Preview
FILED: ERIE COUNTY CLERK 05/11/2018 11:36 AM INDEX NO. 805595/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/11/2018
STATE OF NEW YORK : SUPREME COURT
COUNTY OF ERIE
CHASES FREBRICK, ANSWKR WITH
AFFIRMATIVE DEFENSES
Plaintiff, AND CROSS-CLAIM
VS.
Index No.: 805595/2018
LAUREN BECKSTEIN,
JOSEPH G, BROWN,
Defendants.
The Defendant, LAUREN BECKSTEIN, by her attorneys, the Law Office of Daniel R.
Archilla, answering the Complaint of the Plaintiff, allege the following:
1. Admits the allegations contained in paragraph numbered 5 of the Plaintiff s
Complaint.
2. Denies the allegations contained in paragraphs numbered 12, 13, 14, 15 and 17 of
Plaintiff'
the Plaintiff s Complaint,
3. Denies having knowledge or information sufficient to form a belief as to the
allegations contained in paragraphs numbered 1, 2, 3, 4, 6, 7, 8, 9, 10, 11 and 16 of the Plaintiff's
Complaint and therefore, denies same.
4. . Denies each and every other allegation of the Plaintiff's Complaint not
hereinabove specifically admitted, controverted or denied.
AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANT ALLEGES:
5. That the Plaintiff acted in such a careless and negligent manner so as to cause or
contribute to the cause of his own injuries as alleged in the Complaint.
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6. That in the event Plaintiff shall become entitled to recover a verdict against the
Defendant, the Defendant shall be entitled to have said verdict reduced or diminished in the
proportion, which the culpable conduct attributed to the Plaintiff bears to the culpable conduct,
which caused Plaintiff s injuries.
AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANT ALLEGES:
7. That any recovery in favor of the Plaintiff be reduced or diminished to the extent
which said Plaintiff s injuries were caused or aggravated by the said Plaintiff's failure to wear
seat belts or other safety restraining device.
AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANT ALLEGES:
8. In the event that the Plaintiff has judgment against Defendant, the Defendant is
entitled to a setoff or reduction of any damage award, liability for which is expressly denied, for
amounts received from any collateral source pursuant to Section 4545(c) of the CPLR.
AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANT ALLEGES:
9. The Plaintiff did not sustain a serious personal injury as defined by Section
5102(d) of the Insurance Law, and therefore, the Plaintiff's action is barred.
AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANT ALLEGES:
10. That this Court does not have jurisdiction over the Defendant due to lack of
..
proper service of process.
AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANT ALLEGES:
11. The Defendant is entitled to the setoffs and benefits pursuant to General
Obligations Law Section 1S-108,
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NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/11/2018
AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANT ALLEGES:
12. The Defendant was acting reasonably in an emergency situation.
AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE,
THE ANSWERING DEFENDANT ALLEGES:
13. That the Plaintiff has failed to mitigate his damages as required by law.
AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE,
AND FOR A CROSS- CLAIM AGAINST THE DEFENDANT,
JOSEPH G. BROWN, THE ANSWERING DEFENDANT ALLEGES:
14. That the Complaint alleges the Plaintiff sustained damages by reason of the
culpable conduct of the answering Defendant.
15. That the answering Defendant denies that any culpable conduct or other act on the
part of the said answering Defendant caused or contributed to any damages sustained by the
Plaintiff.
16. That ifthe accident, incident and damages were not caused or contributed to by
the negligence and culpable conduct or other act of the Plaintiff, then itwas the culpable conduct
of the Defendant, JOSEPH G. BROWN, that was responsible in whole or in part for the accident,
incident and damages alleged in the Complaint.
17. That ifby virtue of the allegations in the Complaint, the answering Defendant is
found liable to the Plaintiff or to any other party, Defendant will be entitled to indemnification
by, or contribution from, and judgment over/against the Defendant, JOSEPH G. BROWN, for
the full amount of such liability or for such proportionate share as represents the amount, degree
and kind of negligence, culpability, or other act attributable to the answering Defendant.
WHEREFORE, Defendant, LAUREN BECKSTEIN, demands judgment dismissing the
Complaint herein as to her; and further demands that the culpable conduct of the Plaintiff be
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determined upon the trial of this action, and that the amount of damages otherwise recoverable
by the Plaintiff against this answering Defendant be diminished in the proportion which the
culpable conduct attributable to the Plaintiff bears to the culpable conduct which caused the
damages alleged; and further demands that any recovery in the favor of the Plaintiff be reduced
or diminished to the extent which said Plaintiff's injuries were caused or aggravated by the
Plaintiff's failure to wear seat belts or safety restraining devices; and further demands that the
ultimate rights and responsibilities as among the parties to be apportioned in accordance with the
liability and fault attributable to each party as determined by the trierof the facts, plus the costs
and disbursements of this action.
DATED: Buffalo, New York
May 11, 2018
Yours, etc
BY: Amy E. Belmont, Esq.
LawOffice of Daniel R. Archilla
Attorneys for Defendant
LAUREN BECKSTEIN
170 Franklin Street, Suite 500
Buffalo, NY 14202
716-856-0875
TO: Rafael O. Gomez, Esq.
Gomez & Becker, LLP
Attorneys for Plaintiff
CHARLES FREDRICK
The Eberhardt Mansion
2746 Delaware Avenue
Buffalo, New York 14217
CC: Elizabeth A. Bruce, Esq.
Law Office of Victor Wright
Attorney for Defendant
JOSEPH G. BROWN
3815 California Road, Suite Two
Orchard Park, New York 14127
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FILED: ERIE COUNTY CLERK 05/11/2018 11:36 AM INDEX NO. 805595/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/11/2018 STATE OF NEW YORK : SUPREME COURT COUNTY OF ERIE CHASES FREBRICK, ANSWKR WITH AFFIRMATIVE DEFENSES Plaintiff, AND CROSS-CLAIM VS. Index No.: 805595/2018 LAUREN BECKSTEIN, JOSEPH G, BROWN, Defendants. The Defendant, LAUREN BECKSTEIN, by her attorneys, the Law Office of Daniel R. Archilla, answering the Complaint of the Plaintiff, allege the following: 1. Admits the allegations contained in paragraph numbered 5 of the Plaintiff s Complaint. 2. Denies the allegations contained in paragraphs numbered 12, 13, 14, 15 and 17 of Plaintiff' the Plaintiff s Complaint, 3. Denies having knowledge or information sufficient to form a belief as to the allegations contained in paragraphs numbered 1, 2, 3, 4, 6, 7, 8, 9, 10, 11 and 16 of the Plaintiff's Complaint and therefore, denies same. 4. . Denies each and every other allegation of the Plaintiff's Complaint not hereinabove specifically admitted, controverted or denied. AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANT ALLEGES: 5. That the Plaintiff acted in such a careless and negligent manner so as to cause or contribute to the cause of his own injuries as alleged in the Complaint. 1 of 4 FILED: ERIE COUNTY CLERK 05/11/2018 11:36 AM INDEX NO. 805595/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/11/2018 6. That in the event Plaintiff shall become entitled to recover a verdict against the Defendant, the Defendant shall be entitled to have said verdict reduced or diminished in the proportion, which the culpable conduct attributed to the Plaintiff bears to the culpable conduct, which caused Plaintiff s injuries. AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANT ALLEGES: 7. That any recovery in favor of the Plaintiff be reduced or diminished to the extent which said Plaintiff s injuries were caused or aggravated by the said Plaintiff's failure to wear seat belts or other safety restraining device. AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANT ALLEGES: 8. In the event that the Plaintiff has judgment against Defendant, the Defendant is entitled to a setoff or reduction of any damage award, liability for which is expressly denied, for amounts received from any collateral source pursuant to Section 4545(c) of the CPLR. AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANT ALLEGES: 9. The Plaintiff did not sustain a serious personal injury as defined by Section 5102(d) of the Insurance Law, and therefore, the Plaintiff's action is barred. AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANT ALLEGES: 10. That this Court does not have jurisdiction over the Defendant due to lack of .. proper service of process. AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANT ALLEGES: 11. The Defendant is entitled to the setoffs and benefits pursuant to General Obligations Law Section 1S-108, 2 of 4 FILED: ERIE COUNTY CLERK 05/11/2018 11:36 AM INDEX NO.I 805595/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/11/2018 AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANT ALLEGES: 12. The Defendant was acting reasonably in an emergency situation. AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE, THE ANSWERING DEFENDANT ALLEGES: 13. That the Plaintiff has failed to mitigate his damages as required by law. AS AND FOR A COMPLETE AFFIRMATIVE DEFENSE, AND FOR A CROSS- CLAIM AGAINST THE DEFENDANT, JOSEPH G. BROWN, THE ANSWERING DEFENDANT ALLEGES: 14. That the Complaint alleges the Plaintiff sustained damages by reason of the culpable conduct of the answering Defendant. 15. That the answering Defendant denies that any culpable conduct or other act on the part of the said answering Defendant caused or contributed to any damages sustained by the Plaintiff. 16. That ifthe accident, incident and damages were not caused or contributed to by the negligence and culpable conduct or other act of the Plaintiff, then itwas the culpable conduct of the Defendant, JOSEPH G. BROWN, that was responsible in whole or in part for the accident, incident and damages alleged in the Complaint. 17. That ifby virtue of the allegations in the Complaint, the answering Defendant is found liable to the Plaintiff or to any other party, Defendant will be entitled to indemnification by, or contribution from, and judgment over/against the Defendant, JOSEPH G. BROWN, for the full amount of such liability or for such proportionate share as represents the amount, degree and kind of negligence, culpability, or other act attributable to the answering Defendant. WHEREFORE, Defendant, LAUREN BECKSTEIN, demands judgment dismissing the Complaint herein as to her; and further demands that the culpable conduct of the Plaintiff be 3 of 4 FILED: ERIE COUNTY CLERK 05/11/2018 11:36 AM INDEX NO. 805595/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 05/11/2018 determined upon the trial of this action, and that the amount of damages otherwise recoverable by the Plaintiff against this answering Defendant be diminished in the proportion which the culpable conduct attributable to the Plaintiff bears to the culpable conduct which caused the damages alleged; and further demands that any recovery in the favor of the Plaintiff be reduced or diminished to the extent which said Plaintiff's injuries were caused or aggravated by the Plaintiff's failure to wear seat belts or safety restraining devices; and further demands that the ultimate rights and responsibilities as among the parties to be apportioned in accordance with the liability and fault attributable to each party as determined by the trierof the facts, plus the costs and disbursements of this action. DATED: Buffalo, New York May 11, 2018 Yours, etc BY: Amy E. Belmont, Esq. LawOffice of Daniel R. Archilla Attorneys for Defendant LAUREN BECKSTEIN 170 Franklin Street, Suite 500 Buffalo, NY 14202 716-856-0875 TO: Rafael O. Gomez, Esq. Gomez & Becker, LLP Attorneys for Plaintiff CHARLES FREDRICK The Eberhardt Mansion 2746 Delaware Avenue Buffalo, New York 14217 CC: Elizabeth A. Bruce, Esq. Law Office of Victor Wright Attorney for Defendant JOSEPH G. BROWN 3815 California Road, Suite Two Orchard Park, New York 14127 4 of 4