Preview
FILED: NEW YORK COUNTY CLERK 08/20/2019 03:36 PM INDEX NO. 157342/2019
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/20/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
X
THERESA E. PERRY,
Index No.: 157342/19
Plaintiff,
-against- VERIFIED ANSWER
NEW YORK CITY HOUSING AUTHORITY,
Defendant.
X
Defendant, NEW YORK CITY HOUSING AUTHORITY, by its attorneys, LEWIS
JOHS AVALLONE AVILLES, LLP, as and for its answer to the Verified Complaint of the
plaintiff herein, alleges upon information and belief as follows:
1. Admits that at all times mentioned in the Verified Complaint answering defendant
was and now is a body politic duly organized and existing pursuant to the Public Housing Law of
the State of New York, that defendant owned the premises at 425 East 105^*^ Street, New York,
NY, that a certain Notice of Claim was served on behalf of the plaintiff on the answering
defendant, that a hearing at which plaintiff testified was held, that more than thirty days have
passed since the Notice of Claim was served, and that the claim remains unadjusted, but except
as so specifically admitted herein, denies knowledge or information sufficient to form a belief as
to the truth of the allegations contained in paragraphs "I", "2", "3", "4,"5", "6", "7", "8", "9",
"10", "11", "12", "13", "14","15", "16", "17", "18", "19", "20", "21","22","23", "24", "25",
"27" and "28" of the Verified Complaint and respectfully refers all questions of law and fact
therein to this Honorable Court and to the triers of fact at the trial of this action.
2. Denies each and every allegation contained in paragraphs "30","31""32","33",
"34","35","36","37","38","39","40","41" and "42" of the Verified Complaint.
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3. Denies knowledge or information sufficient to form a belief as to whether plaintiff
was lawfully on the premises referenced in the Verified Complaint on the date alleged,
respectfully refers all questions of law and fact relative to said allegation to this Honorable Court
and to the triers of the fact at the trial of this action and otherwise denies each and every
allegation in paragraph "26" of the Verified Complaint.
4. Denies knowledge or information sufficient to form a belief as to whether
defendant ever had notice of the condition complained about in the Verified Complaint,
respectfully refers all questions of law and fact relative to said allegation to this Honorable Court
and to the triers of the fact at the trial of this action and otherwise denies each and every
allegation in paragraph "29" of the Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
5. If the plaintiff has been injured and damaged as alleged in plaintiffs Verified
Complaint, upon information and belief, such injuries and damages were caused, in whole or in
part, or were contributed to by reason of the carelessness, negligence or want of care on the part
of the plaintiff and not by any carelessness, negligence or want of care on the part of the
defendant, and if any carelessness, negligence or want of care other than that of the plaintiff
caused or contributed to said alleged injuries and damages, it was the carelessness, negligence or
want of care on the part of some other party or persons, firm or corporation, his, its or their
agents, servants or employees over whom defendant had no control and for whose, carelessness,
negligence or want of care defendant is not and was not responsible or liable.
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AS AND FOR A SECOND AFFIRMATIVE DEFENSE
6. Whatever injuries and/or damages were sustained by the plaintiff at the time and
place alleged in the Verified Complaint were in whole or in part the result of the plaintiffs own
culpable conduct.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
7. That whatever injuries and/or damages were sustained by the plaintiff at the time
and place alleged in the Verified Complaint were the result of the plaintiffs assumption of risk,
in realizing and knowing the hazards and dangers thereof, and that plaintiff assumed all the risks
necessarily incidental to such an undertaking.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
8. If the liability of the answering defendant is found to be fifty (50%) percent or
less of the total liability assigned to all persons liable, the liability of such defendant to the
plaintiff for non-economic loss shall not exceed the defendant's equitable share determined in
accordance with the relative culpability of each person causing or contributing to the total
liability for non-economic loss, pursuant to Article 16 of the C.P.L.R.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
9. Upon information and belief, any past or future costs and/or expenses incurred or
to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation
services, loss of earnings or other economic loss, has been or will with reasonable certainty be
replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a)
of the CPLR.
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10. If any damages are recoverable against the answering defendant, the amount of
such damages shall be diminished by the amount of the funds which plaintiffs have received or
shall receive from such collateral source.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
11. If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit
arising out of the same incident to which the within action pertains, and/or does so in the future
as against any other alleged tortfeasor, this answering defendant asserts its right to any and all
set-offs in accordance with General Obligations Law Section 15-108.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
12. Plaintiff failed to mitigate damages, if any.
WHEREFORE, answering defendant demands judgment dismissing the plaintiffs
Verified Complaint, together with the costs and disbursements of this action.
Dated: New York, New York
August 20, 2019
Yours, etc.
LEWIS JOHS AVALLONE AVILES, LLP
Attorneys for Defendant
THE NEW YORK CITY HQLf^NG AUTHORITY
61 Broadw^yfSmte 2000
New Yopk^Ney/York >dQ0'6
By: /yA_A
CARU A. FORMKSOLA
TO:
REMOND LAW PLLC
Attorneys for Plaintiff
80 Broad Street, Suite 1202
New York, New York 10004
212.799.8989
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ATTOIWEY VERIFICATION
CARL A. FORMICOLA,ESQ., 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 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 them to be true. The reason this verification is made by me and
not by defendant NEW YORK CITY HOUSING AUTHORITY is because said defendant is a
municipal authority. The grounds of my belief as to all matters in the answer not stated upon my
Dated: New York, New York
August 20, 2019
RMICOLA
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Preview
FILED: NEW YORK COUNTY CLERK 08/20/2019 03:36 PM INDEX NO. 157342/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/20/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X THERESA E. PERRY, Index No.: 157342/19 Plaintiff, -against- VERIFIED ANSWER NEW YORK CITY HOUSING AUTHORITY, Defendant. X Defendant, NEW YORK CITY HOUSING AUTHORITY, by its attorneys, LEWIS JOHS AVALLONE AVILLES, LLP, as and for its answer to the Verified Complaint of the plaintiff herein, alleges upon information and belief as follows: 1. Admits that at all times mentioned in the Verified Complaint answering defendant was and now is a body politic duly organized and existing pursuant to the Public Housing Law of the State of New York, that defendant owned the premises at 425 East 105^*^ Street, New York, NY, that a certain Notice of Claim was served on behalf of the plaintiff on the answering defendant, that a hearing at which plaintiff testified was held, that more than thirty days have passed since the Notice of Claim was served, and that the claim remains unadjusted, but except as so specifically admitted herein, denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs "I", "2", "3", "4,"5", "6", "7", "8", "9", "10", "11", "12", "13", "14","15", "16", "17", "18", "19", "20", "21","22","23", "24", "25", "27" and "28" of the Verified Complaint and respectfully refers all questions of law and fact therein to this Honorable Court and to the triers of fact at the trial of this action. 2. Denies each and every allegation contained in paragraphs "30","31""32","33", "34","35","36","37","38","39","40","41" and "42" of the Verified Complaint. 1 of 5 FILED: NEW YORK COUNTY CLERK 08/20/2019 03:36 PM INDEX NO. 157342/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/20/2019 3. Denies knowledge or information sufficient to form a belief as to whether plaintiff was lawfully on the premises referenced in the Verified Complaint on the date alleged, respectfully refers all questions of law and fact relative to said allegation to this Honorable Court and to the triers of the fact at the trial of this action and otherwise denies each and every allegation in paragraph "26" of the Verified Complaint. 4. Denies knowledge or information sufficient to form a belief as to whether defendant ever had notice of the condition complained about in the Verified Complaint, respectfully refers all questions of law and fact relative to said allegation to this Honorable Court and to the triers of the fact at the trial of this action and otherwise denies each and every allegation in paragraph "29" of the Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 5. If the plaintiff has been injured and damaged as alleged in plaintiffs Verified Complaint, upon information and belief, such injuries and damages were caused, in whole or in part, or were contributed to by reason of the carelessness, negligence or want of care on the part of the plaintiff and not by any carelessness, negligence or want of care on the part of the defendant, and if any carelessness, negligence or want of care other than that of the plaintiff caused or contributed to said alleged injuries and damages, it was the carelessness, negligence or want of care on the part of some other party or persons, firm or corporation, his, its or their agents, servants or employees over whom defendant had no control and for whose, carelessness, negligence or want of care defendant is not and was not responsible or liable. 2 of 5 FILED: NEW YORK COUNTY CLERK 08/20/2019 03:36 PM INDEX NO. 157342/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/20/2019 AS AND FOR A SECOND AFFIRMATIVE DEFENSE 6. Whatever injuries and/or damages were sustained by the plaintiff at the time and place alleged in the Verified Complaint were in whole or in part the result of the plaintiffs own culpable conduct. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 7. That whatever injuries and/or damages were sustained by the plaintiff at the time and place alleged in the Verified Complaint were the result of the plaintiffs assumption of risk, in realizing and knowing the hazards and dangers thereof, and that plaintiff assumed all the risks necessarily incidental to such an undertaking. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 8. If the liability of the answering defendant is found to be fifty (50%) percent or less of the total liability assigned to all persons liable, the liability of such defendant to the plaintiff for non-economic loss shall not exceed the defendant's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss, pursuant to Article 16 of the C.P.L.R. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 9. Upon information and belief, any past or future costs and/or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a) of the CPLR. 3 of 5 FILED: NEW YORK COUNTY CLERK 08/20/2019 03:36 PM INDEX NO. 157342/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/20/2019 10. If any damages are recoverable against the answering defendant, the amount of such damages shall be diminished by the amount of the funds which plaintiffs have received or shall receive from such collateral source. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 11. If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit arising out of the same incident to which the within action pertains, and/or does so in the future as against any other alleged tortfeasor, this answering defendant asserts its right to any and all set-offs in accordance with General Obligations Law Section 15-108. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 12. Plaintiff failed to mitigate damages, if any. WHEREFORE, answering defendant demands judgment dismissing the plaintiffs Verified Complaint, together with the costs and disbursements of this action. Dated: New York, New York August 20, 2019 Yours, etc. LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendant THE NEW YORK CITY HQLf^NG AUTHORITY 61 Broadw^yfSmte 2000 New Yopk^Ney/York >dQ0'6 By: /yA_A CARU A. FORMKSOLA TO: REMOND LAW PLLC Attorneys for Plaintiff 80 Broad Street, Suite 1202 New York, New York 10004 212.799.8989 4 of 5 FILED: NEW YORK COUNTY CLERK 08/20/2019 03:36 PM INDEX NO. 157342/2019 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 08/20/2019 ATTOIWEY VERIFICATION CARL A. FORMICOLA,ESQ., 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 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 them to be true. The reason this verification is made by me and not by defendant NEW YORK CITY HOUSING AUTHORITY is because said defendant is a municipal authority. The grounds of my belief as to all matters in the answer not stated upon my Dated: New York, New York August 20, 2019 RMICOLA 5 of 5