Preview
FILED: DUTCHESS COUNTY CLERK 10/18/2023 12:52 PM INDEX NO. 2021-55036
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/18/2023
Exhibit B
FILED: DUTCHESS
FILED:
[FILED: DUTCHESS COUNTY
COUNTY CLERK
CLERK 02/03/2022
10/18/2023 03:29
02/03/2022 12:52 PM
03:29 PM
PM| INDEX
INDEX NO.
INDEX NO. 2021-55036
NO. 2021-55036
2021-55036
NYSCEF
NYSCEF DOC.
NYSCEF DOC. NO.
DOC. NO. 2
NO. 24
2 RECEIVED NYSCEF:
RECEIVED NYSCEF: 02/03/2022
NYSCEF: 10/18/2023
02/03/2022
SUPREME
SUPREME COURT
COURT OF
OF THE
THE STATE NEW YORK
OF NEW
STATE OF YORK
COUNTY
COUNTY OF DUTCHESS
OF DUTCHESS
...... _.._________________..__ X
X Index
Index ##2021-55036
2021-55036
NANCY
NANCY LAUR1CELLA,
LAURICELLA,
Plaintiff,
Plaintiff,
Against
Against Verified
Verified Answer
Answer
D'ARCANGELO & CO.,
D’ ARCANGELO & CO., LLP,
LLP,
and MICHAEL
and MICHAEL C.C. BETROS,
BETROS, CPA,
CPA, PFS,
PFS,
and ARLINGTON
and ARLINGTON PROFESSIONAL
PROFESSIONAL SUITES,
SUITES, LLC
LLC
Defendants
Defendants
------------------------ X
X
Defendants, MICHAEL
Defendants, C. BETROS,
MICHAEL C. BETROS, CPA,
CPA, PFS and, ARLINGTON
PFS and, ARLINGTON PROFESSIONAL
PROFESSIONAL
SUITES,
SUITES, LLC by
LLC by their attorneys, LaRose
their attomeys, & LaRose,
LaRose & LaRose, as and
as and for
for their
their Answer
Answer to
to the
the Plaintiff
Plaintiff’ss
Complaint,
Complaint, respectfully
respectfully state
state and
and allege
allege as follows:
as follows:
"3" plaintiffs'
1.
1. Admits
Admits the allegations
the allegations in
in paragraphs
paragraphs numbered
numbered and
and designated,
desigñated, “3” of
of the
the plaintiffs’
complaint.
complaint.
2.
2. Denies
Denies knowledge
knowledge or
or information
information sufficient
sufficient to
to form
form aa belief
belief as
as to
to each
each and
and every
every
"9" "10" plaintiffs'
allegatión
allegation contained
contained in
in paragraphs
paragraphs numbered
numbered and
and designated
designated “1”,
"1", and “10” of
“9” and of the
the plaintiffs’
corñplaint
complaint and respectfully requests
and respectfully requests all
all questions
questions of
of fact
fact and
and law
law be
be referred
referred to
to the
the Court.
Court.
3.
3. Denies the
Denies the allegations contained in
allegations coñtaiñêd in paragraphs
paragraphs numbered
numbered and
and designated
designated "2",
”2”, "4",
“4”,
"14" "15" plaintiffs'
“5”, "6",
"5", “6”, “7”,
"7", “8”,
"8", “11”,
"11", “12”, "13
"12", “ 13 ",
”, “14” and of plaintiffs’ Complaint
and “15” of Complaint and
and respectfully
respectfully
requests
requests all
all questieñs
questions of
of fact
fact and
and law
law be
be referred
referred to
to the
the Court.
Court.
AS AND
AS AND FOR
FOR A FIRST AFFIRMATIVE
A FIRST AFFIRMATIVE DEFENSE
DEFENSE
4.
4. That
That whatever
whatever injuries
injuries or
or damages
damages the
the plaintiffs
plaintiffs may
may have
have snained
sustained were
were caused,
caused, in
in
whole
whole or
or in
in part, by the
part, by culpable
the culpable conduct
conduct of the phintifh-
of the plaintiffs, or
or the
the risks
risks which
which were
were assumed
assumed by
by the
the
plaintiffs.
plaintiffs.
AS AND FOR
AS AND FOR A
A SECOND
SECOND AFFIRMATIVE
AFFIRMATIVE DEFENSE
DEFENSE
5.
5. That
That the obligations
the obligations and/or
and/or liability
liability of the
of defendants
the defendants are governed
are governed by Article
by Article 16
16
11 of
of 3
3
FILED: DUTCHESS
FILED:
[FILED: DUTCHESS COUNTY
COUNTY CLERK
CLERK 02/03/2022
10/18/2023 03:29
02/03/2022 12:52 PM
03:29 PM
PM| INDEX
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INDEX NO. 2021-55036
NO. 2021-55036
2021-55036
NYSCEF
NYSCEF DOC.
NYSCEF DOC. NO.
DOC. NO. 2
NO. 24
2 RECEIVED NYSCEF:
RECEIVED NYSCEF: 02/03/2022
NYSCEF: 10/18/2023
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of the
of Civil
the Civil Practice Laws
Practice Laws and
and Rules.
Rules.
AS AND
AS AND FOR
FOR A
A THIRD
THIRD AFFIRMATIVE
AFFIRMATIVE DEFENSE
DEFENSE
6.
6. Defendants hereby
Defendants hereby plead in
plead in mitigation
mitigation and in reduction
and in reduction of
of any
any recovery
recovery by
by plaintiffs
plaintiffs
against any
against any and all defendants,
and all defendants, including the
iñcluding the answering
answering defendant,
defendant, the
the amount
amount paid
paid to
to plaintiffs
plaintiffs by
by
any settling tortfeasor
any settling or tortfeasors,
tortfeasor or tortfeasors, as
as per General
per General Obligaticus
Obligations Law
Law §l5-108.
§15-108.
AND FOR
AS AND
AS FOR A
A FOURTH
FOURTH AFFIRMATIVE
AFFIRMATIVE DEFENSE
DEFENSE
plaintiffs'
7.
7. That
That the
the plaintiffs’ claims
claims may be
may be barred or reduced
barred or because of
reduced becaüsc the failure
of the failure of
of the
the
plaintiffs to
plaintiffs mitigate, minimize
to mitigate, minimize and/or
and/or avoid
avoid damages.
damages.
WHEREFORE, the
WHEREFORE, defendant
the defendant demands
demands judgméñt
judgment dismissing
dismissing the
the Complaint,
Complaint, together with
together with
costs and
the costs
the and disbursements
disbursements of this
of action.
this action.
Dated:
Dated: Poughkeepsie,
Poughkeepsie, NY
NY
February
February 2022
1,2022
1,
Yours, etc.,
Yours, etc.,
LaROSE & LaROSE,
LaROSE & LaROSE, ESQS.
ESQS.
Attorneys
Attorneys for
for defendants
defendants Betros
Betros
and Arlington
and Arlington Professional
Professional Suites
Suites
510
510 Haight
Haight Avenue
Avenue
Poughkeepsie,
Poughkeepsie, NY
NY 12603
12603
845-454-2001
845-454-2001
TO:
TO: Pamela
Pamela J. Gabiger,
J. Gabiger, Esq.
Esq.
Attorneys for
Attorneysfor Plaintiff
Plaintif
P.O. Box
P.O. 2952
Box 2952
Poughkeepsie, NY
Poughkeepsie, 12603
NY 12603
845-471-2447
845-471-2447
2
2
2
2 of
of 3
3
FILED: DUTCHESS
FILED:
[FILED: DUTCHESS COUNTY
COUNTY CLERK
CLERK 02/03/2022
10/18/2023 03:29
02/03/2022 12:52 PM
03:29 PM
PM| INDEX
INDEX NO.
INDEX NO. 2021-55036
NO. 2021-55036
2021-55036
NYSCEF
NYSCEF DOC.
NYSCEF DOC. NO.
DOC. NO. 2
NO. 24
2 RECEIVED NYSCEF:
RECEIVED NYSCEF: 02/03/2022
NYSCEF: 10/18/2023
02/03/2022
CORPORATE
CORPORATE VERIFICATION
VERIFICATION
STATE
STATE OF NEW
OF YORK )
NEW YORK)
))ss.:
ss.:
COUNTY
COUNTY OF DUTCHESS)
OF DUTCHESS)
Michael Betros,
Michael Betros, being duly sworn,
being duly swom, deposes
deposes and says:
and says: II am
am aa member
member of
of Arlington
Arlington
Professional
Professional Suites, LLC,
Suites, LLC, a
a party in the
party in the within
witliin action.
action. II have read the
have read the füregGing
foregoing Answer
Answer and know
and know
the ceritcats
the contents thereof
thereof and the
and the same is true
same is true to
to my
my own knowledge, except
own kñGwicdgó, except as to
as to the matters
the matters therein
therein
stated to
stated be aneged
to be alleged on
on information
information and
and belief, and as
belief, and as to
to those
those matters
matters II believe
believs them
them to
to be true. This
be true. This
verification isis mad
verification mad/byy me
me because
because the above
the above party
party is a liirrited
is a limited liability
liability company and
compañy and II am
am aa
nicr^tx^thcreoC^/
men ei¶hereof.
Sworn
Swon to before
to me this
before me this
3^ day
day of
of February,
February, 2022.
2022.
d2RL /24Ó
Notary Public:
Notary Public:
Karen A. Newhard
NOTARY PUBUC,
STATE OF NEW
No. OINE6IR00XYORK
Registration No.
Registration
01NE6180023
Qualified in Dutchess
Commission Expires County
January 7, 20
3
3 of
of 3
3
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NYSCEF DOC. NO. 24
5 RECEIVED NYSCEF: 10/18/2023
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STATE OF NEW YORK
SUPREME COURT COUNTY OF DUTCHESS
NANCY LAURICELLA,
ANSWER
Plaintiff,
-against-
Index No: 2021-55036
D'ARCANGELO & CO., LLP,
and MICHAEL C. BETROS, CPA, PFS,
and ARLINGTON PROFESSIONAL SUITES, LLC,
Defendants.
Defendant, D' ARCANGELO & CO., LLP (hereafter answering defendant), by artd
through its counsel, Maynard, O'Connor, Smith & Catalinotto, LLP, as and for an answer to
plaintiffs complaint, states upon information and belief:
1. Answering defendant denies the allegations contained in paragraphs "1" of
plaintiffs complaint for want of knowledge and information sufficient to form a belief as to the
truth thereof.
2. Answering defendant denies the allegations contained in paragraphs "2" of
plaintiffs complaint for want of knowledge and information sufficient to form a belief as to the
truth thereof.
3. Answering defendant denies the allegations contained in paragraphs "3" of
plaintiffs complaint for want of knowledge and information sufficient to form a belief as to the
truth thereof.
4. Answering defendant denies the allegations contained within paragraph "4" of
plaintiffs complaint.
{M!077211.1}
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5. Answering defendant denies the allegations contained within paragraph "5" of
plaintiffs complaint.
6. Answering defendant denies the allegations contained in paragraphs "6" of
plaintiffs complaint.
7. Answering defendant denies the allegations contained in paragraphs "7" of
plaintiffs complaint.
8. Answering defendant denies the allegations contained m paragraphs "8" of
plaintiffs complaint.
9. Answering defendant denies the allegations contained in paragraphs "9" of
plaintiffs complaint for want of knowledge and information sufficient to form a belief as to the
truth thereof.
10. Answering defendant denies the allegations contained in paragraphs "10" of
plaintiffs complaint for want of knowledge and information sufficient to form a belief as to the
truth thereof.
11. Answering defendant denies the allegations contained within paragraph "11" of
plaintiffs complaint.
12. Answering defendant denies the allegations contained within paragraph "12" of
plaintiffs complaint.
13. Answering defendant denies the allegations contained within paragraph "13" of
plaintiffs complaint.
14. Answering defendant denies the allegations contained in paragraphs "14" of
plaintiffs complaint.
{Ml077211.1} 2
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15. Answering defendant denies each and every part of each and every paragraph not
specifically admitted.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
16. That the Court lacks jurisdiction over the answering defendant, D' Arcangelo & Co.
LLP.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
17. That the complaint fails to state a cause of action.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
18. Plaintiff has failed to mitigate any of her alleged damages, and to the extent of such
failure to mitigate, any damages awarded to plaintiffs should be reduced accordingly.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
19. At the time and place alleged in the complaint there was an ongoing storm in
progress. The incident occurred before the answering defendant had a reasonable time after
cessation of the storm to remedy the conditions.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
20. Whatever injuries plaintiff may have sustained were caused in whole or in part, or
were contributed to, by the negligence, culpable conduct, assumption of the risk, and/or want of
care on the part of the plaintiff or by someone over whom the answering defendant had no control,
and without any fault or negligence on the part of the answering defendant contributing thereto.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
21. Upon information and belief, plaintiffs economic loss, if any, as specified in CPLR
4545 was replaced or indemnified, in whole or in part, from collateral sources, and the answering
{MI077211.1} 3
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defendant is entitled to have the Court consider same in determining such damages as provided in
CPLR 4545.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
22. The injuries, damages, and/or death alleged in plaintiff's Complaint were
proximately caused by an unforeseeable, independent, intervening, and/or superseding event
beyond the control, and unrelated to any conduct, of answering defendant. Answering defendant's
actions or omissions, if any, were superseded by the negligence, wrongful, and/or criminal conduct
of others.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
23. Plaintiff failed to give reasonable notice to the answering defendant and failed to
give the answering defendant a reasonable opportunity to cure the alleged defect.
WHEREFORE, defendant, D' Arcangelo & Co., LLP demands judgment dismissing the
plaintiffs complaint with costs.
Dated: June 20, 2022 MAYNARD, O'CONNOR, SMITH
& ATALINOTTO, LLP
TO: PAMELA GABIGER
Attorneys for Plaintiff
PO Box 2952
Poughkeepsie, New York 12603
(845) 471-2447
{MI0772 11.1} 4
4 of 4
Preview
FILED: DUTCHESS COUNTY CLERK 10/18/2023 12:52 PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/18/2023 Exhibit B FILED: DUTCHESS FILED: [FILED: DUTCHESS COUNTY COUNTY CLERK CLERK 02/03/2022 10/18/2023 03:29 02/03/2022 12:52 PM 03:29 PM PM| INDEX INDEX NO. INDEX NO. 2021-55036 NO. 2021-55036 2021-55036 NYSCEF NYSCEF DOC. NYSCEF DOC. NO. DOC. NO. 2 NO. 24 2 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/03/2022 NYSCEF: 10/18/2023 02/03/2022 SUPREME SUPREME COURT COURT OF OF THE THE STATE NEW YORK OF NEW STATE OF YORK COUNTY COUNTY OF DUTCHESS OF DUTCHESS ...... _.._________________..__ X X Index Index ##2021-55036 2021-55036 NANCY NANCY LAUR1CELLA, LAURICELLA, Plaintiff, Plaintiff, Against Against Verified Verified Answer Answer D'ARCANGELO & CO., D’ ARCANGELO & CO., LLP, LLP, and MICHAEL and MICHAEL C.C. BETROS, BETROS, CPA, CPA, PFS, PFS, and ARLINGTON and ARLINGTON PROFESSIONAL PROFESSIONAL SUITES, SUITES, LLC LLC Defendants Defendants ------------------------ X X Defendants, MICHAEL Defendants, C. BETROS, MICHAEL C. BETROS, CPA, CPA, PFS and, ARLINGTON PFS and, ARLINGTON PROFESSIONAL PROFESSIONAL SUITES, SUITES, LLC by LLC by their attorneys, LaRose their attomeys, & LaRose, LaRose & LaRose, as and as and for for their their Answer Answer to to the the Plaintiff Plaintiff’ss Complaint, Complaint, respectfully respectfully state state and and allege allege as follows: as follows: "3" plaintiffs' 1. 1. Admits Admits the allegations the allegations in in paragraphs paragraphs numbered numbered and and designated, desigñated, “3” of of the the plaintiffs’ complaint. complaint. 2. 2. Denies Denies knowledge knowledge or or information information sufficient sufficient to to form form aa belief belief as as to to each each and and every every "9" "10" plaintiffs' allegatión allegation contained contained in in paragraphs paragraphs numbered numbered and and designated designated “1”, "1", and “10” of “9” and of the the plaintiffs’ corñplaint complaint and respectfully requests and respectfully requests all all questions questions of of fact fact and and law law be be referred referred to to the the Court. Court. 3. 3. Denies the Denies the allegations contained in allegations coñtaiñêd in paragraphs paragraphs numbered numbered and and designated designated "2", ”2”, "4", “4”, "14" "15" plaintiffs' “5”, "6", "5", “6”, “7”, "7", “8”, "8", “11”, "11", “12”, "13 "12", “ 13 ", ”, “14” and of plaintiffs’ Complaint and “15” of Complaint and and respectfully respectfully requests requests all all questieñs questions of of fact fact and and law law be be referred referred to to the the Court. Court. AS AND AS AND FOR FOR A FIRST AFFIRMATIVE A FIRST AFFIRMATIVE DEFENSE DEFENSE 4. 4. That That whatever whatever injuries injuries or or damages damages the the plaintiffs plaintiffs may may have have snained sustained were were caused, caused, in in whole whole or or in in part, by the part, by culpable the culpable conduct conduct of the phintifh- of the plaintiffs, or or the the risks risks which which were were assumed assumed by by the the plaintiffs. plaintiffs. AS AND FOR AS AND FOR A A SECOND SECOND AFFIRMATIVE AFFIRMATIVE DEFENSE DEFENSE 5. 5. That That the obligations the obligations and/or and/or liability liability of the of defendants the defendants are governed are governed by Article by Article 16 16 11 of of 3 3 FILED: DUTCHESS FILED: [FILED: DUTCHESS COUNTY COUNTY CLERK CLERK 02/03/2022 10/18/2023 03:29 02/03/2022 12:52 PM 03:29 PM PM| INDEX INDEX NO. INDEX NO. 2021-55036 NO. 2021-55036 2021-55036 NYSCEF NYSCEF DOC. NYSCEF DOC. NO. DOC. NO. 2 NO. 24 2 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/03/2022 NYSCEF: 10/18/2023 02/03/2022 of the of Civil the Civil Practice Laws Practice Laws and and Rules. Rules. AS AND AS AND FOR FOR A A THIRD THIRD AFFIRMATIVE AFFIRMATIVE DEFENSE DEFENSE 6. 6. Defendants hereby Defendants hereby plead in plead in mitigation mitigation and in reduction and in reduction of of any any recovery recovery by by plaintiffs plaintiffs against any against any and all defendants, and all defendants, including the iñcluding the answering answering defendant, defendant, the the amount amount paid paid to to plaintiffs plaintiffs by by any settling tortfeasor any settling or tortfeasors, tortfeasor or tortfeasors, as as per General per General Obligaticus Obligations Law Law §l5-108. §15-108. AND FOR AS AND AS FOR A A FOURTH FOURTH AFFIRMATIVE AFFIRMATIVE DEFENSE DEFENSE plaintiffs' 7. 7. That That the the plaintiffs’ claims claims may be may be barred or reduced barred or because of reduced becaüsc the failure of the failure of of the the plaintiffs to plaintiffs mitigate, minimize to mitigate, minimize and/or and/or avoid avoid damages. damages. WHEREFORE, the WHEREFORE, defendant the defendant demands demands judgméñt judgment dismissing dismissing the the Complaint, Complaint, together with together with costs and the costs the and disbursements disbursements of this of action. this action. Dated: Dated: Poughkeepsie, Poughkeepsie, NY NY February February 2022 1,2022 1, Yours, etc., Yours, etc., LaROSE & LaROSE, LaROSE & LaROSE, ESQS. ESQS. Attorneys Attorneys for for defendants defendants Betros Betros and Arlington and Arlington Professional Professional Suites Suites 510 510 Haight Haight Avenue Avenue Poughkeepsie, Poughkeepsie, NY NY 12603 12603 845-454-2001 845-454-2001 TO: TO: Pamela Pamela J. Gabiger, J. Gabiger, Esq. Esq. Attorneys for Attorneysfor Plaintiff Plaintif P.O. Box P.O. 2952 Box 2952 Poughkeepsie, NY Poughkeepsie, 12603 NY 12603 845-471-2447 845-471-2447 2 2 2 2 of of 3 3 FILED: DUTCHESS FILED: [FILED: DUTCHESS COUNTY COUNTY CLERK CLERK 02/03/2022 10/18/2023 03:29 02/03/2022 12:52 PM 03:29 PM PM| INDEX INDEX NO. INDEX NO. 2021-55036 NO. 2021-55036 2021-55036 NYSCEF NYSCEF DOC. NYSCEF DOC. NO. DOC. NO. 2 NO. 24 2 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/03/2022 NYSCEF: 10/18/2023 02/03/2022 CORPORATE CORPORATE VERIFICATION VERIFICATION STATE STATE OF NEW OF YORK ) NEW YORK) ))ss.: ss.: COUNTY COUNTY OF DUTCHESS) OF DUTCHESS) Michael Betros, Michael Betros, being duly sworn, being duly swom, deposes deposes and says: and says: II am am aa member member of of Arlington Arlington Professional Professional Suites, LLC, Suites, LLC, a a party in the party in the within witliin action. action. II have read the have read the füregGing foregoing Answer Answer and know and know the ceritcats the contents thereof thereof and the and the same is true same is true to to my my own knowledge, except own kñGwicdgó, except as to as to the matters the matters therein therein stated to stated be aneged to be alleged on on information information and and belief, and as belief, and as to to those those matters matters II believe believs them them to to be true. This be true. This verification isis mad verification mad/byy me me because because the above the above party party is a liirrited is a limited liability liability company and compañy and II am am aa nicr^tx^thcreoC^/ men ei¶hereof. Sworn Swon to before to me this before me this 3^ day day of of February, February, 2022. 2022. d2RL /24Ó Notary Public: Notary Public: Karen A. Newhard NOTARY PUBUC, STATE OF NEW No. OINE6IR00XYORK Registration No. Registration 01NE6180023 Qualified in Dutchess Commission Expires County January 7, 20 3 3 of of 3 3 FILED: DUTCHESS COUNTY CLERK 10/18/2023 06/20/2022 12:52 02:41 PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 24 5 RECEIVED NYSCEF: 10/18/2023 06/20/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF DUTCHESS NANCY LAURICELLA, ANSWER Plaintiff, -against- Index No: 2021-55036 D'ARCANGELO & CO., LLP, and MICHAEL C. BETROS, CPA, PFS, and ARLINGTON PROFESSIONAL SUITES, LLC, Defendants. Defendant, D' ARCANGELO & CO., LLP (hereafter answering defendant), by artd through its counsel, Maynard, O'Connor, Smith & Catalinotto, LLP, as and for an answer to plaintiffs complaint, states upon information and belief: 1. Answering defendant denies the allegations contained in paragraphs "1" of plaintiffs complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. 2. Answering defendant denies the allegations contained in paragraphs "2" of plaintiffs complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. 3. Answering defendant denies the allegations contained in paragraphs "3" of plaintiffs complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. 4. Answering defendant denies the allegations contained within paragraph "4" of plaintiffs complaint. {M!077211.1} 1 of 4 FILED: DUTCHESS COUNTY CLERK 10/18/2023 06/20/2022 12:52 02:41 PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 24 5 RECEIVED NYSCEF: 10/18/2023 06/20/2022 5. Answering defendant denies the allegations contained within paragraph "5" of plaintiffs complaint. 6. Answering defendant denies the allegations contained in paragraphs "6" of plaintiffs complaint. 7. Answering defendant denies the allegations contained in paragraphs "7" of plaintiffs complaint. 8. Answering defendant denies the allegations contained m paragraphs "8" of plaintiffs complaint. 9. Answering defendant denies the allegations contained in paragraphs "9" of plaintiffs complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. 10. Answering defendant denies the allegations contained in paragraphs "10" of plaintiffs complaint for want of knowledge and information sufficient to form a belief as to the truth thereof. 11. Answering defendant denies the allegations contained within paragraph "11" of plaintiffs complaint. 12. Answering defendant denies the allegations contained within paragraph "12" of plaintiffs complaint. 13. Answering defendant denies the allegations contained within paragraph "13" of plaintiffs complaint. 14. Answering defendant denies the allegations contained in paragraphs "14" of plaintiffs complaint. {Ml077211.1} 2 2 of 4 FILED: DUTCHESS COUNTY CLERK 10/18/2023 06/20/2022 12:52 02:41 PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 24 5 RECEIVED NYSCEF: 10/18/2023 06/20/2022 15. Answering defendant denies each and every part of each and every paragraph not specifically admitted. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 16. That the Court lacks jurisdiction over the answering defendant, D' Arcangelo & Co. LLP. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 17. That the complaint fails to state a cause of action. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 18. Plaintiff has failed to mitigate any of her alleged damages, and to the extent of such failure to mitigate, any damages awarded to plaintiffs should be reduced accordingly. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 19. At the time and place alleged in the complaint there was an ongoing storm in progress. The incident occurred before the answering defendant had a reasonable time after cessation of the storm to remedy the conditions. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 20. Whatever injuries plaintiff may have sustained were caused in whole or in part, or were contributed to, by the negligence, culpable conduct, assumption of the risk, and/or want of care on the part of the plaintiff or by someone over whom the answering defendant had no control, and without any fault or negligence on the part of the answering defendant contributing thereto. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 21. Upon information and belief, plaintiffs economic loss, if any, as specified in CPLR 4545 was replaced or indemnified, in whole or in part, from collateral sources, and the answering {MI077211.1} 3 3 of 4 FILED: DUTCHESS COUNTY CLERK 10/18/2023 06/20/2022 12:52 02:41 PM INDEX NO. 2021-55036 NYSCEF DOC. NO. 24 5 RECEIVED NYSCEF: 10/18/2023 06/20/2022 defendant is entitled to have the Court consider same in determining such damages as provided in CPLR 4545. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 22. The injuries, damages, and/or death alleged in plaintiff's Complaint were proximately caused by an unforeseeable, independent, intervening, and/or superseding event beyond the control, and unrelated to any conduct, of answering defendant. Answering defendant's actions or omissions, if any, were superseded by the negligence, wrongful, and/or criminal conduct of others. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 23. Plaintiff failed to give reasonable notice to the answering defendant and failed to give the answering defendant a reasonable opportunity to cure the alleged defect. WHEREFORE, defendant, D' Arcangelo & Co., LLP demands judgment dismissing the plaintiffs complaint with costs. Dated: June 20, 2022 MAYNARD, O'CONNOR, SMITH & ATALINOTTO, LLP TO: PAMELA GABIGER Attorneys for Plaintiff PO Box 2952 Poughkeepsie, New York 12603 (845) 471-2447 {MI0772 11.1} 4 4 of 4