Preview
(FILED: BRONX COUNTY CLERK 11/05/2015 12:43 PM INDEX NO. 25058/2015E
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/05/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
Index No.: 25058/201SE
Plaintiff, VERIFIED ANSWER
-against-
1981 REALTY CORP.,
Defendant.
X
The defendant 1981 REALTY CORP. by its attorneys, MORRIS DUFFY ALONSO &
FALEY, upon information and belief, answers the plaintiff's Complaint herein as follows:
1. Denies any knowledge or information sufficient to form a belief as to the truth of
the allegations contained in the paragraphs or subdivisions of the Complaint designated “1” and
age
2. Admits each and every allegation contained in the paragraph or subdivision of the
Complaint designated “7,
3. Denies each and every allegation contained in the paragraphs or subdivisions of
the Complaint designated “4”, “5”, “6”, “7, *8”, “9”, “10”, “11”, 19", 413%, #14", S15”, “16”
and “17” except admits that the defendant was the owner of premises 1181 East Tremont
Avenue, Bronx New York and respectfully refers all questions of law to this honorable court.
4. Denies each and every allegation contained in the paragraphs or subdivisions of
the Complaint designated “18” and “25” and respectfully refers all questions of law to this
honorable court.
5. Denies each and every allegation contained the paragraphs or subdivisions of the
Complaint designated “19”, “20”, “21”, “22”, “23”, “24” and “26”.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
£9 45ND ECR AE eeeEeEeeeeeEeeeeeer"-']
6. Any damages which may have been sustained by the plaintiff were contributed to
in whole or in patt by the culpable conduct of the plaintiff, pursuant to Section 14-A, CPLR.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
7. Any damages which may have been sustained by the plaintiff were contributed to
in whole or in part by the culpable conduct of third parties not under the control of answeringdefendant.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
8. Pursuant to CPLR 4545(c), if it be determined or established that plaintiff has
received or with reasonable certainty shall receive the cost of medical care, dental care, custodial
care or rehabilitation services, loss of earnings or other economic loss, and that the same shall be
replaced or indemnified, in whole or in part from any collateral source such as insurance (except
for life insurance), social security (except for those benefits provided under title XVIII of the
Social Security Act), workers’ compensation or employee benefit programs (except such
collateral source entitled by law to liens against any recovery of the plaintiff), then and in that
event answering defendants hereby plead in mitigation of damages the assessment of any such
cost or expense as a collateral source in reduction of the amount of the award by such
replacement or indemnification, minus an amount equal to the premiums paid by the plaintiff for
such benefits for the two year period immediately preceding the accrual of this action and minus
an amount equal to the projected future cost to the plaintiff of maintaining such benefits and as
otherwise provided in CPLR 4545(c).
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
9. The injuries and damages alleged, all of which are denied by the answering
defendant, were caused by the intervening, interceding and superseding acts of third parties not
under the control of answering defendant.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
10. _ The plaintiff failed to mitigate his damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
11. Answering defendant is entitled to limitation of liability pursuant to Article 16 of
the CPLR.
S AND FOR A SEVENTH AFFIRMATIVE DEFENSE
AS AND FOR A SEVENTH AFFIRMATIVE DERENSE
12. . Any alleged defective condition was open and obvious and therefore should have
been avoided by plaintiff. ’
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
13. Any alleged defective condition was a “trivial defect” for which plaintiff may not
recover.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
14. The plaintiff has a duty to mitigate all damages with specific reference to futuremedical damages and under the Patient Protection and Affordable Care Act has a federally
mandated mechanism in which to do so.
WHEREFORE, answering defendant demands judgment dismissing the Complaint,
together with the costs, interest and disbursements of this action.
Dated: New York, New York
November 5, 2015
Yours etc.,
MORRIS DUFFY ALONSO & FALEY
By:
ICHAEL B. TITOWSKY
Attorneys for Defendant
1981 REALTY CORP.
Office and P.O, Address
Two Rector Street, 22" Floor
New York, New York 10006
(212) 766-1888
File No.: (ASP) 65367ATTORNEY VERIFICATION
MICHAEL B. TITOWSKY, an attorney admitted to practice in the courts of New York
State.
That I am a partner of the firm of MORRIS DUFFY ALONSO & FALEY, the attorneys
of record for defendant. I have read the foregoing ANSWER and know the contents thereof; the
same is true to my own knowledge, except as to the matters therein alleged to be on information
and belief, and as to those matters I believe it to be true. The reason this verification is made by
me and not by the defendant is that the defendant does not maintain an office within New York
County.
The grounds of my belief as to all matters not stated upon my own knowledge are based
on a review of the contents of the file maintained by this office.
Dated: New York, New York
November 5, 2015
(CHAEL B. TITOWSKY
Preview
(FILED: BRONX COUNTY CLERK 11/05/2015 12:43 PM INDEX NO. 25058/2015E NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 11/05/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX Index No.: 25058/201SE Plaintiff, VERIFIED ANSWER -against- 1981 REALTY CORP., Defendant. X The defendant 1981 REALTY CORP. by its attorneys, MORRIS DUFFY ALONSO & FALEY, upon information and belief, answers the plaintiff's Complaint herein as follows: 1. Denies any knowledge or information sufficient to form a belief as to the truth of the allegations contained in the paragraphs or subdivisions of the Complaint designated “1” and age 2. Admits each and every allegation contained in the paragraph or subdivision of the Complaint designated “7, 3. Denies each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “4”, “5”, “6”, “7, *8”, “9”, “10”, “11”, 19", 413%, #14", S15”, “16” and “17” except admits that the defendant was the owner of premises 1181 East Tremont Avenue, Bronx New York and respectfully refers all questions of law to this honorable court. 4. Denies each and every allegation contained in the paragraphs or subdivisions of the Complaint designated “18” and “25” and respectfully refers all questions of law to this honorable court. 5. Denies each and every allegation contained the paragraphs or subdivisions of the Complaint designated “19”, “20”, “21”, “22”, “23”, “24” and “26”. AS AND FOR A FIRST AFFIRMATIVE DEFENSE £9 45ND ECR AE eeeEeEeeeeeEeeeeeer"-'] 6. Any damages which may have been sustained by the plaintiff were contributed to in whole or in patt by the culpable conduct of the plaintiff, pursuant to Section 14-A, CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 7. Any damages which may have been sustained by the plaintiff were contributed to in whole or in part by the culpable conduct of third parties not under the control of answeringdefendant. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 8. Pursuant to CPLR 4545(c), if it be determined or established that plaintiff has received or with reasonable certainty shall receive the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, and that the same shall be replaced or indemnified, in whole or in part from any collateral source such as insurance (except for life insurance), social security (except for those benefits provided under title XVIII of the Social Security Act), workers’ compensation or employee benefit programs (except such collateral source entitled by law to liens against any recovery of the plaintiff), then and in that event answering defendants hereby plead in mitigation of damages the assessment of any such cost or expense as a collateral source in reduction of the amount of the award by such replacement or indemnification, minus an amount equal to the premiums paid by the plaintiff for such benefits for the two year period immediately preceding the accrual of this action and minus an amount equal to the projected future cost to the plaintiff of maintaining such benefits and as otherwise provided in CPLR 4545(c). AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 9. The injuries and damages alleged, all of which are denied by the answering defendant, were caused by the intervening, interceding and superseding acts of third parties not under the control of answering defendant. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 10. _ The plaintiff failed to mitigate his damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 11. Answering defendant is entitled to limitation of liability pursuant to Article 16 of the CPLR. S AND FOR A SEVENTH AFFIRMATIVE DEFENSE AS AND FOR A SEVENTH AFFIRMATIVE DERENSE 12. . Any alleged defective condition was open and obvious and therefore should have been avoided by plaintiff. ’ AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 13. Any alleged defective condition was a “trivial defect” for which plaintiff may not recover. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 14. The plaintiff has a duty to mitigate all damages with specific reference to futuremedical damages and under the Patient Protection and Affordable Care Act has a federally mandated mechanism in which to do so. WHEREFORE, answering defendant demands judgment dismissing the Complaint, together with the costs, interest and disbursements of this action. Dated: New York, New York November 5, 2015 Yours etc., MORRIS DUFFY ALONSO & FALEY By: ICHAEL B. TITOWSKY Attorneys for Defendant 1981 REALTY CORP. Office and P.O, Address Two Rector Street, 22" Floor New York, New York 10006 (212) 766-1888 File No.: (ASP) 65367ATTORNEY VERIFICATION MICHAEL B. TITOWSKY, an attorney admitted to practice in the courts of New York State. That I am a partner of the firm of MORRIS DUFFY ALONSO & FALEY, the attorneys of record for defendant. I have read the foregoing ANSWER and know the contents thereof; the same is true to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matters I believe it to be true. The reason this verification is made by me and not by the defendant is that the defendant does not maintain an office within New York County. The grounds of my belief as to all matters not stated upon my own knowledge are based on a review of the contents of the file maintained by this office. Dated: New York, New York November 5, 2015 (CHAEL B. TITOWSKY