Preview
FILED: NEW YORK COUNTY CLERK 11/14/2019 04:14 PM INDEX NO. 150436/2019
NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/14/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
CARMEN ROMERO,
AMENDED ANSWER TO
Plaintiff(s). AMENDED COMPLAINT
-agalnst-
Index #: 15043612019
THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION, THE NEW Law Dept. #: 2019-006431
YORK CITY DEPARTMENT OF EDUCATION,
CONSOLIDATED EDISON COMPANY OF NEW
YORK, INC. AND CONSOLIDATED EDISON, INC.,
Defendant(s).
X
' Defendants THE CITY OF NEW YORK, THE BOARD/DEPARTMENT OF
EDUCATION OF THE CITY OF NEW YORK, and THE CITY OF NEW YORK S/H/A THE
NEW YORK CITY DEPARTMENT OF TRANSPORTATION, by JAMES E. JOHNSON,
Corporation Counsel, answering the amended complaint, allege upon information and belief:
1. Deny each allegation set forth in paragraph(s) 2,3, 40-45, inclusive.
2. Deny knowledge. or information sufficient to form a belief with respect to
the truth of the allegations set forth in paragraph(s) l, 39, inclusive.
3. Deny the allegations set forth in paragraph(s) 4,5, 8, inclusive, except
that a notice of a claim was presented, that more than thity days have elapsed without
adjustment thereof.
4. Deny each allegation set forth in palagraph(s) 9-14, 31-38, inclusive,
except that with respect to those portions of the street(s), sidewalks and appurtenances referred to
in the amended complaint which were or may have been owned by the City of New York,
defendant(s) had such duties as were imposed by law.
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5. Deny each allegation set forth in paragraph(s) 7, inclusive, except that
CITY OF NEW YORK owned, and THE BOARD/DEPARTMENT OF EDUCATION OF THE
CITY OF NEW YORK operated the premises identified in the amended complaint.
6. Deny each allegation set forth in paragraph(s) 6, inclusive, except that the
City of New York is a municipal corporation and the Board/Department of Education of the City
of New York is a public educational corporation and maintains a Department of Transportation
pursuant to law.
1. Deny each allegation set forth in paragraph(s) I 5-20, 2l-30, inclusive, so
far as the same may refer to the defendant(s) answering hereby.
AFFIRMATIVE DEFENSE(S)
8. Plaintiff(s)' culpable conduct caused or contributed, in whole or in part, to
his/her/their injuries and or damages.
9. At all times mentioned in the amended complaint, plaintiff(s) knew or
should have known in the exercise of due/reasonable care of the risks and dangers incident to
engaging in the activity alleged. Plaintiff(s) voluntarily performed and engaged in the alleged
activity and assumed the risk of the injuries and/or damages claimed. Plaintiff(s) failed to use all
required, proper, appropriate and reasonable safety devices and/or equipment and failed to take
all proper, appropriate and reasonable steps to assure his/her/their safety. Plaintiff(s)' primary
assumption of risk solely caused his/her/their injuries and/or damage and defendant(s) owed no
duty to the plaintiff(s) with respect to the risk assumed. Plaintiff(s)' express assumption of risk
solely caused his/her/their injuries and/or damage and defendant(s) owed no duty to the
plaintiff(s) with respect to the risk assumed. Plaintiff(s)' implied assumption of risk caused or
contributed, in whole or in part to his/her/their injuries. In any action for injuries arising from
the use of a vehicle in, or upon which plaintiff(s) were riding; it will be claimed that the injuries
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and/or damages sustained were caused by the failure of the plaintiff(s) to use available seat-belts
and/or other safety devices.
10. Defendants are immune from suit for their exercise of discretion in the
performance of a governmental function and/or their exercise of professional judgment.
11. The amounts recoverable by plaintiff(s) are subject to limitation pursuant
to Section 1601 of the Civil Practice Law and Rules, by reason of the culpable conduct of other
person(s) who are, or with reasonable diligence could have been made party defendant(s) to this
action, or pursuant to Section 15-108 of the General Obligations Law, by reason of a prior
settlement betwesn plaintiff(s) and said person(s), or pursuant to Section 4545 of the Civil
Practice Law and Rules are subject to reduction by collateral sources received by plaintiff(s), or
by reason of the fact that punitive damages are not recoverable against municipal defendant(s).
CROSS-CLAIMS
12. Any damages sustained by the plaintiff(s) were caused in whole or in part
by the acts or omissions of defendant(s) CONSOLIDATED EDISON COMPANY OF NEW
YORK, INC. AND CONSOLIDATED EDISON, INC., who are or may be liable to the
defendant(s) answering hereby for contribution on the basis of their equitable shares of
responsibility, or for indemnity on the basis of a contract between them, actual or implied.
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WHEREFORE, defendant(s) demand judgment dismissing the amended
complaint and all cross-claims against them, or, in the event that they are adjudged liable,
granting judgment over, or apportioning such liability in accordance with their equitable shares
of responsibility, and awarding the costs of this action, together with such other and further relief
as to the court may seem just.
JAMES E. JOHNSON
Corporation Counsel
100 Church Street
New York, New York 10007
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VERIFICATION
MICHAEL GIBEK an attorney admitted to practice before the Courts of the State of New York, affinns pursuant to
Rule 2106 of the Civil Practice Laws and Rules: affirmant is an employee of the Office of the Corporation Counsel;
that affirmant has read the foregoing answer, cross-claim(s) and counterclaim(s), if any, and knows the contents
thereof; that the same are true to affirmant's
own knowledge, except as to the matters alleged upon information and
belief, which affirmant believes to be true based upon the files, books and records maintained by The City of New
York, New York City Health and Hospitals Corporation or the New York City Board/Department of Education, and
the officers or agents thereof; and further swears that on this date he/she served said answer, cross-claim(s) and
counterclaim(s), if any, togetherwith the accornpanying combined demands for particulars and discovery upon:
STEVEN ADAM RUBIN & ASSOCIATES, PLLC
the attorney(s) for Plaintiff(s)
at 7l WEST 23rd STREET, STE. 1623
NEW YORK, NY lOOIO
CONSOLIDATED EDISON
at 4 Irving Place Room 1850-5
New York, New York 10003
by rnailinga copy to thd person at the address designated by hirn or her for that eby rtr lna
first class, postpaid, properly addressed
wrapper, in a post office or offi tory under ive care and
custody of the United States Postal Service within the State of New
Dated: New York, \rl6w York
November {_! , ZO tS
GIBEK
STIPULATION/CERTIFICATION
IT IS HEREBY STIPULATED AND AGREED, that at any time prior to the filing of a note of issue in this action,
plaintif(s)may amend the complaint to name additional defendants herein, provided that such additional defendants
shall not.include the City of New York, the Board/Department of Education, Health & Hospitals Corporation, City
University of New York, or any of their respective departments, subdivisions or employees, nor any other person
entitled to defense or indemnificationby the City of New York.
The signature below shall constitute the signature required pursuantto 130-1.1-a lns to a the
enclosed documents: answer, cross-claim(s) and counter-claims(s ANY, ing
combined dernands for particulars and discovery
Dated: New York,
|lJpw
York
Novernber
t "_,ZOtg
L G]BEK
ssistant Corporat nsel
Attorney(s) for Plaintif(s)
Please do not send correspondence to the above named individual unless otherwise
directed. See Answer back for additional contact information.
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Preview
FILED: NEW YORK COUNTY CLERK 11/14/2019 04:14 PM INDEX NO. 150436/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/14/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CARMEN ROMERO, AMENDED ANSWER TO Plaintiff(s). AMENDED COMPLAINT -agalnst- Index #: 15043612019 THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, THE NEW Law Dept. #: 2019-006431 YORK CITY DEPARTMENT OF EDUCATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. AND CONSOLIDATED EDISON, INC., Defendant(s). X ' Defendants THE CITY OF NEW YORK, THE BOARD/DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, and THE CITY OF NEW YORK S/H/A THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, by JAMES E. JOHNSON, Corporation Counsel, answering the amended complaint, allege upon information and belief: 1. Deny each allegation set forth in paragraph(s) 2,3, 40-45, inclusive. 2. Deny knowledge. or information sufficient to form a belief with respect to the truth of the allegations set forth in paragraph(s) l, 39, inclusive. 3. Deny the allegations set forth in paragraph(s) 4,5, 8, inclusive, except that a notice of a claim was presented, that more than thity days have elapsed without adjustment thereof. 4. Deny each allegation set forth in palagraph(s) 9-14, 31-38, inclusive, except that with respect to those portions of the street(s), sidewalks and appurtenances referred to in the amended complaint which were or may have been owned by the City of New York, defendant(s) had such duties as were imposed by law. 1 of 5 FILED: NEW YORK COUNTY CLERK 11/14/2019 04:14 PM INDEX NO. 150436/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/14/2019 5. Deny each allegation set forth in paragraph(s) 7, inclusive, except that CITY OF NEW YORK owned, and THE BOARD/DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK operated the premises identified in the amended complaint. 6. Deny each allegation set forth in paragraph(s) 6, inclusive, except that the City of New York is a municipal corporation and the Board/Department of Education of the City of New York is a public educational corporation and maintains a Department of Transportation pursuant to law. 1. Deny each allegation set forth in paragraph(s) I 5-20, 2l-30, inclusive, so far as the same may refer to the defendant(s) answering hereby. AFFIRMATIVE DEFENSE(S) 8. Plaintiff(s)' culpable conduct caused or contributed, in whole or in part, to his/her/their injuries and or damages. 9. At all times mentioned in the amended complaint, plaintiff(s) knew or should have known in the exercise of due/reasonable care of the risks and dangers incident to engaging in the activity alleged. Plaintiff(s) voluntarily performed and engaged in the alleged activity and assumed the risk of the injuries and/or damages claimed. Plaintiff(s) failed to use all required, proper, appropriate and reasonable safety devices and/or equipment and failed to take all proper, appropriate and reasonable steps to assure his/her/their safety. Plaintiff(s)' primary assumption of risk solely caused his/her/their injuries and/or damage and defendant(s) owed no duty to the plaintiff(s) with respect to the risk assumed. Plaintiff(s)' express assumption of risk solely caused his/her/their injuries and/or damage and defendant(s) owed no duty to the plaintiff(s) with respect to the risk assumed. Plaintiff(s)' implied assumption of risk caused or contributed, in whole or in part to his/her/their injuries. In any action for injuries arising from the use of a vehicle in, or upon which plaintiff(s) were riding; it will be claimed that the injuries 2 of 5 FILED: NEW YORK COUNTY CLERK 11/14/2019 04:14 PM INDEX NO. 150436/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/14/2019 and/or damages sustained were caused by the failure of the plaintiff(s) to use available seat-belts and/or other safety devices. 10. Defendants are immune from suit for their exercise of discretion in the performance of a governmental function and/or their exercise of professional judgment. 11. The amounts recoverable by plaintiff(s) are subject to limitation pursuant to Section 1601 of the Civil Practice Law and Rules, by reason of the culpable conduct of other person(s) who are, or with reasonable diligence could have been made party defendant(s) to this action, or pursuant to Section 15-108 of the General Obligations Law, by reason of a prior settlement betwesn plaintiff(s) and said person(s), or pursuant to Section 4545 of the Civil Practice Law and Rules are subject to reduction by collateral sources received by plaintiff(s), or by reason of the fact that punitive damages are not recoverable against municipal defendant(s). CROSS-CLAIMS 12. Any damages sustained by the plaintiff(s) were caused in whole or in part by the acts or omissions of defendant(s) CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. AND CONSOLIDATED EDISON, INC., who are or may be liable to the defendant(s) answering hereby for contribution on the basis of their equitable shares of responsibility, or for indemnity on the basis of a contract between them, actual or implied. 3 of 5 FILED: NEW YORK COUNTY CLERK 11/14/2019 04:14 PM INDEX NO. 150436/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/14/2019 WHEREFORE, defendant(s) demand judgment dismissing the amended complaint and all cross-claims against them, or, in the event that they are adjudged liable, granting judgment over, or apportioning such liability in accordance with their equitable shares of responsibility, and awarding the costs of this action, together with such other and further relief as to the court may seem just. JAMES E. JOHNSON Corporation Counsel 100 Church Street New York, New York 10007 4 of 5 FILED: NEW YORK COUNTY CLERK 11/14/2019 04:14 PM INDEX NO. 150436/2019 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 11/14/2019 VERIFICATION MICHAEL GIBEK an attorney admitted to practice before the Courts of the State of New York, affinns pursuant to Rule 2106 of the Civil Practice Laws and Rules: affirmant is an employee of the Office of the Corporation Counsel; that affirmant has read the foregoing answer, cross-claim(s) and counterclaim(s), if any, and knows the contents thereof; that the same are true to affirmant's own knowledge, except as to the matters alleged upon information and belief, which affirmant believes to be true based upon the files, books and records maintained by The City of New York, New York City Health and Hospitals Corporation or the New York City Board/Department of Education, and the officers or agents thereof; and further swears that on this date he/she served said answer, cross-claim(s) and counterclaim(s), if any, togetherwith the accornpanying combined demands for particulars and discovery upon: STEVEN ADAM RUBIN & ASSOCIATES, PLLC the attorney(s) for Plaintiff(s) at 7l WEST 23rd STREET, STE. 1623 NEW YORK, NY lOOIO CONSOLIDATED EDISON at 4 Irving Place Room 1850-5 New York, New York 10003 by rnailinga copy to thd person at the address designated by hirn or her for that eby rtr lna first class, postpaid, properly addressed wrapper, in a post office or offi tory under ive care and custody of the United States Postal Service within the State of New Dated: New York, \rl6w York November {_! , ZO tS GIBEK STIPULATION/CERTIFICATION IT IS HEREBY STIPULATED AND AGREED, that at any time prior to the filing of a note of issue in this action, plaintif(s)may amend the complaint to name additional defendants herein, provided that such additional defendants shall not.include the City of New York, the Board/Department of Education, Health & Hospitals Corporation, City University of New York, or any of their respective departments, subdivisions or employees, nor any other person entitled to defense or indemnificationby the City of New York. The signature below shall constitute the signature required pursuantto 130-1.1-a lns to a the enclosed documents: answer, cross-claim(s) and counter-claims(s ANY, ing combined dernands for particulars and discovery Dated: New York, |lJpw York Novernber t "_,ZOtg L G]BEK ssistant Corporat nsel Attorney(s) for Plaintif(s) Please do not send correspondence to the above named individual unless otherwise directed. See Answer back for additional contact information. 5 of 5