Preview
FILED: ERIE COUNTY CLERK 09/16/2020 03:24 PM INDEX NO. 809443/2020
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/16/2020
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
MONICA KARSAY,
Plaintiff,
ANSWER
vs.
Index No. 809443/2020
CIMINELLI REAL ESTATE CORPORATION,
SWEETHOME COMMERCE PARK ASSOCIATES, LLC,
Defendants,
The Defendants, CIMINELLI REAL ESTATE CORPORATION and SWEETHOME
COMMERCE PARK ASSOCIATES, LLC., for their Answer to the Complaint of the Plaintiff, set
forth the following:
1. DENY knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations set forth in paragraph labeled FIRST of Plaintiff’s Complaint.
2. DENY knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations set forth in paragraph labeled SECOND of Plaintiff’s Complaint.
3. ADMIT the allegations set forth in paragraph labeled THIRD of Plaintiff’s
Complaint.
4. ADMIT the allegations set forth in paragraph labeled FOURTH of Plaintiff’s
Complaint.
5. ADMIT the allegations set forth in paragraph labeled FIFTH of Plaintiff’s
Complaint.
6. DENY knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations set forth in paragraph labeled SIXTH of Plaintiff’s Complaint.
1 of 5
FILED: ERIE COUNTY CLERK 09/16/2020 03:24 PM INDEX NO. 809443/2020
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/16/2020
7. DENY knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations set forth in paragraph labeled SEVENTH of Plaintiff’s Complaint.
8. DENY knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations set forth in paragraph labeled EIGHTH of Plaintiff’s Complaint.
9. DENY knowledge or information sufficient to form a belief as to the truth or falsity
of the allegations set forth in paragraph labeled NINTH of Plaintiff’s Complaint.
10. DENY the allegations set forth in paragraph labeled TENTH of Plaintiff’s
Complaint.
11. DENY the allegations set forth in paragraph labeled ELEVENTH of Plaintiff’s
Complaint.
12. DENY the allegations set forth in paragraph labeled TWELFTH of Plaintiff’s
Complaint.
13. DENY the allegations set forth in paragraph labeled THIRTEENTH of Plaintiff’s
Complaint.
14. DENY the allegations set forth in paragraph labeled FOURTEENTH of Plaintiff’s
Complaint.
15. DENY the allegations set forth in paragraph labeled FIFTEENTH of Plaintiff’s
Complaint.
16. DENY the allegations set forth in paragraph labeled SIXTEENTH of Plaintiff’s
Complaint.
17. DENY the allegations set forth in paragraph labeled SEVENTEENTH of Plaintiff’s
Complaint.
2 of 5
FILED: ERIE COUNTY CLERK 09/16/2020 03:24 PM INDEX NO. 809443/2020
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/16/2020
18. DENY the allegations set forth in paragraph labeled EIGHTEENTH of Plaintiff’s
Complaint.
19. DENY the allegations set forth in paragraph labeled NINETEENTH of Plaintiff’s
Complaint.
20. DENY the allegations set forth in paragraph labeled TWENTIETH of Plaintiff’s
Complaint.
21. DENY each and every other allegation not heretofore specifically admitted or denied.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
22. The incident, injuries and damages alleged in the Plaintiff’s Complaint were
caused, wholly and/or in part, by the culpable conduct and/or omissions of the Plaintiff, including
negligence, assumption of risk and contributory negligence, and were not caused by the negligence
or culpable conduct of Defendants, and Plaintiff’s recovery, if any, should be barred or reduced
accordingly.
23. The recoverable damages, if any, should be diminished pursuant to Article 14-A of
the CPLR.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
24. Upon information and belief, the Plaintiff assumed the risk of the injuries
complained of in his Complaint. The recoverable damages, if any, should be diminished pursuant
to Article 14-A of the CPLR.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
25. Upon information and belief, Defendants did not have any notice, actual or
constructive, of any alleged conditions which are claimed to have caused Plaintiff’s injuries.
3 of 5
FILED: ERIE COUNTY CLERK 09/16/2020 03:24 PM INDEX NO. 809443/2020
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/16/2020
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
26. The Plaintiff’s Complaint herein fails to state a cause of action against Defendants.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
27. Upon information and belief, all or part of the cost of Plaintiff’s medical care, loss
of earnings or other economic loss may have been paid, replaced or indemnified in whole or in
part from collateral sources or with reasonable certainty will be replaced or indemnified in the
future from such collateral sources, and to that extent, the amount of damages, if any, should be
dismissed or reduced by said amounts pursuant to CPLR 4545.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
28. Upon information and belief, any liability for non-economic losses is limited by the
applicable provisions of Article 16 of the CPLR.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
29. The recoverable damages, if any, should be reduced to the extent that Plaintiff has
failed to mitigate her damages.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
30. Plaintiff’s causes of action are barred in whole or in part because the alleged injuries
and damages were caused by the acts, omissions, or culpable conduct of persons or entities over
whom Defendants had no control and with respect to whom they have no legal responsibility.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
31. That if the Plaintiff has received sums of money in settlement of the claims asserted
herein, and that by reason thereof, Defendants are entitled to the protection, provisions and
limitations of Section 15-108 of the General Obligations Law of the State of New York in reducing
the claim of the Plaintiff against Defendants by the amount stipulated in the Release, the amount
4 of 5
FILED: ERIE COUNTY CLERK 09/16/2020 03:24 PM INDEX NO. 809443/2020
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/16/2020
of consideration paid for it or the amount of the released defendant’s equitable share of the
damages, whichever is the greatest.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
32. In the event Plaintiff seeks to recover a verdict or judgment against Defendants,
then said verdict or judgment must exclude or be reduced by those amounts which have been, or
will with reasonable certainty replace or indemnify Plaintiff, in whole or in part, for any past or
future medical costs, health care, life care, or other economic loss or the benefit that is offered or
provided under or in connection with the patient Protection and Affordable Care Act.
WHEREFORE, judgment is demanded as follows:
(a) Dismissing the Plaintiff’s Complaint in its entirety;
(b) Determining the relative culpability of all parties, named and unnamed,
to this action and awarding contribution and/or indemnification; and
(c) For such other, further and different relief as to this Court may seem just,
proper and equitable.
DATED: Buffalo, New York
September 16, 2020
GOLDBERG SEGALLA, LLP
By______________________________
Julie P. Apter, Esq.
Attorneys for Defendants
665 Main Street
Buffalo, NY 14203
(716) 566-5400
TO: Leonard D. Zaccagnino, Esq.
SHAW 7 SHAW, P.C.
Attorneys for Plaintiff
4819 South Park Avenue
Hamburg, NY 14075
(716) 648-3020
27745627.v1
5 of 5
Preview
FILED: ERIE COUNTY CLERK 09/16/2020 03:24 PM INDEX NO. 809443/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/16/2020 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE MONICA KARSAY, Plaintiff, ANSWER vs. Index No. 809443/2020 CIMINELLI REAL ESTATE CORPORATION, SWEETHOME COMMERCE PARK ASSOCIATES, LLC, Defendants, The Defendants, CIMINELLI REAL ESTATE CORPORATION and SWEETHOME COMMERCE PARK ASSOCIATES, LLC., for their Answer to the Complaint of the Plaintiff, set forth the following: 1. DENY knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph labeled FIRST of Plaintiff’s Complaint. 2. DENY knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph labeled SECOND of Plaintiff’s Complaint. 3. ADMIT the allegations set forth in paragraph labeled THIRD of Plaintiff’s Complaint. 4. ADMIT the allegations set forth in paragraph labeled FOURTH of Plaintiff’s Complaint. 5. ADMIT the allegations set forth in paragraph labeled FIFTH of Plaintiff’s Complaint. 6. DENY knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph labeled SIXTH of Plaintiff’s Complaint. 1 of 5 FILED: ERIE COUNTY CLERK 09/16/2020 03:24 PM INDEX NO. 809443/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/16/2020 7. DENY knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph labeled SEVENTH of Plaintiff’s Complaint. 8. DENY knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph labeled EIGHTH of Plaintiff’s Complaint. 9. DENY knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set forth in paragraph labeled NINTH of Plaintiff’s Complaint. 10. DENY the allegations set forth in paragraph labeled TENTH of Plaintiff’s Complaint. 11. DENY the allegations set forth in paragraph labeled ELEVENTH of Plaintiff’s Complaint. 12. DENY the allegations set forth in paragraph labeled TWELFTH of Plaintiff’s Complaint. 13. DENY the allegations set forth in paragraph labeled THIRTEENTH of Plaintiff’s Complaint. 14. DENY the allegations set forth in paragraph labeled FOURTEENTH of Plaintiff’s Complaint. 15. DENY the allegations set forth in paragraph labeled FIFTEENTH of Plaintiff’s Complaint. 16. DENY the allegations set forth in paragraph labeled SIXTEENTH of Plaintiff’s Complaint. 17. DENY the allegations set forth in paragraph labeled SEVENTEENTH of Plaintiff’s Complaint. 2 of 5 FILED: ERIE COUNTY CLERK 09/16/2020 03:24 PM INDEX NO. 809443/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/16/2020 18. DENY the allegations set forth in paragraph labeled EIGHTEENTH of Plaintiff’s Complaint. 19. DENY the allegations set forth in paragraph labeled NINETEENTH of Plaintiff’s Complaint. 20. DENY the allegations set forth in paragraph labeled TWENTIETH of Plaintiff’s Complaint. 21. DENY each and every other allegation not heretofore specifically admitted or denied. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 22. The incident, injuries and damages alleged in the Plaintiff’s Complaint were caused, wholly and/or in part, by the culpable conduct and/or omissions of the Plaintiff, including negligence, assumption of risk and contributory negligence, and were not caused by the negligence or culpable conduct of Defendants, and Plaintiff’s recovery, if any, should be barred or reduced accordingly. 23. The recoverable damages, if any, should be diminished pursuant to Article 14-A of the CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 24. Upon information and belief, the Plaintiff assumed the risk of the injuries complained of in his Complaint. The recoverable damages, if any, should be diminished pursuant to Article 14-A of the CPLR. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 25. Upon information and belief, Defendants did not have any notice, actual or constructive, of any alleged conditions which are claimed to have caused Plaintiff’s injuries. 3 of 5 FILED: ERIE COUNTY CLERK 09/16/2020 03:24 PM INDEX NO. 809443/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/16/2020 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 26. The Plaintiff’s Complaint herein fails to state a cause of action against Defendants. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 27. Upon information and belief, all or part of the cost of Plaintiff’s medical care, loss of earnings or other economic loss may have been paid, replaced or indemnified in whole or in part from collateral sources or with reasonable certainty will be replaced or indemnified in the future from such collateral sources, and to that extent, the amount of damages, if any, should be dismissed or reduced by said amounts pursuant to CPLR 4545. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 28. Upon information and belief, any liability for non-economic losses is limited by the applicable provisions of Article 16 of the CPLR. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 29. The recoverable damages, if any, should be reduced to the extent that Plaintiff has failed to mitigate her damages. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 30. Plaintiff’s causes of action are barred in whole or in part because the alleged injuries and damages were caused by the acts, omissions, or culpable conduct of persons or entities over whom Defendants had no control and with respect to whom they have no legal responsibility. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 31. That if the Plaintiff has received sums of money in settlement of the claims asserted herein, and that by reason thereof, Defendants are entitled to the protection, provisions and limitations of Section 15-108 of the General Obligations Law of the State of New York in reducing the claim of the Plaintiff against Defendants by the amount stipulated in the Release, the amount 4 of 5 FILED: ERIE COUNTY CLERK 09/16/2020 03:24 PM INDEX NO. 809443/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 09/16/2020 of consideration paid for it or the amount of the released defendant’s equitable share of the damages, whichever is the greatest. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 32. In the event Plaintiff seeks to recover a verdict or judgment against Defendants, then said verdict or judgment must exclude or be reduced by those amounts which have been, or will with reasonable certainty replace or indemnify Plaintiff, in whole or in part, for any past or future medical costs, health care, life care, or other economic loss or the benefit that is offered or provided under or in connection with the patient Protection and Affordable Care Act. WHEREFORE, judgment is demanded as follows: (a) Dismissing the Plaintiff’s Complaint in its entirety; (b) Determining the relative culpability of all parties, named and unnamed, to this action and awarding contribution and/or indemnification; and (c) For such other, further and different relief as to this Court may seem just, proper and equitable. DATED: Buffalo, New York September 16, 2020 GOLDBERG SEGALLA, LLP By______________________________ Julie P. Apter, Esq. Attorneys for Defendants 665 Main Street Buffalo, NY 14203 (716) 566-5400 TO: Leonard D. Zaccagnino, Esq. SHAW 7 SHAW, P.C. Attorneys for Plaintiff 4819 South Park Avenue Hamburg, NY 14075 (716) 648-3020 27745627.v1 5 of 5