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FILED: ONONDAGA COUNTY CLERK 02/25/2020 04:34 PM INDEX NO. 001167/2020
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/25/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ONONDAGA
=___ _ _ __ __ _ _=_ ____.==----------- ----=--- --=
Gayle Rizzo as Administrator of the Estate of
Heather K. Lardeo,
VERIFIED ANSWER
Plaintiff WITH CROSSCLAIMS
v. Index No. 001167/2020
(Hon. Donald A. Greenwood)
Thomas Oppito, Deborah Ann Burgan, Timothy J.
Burgan, Patrick J. Foos, Scott Leuenberger and
Stacey K. Theilmann,
Defendants
... __...=------=====--=== -___ ____ _=-= ---------=--=
Defendant, Thomas Oppito, answering the Verified Complaint of the plaintiff alleges as follows:
1. DENIES having information sufficient to form a belief as to the allegations contained in
paragraphs 1, 3, 4, 5, 6, 7, 9, 10 11, 12, 13, 14, 16, 17, 18, 19, 20, 31 and 32 of plaintiff's Verified
Complaint.
2. DENIES the allegations contained in paragraphs 21, 22, 23, 24, 25. 26. 27 and 29 of
plaintiff's Verified Complaint.
3. ADMITS the allegations contained in paragraph 15 of plaintiff's Verified Complaint.
4. ADMITS upon information and belief the allegations contained in paragraphs 2 and 8 of
plaintiff's Verified Complaint.
5. With respect to paragraphs 28 and 30, the answering defendant repeats, reiterates, and
realleges each and every admission and denial heretofore made with the same force and effect as if more
fully set forth herein.
6. DENIES each and every other allegation of the plaintiff's Verified Complaint not
specifically admitted, controverted or denied.
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AS AND FOR A FIRST, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE
7. That whatever injuries the decedent sustained were caused or were contributed to by the
culpable conduct of the decedent.
AS AND FOR A SECOND, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE
8. In the event plaintiff has judgment against the answering defendant, the answering
defendant is entitled to set-off or reduction of any damage award, liability for which is expressly denied.
for amounts received from any collateral sources as defined by CPLR §4545, including but not limited
Workers'
to, insurance, Social Security, Compensation, or employee benefit programs.
AS AND FOR A THIRD, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE
9. That the defendant, Thomas Oppito, was confronted with an emergency situation in
which defendant acted as a reasonably prudent person would act under the same emergency
circumstances and was not guilty of any negligence.
AS AND FOR A FOURTH, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE
10. That the cause of action in the Verified Complaint is barred by the applicable statute of
limitations.
AS AND FOR A FIFTH, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE
11. That the answering defendant's liability is limited according to Article 16 of the CPLR.
AS AND FOR A CROSSCLAIM AGAINST THE CODEFENDANTS,
DEBORAH ANN BURGAN, TIMOTHY J. BURGAN, PATRICK J.FOOS,
SCOTT LEUENBERGER and STACEY K. THEILMANN,
THE ANSWERING DEFENDANT ALLEGES:
12. That if the plaintiff sustained any damages as alleged in the Verified Complaint through
any acts or omissions other than the decedent's own, such damages were caused by the acts or omissions
of the co-defendants, Deborah Ann Burgan, Timothy J. Burgan, Patrick J. Foos, Scott Leuenberger and
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K. then the defendant demands judgment over and against the said co-
Stacey Theilmann, answering
defendants, Deborah Ann Burgan, Timothy J. Burgan, Patrick J. Foos, Scott Leuenberger and Stacey K.
Theilmann, for contribution or indemnity for any part or all of such judgment as may be found to be due
and owing by this answering defendant.
WHEREFORE, defendant, Thomas Oppito, demands judgment dismissing the Verified
Complaint herein as to the answering defendant and further demand that any judgment recovered by
plaintiff against the answering defendant be reduced in proportion to the decedent, Heather K. Lardeo's,
culpable conduct and in accordance with CPLR and judgment on the cross-claim against the co-
§4545,
defendants, Deborah Ann Burgan, Timothy J. Burgan, Patrick J. Foos, Scott Leuenberger and Stacey K.
Theilmann, to indemnify, defend and/or pay the disbursements of this action and for such other and
further relief as the Court deems just and proper.,..
DATED: February 25, 2020
P- V. M llin, Esq.
Cugarman Law Firm LLP
Attorney for Defendant,
Thomas Oppito
211 West Jefferson St.
Syracuse, NY 13202
315-474-2943
pmullin@sugarmanlaw.com
TO: Anthony R. Martoccia, Esq.
Stanley Law Offices
Attorneys for Plaintiff
215 Burnet Ave.
Syracuse, NY 13203
315-474-3742
amartoccia@stanleylawoffices.com
Keith Miller, Esq.
Law Office of Keith D. Miller
Attorneys for Deborah Ann Burgan and Timothy J. Burgan
7th
1000 North St.
Suite 120
Liverpool, NY 13088
315-701-5768
kmiller@millerlawoffice.com
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FILED: ONONDAGA COUNTY CLERK 02/25/2020 04:34 PM INDEX NO. 001167/2020
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/25/2020
ATTORNEY VERIFICATION
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss:
The undersigned, an attorney admitted to practice in the Courts of New York State, shows; that
deponent is the attorney of record for the defendant, Thomas Oppito, in the within action; that deponent
has read the foregoing Answer with Crosselaims and knows the contents thereof; that the same is true to
deponent's own knowledge, except as to the matters therein stated to be alleged on information and
belief, and that as to those matters deponent believes itto be true. Deponent further says that the reason
this verification is made by deponent and not by the answering defendant is that defendant is not within
the county where your deponent maintains an office.
The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are the
pleadings and proceedings had herein.
The undersigned affirms that the foregoing statements r .. r the penalties of perjury.
DATED: February 25, 2020
aul V. Mullin
Sworn before me this
-thfa, Feb·
f ar 20
Ndary P lic
MARY B. KOLOSKi Yotit
of New
in the State
cy Public
Onon. Co.No. 4732
ed in April30,
Uommission Expires
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Firm, Syracuse,
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FILED: ONONDAGA COUNTY CLERK 02/25/2020 04:34 PM INDEX NO. 001167/2020 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/25/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ONONDAGA =___ _ _ __ __ _ _=_ ____.==----------- ----=--- --= Gayle Rizzo as Administrator of the Estate of Heather K. Lardeo, VERIFIED ANSWER Plaintiff WITH CROSSCLAIMS v. Index No. 001167/2020 (Hon. Donald A. Greenwood) Thomas Oppito, Deborah Ann Burgan, Timothy J. Burgan, Patrick J. Foos, Scott Leuenberger and Stacey K. Theilmann, Defendants ... __...=------=====--=== -___ ____ _=-= ---------=--= Defendant, Thomas Oppito, answering the Verified Complaint of the plaintiff alleges as follows: 1. DENIES having information sufficient to form a belief as to the allegations contained in paragraphs 1, 3, 4, 5, 6, 7, 9, 10 11, 12, 13, 14, 16, 17, 18, 19, 20, 31 and 32 of plaintiff's Verified Complaint. 2. DENIES the allegations contained in paragraphs 21, 22, 23, 24, 25. 26. 27 and 29 of plaintiff's Verified Complaint. 3. ADMITS the allegations contained in paragraph 15 of plaintiff's Verified Complaint. 4. ADMITS upon information and belief the allegations contained in paragraphs 2 and 8 of plaintiff's Verified Complaint. 5. With respect to paragraphs 28 and 30, the answering defendant repeats, reiterates, and realleges each and every admission and denial heretofore made with the same force and effect as if more fully set forth herein. 6. DENIES each and every other allegation of the plaintiff's Verified Complaint not specifically admitted, controverted or denied. Sugarman Law LLP·211 West JeffersonStreet· NY 13202 Firm, Syracuse, 1 of 4 FILED: ONONDAGA COUNTY CLERK 02/25/2020 04:34 PM INDEX NO. 001167/2020 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/25/2020 AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 7. That whatever injuries the decedent sustained were caused or were contributed to by the culpable conduct of the decedent. AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 8. In the event plaintiff has judgment against the answering defendant, the answering defendant is entitled to set-off or reduction of any damage award, liability for which is expressly denied. for amounts received from any collateral sources as defined by CPLR §4545, including but not limited Workers' to, insurance, Social Security, Compensation, or employee benefit programs. AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 9. That the defendant, Thomas Oppito, was confronted with an emergency situation in which defendant acted as a reasonably prudent person would act under the same emergency circumstances and was not guilty of any negligence. AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 10. That the cause of action in the Verified Complaint is barred by the applicable statute of limitations. AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE 11. That the answering defendant's liability is limited according to Article 16 of the CPLR. AS AND FOR A CROSSCLAIM AGAINST THE CODEFENDANTS, DEBORAH ANN BURGAN, TIMOTHY J. BURGAN, PATRICK J.FOOS, SCOTT LEUENBERGER and STACEY K. THEILMANN, THE ANSWERING DEFENDANT ALLEGES: 12. That if the plaintiff sustained any damages as alleged in the Verified Complaint through any acts or omissions other than the decedent's own, such damages were caused by the acts or omissions of the co-defendants, Deborah Ann Burgan, Timothy J. Burgan, Patrick J. Foos, Scott Leuenberger and Sugarman Law LLP·211 West JeffersonStreet· NY 13202 Firm, Syracuse, 2 of 4 FILED: ONONDAGA COUNTY CLERK 02/25/2020 04:34 PM INDEX NO. 001167/2020 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/25/2020 K. then the defendant demands judgment over and against the said co- Stacey Theilmann, answering defendants, Deborah Ann Burgan, Timothy J. Burgan, Patrick J. Foos, Scott Leuenberger and Stacey K. Theilmann, for contribution or indemnity for any part or all of such judgment as may be found to be due and owing by this answering defendant. WHEREFORE, defendant, Thomas Oppito, demands judgment dismissing the Verified Complaint herein as to the answering defendant and further demand that any judgment recovered by plaintiff against the answering defendant be reduced in proportion to the decedent, Heather K. Lardeo's, culpable conduct and in accordance with CPLR and judgment on the cross-claim against the co- §4545, defendants, Deborah Ann Burgan, Timothy J. Burgan, Patrick J. Foos, Scott Leuenberger and Stacey K. Theilmann, to indemnify, defend and/or pay the disbursements of this action and for such other and further relief as the Court deems just and proper.,.. DATED: February 25, 2020 P- V. M llin, Esq. Cugarman Law Firm LLP Attorney for Defendant, Thomas Oppito 211 West Jefferson St. Syracuse, NY 13202 315-474-2943 pmullin@sugarmanlaw.com TO: Anthony R. Martoccia, Esq. Stanley Law Offices Attorneys for Plaintiff 215 Burnet Ave. Syracuse, NY 13203 315-474-3742 amartoccia@stanleylawoffices.com Keith Miller, Esq. Law Office of Keith D. Miller Attorneys for Deborah Ann Burgan and Timothy J. Burgan 7th 1000 North St. Suite 120 Liverpool, NY 13088 315-701-5768 kmiller@millerlawoffice.com Sugarman Law LLP·211 West JeffersonStreet · NY 13202 Firm, Syracuse, 3 of 4 FILED: ONONDAGA COUNTY CLERK 02/25/2020 04:34 PM INDEX NO. 001167/2020 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 02/25/2020 ATTORNEY VERIFICATION STATE OF NEW YORK ) COUNTY OF ONONDAGA ) ss: The undersigned, an attorney admitted to practice in the Courts of New York State, shows; that deponent is the attorney of record for the defendant, Thomas Oppito, in the within action; that deponent has read the foregoing Answer with Crosselaims and knows the contents thereof; that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes itto be true. Deponent further says that the reason this verification is made by deponent and not by the answering defendant is that defendant is not within the county where your deponent maintains an office. The grounds of deponent's belief as to all matters not stated upon deponent's knowledge are the pleadings and proceedings had herein. The undersigned affirms that the foregoing statements r .. r the penalties of perjury. DATED: February 25, 2020 aul V. Mullin Sworn before me this -thfa, Feb· f ar 20 Ndary P lic MARY B. KOLOSKi Yotit of New in the State cy Public Onon. Co.No. 4732 ed in April30, Uommission Expires Sugarman Law LLP·211 West JeffersonStreet· NY 13202 Firm, Syracuse, 4 of 4