Preview
FILED: ERIE COUNTY CLERK 04/24/2018 04:31 PM INDEX NO. 805595/2018
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/24/2018
STATE OF NEW YORK
SUPREME COURT: C.OUNTY OF ERIE
CHARLES FREDRICK
Plaintiff, ANSWER
v.
Index No.: 805595/2018
LAUREN BECKSTEIN and
JOSEPH G. BROWN
Defendants.
01'
Defendants, JOSEPH G. BROWN, by his attorneys, LAW O F FlCES OF VICTOR M.
WRIGHT, for his Answer to the PlaintitTs Complaint, herein allege upon information and belief:
17"
FIRST: Deny the allegations contained in paragraphs "12. 13, 14. I5, and 17 of the
Plaintiffs Complaint.
SECOND: Deny having knowledge or information sufficient to form a belief as to the
16"
allegations contained in paragraphs "1, 2, 4, 5, 7, 8. 9, 10, 11. and 16 of the PlaintitTs Complaint.
6"
THIRD: Admit the allegations contained in paragraphs "3 and 6 of the Plaintiffs
Complaint.
FOURTH: Deny each and every allegation of Plaintiff s Complaint not hereinbefore
specifically admitted, denied, or otherwise controverted.
FOR A FIRST AFFIRMATIVE DEFENSE,
THE DEFENDANT HEREIN ALLEGES:
FIFTH: That upon information and belief, the accident, and/or injuries, and/or
damages, as alleged in the Complaint, which were sustained by the Plaintiff were caused in whole
ot'
or in part or were contributed to by the culpable conduct and want of care on the part of the
Plaintiffs negligence, and/or Plaintiffs assumption of the risk. without any negligence or fault or
want of care on the part of this answering Defendant.
FOR A SECOND AFFIRMATIVE DEFENSE,
THE DEFENDANT HEREIN ALLEGES:
SIXTH: That upon information and belief, allor part of the cost of Plaintiffs medical
care, loss of earnings, or other economic loss have been paid. replaced or indemnified in
may
1 of 4
FILED: ERIE COUNTY CLERK 04/24/2018 04:31 PM INDEX NO. 805595/2018
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/24/2018
whole or in part from collateral sources or with reasonable certainty, will be replaced or
indemnified in the future from such collateral sources and to that extent, the Defendant requests
ol'
that in the event Plaintiff recovers any judgment herein. that such amounts as have been or may be
recovered in whole or in part from collateral sources be determined by the court and the amounts
Plaintiff recovers be reduced by said amounts.
FOR A THIRD AFFIRMATIVE DEFENSE,
THE DEFENDANT HEREIN ALLEGES:
SEVENTH: That upon information and belief; the Plaintiff did not sustain a serious
injury as defined in Section 5102(d) of the Insurance Law of the State of New York and has not
sustained economic loss greater than basic economic loss as defined in Section 5102(a) of the
Insurance Law of the State of New York.
FOR A FOURTH AFFIRMATIVE DEFENSE,
THE DEFENDANT HEREIN ALLEGES:
EIGHTH: That upon information and belief, the defendant has not been properly
served.
FOR A FIFTH AFFIRMATIVE DEFENSE,
THE DEFENDANT HEREIN ALLEGES:
NINTH: That upon information and belief. the vehicle which was occupied by the
Plaintiff at the time of the incident complained of in the Complaint, was equipped with seat belts
and/or harnesses, the use of which would have prevented or substantially reduced the PlaintilTs
injuries, but upon information and belief the Plaintiff did not make use of such a device(s). That
the Plaintiffs failure to wear such safety equipment was a contributing factor to his injuries. ifany.
FOR A SIXTH AFFIRMATIVE DEFENSE,
THE DEFENDANT HEREIN ALLEGES:
TENTH: That upon information and belief, the Plaintiff has lailed to obtain
or.
jurisdiction over the person or property of this Defendant.
FOR A SEVENTH AFFIRMATIVE DEFENSE,
THE DEFENDANT HEREIN ALLEGES:
ELEVENTH:That upon information and belief, the plaintiffs action is barred the
by
statute of limitations.
2 of 4
FILED: ERIE COUNTY CLERK 04/24/2018 04:31 PM INDEX NO. 805595/2018
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/24/2018
FOR A EIGHTH AFFIRMATIVE DEFENSE,
THE DEFENDANT HEREIN ALLEGES:
TWELFTH: That upon information and belief, the accident in issue may have been
caused by an emergency situation created in the absence of negligence on the part of the
Defendants and they are, therefore, free of negligence as a matter of law.
FOR A NINTH AFFIRMATIVE DEFENSE,
THE DEFENDANT HEREIN ALLEGES:
THIRTEENTH: That upon information and belief, Plaintiff has failed to mitigate his
damages.
FOR A TENTH AFFIRMATIVE DEFENSE AND BY
WAY OF A CROSSCLAIM, THIS ANSWERING
DEFENDANT HEREIN ALLEGES:
FOURTEENTH: That ifthe Plaintiff sustained injuries and damages as alleged in the
Complaint, by reason of fault other than his own. and judgment is recovered against this answering
Defendant, then the liability of said Defendant will have been brought on by reason of the primary
negligence of the Co-Defendant, LAUREN BECKSTEIN, without any negligence on the part of
this answering Defendant, who is thereby entitled to indemnity and/or contribution from. and
judgment over against the Co-Defendant for such liability or such proportionate share that
represents the amount, degree or kind of negligence attributable to the Defendant. The answering
Defendant also claims contingent benefit upon any future compromise or settlement between the
Co-Defendant and the Plaintiff pursuant to the provisions of General Obligations Law §l 5-108 as
they apply to any such compromise or settlement.
FOR A ELEVENTH AFFIRMATIVE DEFENSE,
THE DEFENDANT HEREIN ALLEGES:
FIFTEENTH: Defendant reserves the right to assert any additional amrmative
defenses and claims of avoidance as may be appropriate based upon the facts or issues disclosed
during the course of additional investigation and discovery.
WHEREFORE, the Defendant demands judgment dismissing the Plaintiffs Complaint.
and further demands that the ultimate rights of the parties be determined, and the Defendant
demands the costs and disbursements of this action.
3 of 4
FILED: ERIE COUNTY CLERK 04/24/2018 04:31 PM INDEX NO. 805595/2018
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/24/2018
DATED: April 24, 2018
Orchard Park, NY
Eli be A. B udge. Esq.
L FFIC S QF VICTOR M. WRIGHT
A rneys .f,
for efendant-Joseph G. Brown
3815 California Road, Suite Two
Orchard Park, NY 14127-2239
(716) 667-1681
TO: Rafael O. Gomez
GOMEZ & BECKER, LLP
Attorneys for Plaintiff
2746 Delaware Avenue
The Eberhardt Mansion
Buffalo, NY 14217
AND COUNSEL FOR THE CO-DEFENDANTS, LAUREN BECKSTEIN, AS THEY MAY
APPEAR
AFFIRMATION OF SERVICE
Elizabeth A. Bruce, Esq., affirms under penalty of perjury that he serv le within A·1swer by
mailing a copy of the same to the above named at the abo e 1 addr ss on April J___. 2018.
4 of 4
Preview
FILED: ERIE COUNTY CLERK 04/24/2018 04:31 PM INDEX NO. 805595/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/24/2018 STATE OF NEW YORK SUPREME COURT: C.OUNTY OF ERIE CHARLES FREDRICK Plaintiff, ANSWER v. Index No.: 805595/2018 LAUREN BECKSTEIN and JOSEPH G. BROWN Defendants. 01' Defendants, JOSEPH G. BROWN, by his attorneys, LAW O F FlCES OF VICTOR M. WRIGHT, for his Answer to the PlaintitTs Complaint, herein allege upon information and belief: 17" FIRST: Deny the allegations contained in paragraphs "12. 13, 14. I5, and 17 of the Plaintiffs Complaint. SECOND: Deny having knowledge or information sufficient to form a belief as to the 16" allegations contained in paragraphs "1, 2, 4, 5, 7, 8. 9, 10, 11. and 16 of the PlaintitTs Complaint. 6" THIRD: Admit the allegations contained in paragraphs "3 and 6 of the Plaintiffs Complaint. FOURTH: Deny each and every allegation of Plaintiff s Complaint not hereinbefore specifically admitted, denied, or otherwise controverted. FOR A FIRST AFFIRMATIVE DEFENSE, THE DEFENDANT HEREIN ALLEGES: FIFTH: That upon information and belief, the accident, and/or injuries, and/or damages, as alleged in the Complaint, which were sustained by the Plaintiff were caused in whole ot' or in part or were contributed to by the culpable conduct and want of care on the part of the Plaintiffs negligence, and/or Plaintiffs assumption of the risk. without any negligence or fault or want of care on the part of this answering Defendant. FOR A SECOND AFFIRMATIVE DEFENSE, THE DEFENDANT HEREIN ALLEGES: SIXTH: That upon information and belief, allor part of the cost of Plaintiffs medical care, loss of earnings, or other economic loss have been paid. replaced or indemnified in may 1 of 4 FILED: ERIE COUNTY CLERK 04/24/2018 04:31 PM INDEX NO. 805595/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/24/2018 whole or in part from collateral sources or with reasonable certainty, will be replaced or indemnified in the future from such collateral sources and to that extent, the Defendant requests ol' that in the event Plaintiff recovers any judgment herein. that such amounts as have been or may be recovered in whole or in part from collateral sources be determined by the court and the amounts Plaintiff recovers be reduced by said amounts. FOR A THIRD AFFIRMATIVE DEFENSE, THE DEFENDANT HEREIN ALLEGES: SEVENTH: That upon information and belief; the Plaintiff did not sustain a serious injury as defined in Section 5102(d) of the Insurance Law of the State of New York and has not sustained economic loss greater than basic economic loss as defined in Section 5102(a) of the Insurance Law of the State of New York. FOR A FOURTH AFFIRMATIVE DEFENSE, THE DEFENDANT HEREIN ALLEGES: EIGHTH: That upon information and belief, the defendant has not been properly served. FOR A FIFTH AFFIRMATIVE DEFENSE, THE DEFENDANT HEREIN ALLEGES: NINTH: That upon information and belief. the vehicle which was occupied by the Plaintiff at the time of the incident complained of in the Complaint, was equipped with seat belts and/or harnesses, the use of which would have prevented or substantially reduced the PlaintilTs injuries, but upon information and belief the Plaintiff did not make use of such a device(s). That the Plaintiffs failure to wear such safety equipment was a contributing factor to his injuries. ifany. FOR A SIXTH AFFIRMATIVE DEFENSE, THE DEFENDANT HEREIN ALLEGES: TENTH: That upon information and belief, the Plaintiff has lailed to obtain or. jurisdiction over the person or property of this Defendant. FOR A SEVENTH AFFIRMATIVE DEFENSE, THE DEFENDANT HEREIN ALLEGES: ELEVENTH:That upon information and belief, the plaintiffs action is barred the by statute of limitations. 2 of 4 FILED: ERIE COUNTY CLERK 04/24/2018 04:31 PM INDEX NO. 805595/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/24/2018 FOR A EIGHTH AFFIRMATIVE DEFENSE, THE DEFENDANT HEREIN ALLEGES: TWELFTH: That upon information and belief, the accident in issue may have been caused by an emergency situation created in the absence of negligence on the part of the Defendants and they are, therefore, free of negligence as a matter of law. FOR A NINTH AFFIRMATIVE DEFENSE, THE DEFENDANT HEREIN ALLEGES: THIRTEENTH: That upon information and belief, Plaintiff has failed to mitigate his damages. FOR A TENTH AFFIRMATIVE DEFENSE AND BY WAY OF A CROSSCLAIM, THIS ANSWERING DEFENDANT HEREIN ALLEGES: FOURTEENTH: That ifthe Plaintiff sustained injuries and damages as alleged in the Complaint, by reason of fault other than his own. and judgment is recovered against this answering Defendant, then the liability of said Defendant will have been brought on by reason of the primary negligence of the Co-Defendant, LAUREN BECKSTEIN, without any negligence on the part of this answering Defendant, who is thereby entitled to indemnity and/or contribution from. and judgment over against the Co-Defendant for such liability or such proportionate share that represents the amount, degree or kind of negligence attributable to the Defendant. The answering Defendant also claims contingent benefit upon any future compromise or settlement between the Co-Defendant and the Plaintiff pursuant to the provisions of General Obligations Law §l 5-108 as they apply to any such compromise or settlement. FOR A ELEVENTH AFFIRMATIVE DEFENSE, THE DEFENDANT HEREIN ALLEGES: FIFTEENTH: Defendant reserves the right to assert any additional amrmative defenses and claims of avoidance as may be appropriate based upon the facts or issues disclosed during the course of additional investigation and discovery. WHEREFORE, the Defendant demands judgment dismissing the Plaintiffs Complaint. and further demands that the ultimate rights of the parties be determined, and the Defendant demands the costs and disbursements of this action. 3 of 4 FILED: ERIE COUNTY CLERK 04/24/2018 04:31 PM INDEX NO. 805595/2018 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/24/2018 DATED: April 24, 2018 Orchard Park, NY Eli be A. B udge. Esq. L FFIC S QF VICTOR M. WRIGHT A rneys .f, for efendant-Joseph G. Brown 3815 California Road, Suite Two Orchard Park, NY 14127-2239 (716) 667-1681 TO: Rafael O. Gomez GOMEZ & BECKER, LLP Attorneys for Plaintiff 2746 Delaware Avenue The Eberhardt Mansion Buffalo, NY 14217 AND COUNSEL FOR THE CO-DEFENDANTS, LAUREN BECKSTEIN, AS THEY MAY APPEAR AFFIRMATION OF SERVICE Elizabeth A. Bruce, Esq., affirms under penalty of perjury that he serv le within A·1swer by mailing a copy of the same to the above named at the abo e 1 addr ss on April J___. 2018. 4 of 4