Preview
FILED: ERIE COUNTY CLERK 03/06/2020 09:19 AM INDEX NO. 817375/2019
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/06/2020
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
KAYLA FOX,
Plaintiff,
ANSWER
v.
Index No.: 817375/2019
REBECCA SCHMITT and
KEVIN J. SCHMITT,
Defendants.
Defendants, REBECCA SCHMITT and KEVIN J. SCHMITT, by their attorneys, LAW
OFFICE OF VICTOR M. WRIGHT, for their Answer to the plaintiff s Complaint, herein alleges
upon information and belief:
FIRST: Deny the allegations contained in paragraphs "11, 12, 15, 16, 17, 18, 19, 21,
28"
23, 24, 25, 26 and of the plaintiffs Complaint.
SECOND: Deny having knowledge or information sufficient to form a belief as to the
27"
allegations contained in paragraphs "1, 2, 5, 7, 8 9, 10, 13, 14, 20, 22 and of the plaintiff s
Complaint.
6"
THIRD: Admit the allegations contained in paragraphs "3, 4 and of the plaintiff s
Complaint.
FOURTH: Deny each and every allegation of plaintiffs Complaint not hereinbefore
specifically admitted, denied, or otherwise controverted.
FOR A FIRST AFFIRMATIVE DEFENSE,
THE DEFENDANTS HEREIN ALLEGE:
FIFTH: That upon information and belief, the accident, and/or injuries, and/or
damages, as alleged in the Complaint, which were sustained by the plaintiff were caused in whole
or in part or were contributed to by the culpable conduct and want of care on the part of the
plaintiffs negligence, and/or plaintiffs assumption of the risk, without any negligence or fault or
want of care on the part of the answering defendants.
FOR A SECOND AFFIRMATIVE DEFENSE,
THE DEFENDANTS HEREIN ALLEGE:
SIXTH: That upon information and belief, allor part of the cost of plaintiff s medical
care, loss of earnings, or other economic loss may have been paid, replaced or indemnified in
1 of 3
FILED: ERIE COUNTY CLERK 03/06/2020 09:19 AM INDEX NO. 817375/2019
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/06/2020
whole or in part from collateral sources or with reasonable certainty, will be replaced or
indemnified in the future from such collateral sources and to that extent, the defendants request
that in the event plaintiff recovers any judgment herein, that such amounts as have been or may be
recovered in whole or in part from collateral sources be determined by the court and the amounts
Plaintiff recovers be reduced by said amounts.
FOR A THIRD AFFIRMATIVE DEFENSE,
THE DEFENDANTS HEREIN ALLEGE:
SEVENTH: That upon information and belief, the plaintiff did not sustain a serious
injury as defined in Section 5102(d) of the Insurance Law of the State of New York and has not
sustained economic loss greater than basic economic loss as defined in Section 5102(a) of the
Insurance Law of the State of New York.
FOR A FOURTH AFFIRMATIVE DEFENSE,
THE DEFENDANTS HEREIN ALLEGE:
EIGHTH: That upon information and belief, the vehicle which was occupied by the
plaintiff at the time of the incident complained of in the Complaint, was equipped with seat belts
and/or harnesses, the use of which would have prevented or substantially reduced the plaintiffs
injuries, but upon information and belief the plaintiff did not make use of such a device(s). That
the plaintiff s failure to wear such safety equipment was a contributing factor to her injuries, if any.
FOR A FIFTH AFFIRMATIVE DEFENSE,
THE DEFENDANTS HEREIN ALLEGE:
NINETH: That upon information and belief, the Plaintiff has failed to obtain
jurisdiction over the person or property of this Defendant.
FOR A SlXTH AFFIRMATIVE DEFENSE,
THE DEFENDANTS HEREIN ALLEGE:
TENTH: That upon information and belief, the plaintiff's action is barred by the
statute of limitations.
FOR A SEVENTH AFFIRMATIVE DEFENSE,
THE DEFENDANTS HEREIN ALLEGE:
ELEVENTH: That upon information and belief, Plaintiff has failed to mitigate her
damages.
2 of 3
FILED: ERIE COUNTY CLERK 03/06/2020 09:19 AM INDEX NO. 817375/2019
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/06/2020
FOR AN EIGHTH AFFIRMATIVE DEFENSE,
THE DEFENDANTS HEREIN ALLEGE:
TWELFTH: That upon information and belief, the accident in issue may have been
caused by an emergency situation created in the absence of negligence on the part of the
Defendants and they are, therefore, free of negligence as a matter of law.
FOR A NINTH AFFIRMATIVE DEFENSE
THE DEFENDANTS HEREIN ALLEGE:
THIRTEENTH: Defendant reserves the right to assert any additional affirmative
defenses and claims of avoidance as may be appropriate based upon the facts or issues disclosed
during the course of additional investigation and discovery.
WHEREFORE, the defendants demand judgment dismissing the plaintiff s Complaint,
and further demands that the ultimate rights of the parties be determined, and the defendants
demand the costs and disbursements of this action.
DATED: March 5, 2020
Orchard Park, NY
Elizabeth A. Bruce, sq.
LAW OFFICE OF IC 1 M. WRIGHT
Attorneys for Defendants
3815 California Road, Suite Two
Orchard Park, NY 14127-2239
(716) 667-1681
TO: Joseph C. Todoro, Esq.
SPADAFORA & VERRASTRO LLP
Attorneys for Plaintiff
2 Symphony Circle
Buffalo, New York 14201
3 of 3
Preview
FILED: ERIE COUNTY CLERK 03/06/2020 09:19 AM INDEX NO. 817375/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/06/2020 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE KAYLA FOX, Plaintiff, ANSWER v. Index No.: 817375/2019 REBECCA SCHMITT and KEVIN J. SCHMITT, Defendants. Defendants, REBECCA SCHMITT and KEVIN J. SCHMITT, by their attorneys, LAW OFFICE OF VICTOR M. WRIGHT, for their Answer to the plaintiff s Complaint, herein alleges upon information and belief: FIRST: Deny the allegations contained in paragraphs "11, 12, 15, 16, 17, 18, 19, 21, 28" 23, 24, 25, 26 and of the plaintiffs Complaint. SECOND: Deny having knowledge or information sufficient to form a belief as to the 27" allegations contained in paragraphs "1, 2, 5, 7, 8 9, 10, 13, 14, 20, 22 and of the plaintiff s Complaint. 6" THIRD: Admit the allegations contained in paragraphs "3, 4 and of the plaintiff s Complaint. FOURTH: Deny each and every allegation of plaintiffs Complaint not hereinbefore specifically admitted, denied, or otherwise controverted. FOR A FIRST AFFIRMATIVE DEFENSE, THE DEFENDANTS HEREIN ALLEGE: FIFTH: That upon information and belief, the accident, and/or injuries, and/or damages, as alleged in the Complaint, which were sustained by the plaintiff were caused in whole or in part or were contributed to by the culpable conduct and want of care on the part of the plaintiffs negligence, and/or plaintiffs assumption of the risk, without any negligence or fault or want of care on the part of the answering defendants. FOR A SECOND AFFIRMATIVE DEFENSE, THE DEFENDANTS HEREIN ALLEGE: SIXTH: That upon information and belief, allor part of the cost of plaintiff s medical care, loss of earnings, or other economic loss may have been paid, replaced or indemnified in 1 of 3 FILED: ERIE COUNTY CLERK 03/06/2020 09:19 AM INDEX NO. 817375/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/06/2020 whole or in part from collateral sources or with reasonable certainty, will be replaced or indemnified in the future from such collateral sources and to that extent, the defendants request that in the event plaintiff recovers any judgment herein, that such amounts as have been or may be recovered in whole or in part from collateral sources be determined by the court and the amounts Plaintiff recovers be reduced by said amounts. FOR A THIRD AFFIRMATIVE DEFENSE, THE DEFENDANTS HEREIN ALLEGE: SEVENTH: That upon information and belief, the plaintiff did not sustain a serious injury as defined in Section 5102(d) of the Insurance Law of the State of New York and has not sustained economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law of the State of New York. FOR A FOURTH AFFIRMATIVE DEFENSE, THE DEFENDANTS HEREIN ALLEGE: EIGHTH: That upon information and belief, the vehicle which was occupied by the plaintiff at the time of the incident complained of in the Complaint, was equipped with seat belts and/or harnesses, the use of which would have prevented or substantially reduced the plaintiffs injuries, but upon information and belief the plaintiff did not make use of such a device(s). That the plaintiff s failure to wear such safety equipment was a contributing factor to her injuries, if any. FOR A FIFTH AFFIRMATIVE DEFENSE, THE DEFENDANTS HEREIN ALLEGE: NINETH: That upon information and belief, the Plaintiff has failed to obtain jurisdiction over the person or property of this Defendant. FOR A SlXTH AFFIRMATIVE DEFENSE, THE DEFENDANTS HEREIN ALLEGE: TENTH: That upon information and belief, the plaintiff's action is barred by the statute of limitations. FOR A SEVENTH AFFIRMATIVE DEFENSE, THE DEFENDANTS HEREIN ALLEGE: ELEVENTH: That upon information and belief, Plaintiff has failed to mitigate her damages. 2 of 3 FILED: ERIE COUNTY CLERK 03/06/2020 09:19 AM INDEX NO. 817375/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/06/2020 FOR AN EIGHTH AFFIRMATIVE DEFENSE, THE DEFENDANTS HEREIN ALLEGE: TWELFTH: That upon information and belief, the accident in issue may have been caused by an emergency situation created in the absence of negligence on the part of the Defendants and they are, therefore, free of negligence as a matter of law. FOR A NINTH AFFIRMATIVE DEFENSE THE DEFENDANTS HEREIN ALLEGE: THIRTEENTH: Defendant reserves the right to assert any additional affirmative defenses and claims of avoidance as may be appropriate based upon the facts or issues disclosed during the course of additional investigation and discovery. WHEREFORE, the defendants demand judgment dismissing the plaintiff s Complaint, and further demands that the ultimate rights of the parties be determined, and the defendants demand the costs and disbursements of this action. DATED: March 5, 2020 Orchard Park, NY Elizabeth A. Bruce, sq. LAW OFFICE OF IC 1 M. WRIGHT Attorneys for Defendants 3815 California Road, Suite Two Orchard Park, NY 14127-2239 (716) 667-1681 TO: Joseph C. Todoro, Esq. SPADAFORA & VERRASTRO LLP Attorneys for Plaintiff 2 Symphony Circle Buffalo, New York 14201 3 of 3