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FILED: NEW YORK COUNTY CLERK 05/19/2020 04:54 PM INDEX NO. 151860/2020
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/19/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------------------------------------------------------------------X
STEPHEN GUARDINO,
Index No. 151860/2020
Plaintiff,
VERIFIED ANSWER TO
- against - PLAINTIFF’ S VERIFIED
COMPLAINT
AT&T COMMUNICATIONS OF NEW YORK, INC.,
Defendant.
-------------------------------------------------------------------X
PLEASE TAKE NOTICE that Defendant AT&T COMMUNICATIONS OF NEW
YORK, INC. (“AT&T”), by its attorneys, Chartwell Law, as and for its Verified Answer to
Plaintiff’s Verified Complaint, states upon information and belief, as follows:
1. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “1” of Plaintiff’s Verified Complaint.
2. Admits each and every allegation contained in paragraph “2” of Plaintiff’s Verified
Complaint.
3. Denies each and every allegation contained in paragraph “3” of Plaintiff’s Verified
Complaint, except admits that AT&T has the referenced address listed with the New York State
Department of State for purposes of service.
4. Admits each and every allegation contained in paragraph “4” of Plaintiff’s Verified
Complaint.
5. Denies each and every allegation contained in paragraph “5” of Plaintiff’s Verified
Complaint, and respectfully refers all questions of law to the Court.
6. Denies each and every allegation contained in paragraph “6” of Plaintiff’s Verified
Complaint, and respectfully refers all questions of law to the Court.
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7. Denies each and every allegation contained in paragraph “7” of Plaintiff’s Verified
Complaint, and respectfully refers all questions of law to the Court.
8. Denies each and every allegation contained in paragraph “8” of Plaintiff’s Verified
Complaint, and respectfully refers all questions of law to the Court.
9. Denies each and every allegation contained in paragraph “9” of Plaintiff’s Verified
Complaint, and respectfully refers all questions of law to the Court.
10. Denies each and every allegation contained in paragraph “10” of Plaintiff’s Verified
Complaint, and respectfully refers all questions of law to the Court.
11. Denies each and every allegation contained in paragraph “11” of Plaintiff’s Verified
Complaint, and respectfully refers all questions of law to the Court.
12. Denies knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “12” of Plaintiff’s Verified Complaint.
13. Denies each and every allegation contained in paragraph “13” of Plaintiff’s Verified
Complaint.
14. Denies each and every allegation contained in paragraph “14” of Plaintiff’s Verified
Complaint.
15. Denies each and every allegation contained in paragraph “15” of Plaintiff’s Verified
Complaint.
16. Denies each and every allegation contained in paragraph “16” of Plaintiff’s Verified
Complaint.
17. Denies each and every allegation contained in paragraph “17” of Plaintiff’s Verified
Complaint.
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE
18. Whatever injuries and/or damages Plaintiff may have sustained at the time and
place mentioned in Plaintiff’s Verified Complaint and/or as a result of the occurrence alleged in
Plaintiff’s Verified Complaint, all of which is denied by AT&T, were caused in whole or in part
by the culpable conduct of Plaintiff. AT&T invokes the offset and other statutory protections of
CPLR Articles 14 and 14-A and Article 15 of the General Obligations Law, and thus the amount
of damages recovered, if any, shall therefore be diminished in the proportion which the culpable
conduct, attributable to Plaintiff, bears to the culpable conduct, which caused said injuries.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
19. All risks and danger of loss or damages connected with a situation alleged in
Plaintiff’s Verified Complaint were at the time and place mentioned obvious, obvious and
apparent, and were known by Plaintiff and voluntarily assumed by Plaintiff. Thus, Plaintiff may
not recover any damages, or his damages must be reduced accordingly.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
20. The injuries and damages alleged were caused by the culpable conduct of some
third person or persons over whom AT&T neither had nor exercised control.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
21. Any liability of AT&T is limited by the provisions of Article 16 of the Civil Practice
Law and Rules.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
22. Any verdict, judgment or decision that might be obtained by Plaintiff shall be
reduced by the amount of any collateral source payments received by Plaintiff pursuant to CPLR
§ 4545(c) as determined by the Court.
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
23. Plaintiff’s Verified Complaint fails to state a cause of action.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
24. The culpable conduct of those responsible for the accident or the occurrence alleged
in Plaintiff’s Verified Complaint constituted a separate, independent, superseding, intervening
culpable acts or acts which constitute the sole proximate cause of the accident or occurrence
alleged.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
25. Plaintiff failed to mitigate his damages.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
26. Service of process has not been effectuated properly upon AT&T and there is no
jurisdiction over AT&T.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
27. AT&T did not create or have notice of the alleged condition.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
28. Another party, and its agents, servants and/or employees exclusively controlled the
area where the alleged incident occurred.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
29. The damages allegedly suffered by Plaintiff were caused by an entity or individual
other than AT&T, who is a necessary party and Plaintiff has failed to name the entity or individual
as a party.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
30. Plaintiff’s claims are barred by the applicable Statute of Limitations.
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WHEREFORE, Defendant AT&T COMMUNICATIONS OF NEW YORK, INC. hereby
demands judgment dismissing Plaintiff’s Verified Complaint in its entirety with prejudice,
including all costs and fees of this action, and such other and further relief as this Court may deem
just and proper.
Dated: New York, New York
May 19, 2020
Yours, etc.
CHARTWELL LAW
___________________________________
By: Jarett L. Warner, Esq.
Attorneys for Defendant
AT&T COMMUNICATIONS OF
NEW YORK, INC.
One Battery Park Plaza, 35th Floor
New York, NY 10004
(212) 809-1669
To: Mark E. Seitelman Law Offices, P.C.
Attorneys for Plaintiff
111 Broadway, 9th Floor
New York, New York 1006
(212) 962-2626
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ATTORNEY VERIFICATION
PURSUANT TO CPLR § 3020(d)(3)
JARETT L. WARNER, an attorney at law, duly admitted to practice in the Courts of the
State of New York, affirms under penalties of perjury that:
I am a Partner with Chartwell Law, the attorneys for the Defendant, AT&T
COMMUNICATIONS OF NEW YORK, INC. in the above-entitled action. I have read the
foregoing Verified Answer and know the contents thereof, and upon information and belief, I
believe the matters alleged therein to be true.
The reason this verification is made by me and not by the Defendant, AT&T
COMMUNICATIONS OF NEW YORK, INC. is because the Defendant is not located in the
county in which their attorneys maintain their offices.
The source of my information and the grounds of my beliefs are privileged communications
and/or a review of the documents contained in the file.
Dated: New York, New York
May 19, 2020
_____________________________________
JARETT L. WARNER
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ATTORNEY CERTIFICATION
PURSUANT TO 22 NYCRR 130-1.1a
Pursuant to 22 NYCRR 130-1.1a, the undersigned, an attorney admitted to practice in the
Courts of New York State, certifies that, upon information and belief, and after reasonable inquiry,
the contentions contained in the annexed document(s) are not frivolous as defined by Section 130-
1.1(c) and was not obtained through illegal conduct, nor was it obtained in violation of 22 NYCRR
1200.41-a.
Dated: May 19, 2020
Signature:
Print Signer’s Name: Jarett L. Warner
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Preview
FILED: NEW YORK COUNTY CLERK 05/19/2020 04:54 PM INDEX NO. 151860/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/19/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------X STEPHEN GUARDINO, Index No. 151860/2020 Plaintiff, VERIFIED ANSWER TO - against - PLAINTIFF’ S VERIFIED COMPLAINT AT&T COMMUNICATIONS OF NEW YORK, INC., Defendant. -------------------------------------------------------------------X PLEASE TAKE NOTICE that Defendant AT&T COMMUNICATIONS OF NEW YORK, INC. (“AT&T”), by its attorneys, Chartwell Law, as and for its Verified Answer to Plaintiff’s Verified Complaint, states upon information and belief, as follows: 1. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph “1” of Plaintiff’s Verified Complaint. 2. Admits each and every allegation contained in paragraph “2” of Plaintiff’s Verified Complaint. 3. Denies each and every allegation contained in paragraph “3” of Plaintiff’s Verified Complaint, except admits that AT&T has the referenced address listed with the New York State Department of State for purposes of service. 4. Admits each and every allegation contained in paragraph “4” of Plaintiff’s Verified Complaint. 5. Denies each and every allegation contained in paragraph “5” of Plaintiff’s Verified Complaint, and respectfully refers all questions of law to the Court. 6. Denies each and every allegation contained in paragraph “6” of Plaintiff’s Verified Complaint, and respectfully refers all questions of law to the Court. 1 1 of 7 FILED: NEW YORK COUNTY CLERK 05/19/2020 04:54 PM INDEX NO. 151860/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/19/2020 7. Denies each and every allegation contained in paragraph “7” of Plaintiff’s Verified Complaint, and respectfully refers all questions of law to the Court. 8. Denies each and every allegation contained in paragraph “8” of Plaintiff’s Verified Complaint, and respectfully refers all questions of law to the Court. 9. Denies each and every allegation contained in paragraph “9” of Plaintiff’s Verified Complaint, and respectfully refers all questions of law to the Court. 10. Denies each and every allegation contained in paragraph “10” of Plaintiff’s Verified Complaint, and respectfully refers all questions of law to the Court. 11. Denies each and every allegation contained in paragraph “11” of Plaintiff’s Verified Complaint, and respectfully refers all questions of law to the Court. 12. Denies knowledge or information sufficient to form a belief as to the allegations contained in paragraph “12” of Plaintiff’s Verified Complaint. 13. Denies each and every allegation contained in paragraph “13” of Plaintiff’s Verified Complaint. 14. Denies each and every allegation contained in paragraph “14” of Plaintiff’s Verified Complaint. 15. Denies each and every allegation contained in paragraph “15” of Plaintiff’s Verified Complaint. 16. Denies each and every allegation contained in paragraph “16” of Plaintiff’s Verified Complaint. 17. Denies each and every allegation contained in paragraph “17” of Plaintiff’s Verified Complaint. 2 2 of 7 FILED: NEW YORK COUNTY CLERK 05/19/2020 04:54 PM INDEX NO. 151860/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/19/2020 AS AND FOR A FIRST AFFIRMATIVE DEFENSE 18. Whatever injuries and/or damages Plaintiff may have sustained at the time and place mentioned in Plaintiff’s Verified Complaint and/or as a result of the occurrence alleged in Plaintiff’s Verified Complaint, all of which is denied by AT&T, were caused in whole or in part by the culpable conduct of Plaintiff. AT&T invokes the offset and other statutory protections of CPLR Articles 14 and 14-A and Article 15 of the General Obligations Law, and thus the amount of damages recovered, if any, shall therefore be diminished in the proportion which the culpable conduct, attributable to Plaintiff, bears to the culpable conduct, which caused said injuries. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 19. All risks and danger of loss or damages connected with a situation alleged in Plaintiff’s Verified Complaint were at the time and place mentioned obvious, obvious and apparent, and were known by Plaintiff and voluntarily assumed by Plaintiff. Thus, Plaintiff may not recover any damages, or his damages must be reduced accordingly. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 20. The injuries and damages alleged were caused by the culpable conduct of some third person or persons over whom AT&T neither had nor exercised control. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 21. Any liability of AT&T is limited by the provisions of Article 16 of the Civil Practice Law and Rules. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 22. Any verdict, judgment or decision that might be obtained by Plaintiff shall be reduced by the amount of any collateral source payments received by Plaintiff pursuant to CPLR § 4545(c) as determined by the Court. 3 3 of 7 FILED: NEW YORK COUNTY CLERK 05/19/2020 04:54 PM INDEX NO. 151860/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/19/2020 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 23. Plaintiff’s Verified Complaint fails to state a cause of action. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 24. The culpable conduct of those responsible for the accident or the occurrence alleged in Plaintiff’s Verified Complaint constituted a separate, independent, superseding, intervening culpable acts or acts which constitute the sole proximate cause of the accident or occurrence alleged. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 25. Plaintiff failed to mitigate his damages. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 26. Service of process has not been effectuated properly upon AT&T and there is no jurisdiction over AT&T. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 27. AT&T did not create or have notice of the alleged condition. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 28. Another party, and its agents, servants and/or employees exclusively controlled the area where the alleged incident occurred. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 29. The damages allegedly suffered by Plaintiff were caused by an entity or individual other than AT&T, who is a necessary party and Plaintiff has failed to name the entity or individual as a party. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 30. Plaintiff’s claims are barred by the applicable Statute of Limitations. 4 4 of 7 FILED: NEW YORK COUNTY CLERK 05/19/2020 04:54 PM INDEX NO. 151860/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/19/2020 WHEREFORE, Defendant AT&T COMMUNICATIONS OF NEW YORK, INC. hereby demands judgment dismissing Plaintiff’s Verified Complaint in its entirety with prejudice, including all costs and fees of this action, and such other and further relief as this Court may deem just and proper. Dated: New York, New York May 19, 2020 Yours, etc. CHARTWELL LAW ___________________________________ By: Jarett L. Warner, Esq. Attorneys for Defendant AT&T COMMUNICATIONS OF NEW YORK, INC. One Battery Park Plaza, 35th Floor New York, NY 10004 (212) 809-1669 To: Mark E. Seitelman Law Offices, P.C. Attorneys for Plaintiff 111 Broadway, 9th Floor New York, New York 1006 (212) 962-2626 5 5 of 7 FILED: NEW YORK COUNTY CLERK 05/19/2020 04:54 PM INDEX NO. 151860/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/19/2020 ATTORNEY VERIFICATION PURSUANT TO CPLR § 3020(d)(3) JARETT L. WARNER, an attorney at law, duly admitted to practice in the Courts of the State of New York, affirms under penalties of perjury that: I am a Partner with Chartwell Law, the attorneys for the Defendant, AT&T COMMUNICATIONS OF NEW YORK, INC. in the above-entitled action. I have read the foregoing Verified Answer and know the contents thereof, and upon information and belief, I believe the matters alleged therein to be true. The reason this verification is made by me and not by the Defendant, AT&T COMMUNICATIONS OF NEW YORK, INC. is because the Defendant is not located in the county in which their attorneys maintain their offices. The source of my information and the grounds of my beliefs are privileged communications and/or a review of the documents contained in the file. Dated: New York, New York May 19, 2020 _____________________________________ JARETT L. WARNER 6 of 7 FILED: NEW YORK COUNTY CLERK 05/19/2020 04:54 PM INDEX NO. 151860/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/19/2020 ATTORNEY CERTIFICATION PURSUANT TO 22 NYCRR 130-1.1a Pursuant to 22 NYCRR 130-1.1a, the undersigned, an attorney admitted to practice in the Courts of New York State, certifies that, upon information and belief, and after reasonable inquiry, the contentions contained in the annexed document(s) are not frivolous as defined by Section 130- 1.1(c) and was not obtained through illegal conduct, nor was it obtained in violation of 22 NYCRR 1200.41-a. Dated: May 19, 2020 Signature: Print Signer’s Name: Jarett L. Warner 7 of 7