Preview
FILED: KINGS COUNTY CLERK 06/26/2019 11:16 AM INDEX NO. 524125/2018
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/26/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
Index No.: 524125/2018
MARIE L. LISEME,
Plaintiff,
ANSWER TO
-against- VERIFIED COMPLAINT
LASANA C. TUCKER, RELLET G. NICHOLS,
JEAN L. GESSE and JAMES REMY,
Defendants.
X
The defendants, LASANA C. TUCKER and RELLET G. NICHOLS, by their attorneys,
HANNUM FERETIC PRENDERGAST & MERLINO, LLC, answering the Verified Complaint
herein:
AS AND FOR A FIRST CAUSE OF ACTION
1. Deny knowledge and information sufficient to form a belief thereof as to the
allegations contained in paragraphs numbered "1", "4", "5", "18", "19", "20", "21", "22", "23",
"30" "31"
"24", "25", "26", "27", "28", "29", and of the Verified Complaint.
2. Deny each and every allegation contained in paragraphs numbered "6", "12 and
"17"
of the Verified Complaint.
3. Deny each and every allegation contained in paragraphs numbered "8", "9", "10",
"15" "32"
"13", "14", and of the Verified Complaint in the form alleged.
4. Deny all allegations as they pertain to defendants LASANA C. TUCKER and
"33"
RELLET G. NICHOLS, contained in paragraph numbered of the Verified Complaint.
5. Deny each and every allegation contained in paragraphs numbered "34", "35",
"40" "41"
"36", "37", "38", "39", and of the Verified Complaint and respectfully refer all
questions of law to the Honorable Court.
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AS AND FOR THE FIRST AFFIRMATIVE DEFENSE
6. Upon information and belief, the injuries and damages alleged were caused by the
contributory negligence and/or culpable conduct of the plaintiff.
AS AND_ FOR A SECOND AFFIRMATIVE DEFENSE
7. Upon information and belief, if the plaintiff failed to properly wear an available
seat belt and shoulder harness, such failure is pleaded in mitigation of daniages.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
8. The plaintiff's claim is barred by the doctrine of assumption of risk.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
9. Upon information and belief, the Court does not have personal jurisdiction over
the defendants, LASANA C. TUCKER and RELLET G. NICHOLS.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
10. Upon information and belief, the plaintiff failed to use available means to mitigate
damages.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
11. Upon information and belief, this Verified Complaint is defective in that it fails to
name all necessary and indispeñsable parties.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
12. Upon information and belief, the plaintiff failed to comply with Article 51 of the
Insurance Law.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
13. Upon information and belief, a serious injury, as defined in Article 51 of the
Insurance Law has not been sustained by the plaintiff.
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AS AND FOR THE NINTH AFFIRMATIVE DEFENSE
14. Upon information and belief, any past or future costs of expenses incurred or to
be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitative services,
loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or
indemnified in whole or in part from a collateral source as defined in Section 4545(c) of the New
York Civil Practice Law and Rules.
AS AND FOR THE TENTH AFFIRMATIVE DEFENSE
15. Upon information and belief, the action was not commenced within the time
prescribed by law.
AS AND FOR THE ELEVENTH A_FFIRMATIVE DEFENSE
16. Upon information and belief, the Verified Complaint fails to state a cause of
action upon which relief can be granted.
AS AND FOR THE TWELFTH AFFIRMATIVE DEFENSE
17. Upon information and belief, the defendants, LASANA C. TUCKER and
RELLET G. NICHOLS, cannot be held liable to the plaintiff because the defendants, LASANA
C. TUCKER AND RELLET G. NICHOLS, were faced with an emergency situation, not of their
own making, and acted reasonably under the circunistances then and there existing.
AS AND FOR A CROSS-CLAIM AGAINST THE DEFENDANTS,
JEAN L. GESSE and JAMES REMY, FOR COMMON LAW INDEMNIFICATION.
THE ANSWERING_DEFENDANTS, LASANA C. TUCKER and RELLET G. NICHOLS
ALLEGE AS FOLLOWS
18. If the plaintiff sustained any of the injuries as alleged, other than through her own
negligence, and if defendants, LASANA C. TUCKER and RELLET G. NICHOLS, are held
liable for any portion of those damages, which they deny, those damages were caused by the
negligent acts and/or omissions of defendants, JEAN L. GESSE and JAMES REMY, with the
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negligence, if any, on the part of the defendants, LASANA C. TUCKER and RELLET G.
NICHOLS, being passive or derivative only.
19. In the event the plaintiff recovers against the defendants, LASANA C. TUCKER
and RELLET G. NICHOLS, for any of the alleged damages, defendants, JEAN L GESSE and
JAMES REMY will be liable to indemnify the defendants, LASANA C. TUCKER and RELLET
G. NICHOLS, for full or partial indemnity, together with those costs incurred by LASANA C.
TUCKER and RELLET G. NICHOLS, for all of such judgment in connection with the defense
of the underlying litigation, including, but not limited to, counsel fees and expenses.
WHEREFORE, defendants, LASANA C. TUCKER and RELLET G. NICHOLS,
demand Judgment dismissing the Verified Complaint against them with costs and disbursements
of this action, and further demands that the ultimate rights of the answering defendants,
LASANA C. TUCKER and RELLET G. NICHOLS, and the aforesaid defendants, JEAN L.
GESSE and JAMES REMY, between themselves be determined in this action; and that the
answering defendants, LASANA C. TUCKER and RELLET G. NICHOLS, have judgment over
and against the defendants, JEAN L. GESSE and JAMES REMY and for all or any part of any
verdict or judgmeñt which may be obtained herein by the plaintiff against the answering
defendants, LASANA C. TUCKER and RELLET G. NICHOLS, together with the costs and
disbursements of this action.
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NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/26/2019
DATED: New York, New York
June 20, 2019
Yours, etc.,
HANNUM FERETIC PRENDERGA
& ERLINO, LL
James M. Merlino
Attorneys for Defendants
LASANA C. TUCKER and
RELLET G. NICHOLS
Office and Post Office Address
55 Broadway, Suite 202
New York, New York 10006
(212) 530-3900
TO:
Law Offices of Martin H. Pollack, P.C.
Attorneys for Plaintiff
MARIE L. LISEME
114 Old Country Road, Suite 308
Mineola, NY 11501
(516) 739-2229
Jean L. Gesse
Defendant Pro Se
1449 East 96th Street
Brooklyn, NY 11236
James Remy
Defendant Pro Se 5 of 6
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ATTORNEY VERIFICATION
1. I am an attomey at law in the firm of HANNUM FERETIC
& MERLINO, LLC, attorneys for the defendants, RELLET G. NICHOLS
TUCKER herein. I have read the annexed Answer and it is true to the
deponent, except as to the matters alleged upon information and belief, and as
believe each to be true.
2. This verification is made by the deponent and not by the defenda
defendants do not reside within the
county where HANNUM FERETIC PR
MERLINO, LLC, has its office. The information set forth within the anne
obtained from an examination of the file in the office of HANN
PRENDERGAST & MERLINO, LLC.
DATED: New York, New York
June 20, 2019
JAMES M. MERLINO
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Preview
FILED: KINGS COUNTY CLERK 06/26/2019 11:16 AM INDEX NO. 524125/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/26/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X Index No.: 524125/2018 MARIE L. LISEME, Plaintiff, ANSWER TO -against- VERIFIED COMPLAINT LASANA C. TUCKER, RELLET G. NICHOLS, JEAN L. GESSE and JAMES REMY, Defendants. X The defendants, LASANA C. TUCKER and RELLET G. NICHOLS, by their attorneys, HANNUM FERETIC PRENDERGAST & MERLINO, LLC, answering the Verified Complaint herein: AS AND FOR A FIRST CAUSE OF ACTION 1. Deny knowledge and information sufficient to form a belief thereof as to the allegations contained in paragraphs numbered "1", "4", "5", "18", "19", "20", "21", "22", "23", "30" "31" "24", "25", "26", "27", "28", "29", and of the Verified Complaint. 2. Deny each and every allegation contained in paragraphs numbered "6", "12 and "17" of the Verified Complaint. 3. Deny each and every allegation contained in paragraphs numbered "8", "9", "10", "15" "32" "13", "14", and of the Verified Complaint in the form alleged. 4. Deny all allegations as they pertain to defendants LASANA C. TUCKER and "33" RELLET G. NICHOLS, contained in paragraph numbered of the Verified Complaint. 5. Deny each and every allegation contained in paragraphs numbered "34", "35", "40" "41" "36", "37", "38", "39", and of the Verified Complaint and respectfully refer all questions of law to the Honorable Court. 1 of 6 FILED: KINGS COUNTY CLERK 06/26/2019 11:16 AM INDEX NO. 524125/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/26/2019 AS AND FOR THE FIRST AFFIRMATIVE DEFENSE 6. Upon information and belief, the injuries and damages alleged were caused by the contributory negligence and/or culpable conduct of the plaintiff. AS AND_ FOR A SECOND AFFIRMATIVE DEFENSE 7. Upon information and belief, if the plaintiff failed to properly wear an available seat belt and shoulder harness, such failure is pleaded in mitigation of daniages. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 8. The plaintiff's claim is barred by the doctrine of assumption of risk. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 9. Upon information and belief, the Court does not have personal jurisdiction over the defendants, LASANA C. TUCKER and RELLET G. NICHOLS. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 10. Upon information and belief, the plaintiff failed to use available means to mitigate damages. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 11. Upon information and belief, this Verified Complaint is defective in that it fails to name all necessary and indispeñsable parties. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 12. Upon information and belief, the plaintiff failed to comply with Article 51 of the Insurance Law. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 13. Upon information and belief, a serious injury, as defined in Article 51 of the Insurance Law has not been sustained by the plaintiff. 2 of 6 FILED: KINGS COUNTY CLERK 06/26/2019 11:16 AM INDEX NO. 524125/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/26/2019 AS AND FOR THE NINTH AFFIRMATIVE DEFENSE 14. Upon information and belief, any past or future costs of expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in Section 4545(c) of the New York Civil Practice Law and Rules. AS AND FOR THE TENTH AFFIRMATIVE DEFENSE 15. Upon information and belief, the action was not commenced within the time prescribed by law. AS AND FOR THE ELEVENTH A_FFIRMATIVE DEFENSE 16. Upon information and belief, the Verified Complaint fails to state a cause of action upon which relief can be granted. AS AND FOR THE TWELFTH AFFIRMATIVE DEFENSE 17. Upon information and belief, the defendants, LASANA C. TUCKER and RELLET G. NICHOLS, cannot be held liable to the plaintiff because the defendants, LASANA C. TUCKER AND RELLET G. NICHOLS, were faced with an emergency situation, not of their own making, and acted reasonably under the circunistances then and there existing. AS AND FOR A CROSS-CLAIM AGAINST THE DEFENDANTS, JEAN L. GESSE and JAMES REMY, FOR COMMON LAW INDEMNIFICATION. THE ANSWERING_DEFENDANTS, LASANA C. TUCKER and RELLET G. NICHOLS ALLEGE AS FOLLOWS 18. If the plaintiff sustained any of the injuries as alleged, other than through her own negligence, and if defendants, LASANA C. TUCKER and RELLET G. NICHOLS, are held liable for any portion of those damages, which they deny, those damages were caused by the negligent acts and/or omissions of defendants, JEAN L. GESSE and JAMES REMY, with the 3 of 6 FILED: KINGS COUNTY CLERK 06/26/2019 11:16 AM INDEX NO. 524125/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/26/2019 negligence, if any, on the part of the defendants, LASANA C. TUCKER and RELLET G. NICHOLS, being passive or derivative only. 19. In the event the plaintiff recovers against the defendants, LASANA C. TUCKER and RELLET G. NICHOLS, for any of the alleged damages, defendants, JEAN L GESSE and JAMES REMY will be liable to indemnify the defendants, LASANA C. TUCKER and RELLET G. NICHOLS, for full or partial indemnity, together with those costs incurred by LASANA C. TUCKER and RELLET G. NICHOLS, for all of such judgment in connection with the defense of the underlying litigation, including, but not limited to, counsel fees and expenses. WHEREFORE, defendants, LASANA C. TUCKER and RELLET G. NICHOLS, demand Judgment dismissing the Verified Complaint against them with costs and disbursements of this action, and further demands that the ultimate rights of the answering defendants, LASANA C. TUCKER and RELLET G. NICHOLS, and the aforesaid defendants, JEAN L. GESSE and JAMES REMY, between themselves be determined in this action; and that the answering defendants, LASANA C. TUCKER and RELLET G. NICHOLS, have judgment over and against the defendants, JEAN L. GESSE and JAMES REMY and for all or any part of any verdict or judgmeñt which may be obtained herein by the plaintiff against the answering defendants, LASANA C. TUCKER and RELLET G. NICHOLS, together with the costs and disbursements of this action. 4 of 6 FILED: KINGS COUNTY CLERK 06/26/2019 11:16 AM INDEX NO. 524125/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/26/2019 DATED: New York, New York June 20, 2019 Yours, etc., HANNUM FERETIC PRENDERGA & ERLINO, LL James M. Merlino Attorneys for Defendants LASANA C. TUCKER and RELLET G. NICHOLS Office and Post Office Address 55 Broadway, Suite 202 New York, New York 10006 (212) 530-3900 TO: Law Offices of Martin H. Pollack, P.C. Attorneys for Plaintiff MARIE L. LISEME 114 Old Country Road, Suite 308 Mineola, NY 11501 (516) 739-2229 Jean L. Gesse Defendant Pro Se 1449 East 96th Street Brooklyn, NY 11236 James Remy Defendant Pro Se 5 of 6 FILED: KINGS COUNTY CLERK 06/26/2019 11:16 AM INDEX NO. 524125/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 06/26/2019 ATTORNEY VERIFICATION 1. I am an attomey at law in the firm of HANNUM FERETIC & MERLINO, LLC, attorneys for the defendants, RELLET G. NICHOLS TUCKER herein. I have read the annexed Answer and it is true to the deponent, except as to the matters alleged upon information and belief, and as believe each to be true. 2. This verification is made by the deponent and not by the defenda defendants do not reside within the county where HANNUM FERETIC PR MERLINO, LLC, has its office. The information set forth within the anne obtained from an examination of the file in the office of HANN PRENDERGAST & MERLINO, LLC. DATED: New York, New York June 20, 2019 JAMES M. MERLINO 6 of 6