Preview
FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
RIGOBERTO CRUZ,
CERTIFICATION OF
Plaintiff(s)
VERIFIED ANSWER WITH
- -
CROSS CLAIM
against
DEMANDS
ISAAC E. CLAXTON and JACK DANIELS
MOTORS INC
Index No: 157335/2019
__________ __Defendant(Q ________ ___
CERTIFICATION PURSUANT TO SECTION 130-1.1a
OF THE RULES OF THE CHIEF ADMINISTRATOR (22NYCRR)
The undersigned certifies the following documents pursuant to 22NYCRR Section 130-1 la:
Verified Answer With Cross Claim and Demands, and Demand For a Verified Bill
of Particulars, Combined Demand for Discovery and Inspection, Notice to Take Deposition Upon
Oral Examination, Refusal to Accept Service by Facsimile Transmission, Declination of
Participation in Electronic Filing and Notice to Submit to Physical Examination.
DATED: Westbury, NY
September 24, 2019
Lynn Góld r,Èsq
Law Office Of Niéole Lesperance
Attorneys for Defendant(s)
Isaac E. Claxton
1400 Old Country Road, Suite 201
Westbury, NY 11590
516-247-4724
Our File No: 19R1623
Claim No: 0435982290101066 (J801)
Lucarelli & Castaldi, LLP
Attorneys for Plaintiff(s)
1491 Richmond Road
Staten Island, NY 10304
718 556-1800
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
RIGOBERTO CRUZ,
Plaintiff(s)
VERIFIED ANSWER
- against -
Index #: 157335/2019
ISAAC E. CLAXTON and JACK DANIELS
MOTORS, INC.
_____________________. Defendant(s)
Defendant(s) Isaac E. Claxton, and Jack Daniels Motors, Inc. by the undersigned answering
the VERIFIED complaint of the plaintiff(s), upon information and belief, states as follows:
ANSWERING A FIRST CAUSE OF ACTION
FIRST: Denies having any knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs numbered and designated as: 1, 3, 4, 5, 15, 16, 17,
18, 19, 20, 21, 22, 23,
SECOND: Denies each and every allegation contained in paragraphs numbered and
designated as: 7 (except admits defendant Jack Daniels Motors Inc. was the registered owner of a
2017 Audi motor vehicle bearing New Jersey license plate number F26JJB, 8,9,10, 11 (except
admit on 3/30/2018 defendant Jack Daniels Motors Inc. was the registered owner of a 2017 Audi
motor vehicle bearing New Jersey license plate number F26JJB at or near the aformentioned
location), 12, 24, 25, 26, 27, 28, 29, 30,
THIRD: Admits each and allegation contained in paragraphs numbered and
every
designated as: 2, 6, 13, 14
ANSWERING A SE_COND CAUSE OF ACTION
FOURTH: Answering paragraph 31 repeats and reiterates each and every admission and
denial heretofore made to paragraphs set therein with the same force and effect as if more fully set
forth herein.
FIFTH: Denies having any knowledge or information sufficient to form a belief as to the
truth of the allegations contained in paragraphs numbered and designated as:
SIXTH: Denies each and every allegation contained in paragraphs numbered and
designated as: 32, 33
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AS AND FOR AN AFFIRMATIVE DEFENSE - COMPARATIVE NEGLIGENCE
The personal injuries and/or property damage alleged to have been sustained by the plaintiff(s)
were caused entirely or in part through the culpable conduct attributable to the plaintiff(s) and the
defendant seeks a dismissal or reduction in any recovery had by the plaintiff in the proportion
which the culpable conduct attributable to the plaintiff(s) bears to the culpable conduct which
caused the damages.
AS AND FOR AN AFFIRMATIVE DEFENSE - SEAT BELT
The plaintiff(s) damages must be mitigated by the plaintiff(s) failure to use the available seat belts
or infant restraining devices and that the damages claimed to have been sustained were caused by
the lack of use of said seat belts and/or infant restraining devices.
AS AND FOR AN AFFIRMATIVE DEFENSE - EMERGENCY DOCTRINE
The defendant operator was faced with an emergency situation and acted as a reasonably prudent
person would under the circumstances. Defendant is not negligent even if itlater appears that the
defendant did not make the safest choice or exercise the best judgment.
AS AND FOR AN AFFIRMATIVE DEFENSE - HELMET/PROTECTIVE GEAR
The plaintiff failed to use a helmet and/or other appropriate protective gear and the failure to do so
caused the damages allegedly sustained or that if used would have mitigated the injuries alleged.
AS AND FOR AN AFFIRMATIVE DEFENSE - COLLATERAL ESTOPPEL
The issues of liability and/or damages in this action have been previously litigated and collateral
estoppel applies against the plaintiff.
AS AND FOR AN AFFIRMATIVE DEFENSE - ASSUMPTION OF THE RISK
The injuries and damages allegedly suffered by the plaintiff(s) were sustained while he was
engaged in an activity that the plaintiff(s) entered knowing the risks inherent therein and which
risks were assumed by plaintiff(s).
AS AND FOR AN AFFIRMATIVE DEFENSE - COLLATERAL SOURCE
The costs incurred, or paid by plaintiff(s), if any, for medical care, dental care, custodial care or
rehabilitation services, loss of earning or other economic loss, in the past or future, were or will,
with reasonable certainty be replaced or indemnified, in whole or in part, from a collateral source of
the type described in CPLR §4545 and defendant is entitled to have any award reduced in the
amount of such payments.
AS AND FOR AN AFFIRMATIVE DEFENSE - GENERAL OBLIGATIONS LAW
must be offset a settlement pursuant General Obligations Law section 15-
Plaintiff(s) recovery by
108.
AS AND FOR AN AFFIRMATIVE DEFENSE - SUBJECT MATTER JURISDICTION
This court lacks jurisdiction over this suit since there is no predicate for jurisdiction.
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AS AND FOR AN AFFIRMATIVE DEFENSE - FAILURE TO SIGN COMPLAINT
Plaintiff(s) has failed to serve a signed complaint in accordance with the Rules of the Chief
Administrator of the State of New York.
Plaintiff(s) complaint fails to state a cause of action for which relief can be granted.
The defendant's vehicle was not being operated with the permission and consent of the owner at the
time of the subject accident.
DATED: Westbury, NY
October 3, 2019
Lynn Golder, Esq.
Law Office Of Nicole Lesperance
Attorneys for Defendant(s)
Isaac E. Claxton
1400 Old Country Road, Suite 201
Westbury, NY 11590
516-247-4724
Our File No: 19R1623
Claim No: 0435982290101066 (J801)
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VERIFICATION
Lynn Golder, Esq., an attorney admitted to practice in the Courts of this State, and
associated with the finn of Law Office Of Nicole Loapo1auce, attorneys for the defendant(s) Isaac
E. Claxton , states:
That your affirmant has read the foregoing Answer and knows the contents thereof; that the
same is true to your affirmant's own knowledge except as to the matters which are stated therein to
be alleged on information and belief, and as to those matters your affirmant believes itto be true.
The source of your affirmant's information and belief, is an investigation caused to be made with
respect to the facts in this action.
That the reason this verification is made by affirmant and not by the defendant is because
the defendant does not reside within the county where Law Office Of Nicole Lesperance maintain
their office.
The undersigned affinns that the foregoing statement is true,under penalties of perjury.
Date: Westbury, NY
September 24, 2019
Lyl f1 G lder, Es .
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SUPREME CO OF THE STATE OF NEW YORK
Plaintiff(s)
DEMAND FOR
- agamst -
A VERIFIED
BILL OF PARTICULARS
ISAAC E. CLAXTON and JACK DANIELS
MOTORS, INC.
_____ _______Defendant(s) ________________ ________
COUNSELORS:
PLEASE TAKE NOTICE that the defendant(s) Isaac E. Claxton , hereby demands that you
serve upon the undersigned within thirty days from date of service herein, a verified bill of
particulars concerning the following matters:
1. Name, date of birth and social security number of plaintiff(s)
2. Post office and residence address of plaintiff in sufficient detail to permit ready location.
3. All names by which plaintiff(s) has been known.
4. Marital status of plaintiff(s) now and on the date of the occurrence.
5. The date and approximate time of day of the occurrence.
6. The approximate location of the occurrence.
7. A general statement of the acts or omissions, constituting the negligence claimed. If any
violation of any rule, law, custom, ordinance or statute is elsimed, identify and specify the
provision of same.
8. A statement of the injuries claimed to have been sustained as a result of the occurrence and the
nature and extent thereof.
9. A statement of such injuries claimed to be permañent and the nature and extent thereof.
10. Length of time and dates confined to bed.
11. Length of time and dates confined to house.
12. Length of time totally incapacitated from employment and/or school.
13. Length of time partially incapacitated from employment and/or school.
14. Itemize allaccounts claimed as special damages for (a) physician's services; (b) medical
supplies; (c) hospital expenses; (d) nurse's services; (e) loss of earnings; (f) allother special
damages; and (g) all out of pocket expenses.
15. State whether plaintiff(s) receives or received Medicare benefits and, if so, provide plaintiff(s)
Health Insurance Claim Number (HICN).
16. Specify the monetary amount that will be claimed at trial for each and every element of
damages.
17. State the name and address of plaintiffs employer and/or school at the time of the occurrence, if
any.
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18. If plaintiff was self-employed at the time of the occurrence, state the facts upon which plaintiff
bases the claim for loss of earnings, if any.
19. If property damages are claimed, describe the article, the damage thereto, date of purchase,
original cost, and cost of repair.
20. If property damage to automobile is claimed, state the following: (a) The make, style, model,
year of manufacture, serial number and license number of plaintiff s motor vehicle; (b) The
parts of the motor vehicle alleged to have been damaged and the cost of repair or replacement
thereof; (c)Number of miles driven at time of occurrence; (d) The length of time, and the
amount, claimed for loss of use.
21. If monetary damage due to the loss of use of an automobile is claimed, state the length of time
claimed for the loss of use, the amount claimed, and the particulars by which the amount was
calculated.
22. In what respect plaintiff has sustained serious injury as defined in subdivision d of Sec. 5102 of
the insurance law, or economic loss greater than basic economic loss, as defined in subdivision
a of Sec.5102 of the insurance law.
23. State the source or sources of collateral reimbursements or benefits pursuant to CPLR 4545(c)
and for each such source provide the following: (a) the name and address of the source; (b) the
amount of the reimbursement; and (c) the date that reimbursement was given.
24. Pursuant to CPLR Section 3101(d);
a) Identify and state the qualifications of each person whom you expect to call at trial as an
expert witness.
b) State the subject matter in reasonable detail upon which the expert is expected to testify.
c) Provide the facts and opinions upon which the expert is expected to testify.
d) Provide a summary of the grounds of each such opinion.
e) Provide a copy of the expert's report furnished to plaintiff.
PLEASE TAKE FURTHER NOTICE that unless this demand is complied with, the
undersigned will move for (1) an order precluding plaintiff from giving evidence at the trialof the
items of which particulars have not been furnished; (2) an order staying all proceedings in this
action pursuant to Civil Practice Law and Rule 3042; and (3) such other and further relief as the
court may deem just and proper.
DATED: Westbury, NY
September 24, 2019
Lynn Golder, Esq.
Law Office Of Nicole Lesperance
Attorneys for Defendant(s)
Isaac E. Claxton
1400 Old Country Road, Suite 201
Westbury, NY 11590
516-247-4724
File No: 19R1623
Claim No: 0435982290101066 (J801)
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
DEMAND F OR
Pla s)
MEDICARE/MEDICAID
LIEN INFORMATION
- against -
Index No.: 157335/2019
ISAAC E. CLAXTON and JACK DANIELS
MOTORS, INC.
____________ ____Defendantfs]_
PLEASE TAKE NOTICE, that pursuant to Article 31 of the CPLR, the Defendant, Isaac
E. Claxton , by attorneys, Law Office Of Nicole Lesperañce hereby demand that the Plaintiff serve
upon the undersigned attorney within twenty (20) days after date of service of this notice the
following:
1. A statement as to whether the Plaintiff received benefits from either Medicare or
Medicaid at any time, for any reason, not limited to the injuries alleged in the instant action. If so
please state:
A. The Plaintiff's date of birth;
B. The Plaintiff's social security number;
C. The Medicare/Medicaid filenumber;
D. The address of the office handling the Plaintiff's Medicare/Medicaid file;
E. Copies of all documents, records, memorandums, notes, etc. in Plaintiff's possession
pertaining to his receipt of Medicare/Medicaid benefits;
"BEARER" "GEICO"
F. A duly executed authorization MADE OUT TO OR bearing
Plaintiff's date of birth and social security number permitting Defendants to obtain a
copy of the Plaintiff's Medicare/Medicaid records.
2. Copies of all letters, correspondence, etc. whereby Plaintiff has placed Medicaid or
Medicare on notice of the Plaintiff's pending personal injury claim and/or lawsuit, and a copy of
any acknowledgment of same from Medicaid or Medicare.
PLEASE TAKE FURTHER NOTICE, that pursuant to the CPLR, this is a continuing
demand and that you are required to serve the demanded information by the earliest of the
following:
1. Within twenty (20) days of the date of this demand;
2. Within twenty (20) days of receiving the above-requested information;
3. No later than thirty (30) days prior to the commencement of trial.
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If you do not possess the above requested information, please submit a letter or affidavit to
that effect.
PLEASE TAKE FURTHER NOTICE, that your failure to respond to this Demand within
the time frame set forth above shall result in a motion to dismiss and/or compelling disclosure and
requesting sanctions.
DATED: Westbury, NY
September 24, 2019
Lynn Golder, Esq.
Law Office OfNicole Lesperance
Attorneys for Defendant(s)
Isaac E. Claxton
1400 Old CountryRoad, Suite 201
Westbury, NY 11590
516-247-4724
Our File No: 19R1623
Claim No: 0435982290101066 (J801)
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
RIGOBERTO CRUZ,
Plaintiff(s)
- against - COMBINED DEMAND FOR
DISCOVERY AND INSPECTION
ISAAC E. CLAXTON and JACK DANIELS
MOTORS, INC.
__________________________ Defendant(s)
COUNSELORS:
PLEASE TAKE NOTICE that demand is hereby made upon you to serve upon the
undersigned, the following:
DEMAND FOR INDEX NUMBER
Pursuant to the filing requirements of Section 306-a of the C.P.L.R. and the notice
requirements of 22 N.Y.C.R.R. 202.5, you are to advise in writing of the County Clerk's Index
Number assigned to this action.
DEMAND FOR ALL PARTIES APPEARING
A list of names of all parties that have appeared in this action, together with the names and
addresses of their respective attorneys pursuant to Section 2103(e) of the C.P.L.R.
DEMAND FOR INSURANCE COVERAGE TO PLAINTIFF(S)
ON COUNTERCLAIM AND/OR CO-DEFENDANT(S)
Pursuant to C.P.L.R. 3101(f), you are to produce and permit the undersigned to inspect and
copy the contents of any insurance agreement under which any person or entity carrying on an
insurance business may be liable to satisfy part or all of the judgment which may be entered in this
action, or to indemnify or reimburse for payments made to satisfy the judgment which may be
entered herein, including by not limited to excess and additional coverage. If there is no excess or
additional coverage and there is the only one insurer liable to satisfy part or all of a judgment which
may be entered in this action, then the undersigned demands a sworn affidavit from your client
stating this.
DEMAND FOR WITNESSES
Pursuant to C.P.L.R. 3101(a) and this demand, you are requested to produce and permit
discovery by the undersigned or another acting on their behalf of the following:
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Names and addresses of all persons claimed by your client(s) to have
either witnesses the occurrence or to have firsthand knowledge of
same, or knowledge of any injuries or damages allegedly suffered by
plaintiff(s) as the result of this occurrence, or to have notice of the
nature and duration of any alleged condition(s) proximately causing
this occurrence, or to have witnessed or firsthand knowledge of any
such notice given to the party(ies) we represent and/or any other party
in this action, or having firsthand knowledge of facts and
circumstances regarding this occurrence, whether obtained by your
client(s) at the scene of the occurrence or thereafter obtained by your
client(s) attorneys or representatives. If no such persons are known to
your client(s) or your client(s) representatives, so state in reply to this
demand. The undersigned will object at time of trial of this action to
the testimony of any persons not so identified.
PLEASE TAKE FURTHER NOTICE that if your client(s) or client(s) representatives,
obtain names and addresses of such persons subsequent to their response to this notice, such
information is to be furnished to the undersigned whenever so obtained. The undersigned will
object at the time of trial of this action the testimony of any persons not so identified.
DEMAND FOR EXPERT WITNESSES
1. The name and address of each expert witness which you expect to call at the trial of this action.
2. The subject matter in reasonable detail upon which each such expert is expected to testify.
3. The substance of the facts and opinions upon which each such expert is expected to testify.
4. The qualifications of each such expert witness.
5. A summary of the grounds for each such expert(s) opinion.
6. Provide a copy of each such expert's report furnished to you or your client(s).
PLEASE TAKE FURTHER NOTICE, that ifany such expert which you expect to call as a
witness on the trial of this action intends to rely upon or introduce into evidence any portion of any
technical standard or learned treatise, you are hereby required to identify any such standard or
treatise, including in the case of standards, the issuing body and the standard number; in the case of
books, author, title,publication date and publisher; and in the case of journal articles,journal title,
volume number, page, publication date and publisher.
DEMAND FOR ACCIDENT REPORTS
client(s)'
All accident reports and/or motor vehicle accident reports in your possession,
pursuant to C.P.L.R. 3101(g).
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DEMAND FOR STATEMENT
Copy(ies) of each and every written statement or the transcript of each and every oral
statement which itwill be alleged was made by or attributed to the party(ies) we represent in this
action. If none, so state.
DEMAND FOR PHOTOGRAPHS
client(s)'
Copy(ies) of all photographs, slides, video tapes and/or motion pictures in your
possession, pertaining to the accident site, defective conditions(s) claimed and/or
instrumentality(ies) in issue.
DEMAND FOR INCOME TAX RETURNS
Copies of plaintiff(s) income tax returns for a period of three (3) years preceding the date of
the accident as set forth in plaintiff(s) complaint to present as well as a duly executed,
acknowledged and current authorization allowing this office to obtain the plaintiffs tax records for
a period of three (3) years before the accident in question. This authorization must include two
forms of identification, including one photo identification.
DEMAND FOR SCHOOL AUTHORIZATIONS
Set forth duly executed and acknowledged authorizations, pursuant to Section 3101(a) and
Rule 3120 of the C.P.L.R., permitting the undersigned to obtain copies of the school records of the
plaintiff(s) from the beginning of the school year preceding the date of accident as set forth in the
complaint to the present.
DEMAND FOR EMPLOYMENT AUTHORIZATIONS
Set forth duly executed and acknowledged authorizations pursuant to Section 3101(a) and
Rule 3120 of the C.P.L.R., permitting the undersigned to obtain copies of the employment records
of the plaintiff(s) from three (3) years preceding the date of accident as set forth in plaintiff(s)
complaint to the present.
DEMAND FOR NO-FAULT RECORDS
If a claim has been or will be made by plaintiff(s) pursuant to the terms of ARTICLE XVIII
of the Insurance Law of the State of New York (No-Fault Law); with respect to each and every
application and/or claim:
1. Set forth the name, address, policy number and claim number of each company to which
a claim has been made or will be made.
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2. Set forth duly executed and acknowledged written authorizations enabling the
undersigned to obtain copies of the records relating to the plaintiff(s) from each company
identified in the response to the above.
DEMAND FOR WORKER'S COMPENSATION RECORDS
If a claim has been made or will be made by plaintiff(s), pursuant to the terms of the
Worker's Compensation Law, with respect to each and every application:
1. Set forth name, address, policy number to which a claim has been or will be made,
together with the Worker's Compensation Board file number.
2. Set forth duly executed and acknowledged written authorizations enabling the
undersigned to obtain copies of the records relating to the plaintiff(s) from each company
identified in response to the above.
DEMAND FOR DISABILITY RECORDS
If a disability claim has been or will be made by plaintiff(s), pursuant to the terms of the
Social Security Laws, with respect to each and every application and/or claim:
1. Set forth the claim office, address and the claim number assigned.
2. Set forth duly executed and acknowledged written authorizations enabling the
undersigned to obtain copies of the records relating to the plaintiff(s).
DEMAND FOR INFORMATION ON COLLATERAL SOURCE
A statement pursuant to C.P.L.R. 4545(c), in writing, under oath, setting forth the
following:
1. The amount of (a)medical, (b) dental, (c) custodial, (d) rehabilitative costs, (e) loss of
eamings, or (f) other economic loss that was or will be replaced or indemnified by (a)
insurance, (b) Social Security, (c) worker's compensation, (d) employee benefit programs or
(e)other source, not including No-Fault basic economic loss in automobile cases, which the
plaintiff(s) intend to prove as special damages.
2. The amounts the plaintiff(s) will claim as lawful liens against the plaintiff(s) recovery.
3. The amount of premiums actually paid by the plaintiff(s) in the two (2) year period
preceding the accrual of his/her/their cause of action.
4. The amount of premiums actually paid by the plaintiff(s) between the accrual of
his/her/their cause of action and the present date.
5. The projected future costs of the plaintiff(s) maintaining such benefits.
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DEMAND F OR MEDICAL INFORMATION
1. The names and addresses of all physicians or other health care providers of every description
who have consulted, examined or treated the plaintiff(s) for each of the conditions alleged caused
by, or exacerbated by, the occurrence described in the complaint including the date of such
treatment or examination.
2. Duly executed and acknowledged written authorizations (HIPAA compliant) directed to any
hospital(s), clinics, or other health care facility in which the plaintiff(s) herein claiming injury,
consulted, examined or treated due to the occurrence set forth in the complaint, authorizing the
undersigned to obtain a copy of:
technicians'
the entire record or records including x-rays, and reports and a separate
authorization for intraoperative photographs.
3. Duly executed and acknowledged written authorizations (HIPAA compliant) to allow the
undersigned to obtain copies of the complete office medical records relating to the plaintiff(s) from
each physician or health care provider identified in (1) above.
4. Medical reports of those medical providers who have previously treated or examined the party
seeking recovery. These shall include a detailed recital of the injuries and conditions as to which
technicians'
testimony will be offered at the trial, referring to and identifying those x-ray and
reports which will be offered at the trial,including a description of the injuries, a diagnosis and a
prognosis.
5. If plaintiff(s) claim(s) exacerbation of a pre-existing condition or injury then demand is hereby
made with respect to the pre-existing condition or injury for duly executed and acknowledged
current authorizations to allow the undersigned to obtain:
a) copies of the complete medical records, reports, notes, correspondence, etc. from all
physicians, health care providers, hospitals, health care facilities, physical therapists,
chiropractors, etc.,that treated or examined plaintiff(s);
b) the films and reports of all diagnostic tests (including, but not limited to MRIs, CT scans
and x-rays) that were taken;
c) intraoperative photos
allrecords, reports, notes, correspondence, etc. from any phs .. y or drug store that
d)
filled a prescription for plaintiff(s); and
e) copies of the complete legal filesand no-fault files (ifapplicable)
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6. If plaintif
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FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RIGOBERTO CRUZ, CERTIFICATION OF Plaintiff(s) VERIFIED ANSWER WITH - - CROSS CLAIM against DEMANDS ISAAC E. CLAXTON and JACK DANIELS MOTORS INC Index No: 157335/2019 __________ __Defendant(Q ________ ___ CERTIFICATION PURSUANT TO SECTION 130-1.1a OF THE RULES OF THE CHIEF ADMINISTRATOR (22NYCRR) The undersigned certifies the following documents pursuant to 22NYCRR Section 130-1 la: Verified Answer With Cross Claim and Demands, and Demand For a Verified Bill of Particulars, Combined Demand for Discovery and Inspection, Notice to Take Deposition Upon Oral Examination, Refusal to Accept Service by Facsimile Transmission, Declination of Participation in Electronic Filing and Notice to Submit to Physical Examination. DATED: Westbury, NY September 24, 2019 Lynn Góld r,Èsq Law Office Of Niéole Lesperance Attorneys for Defendant(s) Isaac E. Claxton 1400 Old Country Road, Suite 201 Westbury, NY 11590 516-247-4724 Our File No: 19R1623 Claim No: 0435982290101066 (J801) Lucarelli & Castaldi, LLP Attorneys for Plaintiff(s) 1491 Richmond Road Staten Island, NY 10304 718 556-1800 1 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RIGOBERTO CRUZ, Plaintiff(s) VERIFIED ANSWER - against - Index #: 157335/2019 ISAAC E. CLAXTON and JACK DANIELS MOTORS, INC. _____________________. Defendant(s) Defendant(s) Isaac E. Claxton, and Jack Daniels Motors, Inc. by the undersigned answering the VERIFIED complaint of the plaintiff(s), upon information and belief, states as follows: ANSWERING A FIRST CAUSE OF ACTION FIRST: Denies having any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs numbered and designated as: 1, 3, 4, 5, 15, 16, 17, 18, 19, 20, 21, 22, 23, SECOND: Denies each and every allegation contained in paragraphs numbered and designated as: 7 (except admits defendant Jack Daniels Motors Inc. was the registered owner of a 2017 Audi motor vehicle bearing New Jersey license plate number F26JJB, 8,9,10, 11 (except admit on 3/30/2018 defendant Jack Daniels Motors Inc. was the registered owner of a 2017 Audi motor vehicle bearing New Jersey license plate number F26JJB at or near the aformentioned location), 12, 24, 25, 26, 27, 28, 29, 30, THIRD: Admits each and allegation contained in paragraphs numbered and every designated as: 2, 6, 13, 14 ANSWERING A SE_COND CAUSE OF ACTION FOURTH: Answering paragraph 31 repeats and reiterates each and every admission and denial heretofore made to paragraphs set therein with the same force and effect as if more fully set forth herein. FIFTH: Denies having any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs numbered and designated as: SIXTH: Denies each and every allegation contained in paragraphs numbered and designated as: 32, 33 2 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 AS AND FOR AN AFFIRMATIVE DEFENSE - COMPARATIVE NEGLIGENCE The personal injuries and/or property damage alleged to have been sustained by the plaintiff(s) were caused entirely or in part through the culpable conduct attributable to the plaintiff(s) and the defendant seeks a dismissal or reduction in any recovery had by the plaintiff in the proportion which the culpable conduct attributable to the plaintiff(s) bears to the culpable conduct which caused the damages. AS AND FOR AN AFFIRMATIVE DEFENSE - SEAT BELT The plaintiff(s) damages must be mitigated by the plaintiff(s) failure to use the available seat belts or infant restraining devices and that the damages claimed to have been sustained were caused by the lack of use of said seat belts and/or infant restraining devices. AS AND FOR AN AFFIRMATIVE DEFENSE - EMERGENCY DOCTRINE The defendant operator was faced with an emergency situation and acted as a reasonably prudent person would under the circumstances. Defendant is not negligent even if itlater appears that the defendant did not make the safest choice or exercise the best judgment. AS AND FOR AN AFFIRMATIVE DEFENSE - HELMET/PROTECTIVE GEAR The plaintiff failed to use a helmet and/or other appropriate protective gear and the failure to do so caused the damages allegedly sustained or that if used would have mitigated the injuries alleged. AS AND FOR AN AFFIRMATIVE DEFENSE - COLLATERAL ESTOPPEL The issues of liability and/or damages in this action have been previously litigated and collateral estoppel applies against the plaintiff. AS AND FOR AN AFFIRMATIVE DEFENSE - ASSUMPTION OF THE RISK The injuries and damages allegedly suffered by the plaintiff(s) were sustained while he was engaged in an activity that the plaintiff(s) entered knowing the risks inherent therein and which risks were assumed by plaintiff(s). AS AND FOR AN AFFIRMATIVE DEFENSE - COLLATERAL SOURCE The costs incurred, or paid by plaintiff(s), if any, for medical care, dental care, custodial care or rehabilitation services, loss of earning or other economic loss, in the past or future, were or will, with reasonable certainty be replaced or indemnified, in whole or in part, from a collateral source of the type described in CPLR §4545 and defendant is entitled to have any award reduced in the amount of such payments. AS AND FOR AN AFFIRMATIVE DEFENSE - GENERAL OBLIGATIONS LAW must be offset a settlement pursuant General Obligations Law section 15- Plaintiff(s) recovery by 108. AS AND FOR AN AFFIRMATIVE DEFENSE - SUBJECT MATTER JURISDICTION This court lacks jurisdiction over this suit since there is no predicate for jurisdiction. 3 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 AS AND FOR AN AFFIRMATIVE DEFENSE - FAILURE TO SIGN COMPLAINT Plaintiff(s) has failed to serve a signed complaint in accordance with the Rules of the Chief Administrator of the State of New York. Plaintiff(s) complaint fails to state a cause of action for which relief can be granted. The defendant's vehicle was not being operated with the permission and consent of the owner at the time of the subject accident. DATED: Westbury, NY October 3, 2019 Lynn Golder, Esq. Law Office Of Nicole Lesperance Attorneys for Defendant(s) Isaac E. Claxton 1400 Old Country Road, Suite 201 Westbury, NY 11590 516-247-4724 Our File No: 19R1623 Claim No: 0435982290101066 (J801) 4 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 VERIFICATION Lynn Golder, Esq., an attorney admitted to practice in the Courts of this State, and associated with the finn of Law Office Of Nicole Loapo1auce, attorneys for the defendant(s) Isaac E. Claxton , states: That your affirmant has read the foregoing Answer and knows the contents thereof; that the same is true to your affirmant's own knowledge except as to the matters which are stated therein to be alleged on information and belief, and as to those matters your affirmant believes itto be true. The source of your affirmant's information and belief, is an investigation caused to be made with respect to the facts in this action. That the reason this verification is made by affirmant and not by the defendant is because the defendant does not reside within the county where Law Office Of Nicole Lesperance maintain their office. The undersigned affinns that the foregoing statement is true,under penalties of perjury. Date: Westbury, NY September 24, 2019 Lyl f1 G lder, Es . 5 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 SUPREME CO OF THE STATE OF NEW YORK Plaintiff(s) DEMAND FOR - agamst - A VERIFIED BILL OF PARTICULARS ISAAC E. CLAXTON and JACK DANIELS MOTORS, INC. _____ _______Defendant(s) ________________ ________ COUNSELORS: PLEASE TAKE NOTICE that the defendant(s) Isaac E. Claxton , hereby demands that you serve upon the undersigned within thirty days from date of service herein, a verified bill of particulars concerning the following matters: 1. Name, date of birth and social security number of plaintiff(s) 2. Post office and residence address of plaintiff in sufficient detail to permit ready location. 3. All names by which plaintiff(s) has been known. 4. Marital status of plaintiff(s) now and on the date of the occurrence. 5. The date and approximate time of day of the occurrence. 6. The approximate location of the occurrence. 7. A general statement of the acts or omissions, constituting the negligence claimed. If any violation of any rule, law, custom, ordinance or statute is elsimed, identify and specify the provision of same. 8. A statement of the injuries claimed to have been sustained as a result of the occurrence and the nature and extent thereof. 9. A statement of such injuries claimed to be permañent and the nature and extent thereof. 10. Length of time and dates confined to bed. 11. Length of time and dates confined to house. 12. Length of time totally incapacitated from employment and/or school. 13. Length of time partially incapacitated from employment and/or school. 14. Itemize allaccounts claimed as special damages for (a) physician's services; (b) medical supplies; (c) hospital expenses; (d) nurse's services; (e) loss of earnings; (f) allother special damages; and (g) all out of pocket expenses. 15. State whether plaintiff(s) receives or received Medicare benefits and, if so, provide plaintiff(s) Health Insurance Claim Number (HICN). 16. Specify the monetary amount that will be claimed at trial for each and every element of damages. 17. State the name and address of plaintiffs employer and/or school at the time of the occurrence, if any. 6 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 18. If plaintiff was self-employed at the time of the occurrence, state the facts upon which plaintiff bases the claim for loss of earnings, if any. 19. If property damages are claimed, describe the article, the damage thereto, date of purchase, original cost, and cost of repair. 20. If property damage to automobile is claimed, state the following: (a) The make, style, model, year of manufacture, serial number and license number of plaintiff s motor vehicle; (b) The parts of the motor vehicle alleged to have been damaged and the cost of repair or replacement thereof; (c)Number of miles driven at time of occurrence; (d) The length of time, and the amount, claimed for loss of use. 21. If monetary damage due to the loss of use of an automobile is claimed, state the length of time claimed for the loss of use, the amount claimed, and the particulars by which the amount was calculated. 22. In what respect plaintiff has sustained serious injury as defined in subdivision d of Sec. 5102 of the insurance law, or economic loss greater than basic economic loss, as defined in subdivision a of Sec.5102 of the insurance law. 23. State the source or sources of collateral reimbursements or benefits pursuant to CPLR 4545(c) and for each such source provide the following: (a) the name and address of the source; (b) the amount of the reimbursement; and (c) the date that reimbursement was given. 24. Pursuant to CPLR Section 3101(d); a) Identify and state the qualifications of each person whom you expect to call at trial as an expert witness. b) State the subject matter in reasonable detail upon which the expert is expected to testify. c) Provide the facts and opinions upon which the expert is expected to testify. d) Provide a summary of the grounds of each such opinion. e) Provide a copy of the expert's report furnished to plaintiff. PLEASE TAKE FURTHER NOTICE that unless this demand is complied with, the undersigned will move for (1) an order precluding plaintiff from giving evidence at the trialof the items of which particulars have not been furnished; (2) an order staying all proceedings in this action pursuant to Civil Practice Law and Rule 3042; and (3) such other and further relief as the court may deem just and proper. DATED: Westbury, NY September 24, 2019 Lynn Golder, Esq. Law Office Of Nicole Lesperance Attorneys for Defendant(s) Isaac E. Claxton 1400 Old Country Road, Suite 201 Westbury, NY 11590 516-247-4724 File No: 19R1623 Claim No: 0435982290101066 (J801) 7 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK DEMAND F OR Pla s) MEDICARE/MEDICAID LIEN INFORMATION - against - Index No.: 157335/2019 ISAAC E. CLAXTON and JACK DANIELS MOTORS, INC. ____________ ____Defendantfs]_ PLEASE TAKE NOTICE, that pursuant to Article 31 of the CPLR, the Defendant, Isaac E. Claxton , by attorneys, Law Office Of Nicole Lesperañce hereby demand that the Plaintiff serve upon the undersigned attorney within twenty (20) days after date of service of this notice the following: 1. A statement as to whether the Plaintiff received benefits from either Medicare or Medicaid at any time, for any reason, not limited to the injuries alleged in the instant action. If so please state: A. The Plaintiff's date of birth; B. The Plaintiff's social security number; C. The Medicare/Medicaid filenumber; D. The address of the office handling the Plaintiff's Medicare/Medicaid file; E. Copies of all documents, records, memorandums, notes, etc. in Plaintiff's possession pertaining to his receipt of Medicare/Medicaid benefits; "BEARER" "GEICO" F. A duly executed authorization MADE OUT TO OR bearing Plaintiff's date of birth and social security number permitting Defendants to obtain a copy of the Plaintiff's Medicare/Medicaid records. 2. Copies of all letters, correspondence, etc. whereby Plaintiff has placed Medicaid or Medicare on notice of the Plaintiff's pending personal injury claim and/or lawsuit, and a copy of any acknowledgment of same from Medicaid or Medicare. PLEASE TAKE FURTHER NOTICE, that pursuant to the CPLR, this is a continuing demand and that you are required to serve the demanded information by the earliest of the following: 1. Within twenty (20) days of the date of this demand; 2. Within twenty (20) days of receiving the above-requested information; 3. No later than thirty (30) days prior to the commencement of trial. 8 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 If you do not possess the above requested information, please submit a letter or affidavit to that effect. PLEASE TAKE FURTHER NOTICE, that your failure to respond to this Demand within the time frame set forth above shall result in a motion to dismiss and/or compelling disclosure and requesting sanctions. DATED: Westbury, NY September 24, 2019 Lynn Golder, Esq. Law Office OfNicole Lesperance Attorneys for Defendant(s) Isaac E. Claxton 1400 Old CountryRoad, Suite 201 Westbury, NY 11590 516-247-4724 Our File No: 19R1623 Claim No: 0435982290101066 (J801) 9 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RIGOBERTO CRUZ, Plaintiff(s) - against - COMBINED DEMAND FOR DISCOVERY AND INSPECTION ISAAC E. CLAXTON and JACK DANIELS MOTORS, INC. __________________________ Defendant(s) COUNSELORS: PLEASE TAKE NOTICE that demand is hereby made upon you to serve upon the undersigned, the following: DEMAND FOR INDEX NUMBER Pursuant to the filing requirements of Section 306-a of the C.P.L.R. and the notice requirements of 22 N.Y.C.R.R. 202.5, you are to advise in writing of the County Clerk's Index Number assigned to this action. DEMAND FOR ALL PARTIES APPEARING A list of names of all parties that have appeared in this action, together with the names and addresses of their respective attorneys pursuant to Section 2103(e) of the C.P.L.R. DEMAND FOR INSURANCE COVERAGE TO PLAINTIFF(S) ON COUNTERCLAIM AND/OR CO-DEFENDANT(S) Pursuant to C.P.L.R. 3101(f), you are to produce and permit the undersigned to inspect and copy the contents of any insurance agreement under which any person or entity carrying on an insurance business may be liable to satisfy part or all of the judgment which may be entered in this action, or to indemnify or reimburse for payments made to satisfy the judgment which may be entered herein, including by not limited to excess and additional coverage. If there is no excess or additional coverage and there is the only one insurer liable to satisfy part or all of a judgment which may be entered in this action, then the undersigned demands a sworn affidavit from your client stating this. DEMAND FOR WITNESSES Pursuant to C.P.L.R. 3101(a) and this demand, you are requested to produce and permit discovery by the undersigned or another acting on their behalf of the following: 10 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 Names and addresses of all persons claimed by your client(s) to have either witnesses the occurrence or to have firsthand knowledge of same, or knowledge of any injuries or damages allegedly suffered by plaintiff(s) as the result of this occurrence, or to have notice of the nature and duration of any alleged condition(s) proximately causing this occurrence, or to have witnessed or firsthand knowledge of any such notice given to the party(ies) we represent and/or any other party in this action, or having firsthand knowledge of facts and circumstances regarding this occurrence, whether obtained by your client(s) at the scene of the occurrence or thereafter obtained by your client(s) attorneys or representatives. If no such persons are known to your client(s) or your client(s) representatives, so state in reply to this demand. The undersigned will object at time of trial of this action to the testimony of any persons not so identified. PLEASE TAKE FURTHER NOTICE that if your client(s) or client(s) representatives, obtain names and addresses of such persons subsequent to their response to this notice, such information is to be furnished to the undersigned whenever so obtained. The undersigned will object at the time of trial of this action the testimony of any persons not so identified. DEMAND FOR EXPERT WITNESSES 1. The name and address of each expert witness which you expect to call at the trial of this action. 2. The subject matter in reasonable detail upon which each such expert is expected to testify. 3. The substance of the facts and opinions upon which each such expert is expected to testify. 4. The qualifications of each such expert witness. 5. A summary of the grounds for each such expert(s) opinion. 6. Provide a copy of each such expert's report furnished to you or your client(s). PLEASE TAKE FURTHER NOTICE, that ifany such expert which you expect to call as a witness on the trial of this action intends to rely upon or introduce into evidence any portion of any technical standard or learned treatise, you are hereby required to identify any such standard or treatise, including in the case of standards, the issuing body and the standard number; in the case of books, author, title,publication date and publisher; and in the case of journal articles,journal title, volume number, page, publication date and publisher. DEMAND FOR ACCIDENT REPORTS client(s)' All accident reports and/or motor vehicle accident reports in your possession, pursuant to C.P.L.R. 3101(g). 11 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 DEMAND FOR STATEMENT Copy(ies) of each and every written statement or the transcript of each and every oral statement which itwill be alleged was made by or attributed to the party(ies) we represent in this action. If none, so state. DEMAND FOR PHOTOGRAPHS client(s)' Copy(ies) of all photographs, slides, video tapes and/or motion pictures in your possession, pertaining to the accident site, defective conditions(s) claimed and/or instrumentality(ies) in issue. DEMAND FOR INCOME TAX RETURNS Copies of plaintiff(s) income tax returns for a period of three (3) years preceding the date of the accident as set forth in plaintiff(s) complaint to present as well as a duly executed, acknowledged and current authorization allowing this office to obtain the plaintiffs tax records for a period of three (3) years before the accident in question. This authorization must include two forms of identification, including one photo identification. DEMAND FOR SCHOOL AUTHORIZATIONS Set forth duly executed and acknowledged authorizations, pursuant to Section 3101(a) and Rule 3120 of the C.P.L.R., permitting the undersigned to obtain copies of the school records of the plaintiff(s) from the beginning of the school year preceding the date of accident as set forth in the complaint to the present. DEMAND FOR EMPLOYMENT AUTHORIZATIONS Set forth duly executed and acknowledged authorizations pursuant to Section 3101(a) and Rule 3120 of the C.P.L.R., permitting the undersigned to obtain copies of the employment records of the plaintiff(s) from three (3) years preceding the date of accident as set forth in plaintiff(s) complaint to the present. DEMAND FOR NO-FAULT RECORDS If a claim has been or will be made by plaintiff(s) pursuant to the terms of ARTICLE XVIII of the Insurance Law of the State of New York (No-Fault Law); with respect to each and every application and/or claim: 1. Set forth the name, address, policy number and claim number of each company to which a claim has been made or will be made. 12 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 2. Set forth duly executed and acknowledged written authorizations enabling the undersigned to obtain copies of the records relating to the plaintiff(s) from each company identified in the response to the above. DEMAND FOR WORKER'S COMPENSATION RECORDS If a claim has been made or will be made by plaintiff(s), pursuant to the terms of the Worker's Compensation Law, with respect to each and every application: 1. Set forth name, address, policy number to which a claim has been or will be made, together with the Worker's Compensation Board file number. 2. Set forth duly executed and acknowledged written authorizations enabling the undersigned to obtain copies of the records relating to the plaintiff(s) from each company identified in response to the above. DEMAND FOR DISABILITY RECORDS If a disability claim has been or will be made by plaintiff(s), pursuant to the terms of the Social Security Laws, with respect to each and every application and/or claim: 1. Set forth the claim office, address and the claim number assigned. 2. Set forth duly executed and acknowledged written authorizations enabling the undersigned to obtain copies of the records relating to the plaintiff(s). DEMAND FOR INFORMATION ON COLLATERAL SOURCE A statement pursuant to C.P.L.R. 4545(c), in writing, under oath, setting forth the following: 1. The amount of (a)medical, (b) dental, (c) custodial, (d) rehabilitative costs, (e) loss of eamings, or (f) other economic loss that was or will be replaced or indemnified by (a) insurance, (b) Social Security, (c) worker's compensation, (d) employee benefit programs or (e)other source, not including No-Fault basic economic loss in automobile cases, which the plaintiff(s) intend to prove as special damages. 2. The amounts the plaintiff(s) will claim as lawful liens against the plaintiff(s) recovery. 3. The amount of premiums actually paid by the plaintiff(s) in the two (2) year period preceding the accrual of his/her/their cause of action. 4. The amount of premiums actually paid by the plaintiff(s) between the accrual of his/her/their cause of action and the present date. 5. The projected future costs of the plaintiff(s) maintaining such benefits. 13 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 DEMAND F OR MEDICAL INFORMATION 1. The names and addresses of all physicians or other health care providers of every description who have consulted, examined or treated the plaintiff(s) for each of the conditions alleged caused by, or exacerbated by, the occurrence described in the complaint including the date of such treatment or examination. 2. Duly executed and acknowledged written authorizations (HIPAA compliant) directed to any hospital(s), clinics, or other health care facility in which the plaintiff(s) herein claiming injury, consulted, examined or treated due to the occurrence set forth in the complaint, authorizing the undersigned to obtain a copy of: technicians' the entire record or records including x-rays, and reports and a separate authorization for intraoperative photographs. 3. Duly executed and acknowledged written authorizations (HIPAA compliant) to allow the undersigned to obtain copies of the complete office medical records relating to the plaintiff(s) from each physician or health care provider identified in (1) above. 4. Medical reports of those medical providers who have previously treated or examined the party seeking recovery. These shall include a detailed recital of the injuries and conditions as to which technicians' testimony will be offered at the trial, referring to and identifying those x-ray and reports which will be offered at the trial,including a description of the injuries, a diagnosis and a prognosis. 5. If plaintiff(s) claim(s) exacerbation of a pre-existing condition or injury then demand is hereby made with respect to the pre-existing condition or injury for duly executed and acknowledged current authorizations to allow the undersigned to obtain: a) copies of the complete medical records, reports, notes, correspondence, etc. from all physicians, health care providers, hospitals, health care facilities, physical therapists, chiropractors, etc.,that treated or examined plaintiff(s); b) the films and reports of all diagnostic tests (including, but not limited to MRIs, CT scans and x-rays) that were taken; c) intraoperative photos allrecords, reports, notes, correspondence, etc. from any phs .. y or drug store that d) filled a prescription for plaintiff(s); and e) copies of the complete legal filesand no-fault files (ifapplicable) 14 of 20 FILED: NEW YORK COUNTY CLERK 10/03/2019 05:48 PM INDEX NO. 157335/2019 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/03/2019 6. If plaintif