Preview
FILED: NEW YORK COUNTY CLERK 06/29/2018 02:24 PM INDEX NO. 154840/2018
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/29/2018
LSK&D #: 250-0131 / 4811-8551-7164
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
— ——- ———— - —————-- —————- ———————————
-------------------------------------------------------------X
JOZO ELEZOVIC and DJUSTA ELEZOVIC, E-File
Plaintiffs, Index No.: 154840/2018
-against-
VERIFIED ANSWER
FEDERAL EXPRESS CORPORATION,
FEDERAL EXPRESS CORP. and
FRANCISCO SANTOS
Defendants.
----------------------------------------------------------------X
Defendants, FEDERAL EXPRESS CORPORATION, FEDERAL EXPRESS
CORP. and FRANCISCO SANTOS, by their attorneys, LESTER SCHWAB KATZ 5
Plaintiffs'
DWYER, LLP, answering Verified Complaint dated May 23, 2018 respectfully
states as follows:
ANSWERING THE FIRST CAUSE OF ACTION
1. Deny any knowledge or information sufficient to form a belief as to the
"1" "10"
allegations contained in paragraphs and of the Verified Complaint.
"8" "12"
2. Admit the allegations contained in paragraphs "2", "3", "4", "6", and
of the Verified Complaint.
"9"
3. Deny each and every allegation contained in paragraphs "5", "7", and
"13"
of the Verified Complaint.
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/29/2018
"11"
4. Deny each and every allegation contained in paragraph of the
Verified Complaint except admit that the vehicles came into contact.
"15"
5. Deny each and every allegation contained in paragraphs "14", and
"16"
of the Verified Complaint, but beg leave to refer all questions of law to the Court at
the trialof this action.
ANSWERING THE SECOND CAUSE OF ACTION
6. The answering Defendants repeat and reiterate each and every denial
hereinbefore made with the same force and effect as though the same were set forth at
"17"
length herein in answer to paragraph number of the Verified Complaint.
7. Deny any knowledge or information sufficient to form a belief as to the
"18"
allegations contained in paragraph of the Verified Complaint.
"19"
8. Deny each and every allegation contained in paragraph of the
Verified Complaint.
"20"
9. Deny each and every allegation contained in paragraph of the
Verified Complaint, but beg leave to refer all questions of law to the Court at the trial of
this action.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
10. That any injuries and/or damages sustained by the Plaintiffs, as alleged in
the Verified Complaint herein, were caused in whole or in part by the contributory
negligence and/or culpable conduct of each Plaintiff and not as a result of any
contributory negligence and/or culpable conduct on the part of the answering
Defendants.
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AS AND FOR A SECOND AFFIRMATIVE DEFENSE
11. The Plaintiff was negligent in not wearing a seat belt at the time of the
occurrence and under the applicable law may not recover damages for those injuries
which Plaintiffs would not have received ifa seat belt had been worn.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
12. In the event any Plaintiffs herein recover a verdict for personal injury, the
amount of such recovery should be reduced by any payment that plaintiff received
under the medical payment provisions of any policy of automobile liability insurance.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
13. The accident described in the Verified Complaint did not result in a
injury"
"serious to any Plaintiffs as so defined in and by Section 5102(d) of the
Insurance Law of the State of New York, and as such, Plaintiffs have and has no right to
institute, maintain or prosecute this action and are barred from doing so.
14. The Plaintiffs did not sustain serious injury as defined by Section 5102(d)
of the Insurance Law of the State of New York, and their exclusive remedy therefore is
confined and limited to the benefits and provisions of Article 51 of the Insurance Law of
the State of New York.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
15. The Verified Complaint of the Plaintiffs fail to state a cause of action
cognizable in law or equity against the answering Defendants and the Verified
Complaint must therefore be dismissed.
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
16. The liability of the Defendants, if any, to the Plaintiffs for non-economic
loss is limited to its equitable share, determined in accordance with the relative
culpability of all persons or entities contributing to the total liability for non-economic
loss, including named parties and others over whom Plaintiffs could have obtained
personal jurisdiction with due diligence.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
17. That if the Plaintiffs sustained the injuries complained of in the manner
alleged, said injuries were caused by the negligence of parties over whom the
answering Defendants were not obligated to exercise supervision or control.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
18. In the event Plaintiffs recovers a verdict or judgment against the
Defendants, then said verdict or judgment must be reduced pursuant to CPLR 4545(c)
by those amounts which have been, or will, with reasonable certainty, replace or
indemnify Plaintiffs, in whole or in part, for any past or future claimed economic loss,
workers'
from any collateral source such as insurance, social security, compensation or
employee benefit programs.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
19. The Plaintiffs did not sustain serious injury as defined by Section 5102(d)
of the Insurance Law of the State of New York, and their exclusive remedy therefore is
confined and limited to the benefits and provisions of Article 51 of the Insurance Law of
the State of New York.
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WHEREFORE, the answering Defendants demand judgment dismissing the
attorneys'
Verified Complaint of the Plaintiffs, together with the fees, costs and
disbursements of this action.
Dated: New York, New York
June 29, 2018
Yours, etc.
LESTER SCHWAB KATZ 8 DWYER, LLP
feds D##ddire 111
John DeMatteo Ill
Attorneys for Defendants
FEDERAL EXPRESS CORPORATION,
FEDERAL EXPRESS CORP. and FRANCISCO
SANTOS
100 Wall Street
New York, New York 10005
(212) 964-6611
TO:
Piergrossi 8 Peterman, LLP
2344 Eastchester Road
Bronx, New York 10469
Attn: Lawrence A. Piergrossi, Esq.
Attorneys for Plaintiff
T: (718) 515-6000
File No.: 19316
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NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/29/2018
ATTORNEY'S VERIFICATION
The undersigned affirms the following statement to be true under the penalty of
perjury pursuant to Rule 2106 of the Civil Practice Law and Rules.
That he is a Member of the firm of LESTER SCHWAB KATZ 8 DWYER, LLP,
attorneys for Defendants, FEDERAL EXPRESS CORPORATION, FEDERAL
EXPRESS CORP. and FRANCISCO SANTOS.
That he has read the foregoing document and knows the contents thereof, and
that the same is true to the knowledge of your deponent except as to the matters therein
alleged upon information and belief and that as to those matters he believes them to be
true.
That the reason why this affirmation is being made by your deponent and not by
the said defendant is that said corporation does not maintain an office with an officer
having knowledge of the facts in the county where your affirmant's firm maintains its
offices.
That the source of your deponent's information and the grounds of his belief as to
all the matters therein alleged upon information and belief are reports from and
communications had with said corporation.
Dated:New York, New York
June 29, 2018
~ SsSk~ FIN
John DeMatteo III
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Preview
FILED: NEW YORK COUNTY CLERK 06/29/2018 02:24 PM INDEX NO. 154840/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/29/2018 LSK&D #: 250-0131 / 4811-8551-7164 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK — ——- ———— - —————-- —————- ——————————— -------------------------------------------------------------X JOZO ELEZOVIC and DJUSTA ELEZOVIC, E-File Plaintiffs, Index No.: 154840/2018 -against- VERIFIED ANSWER FEDERAL EXPRESS CORPORATION, FEDERAL EXPRESS CORP. and FRANCISCO SANTOS Defendants. ----------------------------------------------------------------X Defendants, FEDERAL EXPRESS CORPORATION, FEDERAL EXPRESS CORP. and FRANCISCO SANTOS, by their attorneys, LESTER SCHWAB KATZ 5 Plaintiffs' DWYER, LLP, answering Verified Complaint dated May 23, 2018 respectfully states as follows: ANSWERING THE FIRST CAUSE OF ACTION 1. Deny any knowledge or information sufficient to form a belief as to the "1" "10" allegations contained in paragraphs and of the Verified Complaint. "8" "12" 2. Admit the allegations contained in paragraphs "2", "3", "4", "6", and of the Verified Complaint. "9" 3. Deny each and every allegation contained in paragraphs "5", "7", and "13" of the Verified Complaint. 1 of 6 FILED: NEW YORK COUNTY CLERK 06/29/2018 02:24 PM INDEX NO. 154840/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/29/2018 "11" 4. Deny each and every allegation contained in paragraph of the Verified Complaint except admit that the vehicles came into contact. "15" 5. Deny each and every allegation contained in paragraphs "14", and "16" of the Verified Complaint, but beg leave to refer all questions of law to the Court at the trialof this action. ANSWERING THE SECOND CAUSE OF ACTION 6. The answering Defendants repeat and reiterate each and every denial hereinbefore made with the same force and effect as though the same were set forth at "17" length herein in answer to paragraph number of the Verified Complaint. 7. Deny any knowledge or information sufficient to form a belief as to the "18" allegations contained in paragraph of the Verified Complaint. "19" 8. Deny each and every allegation contained in paragraph of the Verified Complaint. "20" 9. Deny each and every allegation contained in paragraph of the Verified Complaint, but beg leave to refer all questions of law to the Court at the trial of this action. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 10. That any injuries and/or damages sustained by the Plaintiffs, as alleged in the Verified Complaint herein, were caused in whole or in part by the contributory negligence and/or culpable conduct of each Plaintiff and not as a result of any contributory negligence and/or culpable conduct on the part of the answering Defendants. 2 of 6 FILED: NEW YORK COUNTY CLERK 06/29/2018 02:24 PM INDEX NO. 154840/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/29/2018 AS AND FOR A SECOND AFFIRMATIVE DEFENSE 11. The Plaintiff was negligent in not wearing a seat belt at the time of the occurrence and under the applicable law may not recover damages for those injuries which Plaintiffs would not have received ifa seat belt had been worn. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 12. In the event any Plaintiffs herein recover a verdict for personal injury, the amount of such recovery should be reduced by any payment that plaintiff received under the medical payment provisions of any policy of automobile liability insurance. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 13. The accident described in the Verified Complaint did not result in a injury" "serious to any Plaintiffs as so defined in and by Section 5102(d) of the Insurance Law of the State of New York, and as such, Plaintiffs have and has no right to institute, maintain or prosecute this action and are barred from doing so. 14. The Plaintiffs did not sustain serious injury as defined by Section 5102(d) of the Insurance Law of the State of New York, and their exclusive remedy therefore is confined and limited to the benefits and provisions of Article 51 of the Insurance Law of the State of New York. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 15. The Verified Complaint of the Plaintiffs fail to state a cause of action cognizable in law or equity against the answering Defendants and the Verified Complaint must therefore be dismissed. 3 of 6 FILED: NEW YORK COUNTY CLERK 06/29/2018 02:24 PM INDEX NO. 154840/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/29/2018 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 16. The liability of the Defendants, if any, to the Plaintiffs for non-economic loss is limited to its equitable share, determined in accordance with the relative culpability of all persons or entities contributing to the total liability for non-economic loss, including named parties and others over whom Plaintiffs could have obtained personal jurisdiction with due diligence. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 17. That if the Plaintiffs sustained the injuries complained of in the manner alleged, said injuries were caused by the negligence of parties over whom the answering Defendants were not obligated to exercise supervision or control. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 18. In the event Plaintiffs recovers a verdict or judgment against the Defendants, then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by those amounts which have been, or will, with reasonable certainty, replace or indemnify Plaintiffs, in whole or in part, for any past or future claimed economic loss, workers' from any collateral source such as insurance, social security, compensation or employee benefit programs. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 19. The Plaintiffs did not sustain serious injury as defined by Section 5102(d) of the Insurance Law of the State of New York, and their exclusive remedy therefore is confined and limited to the benefits and provisions of Article 51 of the Insurance Law of the State of New York. 4 of 6 FILED: NEW YORK COUNTY CLERK 06/29/2018 02:24 PM INDEX NO. 154840/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/29/2018 WHEREFORE, the answering Defendants demand judgment dismissing the attorneys' Verified Complaint of the Plaintiffs, together with the fees, costs and disbursements of this action. Dated: New York, New York June 29, 2018 Yours, etc. LESTER SCHWAB KATZ 8 DWYER, LLP feds D##ddire 111 John DeMatteo Ill Attorneys for Defendants FEDERAL EXPRESS CORPORATION, FEDERAL EXPRESS CORP. and FRANCISCO SANTOS 100 Wall Street New York, New York 10005 (212) 964-6611 TO: Piergrossi 8 Peterman, LLP 2344 Eastchester Road Bronx, New York 10469 Attn: Lawrence A. Piergrossi, Esq. Attorneys for Plaintiff T: (718) 515-6000 File No.: 19316 5 of 6 FILED: NEW YORK COUNTY CLERK 06/29/2018 02:24 PM INDEX NO. 154840/2018 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 06/29/2018 ATTORNEY'S VERIFICATION The undersigned affirms the following statement to be true under the penalty of perjury pursuant to Rule 2106 of the Civil Practice Law and Rules. That he is a Member of the firm of LESTER SCHWAB KATZ 8 DWYER, LLP, attorneys for Defendants, FEDERAL EXPRESS CORPORATION, FEDERAL EXPRESS CORP. and FRANCISCO SANTOS. That he has read the foregoing document and knows the contents thereof, and that the same is true to the knowledge of your deponent except as to the matters therein alleged upon information and belief and that as to those matters he believes them to be true. That the reason why this affirmation is being made by your deponent and not by the said defendant is that said corporation does not maintain an office with an officer having knowledge of the facts in the county where your affirmant's firm maintains its offices. That the source of your deponent's information and the grounds of his belief as to all the matters therein alleged upon information and belief are reports from and communications had with said corporation. Dated:New York, New York June 29, 2018 ~ SsSk~ FIN John DeMatteo III 6 of 6