Preview
FILED: BRONX COUNTY CLERK 01/10/2020 01:55 PM INDEX NO. 35154/2019E
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/10/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
------------ -----------------------X
SHANELL BRABHAM, Index No.35 154/2019E
Plaintiff,
-against- VERIFIED ANSWER
NEW YORK CITY HOUSING AUTHORITY,
Defendant.
------ -X
Defendant, NEW YORK CITY HOUSING AUTHORITY, by its attorneys, KREZ
& FLORES, LLP, answering plaintiff s verified complaint, respectfully alleges upon information and
belief as follows:
AS AND FOR AN ANSWER
TO THE FIRST CAUSE OF ACTION
"1"
First: Admits each and every allegation set forth in paragraph of the Verified
Complaint.
"2"
Second: Denies each and every allegation contained in paragraph of the
Verified Complaint, except admits that the defendant NEW Y ORK CITY HOUSING AUTHORITY
is a body corporate and politic duly organized and existing pursuant to the Public Housing Law of
the State of New York.
"3" "4"
Third: Denies each and every allegation contained in paragraphs and of the
Verified Complaint, except admits that what purported to be a Notice of Claim was received by the
NEW YORK CITY HOUSING AUTHORITY; that at least thirty (30) days have elapsed from the
time of the receipt of what purported to be a Notice of Claim by the NEW YORK CITY HOUSING
AUTHORITY; that adjustment and payment by NEW YORK CITY HOUSING AUTHORITY has
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not been made, and reserves and refers all questions of law, fact and/or conclusions raised therein
to the Trial Court.
"9"
Fourth: Denies each and every allegation contained in paragraphs "5", "6",
"10"
and of the Verified Complaint, except admits that defendant NEW YORK CITY HOUSING
AUTHORITY owns the premises known as Harrison Avenue Rehab Group, in the County of Bronx,
and State of New York and operates and maintains those portions of the premises used in
City
common all persons lawfully thereat, and reserves and refers all questions of law, fact and/or
by
conclusions raised therein to the Trial Court.
"7"
Fifth: Denies each and every allegation contained in paragraph of the Verified
Complaint, except admits that defendant NEW YORK CITY HOUSING AUTHORITY owns the
prersises known as Harrison Avenue Rehab Group, in the County of Bronx, City and State of New
York and manages those portions of the premises used in common by all persons lawfully thereat,
and reserves and refers all questions of law, fact and conclusions raised therein to the Trial Court.
"8"
Sixth: Denies each and every allegat8ion contained in paragraph of the Verified
Complaint, except admits that defendant NEW YORK CITY HOUSING AUTHORITY owns the
premises known as Harrison Avenue Rehab Group, in the County of Bronx, City and State of New
York and maintains those portions of the premises used in common by all persons lawfully thereat,
and reserves and refers all questions of law, fact and conclusions raised therein to the Trial Court.
Seventh: Denies each and every allegation contained in paragraphs "11", "13",
"15" "17"
and of the Verified Complaint.
Eighth: Denies knowledge or information sufficient to form a belief as to each
"12" "16"
and every allegation contained in paragraphs and of the Verified Complaint.
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"18" "19"
Ninth: Denies the allegations set forth in paragraphs "14", and of the
Verified Complaint and refers all questions of law and fact to the court.
AS AND FOR AN ANSWER
TO THE SECOND CAUSE OF ACTION
"20"
Tenth: In response to paragraph of the Verified Complaint, the answering
defendant repeats, reiterates and realleges each and every response to allegations of the paragraphs
"1"
of the Complaint designated through "19", as if more fully set forth at length herein.
Eleventh: Denies each and every allegation contained in paragraphs "21", "22",
"25," "27," "29"
"23", and of the Verified Complaint.
"30" "31"
Twelfth: Denies the allegations set forth in paragraphs "24", and of
the Verified Complaint and refers all questions of law and fact to the court.
Thirteenth: Denies knowledge or information sufficient to form a belief as to
"26" "28"
each and every allegation contained in paragraphs and of the Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
Fourteenth: If the injuries and damages were sustained by the plaintiff at the time
and place and in the manner alleged in the Verified Complaint, such damages and injuries are
attributable, in whole or in part, to the culpable conduct of the plaintiff and/or third parties and if any
damages are recoverable against this defendant, the amount of such damages shall be diminished in
the proportion which the culpable conduct attributable to the plaintiff(s) and/or third parties bears
to the culpable conduct which caused the damages pursuant to Article 16 of the CPLR.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
Fifteenth: Any and all risks, hazards, defects and dangers alleged were of an
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open, obvious and apparent nature and inherent and known or should have been known to the
plaintiff herein, and the plaintiff willingly and voluntarily assumed all such risks, hazards, defects
and dangers. If it is determined that the plaintiff assumed the risk, this answering defendant pleads
said facts in dimimition of damages in the proportion which the culpable conduct attributable to the
plaintiff(s) bears to the culpable conduct which caused the damages.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
Sixteenth: Answering defendant claims the benefit of each and every provision
of CPLR Section 4545 including but not limited to any credit or off-set by reason ofany replacement
or indemnification of costs or expenses from any collateral source.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
Seventeenth: The defendant herein claims the benefit of each and every provision
of General Obligations Law Section 15-108.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
Eighteenth: If the injuries and damages were sustained by the plaintiff at the time
and place and in the manner alleged in the complaint, such dañ1ages and injuries are attributable, in
whole or in part, to intervening, superceding causes to which the defendant had no control.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
Nineteenth: Any and all risks, hazards, defects and dangers alleged were of such
an open, obvious and apparent nature and inherent and known or should have been known to the
plaintiff herein.
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AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
Twentieth: Plaintiff has failed to mitigate damages, and defendant will seek a
reduction of any damages by the amount of damages plaintiff could have mitigated.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
Twenty First: Plaintiff has failed to comply with all the conditions precedent to
bringing this lawsuit in that the plaintiff failed to submit, pursuant to General Municipal Law §50-h
and Public Housing Law §157, to a physical examination, pursuant to the demand served, prior to
commencing this action.
WHEREFORE, defendant NEW YORK CITY HOUSING AUTHORITY, demands
judgment dismissing the complaint of the plaintiff, together with costs and disbursements, and in the
event any judgment is recovered against defendant NEW YORK CITY HOUSING AUTORITY, it
is further demanded that such judgment be reduced by the amount which is proportionate to
plaintiff's degree of culpability; together with costs and disbursements of this action.
Dated: New York, New York
January 10, 2020
KREZ & FLORES, LLP
By:
MARK A. TAUSTINE
Attorneys for Defendant
NEW YORK CITY HOUSING AUTHORITY
225 - Suite 2800
Broadway
New York, New York 10007
(212) 266-0400
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VERIFICATION
MARK A. TAUSTINE, an attorney duly admitted to practice before the courts of
the State of New York, affirms the following to be true under the penalty of perjury: That I am the
attorney of record for defendant NEW YORK CITY HOUSING AUTHORITY in the within action;
I have read the foregoing Verified Answer and know the contents thereof; the same is true to my own
knowledge, except as to the matters therein stated to be alleged on information and belief, and as to
those matters I believe it to be true. The reason the verification is made by me and not by the
defendant NEW YORK CITY HOUSING AUTHORITY is because said defendant is a municipal
and/or public authority. The grounds of my belief as to all matters in the Answer not stated upon my
own knowledge are based upon records in defendant's custody.
Dated: New York, New York
January 10, 2020
MARK A. TAUSTINE
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Preview
FILED: BRONX COUNTY CLERK 01/10/2020 01:55 PM INDEX NO. 35154/2019E NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/10/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------------ -----------------------X SHANELL BRABHAM, Index No.35 154/2019E Plaintiff, -against- VERIFIED ANSWER NEW YORK CITY HOUSING AUTHORITY, Defendant. ------ -X Defendant, NEW YORK CITY HOUSING AUTHORITY, by its attorneys, KREZ & FLORES, LLP, answering plaintiff s verified complaint, respectfully alleges upon information and belief as follows: AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION "1" First: Admits each and every allegation set forth in paragraph of the Verified Complaint. "2" Second: Denies each and every allegation contained in paragraph of the Verified Complaint, except admits that the defendant NEW Y ORK CITY HOUSING AUTHORITY is a body corporate and politic duly organized and existing pursuant to the Public Housing Law of the State of New York. "3" "4" Third: Denies each and every allegation contained in paragraphs and of the Verified Complaint, except admits that what purported to be a Notice of Claim was received by the NEW YORK CITY HOUSING AUTHORITY; that at least thirty (30) days have elapsed from the time of the receipt of what purported to be a Notice of Claim by the NEW YORK CITY HOUSING AUTHORITY; that adjustment and payment by NEW YORK CITY HOUSING AUTHORITY has 1 of 6 FILED: BRONX COUNTY CLERK 01/10/2020 01:55 PM INDEX NO. 35154/2019E NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/10/2020 not been made, and reserves and refers all questions of law, fact and/or conclusions raised therein to the Trial Court. "9" Fourth: Denies each and every allegation contained in paragraphs "5", "6", "10" and of the Verified Complaint, except admits that defendant NEW YORK CITY HOUSING AUTHORITY owns the premises known as Harrison Avenue Rehab Group, in the County of Bronx, and State of New York and operates and maintains those portions of the premises used in City common all persons lawfully thereat, and reserves and refers all questions of law, fact and/or by conclusions raised therein to the Trial Court. "7" Fifth: Denies each and every allegation contained in paragraph of the Verified Complaint, except admits that defendant NEW YORK CITY HOUSING AUTHORITY owns the prersises known as Harrison Avenue Rehab Group, in the County of Bronx, City and State of New York and manages those portions of the premises used in common by all persons lawfully thereat, and reserves and refers all questions of law, fact and conclusions raised therein to the Trial Court. "8" Sixth: Denies each and every allegat8ion contained in paragraph of the Verified Complaint, except admits that defendant NEW YORK CITY HOUSING AUTHORITY owns the premises known as Harrison Avenue Rehab Group, in the County of Bronx, City and State of New York and maintains those portions of the premises used in common by all persons lawfully thereat, and reserves and refers all questions of law, fact and conclusions raised therein to the Trial Court. Seventh: Denies each and every allegation contained in paragraphs "11", "13", "15" "17" and of the Verified Complaint. Eighth: Denies knowledge or information sufficient to form a belief as to each "12" "16" and every allegation contained in paragraphs and of the Verified Complaint. 2 2 of 6 FILED: BRONX COUNTY CLERK 01/10/2020 01:55 PM INDEX NO. 35154/2019E NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/10/2020 "18" "19" Ninth: Denies the allegations set forth in paragraphs "14", and of the Verified Complaint and refers all questions of law and fact to the court. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION "20" Tenth: In response to paragraph of the Verified Complaint, the answering defendant repeats, reiterates and realleges each and every response to allegations of the paragraphs "1" of the Complaint designated through "19", as if more fully set forth at length herein. Eleventh: Denies each and every allegation contained in paragraphs "21", "22", "25," "27," "29" "23", and of the Verified Complaint. "30" "31" Twelfth: Denies the allegations set forth in paragraphs "24", and of the Verified Complaint and refers all questions of law and fact to the court. Thirteenth: Denies knowledge or information sufficient to form a belief as to "26" "28" each and every allegation contained in paragraphs and of the Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE Fourteenth: If the injuries and damages were sustained by the plaintiff at the time and place and in the manner alleged in the Verified Complaint, such damages and injuries are attributable, in whole or in part, to the culpable conduct of the plaintiff and/or third parties and if any damages are recoverable against this defendant, the amount of such damages shall be diminished in the proportion which the culpable conduct attributable to the plaintiff(s) and/or third parties bears to the culpable conduct which caused the damages pursuant to Article 16 of the CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE Fifteenth: Any and all risks, hazards, defects and dangers alleged were of an 3 3 of 6 FILED: BRONX COUNTY CLERK 01/10/2020 01:55 PM INDEX NO. 35154/2019E NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/10/2020 open, obvious and apparent nature and inherent and known or should have been known to the plaintiff herein, and the plaintiff willingly and voluntarily assumed all such risks, hazards, defects and dangers. If it is determined that the plaintiff assumed the risk, this answering defendant pleads said facts in dimimition of damages in the proportion which the culpable conduct attributable to the plaintiff(s) bears to the culpable conduct which caused the damages. AS AND FOR A THIRD AFFIRMATIVE DEFENSE Sixteenth: Answering defendant claims the benefit of each and every provision of CPLR Section 4545 including but not limited to any credit or off-set by reason ofany replacement or indemnification of costs or expenses from any collateral source. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Seventeenth: The defendant herein claims the benefit of each and every provision of General Obligations Law Section 15-108. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE Eighteenth: If the injuries and damages were sustained by the plaintiff at the time and place and in the manner alleged in the complaint, such dañ1ages and injuries are attributable, in whole or in part, to intervening, superceding causes to which the defendant had no control. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Nineteenth: Any and all risks, hazards, defects and dangers alleged were of such an open, obvious and apparent nature and inherent and known or should have been known to the plaintiff herein. 4 4 of 6 FILED: BRONX COUNTY CLERK 01/10/2020 01:55 PM INDEX NO. 35154/2019E NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/10/2020 AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Twentieth: Plaintiff has failed to mitigate damages, and defendant will seek a reduction of any damages by the amount of damages plaintiff could have mitigated. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE Twenty First: Plaintiff has failed to comply with all the conditions precedent to bringing this lawsuit in that the plaintiff failed to submit, pursuant to General Municipal Law §50-h and Public Housing Law §157, to a physical examination, pursuant to the demand served, prior to commencing this action. WHEREFORE, defendant NEW YORK CITY HOUSING AUTHORITY, demands judgment dismissing the complaint of the plaintiff, together with costs and disbursements, and in the event any judgment is recovered against defendant NEW YORK CITY HOUSING AUTORITY, it is further demanded that such judgment be reduced by the amount which is proportionate to plaintiff's degree of culpability; together with costs and disbursements of this action. Dated: New York, New York January 10, 2020 KREZ & FLORES, LLP By: MARK A. TAUSTINE Attorneys for Defendant NEW YORK CITY HOUSING AUTHORITY 225 - Suite 2800 Broadway New York, New York 10007 (212) 266-0400 5 5 of 6 FILED: BRONX COUNTY CLERK 01/10/2020 01:55 PM INDEX NO. 35154/2019E NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/10/2020 VERIFICATION MARK A. TAUSTINE, an attorney duly admitted to practice before the courts of the State of New York, affirms the following to be true under the penalty of perjury: That I am the attorney of record for defendant NEW YORK CITY HOUSING AUTHORITY in the within action; I have read the foregoing Verified Answer and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. The reason the verification is made by me and not by the defendant NEW YORK CITY HOUSING AUTHORITY is because said defendant is a municipal and/or public authority. The grounds of my belief as to all matters in the Answer not stated upon my own knowledge are based upon records in defendant's custody. Dated: New York, New York January 10, 2020 MARK A. TAUSTINE 6 of 6