Preview
FILED: BROOME COUNTY CLERK 02/09/2024 10:08 AM INDEX NO. EFCA2024000404
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/09/2024
STATE OF NEW YORK
SUPREME COURT: COUNTY OF BROOME
MARK FREDERICK, COMPLAINT
Plaintiff, Index No.
vs. RJI No.
RICHARD VANZANT, ANDREW ECK, and SCOTT
Judge Assigned:
BENJAMIN,
Defendants.
Plaintiff, MARK FREDERICK, by and through his attorneys, Levene Gouldin &
Thompson, LLP, complains of the Defendants and alleges as follows:
1. Upon information and belief, on August 22, 2022 at approximately 5:00
p.m., (hereinafter the "time of the first accident") the Defendant Richard Vanzant and
Andrew Eck were residents of the State of Georgia.
2. Upon information and belief, on November 10, 2022 at approximately 1:16
p.m. (hereinafter the "time of the second accident") the Defendant Scott Benjamin was a
resident of Delaware County, New York.
3. At all times relevant to this action, the Plaintiff Mark Frederick was a
resident of Broome County, New York.
4. At the time of the first accident, Plaintiff was operating a 2016 Buick
bearing New York State registration number NATARE (hereinafter "Plaintiffs vehicle")
and was at a complete stop in the northbound lane of Hooper Rd. at a red traffic light
governing the intersection of Hooper Rd. and Country Club Rd. in the Town of Union,
Broome County, New York.
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5. Upon information and belief, at the time of the first accident, Andrew Eck
was the owner of a 2020 Ford truck bearing Georgia registration number RZY3528
(hereinafter the "Eck vehicle").
6. Upon information and belief, at the time of the first accident, the Defendant
Richard Vanzant was operating the Eck vehicle with the knowledge and consent of
Defendant Andrew Eck.
7. Upon information and belief, at the time of the first accident, Defendant
Richard Vanzant was operating the Eck vehicle in the northbound lane of Hooper Rd.
directly behind the Plaintiff and did strike the rear end of Plaintiffs vehicle.
8. Being struck from behind by Defendant Richard Vanzant at the time of the
first accident resulted in serious injuries and damages to Plaintiff as more particularly
set forth in the First Cause of Action below.
9. At the time of the second accident, Plaintiff was operating Plaintiffs vehicle
and was stopped in traffic at a red light in an eastbound lane of State Route 434 in the
Town of Vestal, New York
10. Upon information and belief, at the time of the second accident the
Defendant Scott Benjamin was the owner of a 2017 Chevy Suburban bearing New York
registration number FXT8325 (hereinafter the "Benjamin vehicle").
11. At the time of the second accident Defendant Benjamin was operating his
vehicle in the eastbound lane of State Route 434 in the Town of Vestal, New York directly
behind Plaintiffs vehicle and did strike the rear end of Plaintiffs vehicle.
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12. Being struck from behind by Defendant Benjamin at the time of the second
accident resulted in serious injuries and damages to Plaintiff as more particularly set
forth in the Second Cause of Action below
13. At the time of the first accident Hooper Rd. in the Town of Union, New York
was a public highway.
14. At the time of the second accident State Route 434 in the Town of Vestal,
New York was a public highway.
AS AND FOR A FIRST CAUSE OF ACTION
15. Plaintiff repeats and realleges paragraphs 1 - 14 as if fully set forth
herein.
16. At the time of the first accident, Defendant Vanzant negligently
operated the Eck vehicle and caused it to collide with Plaintiffs vehicle, thereby
causing serious injuries and damages to Plaintiff.
17. Defendant Vanzant was negligent in:
a. Following Plaintiffs vehicle too closely in violation of Vehicle and
Traffic Law §1129;
b. Failing to bring the Eck vehicle to a stop to avoid impact with the
Plaintiffs vehicle;
c. Failing to maintain a reasonable and prudent speed in violation of
Vehicle and Traffic Law §1180;
d. Failing to steer the vehicle to avoid a collision;
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e. Failing to ensure that the Eck vehicle's brakes were in proper
working order which would allow him to bring the Eck vehicle to a lawful stop in
violation of Vehicle and Traffic Law §375;
f. Failing to take the proper precautions to avoid and guard against
the happening of the accident;
g. Failing to exercise due care in the operation, management and
control of his vehicle;
h. Failing to inspect the Eck vehicle and test its brakes prior to its
operation;
i. Failing to observe the traffic conditions then and there existing.
18. The Defendant Eck is liable to the Plaintiff for damages caused by the
negligence of Defendant Vanzant pursuant to §388 of the Vehicle and Traffic Law and
for failing to ensure that his vehicle's brakes were in proper working order which would
have allowed Defendant Vanzant to bring the vehicle to a lawful stop without colliding
with Plaintiffs vehicle.
19. Liability of the Defendants Vanzant and Eck arise out of the use and
operation of a motor vehicle, as that term is defined in §311 of the New York State
Vehicle and Traffic Law. Accordingly, this claim is not subject to the limitations on
liability set forth in Article 16 of the CPLR, by virtue of the exemptions set forth in
Section 1602(6) thereof.
20. Solely by reason of the negligence of Defendants Vanzant and Eck, as
hereinbefore alleged, Plaintiff suffered and sustained severe, painful, disabling, and
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upon information and belief permanent personal injuries, including but not limited to
his head, neck and back, that were and are manifested as a concussion, post-concussion
syndrome with associated symptoms, headache, loss of balance, dizziness, confusion,
impairment of vision and hearing, cervical strain and motion induced
spondylolisthesis.
Defendants'
21. As a result of the accident and negligence, Plaintiff suffered
a serious injury as defined by New York State Insurance Law §5102 in that he
sustained a permanent consequential limitation of use of a body member, significant
limitation of use of a body function or system and a medically determined injury or
impairment of a non-permanent nature which prevented Plaintiff from performing
substantially all of the material acts which constituted his usual and customary daily
activities for not less than 90 days during the 180 days immediately following the
accident.
22. Upon information and belief, solely as a result of the negligence and
carelessness of the Defendants Vanzant and Eck, Plaintiff has sustained economic loss
including loss of income and upon information and belief, will sustain additional losses
in excess of basic economic loss including impairment of wage earning capacity and
medical expense into the future.
AS AND FOR A SECOND CAUSE OF ACTION
23. Plaintiff repeats and realleges paragraphs 1 - 22 as if set forth
fully
herein.
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24. At the time of the second accident, Defendant Benjamin negligently
operated his vehicle and caused it to collide with Plaintiffs vehicle, thereby causing
serious injuries and damages to Plaintiff.
25. Defendant Benjamin was negligent in:
a. Following Plaintiffs vehicle too closely in violation of Vehicle and
Traffic Law §1129;
b. Failing to bring his vehicle to a stop to avoid impact with the
Plaintiffs vehicle;
c. Failing to maintain a reasonable and prudent speed in violation of
Vehicle and Traffic Law §1180;
d. Failing to steer the vehicle to avoid a collision;
e. Failing to ensure that the vehicle's brakes were in proper working
order which would allow him to bring his vehicle to a lawful stop in violation of Vehicle
and Traffic Law §375;
f. Failing to take the proper precautions to avoid and guard against
the happening of the accident;
g. Failing to exercise due care in the operation, management and
control of his vehicle;
h. Failing to inspect his vehicle and test its brakes prior to its
operation;
i. Failing to observe the traffic conditions then and there existing.
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26. Liability of the Defendant Benjamin arises out of the use and operation of
a motor vehicle, as that term is defined in §311 of the New York State Vehicle and
Traffic Law. Accordingly, this claim is not subject to the limitations on liability set
forth in Article 16 of the CPLR, by virtue of the exemptions set forth in Section 1602(6)
thereof.
27. Solely by reason of the negligence of Defendant Benjamin, as
hereinbefore alleged, Plaintiff suffered and sustained an aggravation of severe, painful,
disabling, and upon information and belief permanent personal injuries including but
not limited to his head, neck and back, that were and are manifested as a concussion,
post-concussion syndrome and associated symptoms, headache, loss of balance,
dizziness, confusion, impairment of vision and hearing, cervical strain and motion
induced spondylolisthesis.
28. As a result of the accident and Defendant's negligence, Plaintiff suffered
a serious injury as defined by New York State Insurance Law §5102 in that he
sustained a permanent consequential limitation of use of a body member, significant
limitation of use of a body function or system and a medically determined injury or
impairment of a non-permanent nature which prevented Plaintiff from performing
substantially all of the material acts which constituted his usual and customary daily
activities for not less than 90 days during the 180 days immediately following the
accident.
29. Upon information and belief, solely as a result of the negligence and
carelessness of the Defendant Benjamin Plaintiff has sustained economic loss including
loss of income and upon information and belief, will sustain additional losses in excess
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of basic economic loss including impairment of wage earning capacity and medical
expense into the future.
AS AND FOR A THIRD CAUSE OF ACTION
30. Plaintiff repeats and realleges paragraphs 1 - 29 as if fully set forth herein.
31. The serious injuries and damages suffered by Plaintiff were caused by two
substantial factors.
32. The first substantial factor which caused the serious injuries and damages
sustained by Plaintiff was the negligence of Defendants Richard Vanzant and Andrew
Eck at the time of the first accident.
33. The second substantial factor which caused the serious injuries and
damages sustained by Plaintiff was the negligence of Scott Benjamin at the time of the
second accident.
34. The negligence of Defendants Richard Vanzant and Andrew Eck at the time
of the first accident and the negligence of Scott Benjamin at the time of the second
accident caused Plaintiffs injuries and damages. But because of the similar nature of
the first and second accidents and the nearness in time of the negligent acts and
resulting injuries, it cannot be conclusively determined which of Plaintiffs injuries were
caused by each Defendant.
35. As set forth in New York PJI 2:307 Defendants Richard Vanzant, Andrew
Eck and Scott Benjamin are each liable for all of Plaintiffs injuries and damages.
WHEREFORE, Plaintiff demands judgment in this action as follows:
a. On the first cause of action in favor of Plaintiff and against the
Defendants Richard Vanzant and Andrew Eck in an amount commensurate with the
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injuries and damages sustained herein, which damages exceed the jurisdictional limits
of all lower courts which would otherwise have jurisdiction, for the costs and
disbursements of this action, and for all such other and further relief as to the court
may seem just and proper.
b. On the second cause of action in favor of Plaintiff and against the
Defendant Scott Benjamin in an amount commensurate with the injuries and damages
sustained herein, which damages exceed the jurisdictional limits of all lower courts
which would otherwise have jurisdiction, for the costs and disbursements of this action,
and for all such other and further relief as to the court may seem just and proper.
c. On the third cause of action in favor of Plaintiff and against the
Defendants Richard Vanzant, Andrew Eck and Scott Benjamin in an amount
commensurate with the injuries and damages sustained herein, which damages exceed
the jurisdictional limits of all lower courts which would otherwise have jurisdiction, for
the costs and disbursements of this action, and for all such other and further relief as
to the court may seem just and proper.
Dated: Vestal, New York
February 9, 2024 LEVENE ULDIN & THOMPSON, LLP
A .
By: John L. Perticone, Esq.
Att rneys for Plain.tiff
0 Plaza Drive
Vestal, NY 13850
Telephone: (607) 763-9200
Fax: (607) 763-9211
jperticone@lgtlegal.com
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TO: Richard Vanzant
130 Cathy Court
Warner Robins, Georgia 31088
Andrew Eck
2553 English Avenue
Macon, Georgia 31204
Scott Benjamin
1863 Crystal Lake Road
Hancock, New York 18783
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Preview
FILED: BROOME COUNTY CLERK 02/09/2024 10:08 AM INDEX NO. EFCA2024000404 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/09/2024 STATE OF NEW YORK SUPREME COURT: COUNTY OF BROOME MARK FREDERICK, COMPLAINT Plaintiff, Index No. vs. RJI No. RICHARD VANZANT, ANDREW ECK, and SCOTT Judge Assigned: BENJAMIN, Defendants. Plaintiff, MARK FREDERICK, by and through his attorneys, Levene Gouldin & Thompson, LLP, complains of the Defendants and alleges as follows: 1. Upon information and belief, on August 22, 2022 at approximately 5:00 p.m., (hereinafter the "time of the first accident") the Defendant Richard Vanzant and Andrew Eck were residents of the State of Georgia. 2. Upon information and belief, on November 10, 2022 at approximately 1:16 p.m. (hereinafter the "time of the second accident") the Defendant Scott Benjamin was a resident of Delaware County, New York. 3. At all times relevant to this action, the Plaintiff Mark Frederick was a resident of Broome County, New York. 4. At the time of the first accident, Plaintiff was operating a 2016 Buick bearing New York State registration number NATARE (hereinafter "Plaintiffs vehicle") and was at a complete stop in the northbound lane of Hooper Rd. at a red traffic light governing the intersection of Hooper Rd. and Country Club Rd. in the Town of Union, Broome County, New York. {L1207581.1} 1 of 10 FILED: BROOME COUNTY CLERK 02/09/2024 10:08 AM INDEX NO. EFCA2024000404 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/09/2024 5. Upon information and belief, at the time of the first accident, Andrew Eck was the owner of a 2020 Ford truck bearing Georgia registration number RZY3528 (hereinafter the "Eck vehicle"). 6. Upon information and belief, at the time of the first accident, the Defendant Richard Vanzant was operating the Eck vehicle with the knowledge and consent of Defendant Andrew Eck. 7. Upon information and belief, at the time of the first accident, Defendant Richard Vanzant was operating the Eck vehicle in the northbound lane of Hooper Rd. directly behind the Plaintiff and did strike the rear end of Plaintiffs vehicle. 8. Being struck from behind by Defendant Richard Vanzant at the time of the first accident resulted in serious injuries and damages to Plaintiff as more particularly set forth in the First Cause of Action below. 9. At the time of the second accident, Plaintiff was operating Plaintiffs vehicle and was stopped in traffic at a red light in an eastbound lane of State Route 434 in the Town of Vestal, New York 10. Upon information and belief, at the time of the second accident the Defendant Scott Benjamin was the owner of a 2017 Chevy Suburban bearing New York registration number FXT8325 (hereinafter the "Benjamin vehicle"). 11. At the time of the second accident Defendant Benjamin was operating his vehicle in the eastbound lane of State Route 434 in the Town of Vestal, New York directly behind Plaintiffs vehicle and did strike the rear end of Plaintiffs vehicle. (L1207581.1} 2 of 10 FILED: BROOME COUNTY CLERK 02/09/2024 10:08 AM INDEX NO. EFCA2024000404 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/09/2024 12. Being struck from behind by Defendant Benjamin at the time of the second accident resulted in serious injuries and damages to Plaintiff as more particularly set forth in the Second Cause of Action below 13. At the time of the first accident Hooper Rd. in the Town of Union, New York was a public highway. 14. At the time of the second accident State Route 434 in the Town of Vestal, New York was a public highway. AS AND FOR A FIRST CAUSE OF ACTION 15. Plaintiff repeats and realleges paragraphs 1 - 14 as if fully set forth herein. 16. At the time of the first accident, Defendant Vanzant negligently operated the Eck vehicle and caused it to collide with Plaintiffs vehicle, thereby causing serious injuries and damages to Plaintiff. 17. Defendant Vanzant was negligent in: a. Following Plaintiffs vehicle too closely in violation of Vehicle and Traffic Law §1129; b. Failing to bring the Eck vehicle to a stop to avoid impact with the Plaintiffs vehicle; c. Failing to maintain a reasonable and prudent speed in violation of Vehicle and Traffic Law §1180; d. Failing to steer the vehicle to avoid a collision; (L1207581.1} 3 of 10 FILED: BROOME COUNTY CLERK 02/09/2024 10:08 AM INDEX NO. EFCA2024000404 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/09/2024 e. Failing to ensure that the Eck vehicle's brakes were in proper working order which would allow him to bring the Eck vehicle to a lawful stop in violation of Vehicle and Traffic Law §375; f. Failing to take the proper precautions to avoid and guard against the happening of the accident; g. Failing to exercise due care in the operation, management and control of his vehicle; h. Failing to inspect the Eck vehicle and test its brakes prior to its operation; i. Failing to observe the traffic conditions then and there existing. 18. The Defendant Eck is liable to the Plaintiff for damages caused by the negligence of Defendant Vanzant pursuant to §388 of the Vehicle and Traffic Law and for failing to ensure that his vehicle's brakes were in proper working order which would have allowed Defendant Vanzant to bring the vehicle to a lawful stop without colliding with Plaintiffs vehicle. 19. Liability of the Defendants Vanzant and Eck arise out of the use and operation of a motor vehicle, as that term is defined in §311 of the New York State Vehicle and Traffic Law. Accordingly, this claim is not subject to the limitations on liability set forth in Article 16 of the CPLR, by virtue of the exemptions set forth in Section 1602(6) thereof. 20. Solely by reason of the negligence of Defendants Vanzant and Eck, as hereinbefore alleged, Plaintiff suffered and sustained severe, painful, disabling, and {L1207581.1} 4 of 10 FILED: BROOME COUNTY CLERK 02/09/2024 10:08 AM INDEX NO. EFCA2024000404 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/09/2024 upon information and belief permanent personal injuries, including but not limited to his head, neck and back, that were and are manifested as a concussion, post-concussion syndrome with associated symptoms, headache, loss of balance, dizziness, confusion, impairment of vision and hearing, cervical strain and motion induced spondylolisthesis. Defendants' 21. As a result of the accident and negligence, Plaintiff suffered a serious injury as defined by New York State Insurance Law §5102 in that he sustained a permanent consequential limitation of use of a body member, significant limitation of use of a body function or system and a medically determined injury or impairment of a non-permanent nature which prevented Plaintiff from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. 22. Upon information and belief, solely as a result of the negligence and carelessness of the Defendants Vanzant and Eck, Plaintiff has sustained economic loss including loss of income and upon information and belief, will sustain additional losses in excess of basic economic loss including impairment of wage earning capacity and medical expense into the future. AS AND FOR A SECOND CAUSE OF ACTION 23. Plaintiff repeats and realleges paragraphs 1 - 22 as if set forth fully herein. (L1207581.1} 5 of 10 FILED: BROOME COUNTY CLERK 02/09/2024 10:08 AM INDEX NO. EFCA2024000404 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/09/2024 24. At the time of the second accident, Defendant Benjamin negligently operated his vehicle and caused it to collide with Plaintiffs vehicle, thereby causing serious injuries and damages to Plaintiff. 25. Defendant Benjamin was negligent in: a. Following Plaintiffs vehicle too closely in violation of Vehicle and Traffic Law §1129; b. Failing to bring his vehicle to a stop to avoid impact with the Plaintiffs vehicle; c. Failing to maintain a reasonable and prudent speed in violation of Vehicle and Traffic Law §1180; d. Failing to steer the vehicle to avoid a collision; e. Failing to ensure that the vehicle's brakes were in proper working order which would allow him to bring his vehicle to a lawful stop in violation of Vehicle and Traffic Law §375; f. Failing to take the proper precautions to avoid and guard against the happening of the accident; g. Failing to exercise due care in the operation, management and control of his vehicle; h. Failing to inspect his vehicle and test its brakes prior to its operation; i. Failing to observe the traffic conditions then and there existing. {L1207581.1} 6 of 10 FILED: BROOME COUNTY CLERK 02/09/2024 10:08 AM INDEX NO. EFCA2024000404 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/09/2024 26. Liability of the Defendant Benjamin arises out of the use and operation of a motor vehicle, as that term is defined in §311 of the New York State Vehicle and Traffic Law. Accordingly, this claim is not subject to the limitations on liability set forth in Article 16 of the CPLR, by virtue of the exemptions set forth in Section 1602(6) thereof. 27. Solely by reason of the negligence of Defendant Benjamin, as hereinbefore alleged, Plaintiff suffered and sustained an aggravation of severe, painful, disabling, and upon information and belief permanent personal injuries including but not limited to his head, neck and back, that were and are manifested as a concussion, post-concussion syndrome and associated symptoms, headache, loss of balance, dizziness, confusion, impairment of vision and hearing, cervical strain and motion induced spondylolisthesis. 28. As a result of the accident and Defendant's negligence, Plaintiff suffered a serious injury as defined by New York State Insurance Law §5102 in that he sustained a permanent consequential limitation of use of a body member, significant limitation of use of a body function or system and a medically determined injury or impairment of a non-permanent nature which prevented Plaintiff from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident. 29. Upon information and belief, solely as a result of the negligence and carelessness of the Defendant Benjamin Plaintiff has sustained economic loss including loss of income and upon information and belief, will sustain additional losses in excess {L1207581.1} 7 of 10 FILED: BROOME COUNTY CLERK 02/09/2024 10:08 AM INDEX NO. EFCA2024000404 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/09/2024 of basic economic loss including impairment of wage earning capacity and medical expense into the future. AS AND FOR A THIRD CAUSE OF ACTION 30. Plaintiff repeats and realleges paragraphs 1 - 29 as if fully set forth herein. 31. The serious injuries and damages suffered by Plaintiff were caused by two substantial factors. 32. The first substantial factor which caused the serious injuries and damages sustained by Plaintiff was the negligence of Defendants Richard Vanzant and Andrew Eck at the time of the first accident. 33. The second substantial factor which caused the serious injuries and damages sustained by Plaintiff was the negligence of Scott Benjamin at the time of the second accident. 34. The negligence of Defendants Richard Vanzant and Andrew Eck at the time of the first accident and the negligence of Scott Benjamin at the time of the second accident caused Plaintiffs injuries and damages. But because of the similar nature of the first and second accidents and the nearness in time of the negligent acts and resulting injuries, it cannot be conclusively determined which of Plaintiffs injuries were caused by each Defendant. 35. As set forth in New York PJI 2:307 Defendants Richard Vanzant, Andrew Eck and Scott Benjamin are each liable for all of Plaintiffs injuries and damages. WHEREFORE, Plaintiff demands judgment in this action as follows: a. On the first cause of action in favor of Plaintiff and against the Defendants Richard Vanzant and Andrew Eck in an amount commensurate with the {L1207581.1} 8 of 10 FILED: BROOME COUNTY CLERK 02/09/2024 10:08 AM INDEX NO. EFCA2024000404 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/09/2024 injuries and damages sustained herein, which damages exceed the jurisdictional limits of all lower courts which would otherwise have jurisdiction, for the costs and disbursements of this action, and for all such other and further relief as to the court may seem just and proper. b. On the second cause of action in favor of Plaintiff and against the Defendant Scott Benjamin in an amount commensurate with the injuries and damages sustained herein, which damages exceed the jurisdictional limits of all lower courts which would otherwise have jurisdiction, for the costs and disbursements of this action, and for all such other and further relief as to the court may seem just and proper. c. On the third cause of action in favor of Plaintiff and against the Defendants Richard Vanzant, Andrew Eck and Scott Benjamin in an amount commensurate with the injuries and damages sustained herein, which damages exceed the jurisdictional limits of all lower courts which would otherwise have jurisdiction, for the costs and disbursements of this action, and for all such other and further relief as to the court may seem just and proper. Dated: Vestal, New York February 9, 2024 LEVENE ULDIN & THOMPSON, LLP A . By: John L. Perticone, Esq. Att rneys for Plain.tiff 0 Plaza Drive Vestal, NY 13850 Telephone: (607) 763-9200 Fax: (607) 763-9211 jperticone@lgtlegal.com {L1207581.1} 9 of 10 FILED: BROOME COUNTY CLERK 02/09/2024 10:08 AM INDEX NO. EFCA2024000404 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 02/09/2024 TO: Richard Vanzant 130 Cathy Court Warner Robins, Georgia 31088 Andrew Eck 2553 English Avenue Macon, Georgia 31204 Scott Benjamin 1863 Crystal Lake Road Hancock, New York 18783 {L1207581.1} 10 of 10