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FILED: QUEENS COUNTY CLERK 11/15/2023 05:54 PM INDEX NO. 719456/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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SEAN A. GADSDEN, Index No.: 719456/2023
Plaintiff(s),
VERIFIED ANSWER
-against-
AGNALDO B. GOUVEA and DEROSA SPORTS
CONSTRUCTION, INC.,
Defendant(s).
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The defendant(s), AGNALDO B. GOUVEA and DEROSA SPORTS
CONSTRUCTION, INC., by and through their attorneys, LAW OFFICE OF NICOLE E.
LESPERANCE, hereby answer the Verified Complaint as follows:
1. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in paragraphs designated “FIRST”, “FIFTH”, “SIXTH”, “NINTH”,
“TENTH”, “ELEVENTH”, “TWELFTH”, “THIRTEENTH”, “SEVENTEENTH”,
“EIGHTEENTH” and “TWENTY-THIRD” of the Verified Complaint herein.
2. Admit each and every allegation contained in paragraph designated “SECOND”,
“THIRD”, “FOURTH”, “SEVENTH”, “EIGHTH”, “FOURTEENTH”, “FIFTEENTH”,
“SIXTEENTH” and “NINETEENTH” of the Verified Complaint herein.
3. Denies each and every allegation contained in the paragraphs designated
“TWENTIETH”, “TWENTY-FIRST”, “TWENTY-SECOND”, “TWENTY-FOURTH”,
“TWENTY-FIFTH” and “TWENTY-SIXTH” of the Verified Complaint herein.
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FILED: QUEENS COUNTY CLERK 11/15/2023 05:54 PM INDEX NO. 719456/2023
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE
Any damages which may have been sustained by the plaintiff were contributed to in whole or in part
by the culpable conduct of third parties not under the control of answering defendant.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
Any damages which may have been sustained by the plaintiff were contributed to in whole or in
part by the culpable conduct of the plaintiff, pursuant to Section 14-A, CPLR.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
Pursuant to CPLR 4545(c), if it be determined or established that plaintiff has received or with
reasonable certainty shall receive the cost of medical care, dental care, custodial care or rehabilitation
services, loss of earnings or other economic loss, and that the same shall be replaced or indemnified, in
whole or in part from any collateral source such as insurance (except for life insurance), social security
(except for those benefits provided under title XVIII of the Social Security Act), workers' compensation or
employee benefit programs (except such collateral source entitled by law to liens against any recovery of
the plaintiff), then and in that event answering defendants hereby plead in mitigation of damages the
assessment of any such cost or expense as a collateral source in reduction of the amount of the award by
such replacement or indemnification, minus an amount equal to the premiums paid by the plaintiff for such
benefits for the two year period immediately preceding the accrual of this action and minus an amount
equal to the projected future cost to the plaintiff of maintaining such benefits and as otherwise provided in
CPLR 4545(c).
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
If the plaintiff was not wearing seat belts at the time of the accident, answering defendant pleads
the failure to wear same, or to wear same properly, in mitigation of damages.
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FILED: QUEENS COUNTY CLERK 11/15/2023 05:54 PM INDEX NO. 719456/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
The injuries and damages alleged, all of which are denied by the answering defendants,
were caused by the intervening, interceding and superseding acts of third parties not under the
control of answering defendants.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
The plaintiff's sole and exclusive remedy is confined and limited to the benefits and
provisions of Article 51 of the Insurance Law of the State of New York.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
Answering defendant is entitled to limitation of liability pursuant to Article 16 of the
CPLR.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
The plaintiff failed to mitigate his damages.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
The defendant was not negligent because they were faced with an emergency situation, not of their
own making, and acted as a reasonable prudent person would act in the same emergency.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
The Complaint fails to state a cause of action upon which relief may be granted.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
If the plaintiff sustained damages as alleged, such damages occurred while the plaintiff was engaged in
an activity into which she entered, knowing the hazard, risk and danger of the activity and she assumed the risks
incidental to and attending the activity.
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
The defendant is not liable to the plaintiff as the plaintiff's actions were the sole
proximate cause of the alleged occurrence.
WHEREFORE, the defendant(s), AGNALDO B. GOUVEA and DEROSA SPORTS
CONSTRUCTION, INC, demands judgment dismissing the complaint of the plaintiff herein,
together with costs and disbursement of this action and for such other and further relief as to this
Court may seem just and proper.
Dated: Elmsford, NY
November 15, 2023
Yours, etc.,
LAW OFFICE OF NICOLE E. LESPERANCE
By: _____________________________
Nicole E. Lesperance, Esq.
Attorneys for Defendant(s)
AGNALDO B. GOUVEA and DEROSA SPORTS
CONSTRUCTION, INC.
565 Taxter Road, Suite 220
Elmsford, NY 10523
Tel. No.: (914) 347-5522
TO: Ruben Davidoff, Esq.
DAVIDOFF LAW, P.C.
Attorneys for Plaintiff(s)
108-18 Queens Boulevard, Suite 404
Forest Hills, New York 11375
Tel. No.: 718-268-8800
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023
ATTORNEY’S VERIFICATION
Nicole E. Lesperance, an attorney duly admitted to practice in the courts of New York
State, hereby affirms under penalty of perjury and pursuant to CPLR § 2106 as follows:
I am associated with the law offices of LAW OFFICE OF NICOLE E. LESPERANCE,
the attorneys of record for the defendant(s), AGNALDO B. GOUVEA and DEROSA SPORTS
CONSTRUCTION, INC. in the within action and as such is fully familiar with the facts and
circumstances heretofore had herein by virtue of the file maintained by this office.
I have read the foregoing VERIFIED ANSWER and the same is true to my own
knowledge except as to the matters therein stated to be alleged upon information and belief, and
as to those matters I believe them to be true.
This verification is made by an attorney because the defendant(s), AGNALDO B.
GOUVEA and DEROSA SPORTS CONSTRUCTION, INC. is not in the same County where
your affirmant’s office is located.
Dated: Elmsford, NY
November 15, 2023
__________________________________________
Nicole E. Lesperance, Esq.
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FILED: QUEENS COUNTY CLERK 11/15/2023 05:54 PM INDEX NO. 719456/2023
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023
Index Number: 719456/2023 Year: 2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
SEAN A. GADSDEN,
Plaintiff(s),
-against-
AGNALDO B. GOUVEA and DEROSA SPORTS CONSTRUCTION, INC.,
Defendant(s).
VERIFIED ANSWER
LAW OFFICE OF NICOLE E. LESPERANCE
Attorneys for Defendant(s)
AGNALDO B. GOUVEA and DEROSA SPORTS CONSTRUCTION, INC.
565 TAXTER ROAD, SUITE 220
ELMSFORD, NEW YORK 10523
(914) 347-5522
To: - See Service List -
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Preview
FILED: QUEENS COUNTY CLERK 11/15/2023 05:54 PM INDEX NO. 719456/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------X SEAN A. GADSDEN, Index No.: 719456/2023 Plaintiff(s), VERIFIED ANSWER -against- AGNALDO B. GOUVEA and DEROSA SPORTS CONSTRUCTION, INC., Defendant(s). ------------------------------------------------------------------------X The defendant(s), AGNALDO B. GOUVEA and DEROSA SPORTS CONSTRUCTION, INC., by and through their attorneys, LAW OFFICE OF NICOLE E. LESPERANCE, hereby answer the Verified Complaint as follows: 1. Denies knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs designated “FIRST”, “FIFTH”, “SIXTH”, “NINTH”, “TENTH”, “ELEVENTH”, “TWELFTH”, “THIRTEENTH”, “SEVENTEENTH”, “EIGHTEENTH” and “TWENTY-THIRD” of the Verified Complaint herein. 2. Admit each and every allegation contained in paragraph designated “SECOND”, “THIRD”, “FOURTH”, “SEVENTH”, “EIGHTH”, “FOURTEENTH”, “FIFTEENTH”, “SIXTEENTH” and “NINETEENTH” of the Verified Complaint herein. 3. Denies each and every allegation contained in the paragraphs designated “TWENTIETH”, “TWENTY-FIRST”, “TWENTY-SECOND”, “TWENTY-FOURTH”, “TWENTY-FIFTH” and “TWENTY-SIXTH” of the Verified Complaint herein. 1 of 6 FILED: QUEENS COUNTY CLERK 11/15/2023 05:54 PM INDEX NO. 719456/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 AS AND FOR A FIRST AFFIRMATIVE DEFENSE Any damages which may have been sustained by the plaintiff were contributed to in whole or in part by the culpable conduct of third parties not under the control of answering defendant. AS AND FOR A SECOND AFFIRMATIVE DEFENSE Any damages which may have been sustained by the plaintiff were contributed to in whole or in part by the culpable conduct of the plaintiff, pursuant to Section 14-A, CPLR. AS AND FOR A THIRD AFFIRMATIVE DEFENSE Pursuant to CPLR 4545(c), if it be determined or established that plaintiff has received or with reasonable certainty shall receive the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, and that the same shall be replaced or indemnified, in whole or in part from any collateral source such as insurance (except for life insurance), social security (except for those benefits provided under title XVIII of the Social Security Act), workers' compensation or employee benefit programs (except such collateral source entitled by law to liens against any recovery of the plaintiff), then and in that event answering defendants hereby plead in mitigation of damages the assessment of any such cost or expense as a collateral source in reduction of the amount of the award by such replacement or indemnification, minus an amount equal to the premiums paid by the plaintiff for such benefits for the two year period immediately preceding the accrual of this action and minus an amount equal to the projected future cost to the plaintiff of maintaining such benefits and as otherwise provided in CPLR 4545(c). AS AND FOR A FOURTH AFFIRMATIVE DEFENSE If the plaintiff was not wearing seat belts at the time of the accident, answering defendant pleads the failure to wear same, or to wear same properly, in mitigation of damages. 2 of 6 FILED: QUEENS COUNTY CLERK 11/15/2023 05:54 PM INDEX NO. 719456/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE The injuries and damages alleged, all of which are denied by the answering defendants, were caused by the intervening, interceding and superseding acts of third parties not under the control of answering defendants. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE The plaintiff's sole and exclusive remedy is confined and limited to the benefits and provisions of Article 51 of the Insurance Law of the State of New York. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Answering defendant is entitled to limitation of liability pursuant to Article 16 of the CPLR. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE The plaintiff failed to mitigate his damages. AS AND FOR A NINTH AFFIRMATIVE DEFENSE The defendant was not negligent because they were faced with an emergency situation, not of their own making, and acted as a reasonable prudent person would act in the same emergency. AS AND FOR A TENTH AFFIRMATIVE DEFENSE The Complaint fails to state a cause of action upon which relief may be granted. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE If the plaintiff sustained damages as alleged, such damages occurred while the plaintiff was engaged in an activity into which she entered, knowing the hazard, risk and danger of the activity and she assumed the risks incidental to and attending the activity. 3 of 6 FILED: QUEENS COUNTY CLERK 11/15/2023 05:54 PM INDEX NO. 719456/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE The defendant is not liable to the plaintiff as the plaintiff's actions were the sole proximate cause of the alleged occurrence. WHEREFORE, the defendant(s), AGNALDO B. GOUVEA and DEROSA SPORTS CONSTRUCTION, INC, demands judgment dismissing the complaint of the plaintiff herein, together with costs and disbursement of this action and for such other and further relief as to this Court may seem just and proper. Dated: Elmsford, NY November 15, 2023 Yours, etc., LAW OFFICE OF NICOLE E. LESPERANCE By: _____________________________ Nicole E. Lesperance, Esq. Attorneys for Defendant(s) AGNALDO B. GOUVEA and DEROSA SPORTS CONSTRUCTION, INC. 565 Taxter Road, Suite 220 Elmsford, NY 10523 Tel. No.: (914) 347-5522 TO: Ruben Davidoff, Esq. DAVIDOFF LAW, P.C. Attorneys for Plaintiff(s) 108-18 Queens Boulevard, Suite 404 Forest Hills, New York 11375 Tel. No.: 718-268-8800 4 of 6 FILED: QUEENS COUNTY CLERK 11/15/2023 05:54 PM INDEX NO. 719456/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 ATTORNEY’S VERIFICATION Nicole E. Lesperance, an attorney duly admitted to practice in the courts of New York State, hereby affirms under penalty of perjury and pursuant to CPLR § 2106 as follows: I am associated with the law offices of LAW OFFICE OF NICOLE E. LESPERANCE, the attorneys of record for the defendant(s), AGNALDO B. GOUVEA and DEROSA SPORTS CONSTRUCTION, INC. in the within action and as such is fully familiar with the facts and circumstances heretofore had herein by virtue of the file maintained by this office. I have read the foregoing VERIFIED ANSWER and the same is true to my own knowledge except as to the matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true. This verification is made by an attorney because the defendant(s), AGNALDO B. GOUVEA and DEROSA SPORTS CONSTRUCTION, INC. is not in the same County where your affirmant’s office is located. Dated: Elmsford, NY November 15, 2023 __________________________________________ Nicole E. Lesperance, Esq. 5 of 6 FILED: QUEENS COUNTY CLERK 11/15/2023 05:54 PM INDEX NO. 719456/2023 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/15/2023 Index Number: 719456/2023 Year: 2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS SEAN A. GADSDEN, Plaintiff(s), -against- AGNALDO B. GOUVEA and DEROSA SPORTS CONSTRUCTION, INC., Defendant(s). VERIFIED ANSWER LAW OFFICE OF NICOLE E. LESPERANCE Attorneys for Defendant(s) AGNALDO B. GOUVEA and DEROSA SPORTS CONSTRUCTION, INC. 565 TAXTER ROAD, SUITE 220 ELMSFORD, NEW YORK 10523 (914) 347-5522 To: - See Service List - 6 of 6