Preview
FILED: ERIE COUNTY CLERK 04/10/2019 11:46 AM INDEX NO. 802498/2019
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/10/2019
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
VITO SABETT,
Plaintiff,
ANSWER
vs. Index No. 802498/2019
MCKINLEY MALL, LLC
STOLTZ MANAGEMENT OF DELAWARE, INC.,
Defendants.
Defendants, McKinley Mall, LLC and Stoltz Management of Delaware, Inc.
("these answering defendants"), by their attorneys, Goldberg Segalla LLP, for their
Answer to the plaintiff's Complaint, state the following upon information and belief:
1. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 1.
2. Admit the allegations contained in paragraph 2.
3. Admit the allegations contained in paragraph 3.
4. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraph 4.
5. Deny the allegations contained in paragraph 5.
6. Deny the allegations contained in paragraph 6 in the form alleged and refer
questions of law to the court.
7. Deny the allegations contained in paragraph 7.
8. Deny the allegations contained in paragraph 8.
9. Deny the allegations contained in paragraph 9.
10. Deny the allegations contained in paragraph 10.
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11. Deny knowledge or information sufficient to form a belief as to the truth
I of the allegations contained in paragraph 11 in the form alleged and refer questions of
law to the court.
12. Deny each and every other allegation in allcauses of action not heretofore
controverted.
AS AND FOR A FIRST SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE,
UPON INFORMATION AND BELIEF:
13. The injuries and/or damages alleged in the plaintiffs Complaint were
caused in whole or in part by the culpable conduct, want of care and assumption of risk
on the part of the plaintiff, and without negligence, fault or want of care on the part of
these answering defendants.
AS AND FOR A SECOND SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE,
UPON INFORMATION AND BELIEF:
14. If these answering defendants are found liable to the plaintiff, their
responsibility for the accident is less than fifty-one percent (51%) of the total liability
assigned to all persons liable and, therefore, any recovery by plaintiff for non-economic
loss against these answering defendants should be limited to their percentage of liability.
AS AND FOR A THIRD SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE,
UPON INFORMATION AND BELIEF:
15. The plaintiffs Complaint fails to state a cause of action.
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AS AND FOR A FOURTH SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE,
UPON INFORMATION AND BELIEF:
16. The plaintiff's injuries, if any, were caused in whole or in part by a person
or persons who are not within the control of these answering defendants.
AS AND FOR A FIFTH SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE,
UPON INFORMATION AND BELIEF:
17. That pursuant to §4545 and other applicable sections of the CPLR, these
answering defendants are entitled to a set off against the amount of any verdict of any
monies collected from a collateral source of payment as set forth in said law.
AS AND FOR A SIXTH SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE,
UPON INFORMATION AND BELIEF:
I8. That in the event there has been a settlement between the plaintiff and any
joint tort feasor, these answering defendants hereby plead and seek the full benefit of
§l5-108 of the General Obligations Law, that plaintiffs claim against these answering
defendants be reduced to the fullest extent permitted by §15-108 of the General
Obligations Law.
AS AND FOR A SEVENTH SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE,
UPON INFORMATION AND BELIEF:
19. The plaintiff's action is barred by the applicable statute of limitations.
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AS AND FOR AN EIGHTH SEPARATE AND COMPLETE
AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE,
UPON INFORMATION AND BELIEF:
20. The court does not have jurisdiction over the person of these answering
defendants.
WHEREFORE, these answering defendants demand judgment as follows:
a. Dismissing the Complaint herein, or
b. Reducing plaintiff's recovery in the proportion to which the
plaintiff's culpable conduct, assumption of risk, and want of care
bears to the culpable conduct which caused the plaintiff's
damages, and
c. Limiting plaintiff's recovery for non-economic loss against these
answering defendants to the percentage of responsibility attributed
to these defendants ifthat percentage is less than fifty-
answering
one percent (51%), and
e. Such other and further relief as to this Court may seem just,
proper, and equitable together with the costs and disbursements of
this action.
DATED: Buffalo, New York
April 10, 2018
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GOLDBERG SEGALLA LLP
BY:
Peter F. Brady, Esq.
Attorneys for Defendants
665 Main Street
Buffalo, New York 14203
716.566.5400
TO: Robert D. Berkun, Esq.
Law Offices of Robert D. Berkun, LLC
Attorneys for Plaintiff
Main Place Tower - Suite 2150
350 Main Street
Buffalo, New York 14202
716.856.4080
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Preview
FILED: ERIE COUNTY CLERK 04/10/2019 11:46 AM INDEX NO. 802498/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/10/2019 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE VITO SABETT, Plaintiff, ANSWER vs. Index No. 802498/2019 MCKINLEY MALL, LLC STOLTZ MANAGEMENT OF DELAWARE, INC., Defendants. Defendants, McKinley Mall, LLC and Stoltz Management of Delaware, Inc. ("these answering defendants"), by their attorneys, Goldberg Segalla LLP, for their Answer to the plaintiff's Complaint, state the following upon information and belief: 1. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1. 2. Admit the allegations contained in paragraph 2. 3. Admit the allegations contained in paragraph 3. 4. Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 4. 5. Deny the allegations contained in paragraph 5. 6. Deny the allegations contained in paragraph 6 in the form alleged and refer questions of law to the court. 7. Deny the allegations contained in paragraph 7. 8. Deny the allegations contained in paragraph 8. 9. Deny the allegations contained in paragraph 9. 10. Deny the allegations contained in paragraph 10. 22677235.vl 1 of 5 FILED: ERIE COUNTY CLERK 04/10/2019 11:46 AM INDEX NO. 802498/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/10/2019 11. Deny knowledge or information sufficient to form a belief as to the truth I of the allegations contained in paragraph 11 in the form alleged and refer questions of law to the court. 12. Deny each and every other allegation in allcauses of action not heretofore controverted. AS AND FOR A FIRST SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE, UPON INFORMATION AND BELIEF: 13. The injuries and/or damages alleged in the plaintiffs Complaint were caused in whole or in part by the culpable conduct, want of care and assumption of risk on the part of the plaintiff, and without negligence, fault or want of care on the part of these answering defendants. AS AND FOR A SECOND SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE, UPON INFORMATION AND BELIEF: 14. If these answering defendants are found liable to the plaintiff, their responsibility for the accident is less than fifty-one percent (51%) of the total liability assigned to all persons liable and, therefore, any recovery by plaintiff for non-economic loss against these answering defendants should be limited to their percentage of liability. AS AND FOR A THIRD SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE, UPON INFORMATION AND BELIEF: 15. The plaintiffs Complaint fails to state a cause of action. 22677235.v1 2 of 5 FILED: ERIE COUNTY CLERK 04/10/2019 11:46 AM INDEX NO. 802498/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/10/2019 AS AND FOR A FOURTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE, UPON INFORMATION AND BELIEF: 16. The plaintiff's injuries, if any, were caused in whole or in part by a person or persons who are not within the control of these answering defendants. AS AND FOR A FIFTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE, UPON INFORMATION AND BELIEF: 17. That pursuant to §4545 and other applicable sections of the CPLR, these answering defendants are entitled to a set off against the amount of any verdict of any monies collected from a collateral source of payment as set forth in said law. AS AND FOR A SIXTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE, UPON INFORMATION AND BELIEF: I8. That in the event there has been a settlement between the plaintiff and any joint tort feasor, these answering defendants hereby plead and seek the full benefit of §l5-108 of the General Obligations Law, that plaintiffs claim against these answering defendants be reduced to the fullest extent permitted by §15-108 of the General Obligations Law. AS AND FOR A SEVENTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE, UPON INFORMATION AND BELIEF: 19. The plaintiff's action is barred by the applicable statute of limitations. 22677235.v t 3 of 5 FILED: ERIE COUNTY CLERK 04/10/2019 11:46 AM INDEX NO. 802498/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/10/2019 AS AND FOR AN EIGHTH SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE, THESE ANSWERING DEFENDANTS ALLEGE, UPON INFORMATION AND BELIEF: 20. The court does not have jurisdiction over the person of these answering defendants. WHEREFORE, these answering defendants demand judgment as follows: a. Dismissing the Complaint herein, or b. Reducing plaintiff's recovery in the proportion to which the plaintiff's culpable conduct, assumption of risk, and want of care bears to the culpable conduct which caused the plaintiff's damages, and c. Limiting plaintiff's recovery for non-economic loss against these answering defendants to the percentage of responsibility attributed to these defendants ifthat percentage is less than fifty- answering one percent (51%), and e. Such other and further relief as to this Court may seem just, proper, and equitable together with the costs and disbursements of this action. DATED: Buffalo, New York April 10, 2018 22677235.v1 4 of 5 FILED: ERIE COUNTY CLERK 04/10/2019 11:46 AM INDEX NO. 802498/2019 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/10/2019 GOLDBERG SEGALLA LLP BY: Peter F. Brady, Esq. Attorneys for Defendants 665 Main Street Buffalo, New York 14203 716.566.5400 TO: Robert D. Berkun, Esq. Law Offices of Robert D. Berkun, LLC Attorneys for Plaintiff Main Place Tower - Suite 2150 350 Main Street Buffalo, New York 14202 716.856.4080 22677235.vi 5 of 5