Preview
FILED: KINGS COUNTY CLERK 03/12/2019 03:48 PM INDEX NO. 521512/2018
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/12/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
RYAN KNIGHTS,
VERIFIED ANSWER TO
Plaintiff, PLAINTIFF'S AMENDED
COMPLAINT
-against-
Index No.: 521512/2018
IASLIN CASH and DELIV, INC.,
Defendants.
X
Defendant, DELIV, INC., by itsattorneys FAUST GOETZ SCHENKER & BLEE, as and
for itsanswer to the plaintiffs amended complaint, respectfully alleges:
1. Denies knowledge and information sufficient to form a belief as to those allegations
set forth in the paragraphs numbered 1, 2,4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 and 24.
2. Admits each and every allegation set forth in the paragraph numbered 3.
3. Denies each and every allegation set forth in the paragraphs numbered 13, 17, 18,
21, 25, 28, 29, 31, 32 and 33.
4. Denies each and every allegation set forth in the paragraphs numbered 19, 20, 23
and 27 and leaves allmatters of law to the Honorable Court.
5. Defendant, DELIV, INC., repeats and reiterates each and every denial heretofore
made in this Answer to the paragraphs of the Amended Complaint designated 1 through 21
inclusive, with the same force and effect as if set forth here more particularly at length. all in
response to the paragraph of the Amended Complaint designated 22.
6. Defendant, DELIV, INC., repeats and reiterates each and every denial heretofore
made in this Answer to the paragraphs of the Amended Complaint designated 1 through 25
inclusive, with the same force and effect as if set forth here more particularly at length, all in
response to the paragraph of the Amended Complaint designated 26.
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7. Defendant, DELIV, INC., repeats and reiterates each and denial heretofore
every
nade in this Answer to the paragraphs of the Amended Complaint designated 1 through 29
nclusive, with the same force and effect as ifset forth here more at length, all in
particularly
esponse to the paragraph of the Amended Complaint designated 30.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
8. Pursuant to CPLR Article 16, the liability of defendant DELIV, INC. to the plaintiff
herein for non-economic loss is limited to defendant's equitable share determined in accordance
with the relative of each person or to the total for non-
culpability causing contributing liability
economic loss.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
9. That by entering into the activity in which the plaintiff was engaged at the time of
the occurrence set forth in the amended complaint, said plaintiff knew the hazards thereof and the
inherent risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries
and damages were sustained by the plaintiff herein as alleged in the Amended Complaint arose from
and were caused by reason of such risks voluntarily undertaken by the plaintiff in his activities and
such risks were assumed and accepted by him in performing and engaging in said activities.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
10. Plaintiff has recovered the costs of medical care, dental care, custodial care,
rehabilitation services, loss of earnings and other economical loss and any future such loss or
expense will, with reasonable certainty, be replaced or indemnified in whole or in part from
collateral sources. Any award made to plaintiff shall be reduced in accordance with the provisions
of CPLR 4545(c).
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
11.
Any damages sustained by the plaintiff were caused the culpable conduct of the
by
31aintiff, including contributory negligence, assumption of risks, breach of contract and not the
by
:ulpable conduct or negligence of this defendant. But if a verdict of judgment is awarded
answering
o the plaintiff, then and in that event the damages shall be reduced in the proportion which the
ulpable conduct attributable to the plaintiff bears to the culpable conduct which caused the
damages.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
12. The Amended Complaint fails to state a claim.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
13. Whatever injuries and/or damages sustained
by the plaintiff at the time and place
alleged in the Amended Complaint, were due to the acts of parties over whom the defendant was not
obligated to exercise control or supervision.
any
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
14. Plaintiff failed to mitigate damages.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
injury"
15. That plaintiff does not have a "serious as defined in §5104 a sea of the
New York Insurance Law and is therefore barred from maintaining this action.
AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANT
JASLIN CASH
16. That if plaintiff was caused to sustain damages by reason of the claims set forth in
the amended complaint, all of which are specifically denied, such damages were sustained by
reason of the acts, conduct, misfeasance or nonfeasance, of co-defendant, her agents, servants
and/or employees, and not by this answering defendant, and if any judgment is recovered by
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laintiff against this answering defendant, such defendant will be damaged and co-
thereby,
efendant is or will be responsible therefore in whole or in part.
AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANT
JASLIN CASH
!
17. That ifplaintiff was caused to sustain damages by reason of the claims set forth in
he amended complaint, allof which are specifically denied, and if judgment is recovered the
any by
plaintiffagainst this answering defendant, that under a contract entered into between the parties or
by reason of express or implied warranty, the co-defendant will be liable over to this answering
defendant pursuant to the terms of the indemnity agreement in said contract or warranty, for the full
amount of any verdict or judgment awarded to the plaintiff against this answering defendant,
ogether with attomey's fees, costs and disbursements.
AS AND FOR A THIRD CROSS-CLAIM AGAINST CO-DEFENDANT
JASLIN CASH
18. Prior to the date of the accident, the co-defendant entered into an agreement with
defendant herein. That in said agreement, co-defendant agreed to indemnify and hold this defendant
harmless from and against any and all claims and demands for, or in connection with any action,
injury or demand whatsoever concerning any person or property. That said agreement was in full
force and effect on the date of the accident as alleged in plaintiffs amended complaint. That this
defendant is entitled to be indemnified by reason of a breach of contract and/or common law
indemnity and held harmless by the co-defendant for the claim and suit of the plaintiff herein.
AS AND FOR A FOURTH CROSS-CLAIM AGAINST CO-DEFENDANT
JASLIN CASH
19. Prior to the date of the accident, the co-defendant entered into an agreement with
defendant herein. That in said agreement, co-defendant agreed to procure insurance and to name
this defendant as an additional insured on thatpolicy against any and all claims and demands for, or
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n connection with, any action, injury or demand whatsoever concerning any person or property.
That said agreement was in full force and effect on the date of the accident as alleged in plaintiff's
1mended complaint. That this defendant is entitled to insurance coverage and additional insured
status by reason of the contract entered into between the parties herein.
WHEREFORE, defendant DELIV, INC. demands judgment dismissing the amended
complaint herein together with the costs and disbursements of this action.
Dated: New York, New York
March 12, 2019
Yours etc.
FAUST GOETZ SCHENKEl LEE
By: Marisa Goetz, Esq.
Attorneys for Defendant
DELIV, INC.
20*
101 Greenwich Street, Floor
New York, New York 10006
(212) 363-6900
Our File No.: 16375-ARN
TO:
Kevin D. Gratt, Esq.
GRATT & ASSOCIATES
Attorneys for Plaintiff
2021 Nostrand Avenue, Suite 2
Brooklyn, NY 11210
(718) 963-3339
Fax: (718) 963-1470
grattlaw@gmail.com
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STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
VIARISA GOETZ, being duly sworn, deposes and says:
That she is the attorney for the defendant DELIV, INC. in the within action; that she has read the
within Answer to Plaintiff's Amended Complaint and knows the contents thereof, and that same is
rue to her own knowledge, except and to the matters herein stated to be alleged upon infonnation
md belief, and that as to those matters she believes it to be true.
That the sources of her information and knowledge are investigation and records on file.
That the reason this verification is being made by deponent and not
by defendant DELIV, INC.is
that the defendant is not within the county where deponent has her office.
MARISRÒOEf(
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STATE OF NEW YORK )
) ss:
:OUNTY OF NEW YORK )
Elizabeth Santos, being duly swom, deposes and says:
That I am not a
party to the within action, am over 18 years of age and reside in Perth Amboy, New
Iersey.
That on March 12, 2019, deponent served the within Verified Answer to Plaintiff's Amended
Complaint upon the attorneys and parties listed below by United States prepaid mail within the State
3f New York:
TO:
Kevin D. Gratt, Esq.
GRATT & ASSOCIATES
Attorneys for Plaintiff
2021 Nostrand Avenue, Suite 2
Brooklyn, NY 11210
(718) 963-3339
Fax: (718) 963-1470
grattlaw(ihamail.com
Eli a6etl t s
Swom to before me this /
12d'
day of March, 2019.
Public
Notary
MARISA GOETZ
NOTARY PUBLIC STATE OF NY
NO 02G06121680
QUALIFIED IN NY COUNTY
COMM1SSION EXPIRES 2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
RYAN KNIGHTS,
Plaintiff,
-against-
Index No.: 521512/2018
JASLIN CASH and DELIV, INC.,
Defendants.
VERIFIED ANSWER TO PLAINTIFF'S AMENDED COMPLAINT
FAUST GOETZ SCHENKER & BLEE
By: Marisa Goetz, Esq.
Attorneys for Defendant
DELIV, INC.
20th
101 Greenwich Street, Floor
New York, New York 10006
(212) 363-6900
Our File No.: 16375-ARN
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Preview
FILED: KINGS COUNTY CLERK 03/12/2019 03:48 PM INDEX NO. 521512/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/12/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X RYAN KNIGHTS, VERIFIED ANSWER TO Plaintiff, PLAINTIFF'S AMENDED COMPLAINT -against- Index No.: 521512/2018 IASLIN CASH and DELIV, INC., Defendants. X Defendant, DELIV, INC., by itsattorneys FAUST GOETZ SCHENKER & BLEE, as and for itsanswer to the plaintiffs amended complaint, respectfully alleges: 1. Denies knowledge and information sufficient to form a belief as to those allegations set forth in the paragraphs numbered 1, 2,4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 and 24. 2. Admits each and every allegation set forth in the paragraph numbered 3. 3. Denies each and every allegation set forth in the paragraphs numbered 13, 17, 18, 21, 25, 28, 29, 31, 32 and 33. 4. Denies each and every allegation set forth in the paragraphs numbered 19, 20, 23 and 27 and leaves allmatters of law to the Honorable Court. 5. Defendant, DELIV, INC., repeats and reiterates each and every denial heretofore made in this Answer to the paragraphs of the Amended Complaint designated 1 through 21 inclusive, with the same force and effect as if set forth here more particularly at length. all in response to the paragraph of the Amended Complaint designated 22. 6. Defendant, DELIV, INC., repeats and reiterates each and every denial heretofore made in this Answer to the paragraphs of the Amended Complaint designated 1 through 25 inclusive, with the same force and effect as if set forth here more particularly at length, all in response to the paragraph of the Amended Complaint designated 26. 1 of 8 FILED: KINGS COUNTY CLERK 03/12/2019 03:48 PM INDEX NO. 521512/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/12/2019 7. Defendant, DELIV, INC., repeats and reiterates each and denial heretofore every nade in this Answer to the paragraphs of the Amended Complaint designated 1 through 29 nclusive, with the same force and effect as ifset forth here more at length, all in particularly esponse to the paragraph of the Amended Complaint designated 30. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 8. Pursuant to CPLR Article 16, the liability of defendant DELIV, INC. to the plaintiff herein for non-economic loss is limited to defendant's equitable share determined in accordance with the relative of each person or to the total for non- culpability causing contributing liability economic loss. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 9. That by entering into the activity in which the plaintiff was engaged at the time of the occurrence set forth in the amended complaint, said plaintiff knew the hazards thereof and the inherent risks incident thereto and had full knowledge of the dangers thereof; that whatever injuries and damages were sustained by the plaintiff herein as alleged in the Amended Complaint arose from and were caused by reason of such risks voluntarily undertaken by the plaintiff in his activities and such risks were assumed and accepted by him in performing and engaging in said activities. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 10. Plaintiff has recovered the costs of medical care, dental care, custodial care, rehabilitation services, loss of earnings and other economical loss and any future such loss or expense will, with reasonable certainty, be replaced or indemnified in whole or in part from collateral sources. Any award made to plaintiff shall be reduced in accordance with the provisions of CPLR 4545(c). 2 of 8 FILED: KINGS COUNTY CLERK 03/12/2019 03:48 PM INDEX NO. 521512/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/12/2019 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 11. Any damages sustained by the plaintiff were caused the culpable conduct of the by 31aintiff, including contributory negligence, assumption of risks, breach of contract and not the by :ulpable conduct or negligence of this defendant. But if a verdict of judgment is awarded answering o the plaintiff, then and in that event the damages shall be reduced in the proportion which the ulpable conduct attributable to the plaintiff bears to the culpable conduct which caused the damages. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 12. The Amended Complaint fails to state a claim. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 13. Whatever injuries and/or damages sustained by the plaintiff at the time and place alleged in the Amended Complaint, were due to the acts of parties over whom the defendant was not obligated to exercise control or supervision. any AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 14. Plaintiff failed to mitigate damages. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE injury" 15. That plaintiff does not have a "serious as defined in §5104 a sea of the New York Insurance Law and is therefore barred from maintaining this action. AS AND FOR A FIRST CROSS-CLAIM AGAINST CO-DEFENDANT JASLIN CASH 16. That if plaintiff was caused to sustain damages by reason of the claims set forth in the amended complaint, all of which are specifically denied, such damages were sustained by reason of the acts, conduct, misfeasance or nonfeasance, of co-defendant, her agents, servants and/or employees, and not by this answering defendant, and if any judgment is recovered by 3 of 8 FILED: KINGS COUNTY CLERK 03/12/2019 03:48 PM INDEX NO. 521512/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/12/2019 laintiff against this answering defendant, such defendant will be damaged and co- thereby, efendant is or will be responsible therefore in whole or in part. AS AND FOR A SECOND CROSS-CLAIM AGAINST CO-DEFENDANT JASLIN CASH ! 17. That ifplaintiff was caused to sustain damages by reason of the claims set forth in he amended complaint, allof which are specifically denied, and if judgment is recovered the any by plaintiffagainst this answering defendant, that under a contract entered into between the parties or by reason of express or implied warranty, the co-defendant will be liable over to this answering defendant pursuant to the terms of the indemnity agreement in said contract or warranty, for the full amount of any verdict or judgment awarded to the plaintiff against this answering defendant, ogether with attomey's fees, costs and disbursements. AS AND FOR A THIRD CROSS-CLAIM AGAINST CO-DEFENDANT JASLIN CASH 18. Prior to the date of the accident, the co-defendant entered into an agreement with defendant herein. That in said agreement, co-defendant agreed to indemnify and hold this defendant harmless from and against any and all claims and demands for, or in connection with any action, injury or demand whatsoever concerning any person or property. That said agreement was in full force and effect on the date of the accident as alleged in plaintiffs amended complaint. That this defendant is entitled to be indemnified by reason of a breach of contract and/or common law indemnity and held harmless by the co-defendant for the claim and suit of the plaintiff herein. AS AND FOR A FOURTH CROSS-CLAIM AGAINST CO-DEFENDANT JASLIN CASH 19. Prior to the date of the accident, the co-defendant entered into an agreement with defendant herein. That in said agreement, co-defendant agreed to procure insurance and to name this defendant as an additional insured on thatpolicy against any and all claims and demands for, or 4 of 8 FILED: KINGS COUNTY CLERK 03/12/2019 03:48 PM INDEX NO. 521512/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/12/2019 n connection with, any action, injury or demand whatsoever concerning any person or property. That said agreement was in full force and effect on the date of the accident as alleged in plaintiff's 1mended complaint. That this defendant is entitled to insurance coverage and additional insured status by reason of the contract entered into between the parties herein. WHEREFORE, defendant DELIV, INC. demands judgment dismissing the amended complaint herein together with the costs and disbursements of this action. Dated: New York, New York March 12, 2019 Yours etc. FAUST GOETZ SCHENKEl LEE By: Marisa Goetz, Esq. Attorneys for Defendant DELIV, INC. 20* 101 Greenwich Street, Floor New York, New York 10006 (212) 363-6900 Our File No.: 16375-ARN TO: Kevin D. Gratt, Esq. GRATT & ASSOCIATES Attorneys for Plaintiff 2021 Nostrand Avenue, Suite 2 Brooklyn, NY 11210 (718) 963-3339 Fax: (718) 963-1470 grattlaw@gmail.com 5 of 8 FILED: KINGS COUNTY CLERK 03/12/2019 03:48 PM INDEX NO. 521512/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/12/2019 STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) VIARISA GOETZ, being duly sworn, deposes and says: That she is the attorney for the defendant DELIV, INC. in the within action; that she has read the within Answer to Plaintiff's Amended Complaint and knows the contents thereof, and that same is rue to her own knowledge, except and to the matters herein stated to be alleged upon infonnation md belief, and that as to those matters she believes it to be true. That the sources of her information and knowledge are investigation and records on file. That the reason this verification is being made by deponent and not by defendant DELIV, INC.is that the defendant is not within the county where deponent has her office. MARISRÒOEf( 6 of 8 FILED: KINGS COUNTY CLERK 03/12/2019 03:48 PM INDEX NO. 521512/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/12/2019 STATE OF NEW YORK ) ) ss: :OUNTY OF NEW YORK ) Elizabeth Santos, being duly swom, deposes and says: That I am not a party to the within action, am over 18 years of age and reside in Perth Amboy, New Iersey. That on March 12, 2019, deponent served the within Verified Answer to Plaintiff's Amended Complaint upon the attorneys and parties listed below by United States prepaid mail within the State 3f New York: TO: Kevin D. Gratt, Esq. GRATT & ASSOCIATES Attorneys for Plaintiff 2021 Nostrand Avenue, Suite 2 Brooklyn, NY 11210 (718) 963-3339 Fax: (718) 963-1470 grattlaw(ihamail.com Eli a6etl t s Swom to before me this / 12d' day of March, 2019. Public Notary MARISA GOETZ NOTARY PUBLIC STATE OF NY NO 02G06121680 QUALIFIED IN NY COUNTY COMM1SSION EXPIRES 2021 7 of 8 FILED: KINGS COUNTY CLERK 03/12/2019 03:48 PM INDEX NO. 521512/2018 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/12/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS RYAN KNIGHTS, Plaintiff, -against- Index No.: 521512/2018 JASLIN CASH and DELIV, INC., Defendants. VERIFIED ANSWER TO PLAINTIFF'S AMENDED COMPLAINT FAUST GOETZ SCHENKER & BLEE By: Marisa Goetz, Esq. Attorneys for Defendant DELIV, INC. 20th 101 Greenwich Street, Floor New York, New York 10006 (212) 363-6900 Our File No.: 16375-ARN 8 of 8