Preview
FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
X
BRUCE EWAN, Index No.: 519647/2018
Plaintiff,
AMENDED
-against- VERIFIED ANSWER
ROY V. LEWIS,
Defendant.
---- ---------------------------------X
Defendant, ROY V. LEWIS, by his attorneys, MILBER MAKRIS PLOUSADIS &
SEIDEN, LLP, as and for his Amended Verified Answer to Plaintiff's Verified Corsplaiñt, 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. Admits the allegations contained in paragraph of the Verified Complaint.
3. Denies having knowledge or infounation 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.
1 of 6
FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019
"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 contained in paragraph of the Verified
Complaint.
AS AND FOR A RESPONSE TO THE SECOND_CAUSE OF 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 contãiñcd in paragraph of the Verified
Complaint.
AS AND FO_R A FIRST AFFIRMATIVE DEFENS_E
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 dimirdshed 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
2
2 of 6
FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019
the Plaintiff's Verified Complaint constitute a separate, indcpêñdent, superseding, intervening
culpable act or acts which constitute sole proximate cause of the accident or occurrêñce 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 earnings 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 câüsed, aggravated or contributed to by the Plaintiff's
failure to take reasonable efforts to mitigate damages, 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 AFFIRMATIV E 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. IfPlaintiff smtained damages as alleged in the Verified Complaint, other than by
3
3 of 6
FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019
reason of his own culpable conduct, then such damages were caused in whole or in part by the
culpable conduct of some third person or persons over whom the answering Defendants neither
had nor exercised control.
AS AND FOR A NINTH AFFIRMATIVE DE_FENSE
19. Plaintiff not maintain each and cause of action against the
may every 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 hisfailure
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 Defendãüt with process in accordance
with the CPLR.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFM
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,
4
4 of 6
FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019
this answering Defendant will be entitled to protection under New York General Obligations
Law Section 15-108 and the corresponding reduction of any damages which may be determined
to be due against this Defendant.
WHEREFORE, Defendant, ROY V. LEWIS, demands judgment:
(A) Dismissing the Verified Complaint in its entirety;
(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 13, 2019
MILBER MAKRIS P IS
& SEIDEN, LL
By:
CHARD A. LILbNG
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
5
5 of 6
FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019
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 foregoing AMENDED
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 depone
RICHARD A. LILLING
Swom to before me this
13 a of March, 2 .
OT P IC
MAURE SCHMIDT
Notary Public. tate of New York
No. 01S 119224
Qualified in Su ounty
Commission Expires Novem e ,2
D
6
6 of 6
Preview
FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X BRUCE EWAN, Index No.: 519647/2018 Plaintiff, AMENDED -against- VERIFIED ANSWER ROY V. LEWIS, Defendant. ---- ---------------------------------X Defendant, ROY V. LEWIS, by his attorneys, MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, as and for his Amended Verified Answer to Plaintiff's Verified Corsplaiñt, 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. Admits the allegations contained in paragraph of the Verified Complaint. 3. Denies having knowledge or infounation 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. 1 of 6 FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019 "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 contained in paragraph of the Verified Complaint. AS AND FOR A RESPONSE TO THE SECOND_CAUSE OF 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 contãiñcd in paragraph of the Verified Complaint. AS AND FO_R A FIRST AFFIRMATIVE DEFENS_E 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 dimirdshed 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 2 2 of 6 FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019 the Plaintiff's Verified Complaint constitute a separate, indcpêñdent, superseding, intervening culpable act or acts which constitute sole proximate cause of the accident or occurrêñce 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 earnings 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 câüsed, aggravated or contributed to by the Plaintiff's failure to take reasonable efforts to mitigate damages, 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 AFFIRMATIV E 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. IfPlaintiff smtained damages as alleged in the Verified Complaint, other than by 3 3 of 6 FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019 reason of his own culpable conduct, then such damages were caused in whole or in part by the culpable conduct of some third person or persons over whom the answering Defendants neither had nor exercised control. AS AND FOR A NINTH AFFIRMATIVE DE_FENSE 19. Plaintiff not maintain each and cause of action against the may every 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 hisfailure 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 Defendãüt with process in accordance with the CPLR. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFM 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, 4 4 of 6 FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019 this answering Defendant will be entitled to protection under New York General Obligations Law Section 15-108 and the corresponding reduction of any damages which may be determined to be due against this Defendant. WHEREFORE, Defendant, ROY V. LEWIS, demands judgment: (A) Dismissing the Verified Complaint in its entirety; (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 13, 2019 MILBER MAKRIS P IS & SEIDEN, LL By: CHARD A. LILbNG 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 5 5 of 6 FILED: KINGS COUNTY CLERK 03/13/2019 11:40 AM INDEX NO. 519647/2018 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 03/13/2019 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 foregoing AMENDED 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 depone RICHARD A. LILLING Swom to before me this 13 a of March, 2 . OT P IC MAURE SCHMIDT Notary Public. tate of New York No. 01S 119224 Qualified in Su ounty Commission Expires Novem e ,2 D 6 6 of 6