Preview
FILED: KINGS COUNTY CLERK 12/27/2018 12:24 PM INDEX NO. 521702/2018
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/27/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------------X Index No: 521702/2018
NOEL WALTERINE,
Plaintiff,
-against- VERIFIED ANSWER
DWAYNE JONES AND BOLLA TRANSPORT, LLC
Defendants,
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The Defendants DWAYNE JONES AND BOLLA TRANSPORT, LLC, by their
attorneys, MOLOD SPITZ & DeSANTIS, P.C., answering the Complaint of the Plaintiff states,
upon information and belief:
FIRST: Denies having knowledge or information sufficient to form a belief as to
each and every allegation in the Complaint designated as paragraphs 1.
SECOND: Denies each and every allegation in the complaint designated as paragraph
3 , except admits that the Defendant BOLLA TRANSPORT, LLC, is a New York Domestic
Limited Liability Corporation, which maintains its principal office in the State of New York,
County of Nassau.
THIRD: Denies each and every allegation in the Complaint designated as
paragraphs 4 and respectfully refers questions of law to this Honorable Court.
FOURTH: Denies each and every allegation in the complaint designated as paragraph
6 , except admits that the Defendant DWAYNE JONES, drove a motor vehicle bearing A New
York license plate number BD36764.
FIFTH: Denies each and every allegation in the complaint designated as paragraph
7 , except admits that the Defendant BOLLA TRANSPORT, LLC, owned a motor vehicle
MOLOD SPITZ & DESANTIs, P.C.
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bearing A New York license plate number BD36764.
SIXTH: Denies each and every allegation in the complaint designated as paragraph
8 , except admits that on September 3, 2018 the aforesaid vehicle bearing New York license plate
number BD36764 was in contact with a motor vehicle bearing New York license plate L453VG.
SEVENTH: Denies each and every allegation in the Complaint designated as
paragraphs 9, 10, 11, 12, 13, 14, 15 and 16.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
EIGHTH: If the Plaintiff sustained any injuries and/or damages at the time and place
mentioned in the Complaint herein, those injuries or damages were caused solely or in part by
reason of the culpable conduct, contributory negligence or assumption of the risk of the Plaintiff
and the answering Defendants herein seeks a dismissal of the Complaint or a diminution of any
recovery for the proportion which the culpable conduct attributable to the Plaintiff bears to the
culpable conduct which caused the injuries or damages.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
NINTH: Defendants affirmatively plead the provisions of CPLR Section 4545
insofar as applicable to the reduction of any recovery the Plaintiff might be awarded.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
TENTH: Plaintiff failed to use due care and did not use the seat belts and/or safety
restraints therein provided, and that the damages claimed to have been sustained were caused by
the lack of use of the said belts and/or safety restraints, and Plaintiff did not avail themselves of
the protective device to mitigate the injuries, and further, by not fastening the available
automobile seat belts and/or safety restraints, acted unreasonably and disregarded their own best
interests and thus contributed to the happening of the accident.
MOLOD SPITz & DESANTIs, P.C.
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
ELEVENTH: If these answering Defendants are found liable, such liability is less than
or equal to 50% of the total liability of all persons who may be found liable and therefore this
defendants'
answering liability shall be limited in accordance with Article 16, CPLR.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
TWELFTH: Any and all injuries or damages sustained by plaintiff herein were as a
result of an intervening cause and not any negligence on the part of the answering defendant.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
THIRTEENTH: That if the Plaintiff has/have received sums of money in settlement
of the claims asserted herein, and that by reason thereof, the 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 the Defendants, by the amount
stipulated in the Release, the amount of consideration paid for it or the amount of the released
defendants'
equitable share of the damages, whichever is the greatest.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
FOURTEENTH: Defendants presently have insufficient knowledge or information
on which to form a belief as to whether it may have additional as yet unstated defenses available.
Defendants reserve the right to assert additional defenses in the event discovery indicates they
would be appropriate.
WHEREFORE, defendant demands judgment dismissing the complaint herein,
together with the costs and disbursements of this action.
Dated: New York, New York
December 26, 2018
MOLOD SPITZ & DESANTIS, P.C.
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MOLOD SPITZ & DeSANTIS, P.C.
Attorneys for Defendants
DWAYNE JONES AND BOLLA
TRANSPORT, LLC
By:
ALIDE SPIT
S
1430 Broadway, Floor
New York, NY 10018
Tel: (212) 869-3200
Fax: (212) 869-4242
File No.: FED 603
Email: aspitz@molodspitz.com
TO:
Daniel Friedman, Esq.
Law Office of Daniel Friedman
Attorney for Plaintiff
5417 18th Avenue, Suite 102
Brooklyn, NY 11204
MOLOD SPITz & DESANTIS, P.C.
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ATTORNEY'S VERIFICATION
ALICE SPITZ, an attorney duly admitted to practice law before the Courts of the State of
New York and a member of the firm of MOLOD SPITZ & DeSANTIS, P.C., attorneys for
Defendant, DWAYNE JONES AND BOLLA TRANSPORT, LLC, states:
That your affirmant has read the foregoing VERIFIED ANSWER and know the
contents thereof; that the same is true to your affirmant's own knowledge except as to the matters
which are stated therein to be alleged on information and belief, and as to those matters your
affirmant believes them to be true.
The source of your affirmant's information and belief is an investigation caused to be
made with respect to the facts in this action, and file contents.
The reason this verification is not made by answering Defendant herein, is that the
Defendant does not have offices within the County of New York where your affirmant's office is
maintained.
The undersigned affirms that the foregoing statement is true, under penalties of perjury,
pursuant to CPLR 3020(d)(3).
Dated: New York, New York
December 26, 2018
ALICESPITZ
MOLOD SPITZ & DESANTIS, P.C.
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FILED: KINGS COUNTY CLERK 12/27/2018 12:24 PM INDEX NO. 521702/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/27/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------X Index No: 521702/2018 NOEL WALTERINE, Plaintiff, -against- VERIFIED ANSWER DWAYNE JONES AND BOLLA TRANSPORT, LLC Defendants, ---------------------------------------------------------------------X The Defendants DWAYNE JONES AND BOLLA TRANSPORT, LLC, by their attorneys, MOLOD SPITZ & DeSANTIS, P.C., answering the Complaint of the Plaintiff states, upon information and belief: FIRST: Denies having knowledge or information sufficient to form a belief as to each and every allegation in the Complaint designated as paragraphs 1. SECOND: Denies each and every allegation in the complaint designated as paragraph 3 , except admits that the Defendant BOLLA TRANSPORT, LLC, is a New York Domestic Limited Liability Corporation, which maintains its principal office in the State of New York, County of Nassau. THIRD: Denies each and every allegation in the Complaint designated as paragraphs 4 and respectfully refers questions of law to this Honorable Court. FOURTH: Denies each and every allegation in the complaint designated as paragraph 6 , except admits that the Defendant DWAYNE JONES, drove a motor vehicle bearing A New York license plate number BD36764. FIFTH: Denies each and every allegation in the complaint designated as paragraph 7 , except admits that the Defendant BOLLA TRANSPORT, LLC, owned a motor vehicle MOLOD SPITZ & DESANTIs, P.C. 1 of 5 FILED: KINGS COUNTY CLERK 12/27/2018 12:24 PM INDEX NO. 521702/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/27/2018 bearing A New York license plate number BD36764. SIXTH: Denies each and every allegation in the complaint designated as paragraph 8 , except admits that on September 3, 2018 the aforesaid vehicle bearing New York license plate number BD36764 was in contact with a motor vehicle bearing New York license plate L453VG. SEVENTH: Denies each and every allegation in the Complaint designated as paragraphs 9, 10, 11, 12, 13, 14, 15 and 16. AS AND FOR A FIRST AFFIRMATIVE DEFENSE EIGHTH: If the Plaintiff sustained any injuries and/or damages at the time and place mentioned in the Complaint herein, those injuries or damages were caused solely or in part by reason of the culpable conduct, contributory negligence or assumption of the risk of the Plaintiff and the answering Defendants herein seeks a dismissal of the Complaint or a diminution of any recovery for the proportion which the culpable conduct attributable to the Plaintiff bears to the culpable conduct which caused the injuries or damages. AS AND FOR A SECOND AFFIRMATIVE DEFENSE NINTH: Defendants affirmatively plead the provisions of CPLR Section 4545 insofar as applicable to the reduction of any recovery the Plaintiff might be awarded. AS AND FOR A THIRD AFFIRMATIVE DEFENSE TENTH: Plaintiff failed to use due care and did not use the seat belts and/or safety restraints therein provided, and that the damages claimed to have been sustained were caused by the lack of use of the said belts and/or safety restraints, and Plaintiff did not avail themselves of the protective device to mitigate the injuries, and further, by not fastening the available automobile seat belts and/or safety restraints, acted unreasonably and disregarded their own best interests and thus contributed to the happening of the accident. MOLOD SPITz & DESANTIs, P.C. 2 of 5 FILED: KINGS COUNTY CLERK 12/27/2018 12:24 PM INDEX NO. 521702/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/27/2018 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE ELEVENTH: If these answering Defendants are found liable, such liability is less than or equal to 50% of the total liability of all persons who may be found liable and therefore this defendants' answering liability shall be limited in accordance with Article 16, CPLR. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE TWELFTH: Any and all injuries or damages sustained by plaintiff herein were as a result of an intervening cause and not any negligence on the part of the answering defendant. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE THIRTEENTH: That if the Plaintiff has/have received sums of money in settlement of the claims asserted herein, and that by reason thereof, the 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 the Defendants, by the amount stipulated in the Release, the amount of consideration paid for it or the amount of the released defendants' equitable share of the damages, whichever is the greatest. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE FOURTEENTH: Defendants presently have insufficient knowledge or information on which to form a belief as to whether it may have additional as yet unstated defenses available. Defendants reserve the right to assert additional defenses in the event discovery indicates they would be appropriate. WHEREFORE, defendant demands judgment dismissing the complaint herein, together with the costs and disbursements of this action. Dated: New York, New York December 26, 2018 MOLOD SPITZ & DESANTIS, P.C. 3 of 5 FILED: KINGS COUNTY CLERK 12/27/2018 12:24 PM INDEX NO. 521702/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/27/2018 MOLOD SPITZ & DeSANTIS, P.C. Attorneys for Defendants DWAYNE JONES AND BOLLA TRANSPORT, LLC By: ALIDE SPIT S 1430 Broadway, Floor New York, NY 10018 Tel: (212) 869-3200 Fax: (212) 869-4242 File No.: FED 603 Email: aspitz@molodspitz.com TO: Daniel Friedman, Esq. Law Office of Daniel Friedman Attorney for Plaintiff 5417 18th Avenue, Suite 102 Brooklyn, NY 11204 MOLOD SPITz & DESANTIS, P.C. 4 of 5 FILED: KINGS COUNTY CLERK 12/27/2018 12:24 PM INDEX NO. 521702/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/27/2018 ATTORNEY'S VERIFICATION ALICE SPITZ, an attorney duly admitted to practice law before the Courts of the State of New York and a member of the firm of MOLOD SPITZ & DeSANTIS, P.C., attorneys for Defendant, DWAYNE JONES AND BOLLA TRANSPORT, LLC, states: That your affirmant has read the foregoing VERIFIED ANSWER and know the contents thereof; that the same is true to your affirmant's own knowledge except as to the matters which are stated therein to be alleged on information and belief, and as to those matters your affirmant believes them to be true. The source of your affirmant's information and belief is an investigation caused to be made with respect to the facts in this action, and file contents. The reason this verification is not made by answering Defendant herein, is that the Defendant does not have offices within the County of New York where your affirmant's office is maintained. The undersigned affirms that the foregoing statement is true, under penalties of perjury, pursuant to CPLR 3020(d)(3). Dated: New York, New York December 26, 2018 ALICESPITZ MOLOD SPITZ & DESANTIS, P.C. 5 of 5