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FILED: NEW YORK COUNTY CLERK 02/17/2020 12:18 PM INDEX NO. 157331/2019
YORK INDEX NO. 157331/2019
{FILED:
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NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/16/2019
19-6040
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
____________---_____--------- X
MICHAEL GARCIA, : Index No.: 157331/2019
Plaintiff,
: VERIFIED ANSWER
-against- : WITH CROSS-CLAIM
DOORDASH, INC. and BARRY SMITH, :
:
:
Defendants. :
______________--____--------- X
Defendant Doordash, Inc., by its attorneys, Gannon, Rosenfarb & Drossman, as and
for its answer to the verified complaint, upon information and belief, states as follows:
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
1. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9.
2. Denies the allegations contained in paragraphs 10, 11, 12 and 13, and defers
to the Court the resolution of legal issues contained therein.
3. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraphs 14 and 15.
4. Denies the allegations contained in paragraphs 16, 17 and 18.
AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
5. In response to the allegations contained in paragraph 19, defendant repeats,
reiterates and realleges its responses to the allegaticns contained in paragraphs 1 through
18.
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6. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 20, and defers to the Court the resolution
of legal issues contained therein.
7. Denies the allegations contained in paragraph 21.
8. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 22.
9. Denies the allegations contained in paragraphs 23 and 24.
AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
10. In response to the allegations contained in paragraph 25, defendant repeats,
reiterates and realleges its responses to the allegations contained in paragraphs 1 through
19.
11. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraphs 26 and 27.
12. Denies knowledge or information sufficient to form a belief as to the truth or
falsity of the allegations contained in first allegation numbered paragraph 28, and defers
to the Court the resolution of legal issues contained therein.
13. Denies the allegations contained the second allegation numbered paragraph
28.
AS A FIRST AFFIRMATIVE DEFENSE
14. Plaintiff's injuries, if any, were caused in whole or in part by his own culpable
conduct, including comparative negligence and assumption of risk.
15. Pursuant to New York Civil Practice Law and Rules § 1411, the amount of
damages, if any, otherwise recoverable by plaintiff shall be diminished in the proportion
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which the culpable conduct attributable to them bears to the culpable conduct, if any, which
caused the damages.
AS A SECOND AFFIRMATIVE DEFENSE
16. Any recovery for the past or future cost or expense of medical care, dental
care, custodial care or rehabilitation services, loss of earnings or other economic loss shall
be reduced by the amounts that such was, or will, with reasonable certainty, be replaced
or indemñified, in whole or in part, from collateral sources such as insurance and other
sources.
AS A THIRD AFFIRMATIVE DEFENSE
17. The court lacks personal jurisdiction over defendant Doordash, Inc. due to
insufficiency of process and/or insufficiency of service of process.
AS A FOURTH AFFIRMATIVE DE FENSE
18. Plaintif f has failed to state a cause of action upon which relief can be granted.
AS AFIFTH AFFIRMATIVE DEFENSE
19. The acts and/or omissions of defendant as alleged in the verified complaint
were not the proximate cause of Plaintiff's injuries.
AS A SIXTH AFFIRMATIVE DEFENSE
20. Defendant asserts the limitations of liability for non-economic loss set forth
in New York Civil Practice Law and Rules § 1601.
AS A SEVENTH AFFIRMATIVE DEFENSE
21. Plaintiff has failed to join a necessary party to the instant action.
AS AN EIGHTH AFFIRMATIVE DEFENSE
22. Upon information and belief, plaintiff has failed to mitigate damages allegedly
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suffered.
AS A NINTH AFFIRMATIVE DEFENSE
23. Plaintiff's action is barred by the doctrines of waiver, estoppel, laches and/or
ratification.
AS A TENTH AFFIRMATIVE DEFENSE
24. Any risks, dangers, or hazards in existence at the time and place mentioned
in the complaint were open, obvious, and apparent and were known to and assumed by
the plaintiff.
AS AN ELEVENTH AFFIRMATIVE DEFENSE
25. Any judgméñt plaintiff obtains against the answering defendant is subject to
a reduction pursuant to General Obligations Law Section 15-108(a).
AS A TWELFTH AFFIRMATIVE DEFENSE
26. Defendant Barry Smith was an independent contractor, not an employee of
Doordash, inc.
AS AND FOR A CROSS-CLAIM AGAINST BARRY SMITH
27. If plaintiff sustained the injuries and damages as alleged in the verified
complaint, said injuries were caused as a result of the acts, conduct or omissions of co-
defeñdañt Barry Smith without any fault on the part of defendant Doordash, Inc.
contributing thereto.
28. If plaintiff recovers judgment against defendant Doordash, Inc., said
defendañt is entitled to indemnity and/or contribution by co-defendant Barry Smith, to have
judgment over and against him for any judgment that may be recovered plaintiff against
by
defendant Doordash, Inc. or for that portion shown to be the responsibility of co-defendant
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Barry Smith.
WHEREFORE defendant Doordash, Inc. respectfully requests that the Court
dismiss the verified complaint in its entirety, and, in the alternative, that it grant judgment
over against co-defendant, Barry Smith for any judgment that may be rendered against
defendant Doordash, Inc., together with its costs and attorney's fees, and that it grant such
other and further relief as the court deems just.
Dated: New York, New York
October 16, 2019
Gannon, Rosenfarb & Drossman
Attorneys For Defendant
Doordash, Inc.
100 William Street, 7th Floor
New York, New York 10038
(212) 655-5000
TO: Berkowitz & Weitz
Attorneys for Plaintiff
225 - Suite 2008
Broadway
New York, New York 10007
Barry Smith
35 Meadow Street - Suite 102
Brooklyn, New York 11206
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ATTORNEY'S VERIFICATION
STATE OF NEW YORK )
SS.
COUNTY OF NEW YORK )
John H. Shin, being duly sworn, deposes and says:
I am the attorney for defendant, Doordash, Inc. in this action.
This Verified Answer with Cross-Claim is true to the knowledge of deponent except
as to matters which are therein stated to be alleged upon information and belief, and as
to those matters he believes it to be true.
Deponent further says that he maintains his office for the practice of law at 100
William Street, New York, New York, and the reason why this verification is made by
deponent, and not by the aforesaid defendant is that said defendant does not maintain an
office in the county in which deponent maintains his office.
Deponent further says that the sources of his information include communications
with defendant and investigation.
Dated: New York, New York
October 16, 2019
Ohn H. SNn
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Preview
FILED: NEW YORK COUNTY CLERK 02/17/2020 12:18 PM INDEX NO. 157331/2019 YORK INDEX NO. 157331/2019 {FILED: NYSCEF DOC.NEW NO. 15 COUNTY CLERK 10 / 16 / 2019 04:14 PM| RECEIVED NYSCEF: 02/17/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/16/2019 19-6040 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ____________---_____--------- X MICHAEL GARCIA, : Index No.: 157331/2019 Plaintiff, : VERIFIED ANSWER -against- : WITH CROSS-CLAIM DOORDASH, INC. and BARRY SMITH, : : : Defendants. : ______________--____--------- X Defendant Doordash, Inc., by its attorneys, Gannon, Rosenfarb & Drossman, as and for its answer to the verified complaint, upon information and belief, states as follows: AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION 1. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9. 2. Denies the allegations contained in paragraphs 10, 11, 12 and 13, and defers to the Court the resolution of legal issues contained therein. 3. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphs 14 and 15. 4. Denies the allegations contained in paragraphs 16, 17 and 18. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION 5. In response to the allegations contained in paragraph 19, defendant repeats, reiterates and realleges its responses to the allegaticns contained in paragraphs 1 through 18. 1 of 6 FILED: NEW YORK COUNTY CLERK 02/17/2020 12:18 PM INDEX NO. 157331/2019 INDEX NO. 157331/2019 |FILED: NYSCEF DOC.NEW YORK NO. 15 COUNTY CLERK 10/16/2019 04:14 PM| RECEIVED NYSCEF: 02/17/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/16/2019 6. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 20, and defers to the Court the resolution of legal issues contained therein. 7. Denies the allegations contained in paragraph 21. 8. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 22. 9. Denies the allegations contained in paragraphs 23 and 24. AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION 10. In response to the allegations contained in paragraph 25, defendant repeats, reiterates and realleges its responses to the allegations contained in paragraphs 1 through 19. 11. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphs 26 and 27. 12. Denies knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in first allegation numbered paragraph 28, and defers to the Court the resolution of legal issues contained therein. 13. Denies the allegations contained the second allegation numbered paragraph 28. AS A FIRST AFFIRMATIVE DEFENSE 14. Plaintiff's injuries, if any, were caused in whole or in part by his own culpable conduct, including comparative negligence and assumption of risk. 15. Pursuant to New York Civil Practice Law and Rules § 1411, the amount of damages, if any, otherwise recoverable by plaintiff shall be diminished in the proportion 2 of 6 FILED: NEW YORK COUNTY CLERK 02/17/2020 12:18 PM INDEX NO. 157331/2019 INDEX NO. 157331/2019 FILED: DOC.NEW NYSCEF YORK NO. 15 COUNTY CLERK 10/ 16 / 2019 04 : 14 PM] RECEIVED NYSCEF: 02/17/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/16/2019 which the culpable conduct attributable to them bears to the culpable conduct, if any, which caused the damages. AS A SECOND AFFIRMATIVE DEFENSE 16. Any recovery for the past or future cost or expense of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss shall be reduced by the amounts that such was, or will, with reasonable certainty, be replaced or indemñified, in whole or in part, from collateral sources such as insurance and other sources. AS A THIRD AFFIRMATIVE DEFENSE 17. The court lacks personal jurisdiction over defendant Doordash, Inc. due to insufficiency of process and/or insufficiency of service of process. AS A FOURTH AFFIRMATIVE DE FENSE 18. Plaintif f has failed to state a cause of action upon which relief can be granted. AS AFIFTH AFFIRMATIVE DEFENSE 19. The acts and/or omissions of defendant as alleged in the verified complaint were not the proximate cause of Plaintiff's injuries. AS A SIXTH AFFIRMATIVE DEFENSE 20. Defendant asserts the limitations of liability for non-economic loss set forth in New York Civil Practice Law and Rules § 1601. AS A SEVENTH AFFIRMATIVE DEFENSE 21. Plaintiff has failed to join a necessary party to the instant action. AS AN EIGHTH AFFIRMATIVE DEFENSE 22. Upon information and belief, plaintiff has failed to mitigate damages allegedly 3 of 6 FILED: NEW YORK COUNTY CLERK 02/17/2020 12:18 PM INDEX NO. 157331/2019 YORK INDEX No . 15 7331/2019 |FILED: NYSCEF DOC.NEW NO. 15 COUNTY CLERK 10 / 16 / 2019 04 : 14 PMI RECEIVED NYSCEF: 02/17/2020 NYSCEF DOC . NO. 4 RECEIVED NYSCEF: 10/16/2019 suffered. AS A NINTH AFFIRMATIVE DEFENSE 23. Plaintiff's action is barred by the doctrines of waiver, estoppel, laches and/or ratification. AS A TENTH AFFIRMATIVE DEFENSE 24. Any risks, dangers, or hazards in existence at the time and place mentioned in the complaint were open, obvious, and apparent and were known to and assumed by the plaintiff. AS AN ELEVENTH AFFIRMATIVE DEFENSE 25. Any judgméñt plaintiff obtains against the answering defendant is subject to a reduction pursuant to General Obligations Law Section 15-108(a). AS A TWELFTH AFFIRMATIVE DEFENSE 26. Defendant Barry Smith was an independent contractor, not an employee of Doordash, inc. AS AND FOR A CROSS-CLAIM AGAINST BARRY SMITH 27. If plaintiff sustained the injuries and damages as alleged in the verified complaint, said injuries were caused as a result of the acts, conduct or omissions of co- defeñdañt Barry Smith without any fault on the part of defendant Doordash, Inc. contributing thereto. 28. If plaintiff recovers judgment against defendant Doordash, Inc., said defendañt is entitled to indemnity and/or contribution by co-defendant Barry Smith, to have judgment over and against him for any judgment that may be recovered plaintiff against by defendant Doordash, Inc. or for that portion shown to be the responsibility of co-defendant 4 of 6 FILED: NEW YORK COUNTY CLERK 02/17/2020 12:18 PM INDEX NO. 157331/2019 INDEX NO. 157331/2019 |FILED: NYSCEF DOC.NEW YORK NO. 15 COUNTY CLERK 10/16 /2019 04 : 14 PM) RECEIVED NYSCEF: 02/17/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/16/2019 Barry Smith. WHEREFORE defendant Doordash, Inc. respectfully requests that the Court dismiss the verified complaint in its entirety, and, in the alternative, that it grant judgment over against co-defendant, Barry Smith for any judgment that may be rendered against defendant Doordash, Inc., together with its costs and attorney's fees, and that it grant such other and further relief as the court deems just. Dated: New York, New York October 16, 2019 Gannon, Rosenfarb & Drossman Attorneys For Defendant Doordash, Inc. 100 William Street, 7th Floor New York, New York 10038 (212) 655-5000 TO: Berkowitz & Weitz Attorneys for Plaintiff 225 - Suite 2008 Broadway New York, New York 10007 Barry Smith 35 Meadow Street - Suite 102 Brooklyn, New York 11206 5 of 6 FILED: NEW YORK COUNTY CLERK 02/17/2020 12:18 PM INDEX NO. 157331/2019 INDEX NO. 157331/2019 [fILED: NYSCEF DOC.NEW YORK NO. 15 COUNTY CLERK 10/16 /2019 04 : 14 PM| RECEIVED NYSCEF: 02/17/2020 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/16/2019 ATTORNEY'S VERIFICATION STATE OF NEW YORK ) SS. COUNTY OF NEW YORK ) John H. Shin, being duly sworn, deposes and says: I am the attorney for defendant, Doordash, Inc. in this action. This Verified Answer with Cross-Claim is true to the knowledge of deponent except as to matters which are therein stated to be alleged upon information and belief, and as to those matters he believes it to be true. Deponent further says that he maintains his office for the practice of law at 100 William Street, New York, New York, and the reason why this verification is made by deponent, and not by the aforesaid defendant is that said defendant does not maintain an office in the county in which deponent maintains his office. Deponent further says that the sources of his information include communications with defendant and investigation. Dated: New York, New York October 16, 2019 Ohn H. SNn 6 of 6