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FILED: KINGS COUNTY CLERK 03/05/2019 11:14 AM INDEX NO. 519647/2018
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 03/05/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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BRUCE EWAN,
Plaintiff, Index No.: 519647/2018
-against- VERIFIED ANSWER
ROY V. LEWIS,
Defendant.
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Defendant, ROY V. LEWIS, by his attorneys, MILBER MAKRIS PLOUSADIS &
SEIDEN, LLP, as and for his Verified Answer to Plaintiff's Verified Complaint, alleges the
following upon information and belief:
AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION
1. Denies having knowledge or information sufficient to form a belief as to the truth
"1"
of the allegations contained in paragraph of the Verified Complaint.
"2"
2. Denies each and every allegation contaiñéd in paragraph of the Verified
Complaint.
3. Denies having knowledge or information sufficient to form a belief as to the truth
"3" "4"
of the allegations contained in paragraphs and of the Verified Complaint.
"5" "6"
4. Admits the allegations contained in paragraphs and of the Verified
Complaint.
5. Denies having knowledge or information sufficient to form a belief as to the truth
"8" "9"
of the allegations contained in paragraphs "7", and of the Verified Complaint
"11" "12"
6. Denies each and every allegation contained in paragraphs "10", and of
the Verified Complaint.
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"13"
7. Denies each and every allegation contained in paragraph of the Verified
Complaint and refers all questions of law to the Court for their ultimate determination.
"14"
8. Denies each and every allegation cuütained in paragraph of the Verified
Complaint.
AS AND FOR A RESPONSE TO THE SECOND CAUSE O_F ACTION
"15"
9. As and for a response to paragraph of the Verified Complaint, this answering
Defendant repeats, reiterates and realleges each and every response to the allegations set forth in
"1" "14"
paragraphs through of the Verified Complaint as though fully set forth herein.
"16"
10. Denies each and every allegation contained in paragraph of the Verified
Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
11. If Plaintiff has sustained any damages as alleged, which damages are expressly
denied, then all such damages will have been caused or brought about in whole or in part by the
affirmative wrongdoing, fault, negligence and failure of due care (hereinafter "culpable conduct")
of Plaintiff, and any recovery should be thereby dimini±ed in the proportion which Plaintiff's
culpable conduct bears the conduct which caused the alleged damages pursuant to CPLR 1411.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
12. Whatever injuries and/or damages were sustained by the Plaintiff at the time and
place alleged in the Verified Complaint were in whole or in part the result of the Plaintiff's
assumption of the risk in realizing and knowing the hazards and dangers thereof, and the Plaintiff
assumed all of the risks necessarily incidental to such undertaking.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
13. The negligence of those responsible for the accident or the occurrence alleged in
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the Plaintiff's Verified Complaint constitute a separate, independent, superseding, intervening
culpable act or acts which constitute sole proximate cause of the accident or occurrence alleged.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
14. The answering Defendant asserts that this case falls within the limited liability
provisions of Section 1601 of the Civil Practice Law and Rules, and that said Defendant's liability,
if any, shall be limited to the equitable share of the total liability.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
15. Upon information and belief, any past or future costs or expenses incurred or to be
incurred by the Plaintiff for medical care, dental care, custodial care, or rehabilitative services, loss
of carnings or other economic loss has been, or will, with reasonable certainty be replaced or
indemnified in whole or in part from a collateral source as defined in §4545 of the New York Civil
Practice Law and rules.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
16. If the Plaintiff sustained any personal injuries or damages as alleged in the Verified
Complaint, such injuries or damages were caused, aggravated or contributed to by the Plaintiff's
failure to take reaseñãble efforts to mitigate damags, and any award made to the Plaintiff must be
reduced in such proportion and to the extent that the injuries complained of were caused,
aggravated or contributed to by said failure to mitigate damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
17. The Verified Complaint fails to state facts sufficient to constitute a cause of action
for which relief can be granted against this answering Defendant.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
18. If Plaintiff sustained damages as alleged in the Verified Complaint, other than by
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reason of his own culpable conduct, then such daiñages were caused in whole or in part the
by
culpable conduct of some third person or persons over whom the answering Defendants neither
had nor exercised control.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
19. Plaintiff may not maintain each and every cause of action against the answering
Defendant since she has failed to join parties necessary to this action.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
20. Plaintiff's claim for damages should be diminished in whole or in part by his failure
to wear an available seat belt and/or shoulder harness.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
21. The Plaintiff did not sustain serious and personal injuries as denied by Section 5102
of the Insurance Law of the State of New York, and the exclusive remedy of Plaintiff is confined
and limited to the benefits and provisions of Article 51 of the Insurance Law of the State of New
York.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
22. That this Honorable Court lacks personal jurisdiction over this answering
Defendant.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
23. Plaintiff has failed to serve this answering Defendant with process in accordance
with the CPLR.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
24. In the event that any person or entity liable or claimed to be liable for the injury
alleged in this action has been given or may hereafter be given a release or covenant not to sue,
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this answering Defendant will be entitled to protection under New York Geñêral Obligations
Law Section 15-108 and the corresponding reduction of any darñãp,es which may be determined
to be due against this Defendant.
WHEREFORE, Defendant, ROY V. LEWIS, demands judgment:
(A) Dismissing the Verified Complaint in itsentirety;
(B) Awarding the costs and disbursements of this action; and
(C) Awarding such other and further relief as this Court may deem just and
proper.
Dated: Woodbury, New York
March 5, 2019
MILBER MAKRIS PLO I
& SEIDEN, LLP
RICHARD A. LILLING
Attorneys for Defendant
ROY V. LEWIS
1000 Woodbury Road, Suite 402
Woodbury, New York 11797
(516) 712-4000
File No.: 898-16780
TO: MALLILO & GROSSMAN, ESQS.
Attorneys for Plaintiff
BRUCE EWAN
1957 Flatbush Avenue
Brooklyn, New York 11234
(718) 461-6633
File No.: 1800526
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VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
RICHARD A. LILLING, being duly sworn, deposes and says that he is a member of the
firm of MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, counsel for Defendant ROY V.
LEWIS in this action, and makes this verification pursuant to CPLR 3020(d)(3). Defendant is not
within the county where deponent has his office. Deponent has read the foregoiñg VERIFIED
ANSWER and knows the contents thereof; that the same is true on the basis of information and
belief, based upon books and records in the possession of the deponent.
RICHARD A. LILLING
Sworn to before me this
5th
day of March, 2019.
NOTARY PUBLIC
ANNF M AMATULL1
Netary Pz blic
Str te of New York
No 01AM4713126
Onnlmari in Nassau County
Commission -
Expires Sept. 30,
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