Preview
FILED: QUEENS COUNTY CLERK 11/15/2018 05:18 PM INDEX NO. 714338/2018
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/15/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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CARLOS IDROVO,
Plaintiff, Index No.: 714338/2018
-against- VERIFIED ANSWER TO
VERIFIED COMPLAINT
ELEFTHERIA RESTAURANT CORP., a/k/a
ELEFTHERIA REST CORP, JOHN DOE 1,
JOHN DOE 2, and JOHN DOE 3,
Defendants.
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Defendant, ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST CORP
by itsattorneys, FABIANI COHEN & HALL, LLP, as and for a verified answer to the plaintiff's
verified complaint, sets forth, upon information and belief, the following:
FIRST: Denies knowledge or information sufficient to form a belief as to the truth
"12"
of the allegations contained in Paragraph Nos. "1", "4", "5", "6", "7", "8", "9", "10", "11",
"13"
and of the plaintiff's verified complaint..
"3"
SECOND: Denies each and every allegation contained in Paragraph No. of the
plaintiff's verified complaint, except admits that Defendant, Eleftheria operated a restaurant and
31"
bar that did business under the trade name Don Coqui, located at 28-18 St., Astoria, NY
11102 in Queens County, (Hereinafter "Restaurant and Bar").
COUNT 1: ASSAULT AND BATTERY
"14"
THIRD: In response to Paragraph No. of the plaintiff's verified complaint,
defendant, ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST CORP., repeats,
"FIRST"
reiterates and realleges each and every assertion and denial contained in Paragraph Nos.
"SECOND"
through hereinabove as though more fully set forth at length herein.
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FOURTH: Denies knowledge or information sufficient to form a belief as to the truth
of the allegations contained in Paragraph Nos. "15", "16", "17", "18", "19", "20", "21", "22",
"25" "32"
"23", "24", and of the plaintiffs verified complaint..
"26"
FIFTH: Denies each and every allegation contained in Paragraph No. of the
plaintiff's verified complaint and respectfully refers all questions of law to the determination of
the Trial Court.
SIXTH: Denies each and every allegation contained in Paragraph Nos. "27", "28",
"30" "31"
"29", and of the plaintiff's verified complaint.
COUNT II: NEGLIGENCE AND VIOLATIONS OF THE SECURITY GUARD ACT
"33"
SEVENTH: In response to Paragraph No. of the plaintiff's verified complaint,
defendant, ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST CORP., repeats,
reiterates and realleges each and every assertion and denial contained in Paragraph Nos.
"FIRST" TH"
through "SIX hereinabove as though more fully set forth at length herein.
EIGHTH: Denies each and every allegation contained in Paragraph Nos. "34", "37",
"38" "39"
and of the plaintiffs verified complaint.
NINTH: Denies upon information and belief the allegations contained in Paragraph
"35" "36"
Nos. and of the plaintiff's verified complaint.
COUNT III: NEGLIGENT FAILURE TO PROTECT
TENTH: Denies each and every allegation contained in Paragraph Nos. "41", "43",
"45" "46"
"44", and of the plaintiffs verified complaint.
"42"
ELEVENTH: Denies each and every allegation contained in Paragraph No. of the
plaintiffs verified complaint and respectfully refers all questions of law to the determination of
the Trial Court.
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AS AND FOR A FIRST AFFIRMATIVE DEFENSE
TWELFTH: Upon information and belief, any damages sustained by the plaintiff
herein were not caused by any negligence or carelessness on the part of the answering defendant,
its servants, agents or employees, but were caused solely by the negligence and carelessness of
the plaintiff and that such conduct requires diminution of any award, verdict or judgment that
plaintiff may recover against the answering defendant.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
THIRTEENTH: Notwithstanding that the answering defendant has denied liability
herein, in the event that liability is found, the liability of the answering defendant shall be fifty
percent or less of the total liability assigned to all persons liable and pursuant to CPLR §1601 et
seq., the liability of the answering defendant for non-economic loss shall not exceed its equitable
share determined in accordance with the relative culpability of each person causing or
contributing to the total liability of non-economic loss.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
FOURTEENTH: That to the extent plaintiff recovers any damages for the cost of
medical care, dental care, custodial care or rehabilitation services, loss of earnings and/or other
economic loss, the amount of the award shall be reduced by the sum total of all collateral
reimbursements, from whatever source, whether it be insurance, social security payments,
Workers'
Compensation, employee benefits or other such programs, in accordance with the
provisions of the CPLR 4545.
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
FIFTEENTH: That upon information and belief, the injuries
allegedly
sustained
by
plaintiff were the result of the acts of another over whom defendant exercised no direction or
control.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
SIXTEENTH: That upon information and belief, the injuries allegedly sustained
by
plaintiff were the result of the acts of independent contractors over whose work defendant
exercised no direction or control.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
SEVENTEENTH: That upon information and belief, the injuries allegedly sustained
by plaintiff were the result of superseding and/or intervening
acts of negligence by persons over
whom defendant had neither control nor the right of control.
WHEREFORE, defendant, ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA
REST CORP., demands judgment dismissing the plaintiff's complaint, together with the costs
and disbursements of this action.
Dated: New York, New York
November 12, 2018
Yours, etc.,
FABIANI COHE & HALL, LLP
ohn V. Fabiani, Esq.
orneys for Defendant
ELEFTHERIA RESTAURANT CORP., a/k/a
ELEFTHERIA REST CORP
4th
570 Lexington Avenue, FlOOr
New York, New York 10022
Phone: (212) 644-4420
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NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/15/2018
Fax: (212) 207-8182
File No. 580.38911
TO: LAW OFFICE OF
MICHAEL H. JOSEPH, PLLC.
Attorneys for Plaintiff
CARLOS IDROVO
203 East Post Road
White Plains, New York 10601
Tel: (914) 574-8330
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
__ __ _________ _ __________ ___________ _____________ -------X
CARLOS IDROVO,
Plaintiff, Index No,: 714338/2018
-against- VERIFICATION
ELEFTHERIA RESTAURANT CORP., a/k/a
ELEFTHERIA REST CORP, JOHN DOE 1,
JOHN DOE 2, and JOHN DOE 3,
Defendants.
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John V. Fabiani, an attorney duly admitted to practice law before the Courts of the State
of New York, affirms the truth of the
following upon information and belief and with knowledge
of the penalties for perjury:
1. Affirmant is a member of the law firm of FABIANI COHEN & HALL, LLP,
attorneys for defendant, ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST
CORP., in the within action.
2. Affirmant has read the foregoing VERIFIED ANSWER TO VERIFIED
COMPLAINT, knows the contents thereof, and the same are true to affirmant's own knowledge,
except as to those matters stated to be alleged upon information and belief, and as to those
matters affirmant believes them to be true.
3. Affirmant further states that the reason this affirmation is made by the
undersigned and not by the
party
is that such party does not reside or does not have a place of
business in the
county where affirmant maintains its offices.
4. The grounds of affirmant's belief as to all matters not stated to be upon affirmant's
knowledge are documents, papers and data contained in the file pertaining to this matter.
Dated: New York, New York
November 12, 2018
OHN V. FABIANI
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Preview
FILED: QUEENS COUNTY CLERK 11/15/2018 05:18 PM INDEX NO. 714338/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/15/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---------------------------------------------------------------------X CARLOS IDROVO, Plaintiff, Index No.: 714338/2018 -against- VERIFIED ANSWER TO VERIFIED COMPLAINT ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST CORP, JOHN DOE 1, JOHN DOE 2, and JOHN DOE 3, Defendants. ---------------------------------------------------------------------X Defendant, ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST CORP by itsattorneys, FABIANI COHEN & HALL, LLP, as and for a verified answer to the plaintiff's verified complaint, sets forth, upon information and belief, the following: FIRST: Denies knowledge or information sufficient to form a belief as to the truth "12" of the allegations contained in Paragraph Nos. "1", "4", "5", "6", "7", "8", "9", "10", "11", "13" and of the plaintiff's verified complaint.. "3" SECOND: Denies each and every allegation contained in Paragraph No. of the plaintiff's verified complaint, except admits that Defendant, Eleftheria operated a restaurant and 31" bar that did business under the trade name Don Coqui, located at 28-18 St., Astoria, NY 11102 in Queens County, (Hereinafter "Restaurant and Bar"). COUNT 1: ASSAULT AND BATTERY "14" THIRD: In response to Paragraph No. of the plaintiff's verified complaint, defendant, ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST CORP., repeats, "FIRST" reiterates and realleges each and every assertion and denial contained in Paragraph Nos. "SECOND" through hereinabove as though more fully set forth at length herein. {1556713/1] 1 of 6 FILED: QUEENS COUNTY CLERK 11/15/2018 05:18 PM INDEX NO. 714338/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/15/2018 FOURTH: Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph Nos. "15", "16", "17", "18", "19", "20", "21", "22", "25" "32" "23", "24", and of the plaintiffs verified complaint.. "26" FIFTH: Denies each and every allegation contained in Paragraph No. of the plaintiff's verified complaint and respectfully refers all questions of law to the determination of the Trial Court. SIXTH: Denies each and every allegation contained in Paragraph Nos. "27", "28", "30" "31" "29", and of the plaintiff's verified complaint. COUNT II: NEGLIGENCE AND VIOLATIONS OF THE SECURITY GUARD ACT "33" SEVENTH: In response to Paragraph No. of the plaintiff's verified complaint, defendant, ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST CORP., repeats, reiterates and realleges each and every assertion and denial contained in Paragraph Nos. "FIRST" TH" through "SIX hereinabove as though more fully set forth at length herein. EIGHTH: Denies each and every allegation contained in Paragraph Nos. "34", "37", "38" "39" and of the plaintiffs verified complaint. NINTH: Denies upon information and belief the allegations contained in Paragraph "35" "36" Nos. and of the plaintiff's verified complaint. COUNT III: NEGLIGENT FAILURE TO PROTECT TENTH: Denies each and every allegation contained in Paragraph Nos. "41", "43", "45" "46" "44", and of the plaintiffs verified complaint. "42" ELEVENTH: Denies each and every allegation contained in Paragraph No. of the plaintiffs verified complaint and respectfully refers all questions of law to the determination of the Trial Court. [1556713/1] 2 of 6 FILED: QUEENS COUNTY CLERK 11/15/2018 05:18 PM INDEX NO. 714338/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/15/2018 AS AND FOR A FIRST AFFIRMATIVE DEFENSE TWELFTH: Upon information and belief, any damages sustained by the plaintiff herein were not caused by any negligence or carelessness on the part of the answering defendant, its servants, agents or employees, but were caused solely by the negligence and carelessness of the plaintiff and that such conduct requires diminution of any award, verdict or judgment that plaintiff may recover against the answering defendant. AS AND FOR A SECOND AFFIRMATIVE DEFENSE THIRTEENTH: Notwithstanding that the answering defendant has denied liability herein, in the event that liability is found, the liability of the answering defendant shall be fifty percent or less of the total liability assigned to all persons liable and pursuant to CPLR §1601 et seq., the liability of the answering defendant for non-economic loss shall not exceed its equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability of non-economic loss. AS AND FOR A THIRD AFFIRMATIVE DEFENSE FOURTEENTH: That to the extent plaintiff recovers any damages for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings and/or other economic loss, the amount of the award shall be reduced by the sum total of all collateral reimbursements, from whatever source, whether it be insurance, social security payments, Workers' Compensation, employee benefits or other such programs, in accordance with the provisions of the CPLR 4545. [1556713/1] 3 of 6 FILED: QUEENS COUNTY CLERK 11/15/2018 05:18 PM INDEX NO. 714338/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/15/2018 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE FIFTEENTH: That upon information and belief, the injuries allegedly sustained by plaintiff were the result of the acts of another over whom defendant exercised no direction or control. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE SIXTEENTH: That upon information and belief, the injuries allegedly sustained by plaintiff were the result of the acts of independent contractors over whose work defendant exercised no direction or control. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE SEVENTEENTH: That upon information and belief, the injuries allegedly sustained by plaintiff were the result of superseding and/or intervening acts of negligence by persons over whom defendant had neither control nor the right of control. WHEREFORE, defendant, ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST CORP., demands judgment dismissing the plaintiff's complaint, together with the costs and disbursements of this action. Dated: New York, New York November 12, 2018 Yours, etc., FABIANI COHE & HALL, LLP ohn V. Fabiani, Esq. orneys for Defendant ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST CORP 4th 570 Lexington Avenue, FlOOr New York, New York 10022 Phone: (212) 644-4420 [1556713/1] 4 of 6 FILED: QUEENS COUNTY CLERK 11/15/2018 05:18 PM INDEX NO. 714338/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/15/2018 Fax: (212) 207-8182 File No. 580.38911 TO: LAW OFFICE OF MICHAEL H. JOSEPH, PLLC. Attorneys for Plaintiff CARLOS IDROVO 203 East Post Road White Plains, New York 10601 Tel: (914) 574-8330 [1556713/1] 5 of 6 FILED: QUEENS COUNTY CLERK 11/15/2018 05:18 PM INDEX NO. 714338/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 11/15/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS __ __ _________ _ __________ ___________ _____________ -------X CARLOS IDROVO, Plaintiff, Index No,: 714338/2018 -against- VERIFICATION ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST CORP, JOHN DOE 1, JOHN DOE 2, and JOHN DOE 3, Defendants. ---------------------------------------------------------------------X John V. Fabiani, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following upon information and belief and with knowledge of the penalties for perjury: 1. Affirmant is a member of the law firm of FABIANI COHEN & HALL, LLP, attorneys for defendant, ELEFTHERIA RESTAURANT CORP., a/k/a ELEFTHERIA REST CORP., in the within action. 2. Affirmant has read the foregoing VERIFIED ANSWER TO VERIFIED COMPLAINT, knows the contents thereof, and the same are true to affirmant's own knowledge, except as to those matters stated to be alleged upon information and belief, and as to those matters affirmant believes them to be true. 3. Affirmant further states that the reason this affirmation is made by the undersigned and not by the party is that such party does not reside or does not have a place of business in the county where affirmant maintains its offices. 4. The grounds of affirmant's belief as to all matters not stated to be upon affirmant's knowledge are documents, papers and data contained in the file pertaining to this matter. Dated: New York, New York November 12, 2018 OHN V. FABIANI [1556713/1] 6 of 6