Preview
FILED: NEW YORK COUNTY CLERK 03/23/2018 03:07 PM INDEX NO. 152179/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/23/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------X
JOSEPH MALEWICH, Index No. 152179/18
Plaintiff (s)
VERIFIED ANSWER
-against-
THE CITY OF NEW YORK, I DEPARTMENT OF
TRANSPORTATION OF THE CITY OF NEW YORK and
TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY,
Defendant(s)
------------------------------------------X
Defendant TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, by their
attorneys, KREZ 6 FLORES, LLP, as and for an Answer to the
complaint, allege(s) upon information and belief:
ANSWERING THE FIRST CAUSE OF ACTION
First: Denies knowledge or information sufficient to
form a belief as to the truth or falsity of the allegations set
"1," ," N "4," ," H "6," "7," ," n "9," "10,"
forth in paragraph(s) 1 "3 'i'l4 "5 'i\6 'i'i7 "8 \i9 'i'ij
Q
"11," "12," "13," "14," "15," "16," "17," "18," "19," "20," "21"
«1] «12 I ii13 ii14 «15 I «]6 I «]7 I 18 I «]9 I ii2Q I
"22"
and of the complaint.
Second: Admits each and every allegation set forth in
"2"
paragraph(s) of the complaint.
Third: Denies each and every allegation set forth in
" ," "25" "26"
paragraph(s) "23, "24 and of the complaint.
ANSWERING THE SECOND CAUSE OF ACTION
Fourth: Repeats and realleges each and every denial and
«1" «26"
admission set forth in answer to paragraph(s) through of
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the complaint in answer to the allegations contained in paragraph
"27"
of the complaint.
Fifth: Admits each and every allegation set forth in
"28"
paragraph(s) of the complaint.
Sixth: Denies knowledge or information sufficient to
form a belief as to the truth or falsity of the allegations set
"29," "30," "31," "32," "33," "34," "35,"
forth in paragraph(s) "33 "35
"36," "37," "38," "39," "40," "41," "42," "43," "44," "45," "46,"
3 6 I 3 7 1 113 8I LL3 9 I M4 QI Ll41 I tl42 I 1143 I %44 I Il45 I '1146I
"47" "48"
and of the complaint.
Seventh: Denies each and every allegation set forth in
"49," " "51" " 52"
paragraph(s) "50, and of the complaint.
ANSWERING THE THIRD CAUSE OF ACTION
Eighth: Repeats and realleges each and every denial and
"1" "52"
admission set forth in answer to paragraph(s) through of
the complaint in answer to the allegations contained in paragraph
"53"
of the complaint.
Ninth: Denies the allegations set forth in paragraph
"54" TRIBOROUGH
of the complaint except admits that defendant
BRIDGE AND TUNNEL AUTHORITY is a body corporate and politic
constituting a public benefit corporation duly organized and
existing pursuant to the Public Authorities Law of the State of
New York.
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Tenth: Denies the allegations set forth in
"55" "56" what
paragraph(s) and of the complaint but admits that
purported to be a Notice of Claim was received by TRIBOROUGH BRIDGE
AND TUNNEL AUTHORITY within ninety (90) days afteralleged claim
which is claimed to be the basis of the instant lawsuit arose; that
at least thirty (30) days have elapsed from the time of the receipt
of what purported to be a Notice of Claim by TRIBOROUGH BRIDGE AND
TUNNEL AUTHORITY and the commencement of this action; adjustment
and payment by defendant TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY has
been refused; that the action was commenced within one (1) year and
ninety (90) days after the alleged happening of the event upon
which the claim is based and reserves and refers all questions of
law, fact and/or conclusions raised therein to the Trial Court.
Eleventh: Denies each and every allegation set forth in
"57," "58," "59," "60," "61," "62," "63," "64," "65,"
paragraph(s) ss57 @58 sa59 n60 aa62 sa63 xa64 as65
"66," "67," "68," "69," "70," et "72," "73," "74,"
I a>67 1 ss6S I a>69 I @70 I n7j aa73 I n74 I second
"74," "75," "76," "77"
paragraph numbered and of the complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
Twelfth: If the injuries and damages were sustained by
the plaintiff at the time and place and in the manner alleged in
the complaint, such damages and injuries are attributable, in whole
or in part, to the culpable conduct of the plaintiff, and if any
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damages are recoverable against this defendant, the amount of such
damages shall be diminished in the proportion which the culpable
conduct attributable to the plaintiff bears to the culpable conduct
which caused the damages.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
Thirteenth: The allegations set forth in plaintiff's
complaint fail to state a basis for which relief may be granted.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
Fourteenth: That plaintiff, if he sustained any
injuries as set forth in the complaint, assumed the risk of
sustaining same under the conditions and circumstances then and
there existing.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
Fifteenth: Answering defendant claims the benefit of
each and every provision of CPLR Section 4545 including but not
limited to any credit or offset by reason of any replacement or
indemnification of costs or expenses from any collateral source.
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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
Sixteenth: The answering defendant herein claims the
applicability of Article 16 of the Civil Practice Law and Rules and
asserts limited liability for any non-economic loss.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
Seventeenth: The answering defendant herein claims the
benefit of each and every provision of General Obligations Law
Section 15-108.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
Eighteenth: Any and all risks, hazards, defects and
dangers alleged were of such an open, obvious and apparent nature
and inherent and known or should have been known to the plaintiff
herein.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
Nineteenth: The area, property and instrumentalities
allegedly involved are not owned, operated, maintained or
controlled by the TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY.
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WHEREFORE, defendant TRIBOROUGH BRIDGE AND TUNNEL
AUTHORITY demands judgment dismissing the complaint of the
plaintiff, together with costs and disbursements, and in the event
any judgment is recovered against defendant TRIBOROUGH BRIDGE AND
TUNNEL AUTHORITY, it is further demanded that such judgment be
reduced by the amount which is proportionate to plaintiff's degree
of culpability; together with costs and disbursements of this
action.
r
KREE & FLO1%S:,, LLP
By:
PA A. KREZ
Atto eys for Defendant
TRIBOROUGH BRIDGENAND TUNNEL
AUTHORITY
225 - Suite 28
Broadway
New York, New York 10007
(212) 266-0400
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NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/23/2018
VERIFICATION
PAUL A KREZ, an attorney duly admitted to practice before
the Courts of the State of New York, affirms under the penalties of
perjury that:
I am a member of the firm of KREZ 6 FLORES, LLP,
attorneys for defendant TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY in
the above-entitled action; that I have read the foregoing ANSWER
and know the contents thereof, and upon information and belief,
affirmant believes the matters alleged therein to be true.
The reason the verification is made by affirmant and not
by defendant is that answering defendant herein is a municipality
and/or public authority.
The source of affirmant's information and the grounds of
affirmant's beliefs are communications, papers, reports and
investigations contained in the file.
Dated: New York, New York
March 23, 2018
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Preview
FILED: NEW YORK COUNTY CLERK 03/23/2018 03:07 PM INDEX NO. 152179/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/23/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------------------------------------------X JOSEPH MALEWICH, Index No. 152179/18 Plaintiff (s) VERIFIED ANSWER -against- THE CITY OF NEW YORK, I DEPARTMENT OF TRANSPORTATION OF THE CITY OF NEW YORK and TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, Defendant(s) ------------------------------------------X Defendant TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, by their attorneys, KREZ 6 FLORES, LLP, as and for an Answer to the complaint, allege(s) upon information and belief: ANSWERING THE FIRST CAUSE OF ACTION First: Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set "1," ," N "4," ," H "6," "7," ," n "9," "10," forth in paragraph(s) 1 "3 'i'l4 "5 'i\6 'i'i7 "8 \i9 'i'ij Q "11," "12," "13," "14," "15," "16," "17," "18," "19," "20," "21" «1] «12 I ii13 ii14 «15 I «]6 I «]7 I 18 I «]9 I ii2Q I "22" and of the complaint. Second: Admits each and every allegation set forth in "2" paragraph(s) of the complaint. Third: Denies each and every allegation set forth in " ," "25" "26" paragraph(s) "23, "24 and of the complaint. ANSWERING THE SECOND CAUSE OF ACTION Fourth: Repeats and realleges each and every denial and «1" «26" admission set forth in answer to paragraph(s) through of 1 of 7 FILED: NEW YORK COUNTY CLERK 03/23/2018 03:07 PM INDEX NO. 152179/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/23/2018 the complaint in answer to the allegations contained in paragraph "27" of the complaint. Fifth: Admits each and every allegation set forth in "28" paragraph(s) of the complaint. Sixth: Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations set "29," "30," "31," "32," "33," "34," "35," forth in paragraph(s) "33 "35 "36," "37," "38," "39," "40," "41," "42," "43," "44," "45," "46," 3 6 I 3 7 1 113 8I LL3 9 I M4 QI Ll41 I tl42 I 1143 I %44 I Il45 I '1146I "47" "48" and of the complaint. Seventh: Denies each and every allegation set forth in "49," " "51" " 52" paragraph(s) "50, and of the complaint. ANSWERING THE THIRD CAUSE OF ACTION Eighth: Repeats and realleges each and every denial and "1" "52" admission set forth in answer to paragraph(s) through of the complaint in answer to the allegations contained in paragraph "53" of the complaint. Ninth: Denies the allegations set forth in paragraph "54" TRIBOROUGH of the complaint except admits that defendant BRIDGE AND TUNNEL AUTHORITY is a body corporate and politic constituting a public benefit corporation duly organized and existing pursuant to the Public Authorities Law of the State of New York. 2 2 of 7 FILED: NEW YORK COUNTY CLERK 03/23/2018 03:07 PM INDEX NO. 152179/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/23/2018 Tenth: Denies the allegations set forth in "55" "56" what paragraph(s) and of the complaint but admits that purported to be a Notice of Claim was received by TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY within ninety (90) days afteralleged claim which is claimed to be the basis of the instant lawsuit arose; that at least thirty (30) days have elapsed from the time of the receipt of what purported to be a Notice of Claim by TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY and the commencement of this action; adjustment and payment by defendant TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY has been refused; that the action was commenced within one (1) year and ninety (90) days after the alleged happening of the event upon which the claim is based and reserves and refers all questions of law, fact and/or conclusions raised therein to the Trial Court. Eleventh: Denies each and every allegation set forth in "57," "58," "59," "60," "61," "62," "63," "64," "65," paragraph(s) ss57 @58 sa59 n60 aa62 sa63 xa64 as65 "66," "67," "68," "69," "70," et "72," "73," "74," I a>67 1 ss6S I a>69 I @70 I n7j aa73 I n74 I second "74," "75," "76," "77" paragraph numbered and of the complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE Twelfth: If the injuries and damages were sustained by the plaintiff at the time and place and in the manner alleged in the complaint, such damages and injuries are attributable, in whole or in part, to the culpable conduct of the plaintiff, and if any 3 3 of 7 FILED: NEW YORK COUNTY CLERK 03/23/2018 03:07 PM INDEX NO. 152179/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/23/2018 damages are recoverable against this defendant, the amount of such damages shall be diminished in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the damages. AS AND FOR A SECOND AFFIRMATIVE DEFENSE Thirteenth: The allegations set forth in plaintiff's complaint fail to state a basis for which relief may be granted. AS AND FOR A THIRD AFFIRMATIVE DEFENSE Fourteenth: That plaintiff, if he sustained any injuries as set forth in the complaint, assumed the risk of sustaining same under the conditions and circumstances then and there existing. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Fifteenth: Answering defendant claims the benefit of each and every provision of CPLR Section 4545 including but not limited to any credit or offset by reason of any replacement or indemnification of costs or expenses from any collateral source. 4 4 of 7 FILED: NEW YORK COUNTY CLERK 03/23/2018 03:07 PM INDEX NO. 152179/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/23/2018 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE Sixteenth: The answering defendant herein claims the applicability of Article 16 of the Civil Practice Law and Rules and asserts limited liability for any non-economic loss. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE Seventeenth: The answering defendant herein claims the benefit of each and every provision of General Obligations Law Section 15-108. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Eighteenth: Any and all risks, hazards, defects and dangers alleged were of such an open, obvious and apparent nature and inherent and known or should have been known to the plaintiff herein. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE Nineteenth: The area, property and instrumentalities allegedly involved are not owned, operated, maintained or controlled by the TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY. 5 5 of 7 FILED: NEW YORK COUNTY CLERK 03/23/2018 03:07 PM INDEX NO. 152179/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/23/2018 WHEREFORE, defendant TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY demands judgment dismissing the complaint of the plaintiff, together with costs and disbursements, and in the event any judgment is recovered against defendant TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, it is further demanded that such judgment be reduced by the amount which is proportionate to plaintiff's degree of culpability; together with costs and disbursements of this action. r KREE & FLO1%S:,, LLP By: PA A. KREZ Atto eys for Defendant TRIBOROUGH BRIDGENAND TUNNEL AUTHORITY 225 - Suite 28 Broadway New York, New York 10007 (212) 266-0400 6 6 of 7 FILED: NEW YORK COUNTY CLERK 03/23/2018 03:07 PM INDEX NO. 152179/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/23/2018 VERIFICATION PAUL A KREZ, an attorney duly admitted to practice before the Courts of the State of New York, affirms under the penalties of perjury that: I am a member of the firm of KREZ 6 FLORES, LLP, attorneys for defendant TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY in the above-entitled action; that I have read the foregoing ANSWER and know the contents thereof, and upon information and belief, affirmant believes the matters alleged therein to be true. The reason the verification is made by affirmant and not by defendant is that answering defendant herein is a municipality and/or public authority. The source of affirmant's information and the grounds of affirmant's beliefs are communications, papers, reports and investigations contained in the file. Dated: New York, New York March 23, 2018 7 of 7