Preview
FILED: ERIE COUNTY CLERK 03/16/2018 12:53 PM INDEX NO. 802213/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/16/2018
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
DONNA YOUNG,
Plaintiff, ANSWER
vs. Index No. 802213/2018
ROBERT BELLIN and
TOWN OF TONAWANDA,
Defendants.
SIRS:
Defendant, TOWN OF TONAWANDA, by its attorneys, BOUVIER LAW LLP, as and
for its answer in response to plaintiff's Complaint, herein alleges, upon information and belief,
and at all times relevant, that:
"5"
1. Admits paragraphs "3", and "12".
2. Denies knowledge and information sufficient to form a belief as to allegations
"8"
contained in paragraphs "1", "2", "4", "6", "7", and "11".
"9"
3. Denies paragraphs and "10".
4. Denies any knowledge or information sufficient to form a belief as to each and
every other allegation in said Complaint contained, not hereinbefore specifically admitted or
denied, and therefore denies same.
AS AND FOR A FIRST SEPARATE, COMPLETE AND DISTINCT
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:
5. Any damages sustained by the plaintiff was caused by the culpable conduct of the
plaintiff, including contributory negligence, carelessness, recklessness, or assumption of risk,
and not by the culpable conduct or negligence of this answering defendant.
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AS AND FOR A SECOND SEPARATE, COMPLETE AND DISTINCT
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:
6. All or part of each item of economic loss may have been paid, replaced or
indemnified in whole or in part from collateral sources or with reasonable certainty, will be paid,
replaced or indemnified in the future from such collateral sources and to that extent, in the event
plaintiff recovers any judgment herein, the amounts plaintiff recovers should be reduced by such
amounts as have been or may be recovered in whole or in part from collateral sources.
AS AND FOR A THIRD SEPARATE, COMPLETE AND DISTINCT
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:
7. In the event that a judgment is rendered against the answering defendants, itshall
not be responsible for more than itsproportionate share of liability pursuant to §1601, et seq. of
the CPLR.
8. Upon information and belief, answering defendant is entitled to an offset from
any recovery plaintiff receives from any other tort feasor.
AS AND FOR A FOURTH SEPARATE, COMPLETE AND DISTINCT
AFFIRMATIV E DEFENSE, DEFENDANT ALLEGES:
9. That any alleged injury and damage sustained by the plaintiff were worsened by
the failure of the plaintiff to act to mitigate such injury and damage.
AS AND FOR A FIFTH SEPARATE, COMPLETE AND DISTINCT
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:
10. Plaintiff's complaint fails to state a cause of action against answering defendant.
AS AND FOR A SIXTH SEPARATE, COMPLETE AND DISTINCT
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:
11. Upon information and belief, this action may not be maintained by plaintiff as
against the defendant, by reason of the failure of plaintiff or any other person to provide prior
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FILED: ERIE COUNTY CLERK 03/16/2018 12:53 PM INDEX NO. 802213/2018
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/16/2018
written notice of any alleged defective, unsafe, dangerous or obstructed condition of any
highway or other property owned or maintained by the defendant as required by Town Law
Section 65-a and Town of Tonawanda Local Law § 68-2.
AS AND FOR A SEVENTH SEPARATE, COMPLETE AND DISTINCT
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:
12. Upon information and belief, defendant never received actual or constructive notice
of any defective or dangerous condition, and therefore, it cannot be liable for any alleged injuries
suffered by plaintiff.
AS AND FOR AN EIGHTH SEPARATE, COMPLETE AND DISTINCT
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:
13. Upon information and belief, the doctrine of governmental immunity bars the
claim of the plaintiff.
AS AND FOR A NINTH SEPARATE, COMPLETE AND DISTINCT
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:
14. Upon information and belief, whatever damages, if any, the plaintiff sustained as
alleged in his Complaint, if they were not caused in whole or in part or contributed to by reason
of plaintiff's culpable conduct, were caused by reason of culpable conduct on the part of others
to whom the plaintiff has given a release, and accordingly, this answering defendant is entitled to
have the claim or any judgment of the plaintiff herein, if any, reduced in accordance with Section
15-108 of the General Obligations Law 15-108.
AS AND FOR A TENTH SEPARATE, COMPLETE AND DISTINCT
AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES:
15. To the extent the plaintiff is making claims in the complaint for liability or
damages, which were not set forth in the plaintiff's notice of claim, such claims are barred.
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AS AND FOR A FIRST CROSS-CLAIM AGAINST
DEFENDANT, ROBERT BELLIN, DEFENDANT
TOWN OF TONAWANDA ALLEGES:
16. If plaintiff sustained injuries and damages alleged in the Complaint by reason of
fault other than her own and judgment is recovered against this answering defendant, then the
liability of said defendant will have been brought about by the reason of the primary carelessness
of the co-defendant without any such carelessness on the part of this answering defendant who is
thereby entitled to indemnity and/or contribution for all or part of such judgment in such amount
as shall be determined ultimately at the trial of this action.
WHEREFORE, defendant demands judgment dismissing the plaintiff's Complaint,
together with the costs and disbursements of this action and further demands, pursuant to
Sections 3019 and 1403 of the CPLR, that the ultimate rights of the defendants between
themselves be determined.
DATED: March 16, 2018
Buffalo, New York
Yours, etc.
BOUVIER LAW LLP
Michael P. Caffery
Attorneys for Defendant,
TOWN OF TONAWANDA
350 Main Street, Suite 1800
Buffalo, New York 14202
(716) 856-1344
To: Robert D. Berkun Esq.
Attorneys for Plaintiff
930 Convention Tower
43 Court Street
Buffalo, New York 14202
(716) 856-4080
Defendant, Robert Bellin upon appearance
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Preview
FILED: ERIE COUNTY CLERK 03/16/2018 12:53 PM INDEX NO. 802213/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/16/2018 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE DONNA YOUNG, Plaintiff, ANSWER vs. Index No. 802213/2018 ROBERT BELLIN and TOWN OF TONAWANDA, Defendants. SIRS: Defendant, TOWN OF TONAWANDA, by its attorneys, BOUVIER LAW LLP, as and for its answer in response to plaintiff's Complaint, herein alleges, upon information and belief, and at all times relevant, that: "5" 1. Admits paragraphs "3", and "12". 2. Denies knowledge and information sufficient to form a belief as to allegations "8" contained in paragraphs "1", "2", "4", "6", "7", and "11". "9" 3. Denies paragraphs and "10". 4. Denies any knowledge or information sufficient to form a belief as to each and every other allegation in said Complaint contained, not hereinbefore specifically admitted or denied, and therefore denies same. AS AND FOR A FIRST SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 5. Any damages sustained by the plaintiff was caused by the culpable conduct of the plaintiff, including contributory negligence, carelessness, recklessness, or assumption of risk, and not by the culpable conduct or negligence of this answering defendant. 1 of 4 FILED: ERIE COUNTY CLERK 03/16/2018 12:53 PM INDEX NO. 802213/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/16/2018 AS AND FOR A SECOND SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 6. All or part of each item of economic loss may have been paid, replaced or indemnified in whole or in part from collateral sources or with reasonable certainty, will be paid, replaced or indemnified in the future from such collateral sources and to that extent, in the event plaintiff recovers any judgment herein, the amounts plaintiff recovers should be reduced by such amounts as have been or may be recovered in whole or in part from collateral sources. AS AND FOR A THIRD SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 7. In the event that a judgment is rendered against the answering defendants, itshall not be responsible for more than itsproportionate share of liability pursuant to §1601, et seq. of the CPLR. 8. Upon information and belief, answering defendant is entitled to an offset from any recovery plaintiff receives from any other tort feasor. AS AND FOR A FOURTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIV E DEFENSE, DEFENDANT ALLEGES: 9. That any alleged injury and damage sustained by the plaintiff were worsened by the failure of the plaintiff to act to mitigate such injury and damage. AS AND FOR A FIFTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 10. Plaintiff's complaint fails to state a cause of action against answering defendant. AS AND FOR A SIXTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 11. Upon information and belief, this action may not be maintained by plaintiff as against the defendant, by reason of the failure of plaintiff or any other person to provide prior 2 of 4 FILED: ERIE COUNTY CLERK 03/16/2018 12:53 PM INDEX NO. 802213/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/16/2018 written notice of any alleged defective, unsafe, dangerous or obstructed condition of any highway or other property owned or maintained by the defendant as required by Town Law Section 65-a and Town of Tonawanda Local Law § 68-2. AS AND FOR A SEVENTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 12. Upon information and belief, defendant never received actual or constructive notice of any defective or dangerous condition, and therefore, it cannot be liable for any alleged injuries suffered by plaintiff. AS AND FOR AN EIGHTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 13. Upon information and belief, the doctrine of governmental immunity bars the claim of the plaintiff. AS AND FOR A NINTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 14. Upon information and belief, whatever damages, if any, the plaintiff sustained as alleged in his Complaint, if they were not caused in whole or in part or contributed to by reason of plaintiff's culpable conduct, were caused by reason of culpable conduct on the part of others to whom the plaintiff has given a release, and accordingly, this answering defendant is entitled to have the claim or any judgment of the plaintiff herein, if any, reduced in accordance with Section 15-108 of the General Obligations Law 15-108. AS AND FOR A TENTH SEPARATE, COMPLETE AND DISTINCT AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 15. To the extent the plaintiff is making claims in the complaint for liability or damages, which were not set forth in the plaintiff's notice of claim, such claims are barred. 3 of 4 FILED: ERIE COUNTY CLERK 03/16/2018 12:53 PM INDEX NO. 802213/2018 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 03/16/2018 AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANT, ROBERT BELLIN, DEFENDANT TOWN OF TONAWANDA ALLEGES: 16. If plaintiff sustained injuries and damages alleged in the Complaint by reason of fault other than her own and judgment is recovered against this answering defendant, then the liability of said defendant will have been brought about by the reason of the primary carelessness of the co-defendant without any such carelessness on the part of this answering defendant who is thereby entitled to indemnity and/or contribution for all or part of such judgment in such amount as shall be determined ultimately at the trial of this action. WHEREFORE, defendant demands judgment dismissing the plaintiff's Complaint, together with the costs and disbursements of this action and further demands, pursuant to Sections 3019 and 1403 of the CPLR, that the ultimate rights of the defendants between themselves be determined. DATED: March 16, 2018 Buffalo, New York Yours, etc. BOUVIER LAW LLP Michael P. Caffery Attorneys for Defendant, TOWN OF TONAWANDA 350 Main Street, Suite 1800 Buffalo, New York 14202 (716) 856-1344 To: Robert D. Berkun Esq. Attorneys for Plaintiff 930 Convention Tower 43 Court Street Buffalo, New York 14202 (716) 856-4080 Defendant, Robert Bellin upon appearance 4 of 4