable to Defendant for all or part of any recovery.
22. By reason of the foregoing, if Plaintiffs recover a judgement against
Defendant BIG EARL’S TREE STUMP REMOVAL, INC, Defendant will have a
claim against Defendant ONEIDA PEDIATRIC GROUP, P.C. for damages for
contribution this action.
WHEREFORE, Defendant BIG EARL’S TREE STUMP REMOVAL, INC.
demands judgment dismissing Plaintiffs’ Complaint as against them, together with
the costs and disbursements of this action or, in the alternative, for any share of
liability as may be apportioned by the triers of the facts and for such other and
further relief as may be just and proper, together with the costs and disbursements
of this action.
{S1974246.1}
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FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024
Dated: January 30, 2024 SMITH, SOVIK, KENDRICK & SUGNET, P.C.
By: _______________________________________
Matthew P. Germain, Esq.
Attorneys for Big Earl’s Tree
Stump Removal, Inc.
250 South Clinton Street, Suite 600
Syracuse, New York 13202
Telephone: (315) 474-2911
MGermain@smithsovik.com
TO: Catherine B. Dempsey, Esq.
The Dempsey Firm, PLLC
Attorneys for Plaintiff
561 Franklin Street
Buffalo, New York 14202
Telephone: (716) 885-8645
cdempsey@thedempseyfirm.com
CC: Thomas P. Carafa, Esq.
Law Offices of John Wallace
Attorneys for Defendant
Oneida Pediatric Group, P.C.
301 Plainfield Road, Suite 210
Syracuse, New York 13212
Telephone: (315) 424-7214
TCarafa@travelers.com
{S1974246.1}
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Preview
FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF MADISON FRANK PENNISI, TRACI PENNISI, Plaintiffs, ANSWER vs. Index No. EF2023-1739 ONEIDA PEDIATRIC GROUP, P.C., BIG EARL’S TREE STUMP REMOVAL, INC., Defendants. Defendant, BIG EARL’S TREE STUMP REMOVAL, INC, by and through its attorneys, Smith, Sovik, Kendrick & Sugnet, P.C., answer Plaintiffs’ Complaint as follows: 1. DENIES ANY KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth of the allegations contained in paragraphs 1, 2, 4, 5, 6, 7 and 10 of Plaintiffs’ Complaint. 2. ADMITS the allegations contained in paragraph 3 of Plaintiffs’ Complaint. 3. DENIES IN THE FORM ALLEGED the allegations contained in paragraphs 8 and 9 of Plaintiffs’ Complaint. 4. DENIES the allegations contained in paragraph 11 of Plaintiffs’ Complaint insofar as to the allegations pertain to Defendant BIG EARL’S TREE STUMP REMOVAL, INC. Otherwise, Defendant DENIES ANY KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth of the allegations {S1974246.1} 1 of 6 FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024 contained in paragraph 11 of Plaintiffs’ Complaint 5. DENIES the allegations contained in paragraphs 12, 13 and 15 of Plaintiffs’ Complaint. 6. The allegations contained in paragraph 14 of Plaintiffs’ Complaint call for a conclusion of law and therefore there is no response required, otherwise Defendant DENIES IN THE FORM ALLEGED the allegations contained in paragraph 14 of Plaintiffs’ Complaint. FOR A SECOND, SEPARATE AND DISTINCT CAUSE OF ACTION 7. In response to paragraph 16 of Plaintiffs’ Complaint, Defendant restates and incorporates by reference their answers to the allegations contained in paragraphs 1 through 15 of the Complaint. 8. DENIES the allegations contained in paragraph 17 of Plaintiffs’ Complaint. GENERAL DENIAL 9. Defendants DENY all other allegations not specifically admitted herein. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 10. The Complaint fails to state a cause of action upon which relief may be granted. {S1974246.1} 2 of 6 FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024 AS AND FOR A SECOND AFFIRMATIVE DEFENSE 11. This Court does not have jurisdiction of this action by reason of Plaintiffs’ failure to obtain or have personal jurisdiction of this answering Defendant. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 12. Plaintiffs’ action is barred by reason of the expiration of the applicable statute of limitations. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 13. Plaintiffs are barred from recovery based on the doctrine of express assumption of risk. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 14. Upon information and belief, an open and obvious condition existed and, as such, no liability for this claim exists. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 15. That the relative culpability of each person who is or may be liable to contribute any liability for the damages alleged by the Plaintiffs in this action should be determined in accordance with the decisional and statutory law of the State of New York, in such cases made and provided, and the equitable share of each person liable for contribution should be determined and apportioned in accordance with the relative culpability of each person, if any, pursuant to Article 14 of the Civil Practice Law and Rules. {S1974246.1} 3 of 6 FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024 AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 16. That pursuant to §4545 and other applicable sections of the CPLR, the Defendant is entitled to a set off against the amount of any verdict of any monies collected from a collateral source of payment as set forth in said law. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 17. In the event of any prior or subsequent settlement entered into between Plaintiffs and another person or persons liable, or claimed to be liable, in tort for the same injury complained of herein, Defendant asserts all relevant provisions of General Obligations Law §15-108. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 18. To the extent that the damages of Plaintiffs, if any, were caused or contributed to, in whole or in part, by intervening and superseding causative factors, the claims of Plaintiffs against the answering Defendant should be barred. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 19. Plaintiffs failed to mitigate their damages. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 20. Upon information and belief, Defendant has neither actual nor constructive notice of the alleged defective or dangerous condition referenced in the Complaint and as such no liability for Plaintiffs’ claims exists. {S1974246.1} 4 of 6 FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024 AS AND FOR A CROSS-CLAIM AGAINST DEFENDANT ONEIDA PEDIATRIC GROUP, P.C., DEFENDANT BIG EARL’S TREE STUMP REMOVAL, INC., ALLEGES UPON INFORMATION AND BELIEF: 21. If Plaintiffs recover against Defendant, BIG EARL’S TREE STUMP REMOVAL, INC, their liability will have arisen in whole or in part because of the negligence, carelessness and/or breach of contract of Co-Defendant who will be liable to Defendant for all or part of any recovery. 22. By reason of the foregoing, if Plaintiffs recover a judgement against Defendant BIG EARL’S TREE STUMP REMOVAL, INC, Defendant will have a claim against Defendant ONEIDA PEDIATRIC GROUP, P.C. for damages for contribution this action. WHEREFORE, Defendant BIG EARL’S TREE STUMP REMOVAL, INC. demands judgment dismissing Plaintiffs’ Complaint as against them, together with the costs and disbursements of this action or, in the alternative, for any share of liability as may be apportioned by the triers of the facts and for such other and further relief as may be just and proper, together with the costs and disbursements of this action. {S1974246.1} 5 of 6 FILED: MADISON COUNTY CLERK 01/30/2024 11:20 AM INDEX NO. EF2023-1739 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/30/2024 Dated: January 30, 2024 SMITH, SOVIK, KENDRICK & SUGNET, P.C. By: _______________________________________ Matthew P. Germain, Esq. Attorneys for Big Earl’s Tree Stump Removal, Inc. 250 South Clinton Street, Suite 600 Syracuse, New York 13202 Telephone: (315) 474-2911 MGermain@smithsovik.com TO: Catherine B. Dempsey, Esq. The Dempsey Firm, PLLC Attorneys for Plaintiff 561 Franklin Street Buffalo, New York 14202 Telephone: (716) 885-8645 cdempsey@thedempseyfirm.com CC: Thomas P. Carafa, Esq. Law Offices of John Wallace Attorneys for Defendant Oneida Pediatric Group, P.C. 301 Plainfield Road, Suite 210 Syracuse, New York 13212 Telephone: (315) 424-7214 TCarafa@travelers.com {S1974246.1} 6 of 6