Preview
FILED: QUEENS COUNTY CLERK 10/23/2023 12:43 PM INDEX NO. 719411/2023
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/23/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------------X
JUN KUM KIM,
Index No.: 719411/2023
Plaintiff,
-against- VERIFIED ANSWER
XIN NEVILLE and MICHAEL C. NEVILLE,
Defendants.
------------------------------------------------------------------------X
Defendants, XIN NEVILLE and MICHAEL C. NEVILLE, by and through their
attorneys, RAWLE & HENDERSON LLP, as and for their answer to plaintiff’s verified complaint,
alleges upon information and belief as follows:
1. Deny having knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs “1” and “50” of plaintiff’s complaint.
2. Deny each and every allegation contained in paragraphs “2,” “3,” “4,” “5,” “6,” “7,”
“8,” “9,” “10,” “11,” “12,” “13 ,” “15,” “17,” “19,” “27,” “34,” “35,” “36,” “43,” “44,” “45,” “46,”
“47,” “48,” “49,” “52,” “53,” “54” “55,” “56,” “57,” “58,” “59,” “60,” “61,” “62” and “63” of the
plaintiff’s complaint.
3. Admit each and every allegation contained in paragraphs “14,” “16,” “26,” “28,”
“29,” “30,” “31,” “32,” “33,” “37,” “38,” “39,” “40,” “41,” “42” and “51” of plaintiff’s complaint.
4. Deny having knowledge or information sufficient to form a belief as to the allegations
contained in paragraphs “18,” “20,” “21,” “22,” “23,” “24” and “25” of plaintiff’s complaint and leave
all matters of law to the Court.
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AS AND FOR A FIRST, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
1. That the comparative negligence of the plaintiff has barred them from relief against
these answering defendants. If, in fact, the damages occurred as alleged in the verified complaint,
said damages occurred as a result of the plaintiff’s own provocation, carelessness, negligence,
improper and culpable conduct and the plaintiff was thereby guilty of comparative negligence as
a result thereof, in whole or in part, or alternatively, any verdict which may be found against these
answering defendants will be reduced by the proportionate culpability of the plaintiff for their
negligence, want of care and culpable conduct.
AS AND FOR A SECOND, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
2. That in the event of any judgment or verdict on behalf of the plaintiff, these
answering defendants are entitled to a set-off or verdict with respect to the amounts of any past or
future expenses pursuant to §4545 of the CPLR.
AS AND FOR A THIRD, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
3. That this action does not fall within one or more of the exceptions set forth in CPLR
§1602 and thus these answering defendants are responsible only for their pro rata share of any
verdict.
AS AND FOR A FOURTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
4. That the verified complaint fails to state a cause of action upon which relief can be
granted by virtue of the fact that plaintiff has failed to sustain serious injuries for which they are
entitled to compensation as defined in 5102(4)(d) of the Insurance Law and are thus not entitled to
relief by this Court.
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AS AND FOR A FIFTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
5. That further the injuries complained of by the plaintiff were caused in whole or in part
or were rendered more severe by virtue of the fact that plaintiffs failed to utilize the seat belts, shoulder
harnesses or other restraining devices attached to the vehicle in which they were riding at the time
that the accident occurred.
AS AND FOR A SIXTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
6. To the extent that any payments have been made or may be made pursuant to Article
51 of the Insurance Law of the State of New York (Comprehensive Motor Vehicle Insurance
Reparations Act) before the trial of this action, such payments will be considered in offset and in
mitigation of damages.
AS AND FOR A SEVENTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
7. Answering defendants assert all defenses available to them pursuant to Articles 51
and 52 of the Insurance Law of the State of New York.
AS AND FOR AN EIGHTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
8. Plaintiff has failed to mitigate any alleged damages, said damages being
specifically denied by answering defendants.
AS AND FOR A NINTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
9. All injuries complained of by plaintiff pre-existed the alleged accident, said injuries
and accident being specifically denied.
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AS AND FOR A TENTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
10. Plaintiff is guilty of contributory negligence, and therefore, plaintiffs’ Complaint
herein is barred or any recovery must be reduced by the percentage share of plaintiff’s negligence.
AS AND FOR AN ELEVENTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
11. Any damages sustained by the plaintiffs were entirely or substantially caused by
the negligence of plaintiff, including contributory negligence, and/or the negligence of other
parties or persons for whom answering defendants have no responsibility, and not by the culpable
conduct or negligence of answering defendants.
AS AND FOR A TWELFTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
12. The plaintiff did not use, or improperly used, any available seat belt and/or shoulder
harness, and plaintiff’s injuries, which are denied, were caused, contributed to and/or exacerbated
by the lack of use, or improper use, of the seat belt and/or shoulder harness, and plaintiff’s alleged
injuries could have been obviated or mitigated by the use of any available seat belt and/or shoulder
harness, and that plaintiff’s failure to use, improper use, of any seat belt and/or shoulder harness
was in contravention of the New York Vehicle and Traffic Law and constitutes failure to mitigate
damages in accordance with Spier v. Barker, 35 N.Y.2d 444 (1974).
AS AND FOR A THIRTEENTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
13. This action is barred in whole or in part by the applicable statute of limitations.
AS AND FOR A FOURTEENTH, SEPARATE
AND COMPLETE AFFIRMATIVE DEFENSE
14. In the event there has been any recovery by way of settlement, judgment or
otherwise, General Obligations Law §15-108 applies to this action.
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NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/23/2023
WHEREFORE, defendants, XIN NEVILLE and MICHAEL C. NEVILLE, demand
judgment dismissing the plaintiff’s complaint together with costs and disbursements and
awarding all and such further relief as this Court shall deem just, equitable and proper.
Dated: New York, New York
October 23, 2023
RAWLE & HENDERSON LLP
Attorneys for Defendant
XIN NEVILLE and
MICHAEL C. NEVILLE
By: ____________________________
Anthony D. Luis, Esq.
14 Wall Street – 27th Floor
New York, New York 10005-2101
Telephone No.: 1 (212) 323-7070
Fax No.: 1 (212) 323-7099
Our File No.: 806494
TO: Mark J. DeCicco, Esq.
SACKSTEIN SACKSTEIN & LEE, LLP
1140 Franklin Avenue, Suite 210
Garden City, New York 11530
Attorneys for Plaintiff
JUN KUM KIM
Telephone No.: 1 (516) 248-2234
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ATTORNEY VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
ANTHONY D. LUIS, an attorney admitted to practice in the State of New York,
affirms: That the undersigned is a Partner with the firm of RAWLE & HENDERSON LLP attorneys
for defendants, XIN NEVILLE and MICHAEL C. NEVILLE, in the within action; that the
undersigned has read the foregoing VERIFIED ANSWER and knows the contents thereof; that the
same are true to affirmant's own knowledge, except as to the matters therein stated to be alleged on
information and belief; and as to those matters affirmant believes them to be true.
The undersigned further states that the reason this affirmation is made by the
undersigned and not by the defendant is that the defendants are outside the county where the
undersigned maintains his offices.
The undersigned affirms that the foregoing statements are true, under the penalty of
perjury.
Dated: New York, New York
October 23, 2023
______________________________
ANTHONY D. LUIS
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Preview
FILED: QUEENS COUNTY CLERK 10/23/2023 12:43 PM INDEX NO. 719411/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/23/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------------X JUN KUM KIM, Index No.: 719411/2023 Plaintiff, -against- VERIFIED ANSWER XIN NEVILLE and MICHAEL C. NEVILLE, Defendants. ------------------------------------------------------------------------X Defendants, XIN NEVILLE and MICHAEL C. NEVILLE, by and through their attorneys, RAWLE & HENDERSON LLP, as and for their answer to plaintiff’s verified complaint, alleges upon information and belief as follows: 1. Deny having knowledge or information sufficient to form a belief as to the allegations contained in paragraphs “1” and “50” of plaintiff’s complaint. 2. Deny each and every allegation contained in paragraphs “2,” “3,” “4,” “5,” “6,” “7,” “8,” “9,” “10,” “11,” “12,” “13 ,” “15,” “17,” “19,” “27,” “34,” “35,” “36,” “43,” “44,” “45,” “46,” “47,” “48,” “49,” “52,” “53,” “54” “55,” “56,” “57,” “58,” “59,” “60,” “61,” “62” and “63” of the plaintiff’s complaint. 3. Admit each and every allegation contained in paragraphs “14,” “16,” “26,” “28,” “29,” “30,” “31,” “32,” “33,” “37,” “38,” “39,” “40,” “41,” “42” and “51” of plaintiff’s complaint. 4. Deny having knowledge or information sufficient to form a belief as to the allegations contained in paragraphs “18,” “20,” “21,” “22,” “23,” “24” and “25” of plaintiff’s complaint and leave all matters of law to the Court. 17370941-1 1 of 6 FILED: QUEENS COUNTY CLERK 10/23/2023 12:43 PM INDEX NO. 719411/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/23/2023 AS AND FOR A FIRST, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 1. That the comparative negligence of the plaintiff has barred them from relief against these answering defendants. If, in fact, the damages occurred as alleged in the verified complaint, said damages occurred as a result of the plaintiff’s own provocation, carelessness, negligence, improper and culpable conduct and the plaintiff was thereby guilty of comparative negligence as a result thereof, in whole or in part, or alternatively, any verdict which may be found against these answering defendants will be reduced by the proportionate culpability of the plaintiff for their negligence, want of care and culpable conduct. AS AND FOR A SECOND, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 2. That in the event of any judgment or verdict on behalf of the plaintiff, these answering defendants are entitled to a set-off or verdict with respect to the amounts of any past or future expenses pursuant to §4545 of the CPLR. AS AND FOR A THIRD, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 3. That this action does not fall within one or more of the exceptions set forth in CPLR §1602 and thus these answering defendants are responsible only for their pro rata share of any verdict. AS AND FOR A FOURTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 4. That the verified complaint fails to state a cause of action upon which relief can be granted by virtue of the fact that plaintiff has failed to sustain serious injuries for which they are entitled to compensation as defined in 5102(4)(d) of the Insurance Law and are thus not entitled to relief by this Court. 17370941-1 2 of 6 FILED: QUEENS COUNTY CLERK 10/23/2023 12:43 PM INDEX NO. 719411/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/23/2023 AS AND FOR A FIFTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 5. That further the injuries complained of by the plaintiff were caused in whole or in part or were rendered more severe by virtue of the fact that plaintiffs failed to utilize the seat belts, shoulder harnesses or other restraining devices attached to the vehicle in which they were riding at the time that the accident occurred. AS AND FOR A SIXTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 6. To the extent that any payments have been made or may be made pursuant to Article 51 of the Insurance Law of the State of New York (Comprehensive Motor Vehicle Insurance Reparations Act) before the trial of this action, such payments will be considered in offset and in mitigation of damages. AS AND FOR A SEVENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 7. Answering defendants assert all defenses available to them pursuant to Articles 51 and 52 of the Insurance Law of the State of New York. AS AND FOR AN EIGHTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 8. Plaintiff has failed to mitigate any alleged damages, said damages being specifically denied by answering defendants. AS AND FOR A NINTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 9. All injuries complained of by plaintiff pre-existed the alleged accident, said injuries and accident being specifically denied. 17370941-1 3 of 6 FILED: QUEENS COUNTY CLERK 10/23/2023 12:43 PM INDEX NO. 719411/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/23/2023 AS AND FOR A TENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 10. Plaintiff is guilty of contributory negligence, and therefore, plaintiffs’ Complaint herein is barred or any recovery must be reduced by the percentage share of plaintiff’s negligence. AS AND FOR AN ELEVENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 11. Any damages sustained by the plaintiffs were entirely or substantially caused by the negligence of plaintiff, including contributory negligence, and/or the negligence of other parties or persons for whom answering defendants have no responsibility, and not by the culpable conduct or negligence of answering defendants. AS AND FOR A TWELFTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 12. The plaintiff did not use, or improperly used, any available seat belt and/or shoulder harness, and plaintiff’s injuries, which are denied, were caused, contributed to and/or exacerbated by the lack of use, or improper use, of the seat belt and/or shoulder harness, and plaintiff’s alleged injuries could have been obviated or mitigated by the use of any available seat belt and/or shoulder harness, and that plaintiff’s failure to use, improper use, of any seat belt and/or shoulder harness was in contravention of the New York Vehicle and Traffic Law and constitutes failure to mitigate damages in accordance with Spier v. Barker, 35 N.Y.2d 444 (1974). AS AND FOR A THIRTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 13. This action is barred in whole or in part by the applicable statute of limitations. AS AND FOR A FOURTEENTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE 14. In the event there has been any recovery by way of settlement, judgment or otherwise, General Obligations Law §15-108 applies to this action. 17370941-1 4 of 6 FILED: QUEENS COUNTY CLERK 10/23/2023 12:43 PM INDEX NO. 719411/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/23/2023 WHEREFORE, defendants, XIN NEVILLE and MICHAEL C. NEVILLE, demand judgment dismissing the plaintiff’s complaint together with costs and disbursements and awarding all and such further relief as this Court shall deem just, equitable and proper. Dated: New York, New York October 23, 2023 RAWLE & HENDERSON LLP Attorneys for Defendant XIN NEVILLE and MICHAEL C. NEVILLE By: ____________________________ Anthony D. Luis, Esq. 14 Wall Street – 27th Floor New York, New York 10005-2101 Telephone No.: 1 (212) 323-7070 Fax No.: 1 (212) 323-7099 Our File No.: 806494 TO: Mark J. DeCicco, Esq. SACKSTEIN SACKSTEIN & LEE, LLP 1140 Franklin Avenue, Suite 210 Garden City, New York 11530 Attorneys for Plaintiff JUN KUM KIM Telephone No.: 1 (516) 248-2234 17370941-1 5 of 6 FILED: QUEENS COUNTY CLERK 10/23/2023 12:43 PM INDEX NO. 719411/2023 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/23/2023 ATTORNEY VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) ANTHONY D. LUIS, an attorney admitted to practice in the State of New York, affirms: That the undersigned is a Partner with the firm of RAWLE & HENDERSON LLP attorneys for defendants, XIN NEVILLE and MICHAEL C. NEVILLE, in the within action; that the undersigned has read the foregoing VERIFIED ANSWER and knows the contents thereof; that the same are true to affirmant's own knowledge, except as to the matters therein stated to be alleged on information and belief; and as to those matters affirmant believes them to be true. The undersigned further states that the reason this affirmation is made by the undersigned and not by the defendant is that the defendants are outside the county where the undersigned maintains his offices. The undersigned affirms that the foregoing statements are true, under the penalty of perjury. Dated: New York, New York October 23, 2023 ______________________________ ANTHONY D. LUIS 17370941-1 6 of 6