Preview
(FILED: NEW YORK COUNTY CLERK 1171772014 02:44 PM INDEX NO. 159120/2012
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/17/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
LIEB WEISS, INDEX NO. 159120/2012
Plaintiff,
-against- ANSWER TO SECOND AMENDED
VERIFIED COMPLAINT
STUART M. WEISS and PROMED
CORINTHIAN, LLC
Defendants.
Third party defendant, ProMed Corinthian, LLC, as and for its Answer to the Second Amended
Verified Complaint, upon information and belief, respectfully alleges:
ANSWERING AS AND FOR A FIRST CAUSE OF ACTION
1 Denies having knowledge or information sufficient to form a belief as to the truth of the
allegations of the Second Amended Verified Complaint set forth in paragraph numbered 1.
2 Denies having knowledge or information sufficient to form a belief as to the truth of the
allegations of the Second Amended Verified Complaint set forth in paragraph numbered 2.
3 Denies having knowledge or information sufficient to form a belief as to the truth of the
allegations of the Second Amended Verified Complaint set forth in paragraph numbered 3.
4 Denies having knowledge or information sufficient to form a belicf as to the truth of the
allegations of the Second Amended Verified Complaint set forth in paragraph numbered 4.
5. Denies having knowledge or information sufficient to form a belief as to the truth of the
allegations of the Second Amended Verified Complaint set forth in paragraph numbered 5.
6 Denied to the extent that this is a conclusion of law to which no response is required.
7 Denies having knowledge or information sufficient to form a belief as to the truth of the
allegations of the Second Amended Verified Complaint set forth in paragraph numbered 7.
Denied to the extent that this is a conclusion of law to which no response is required.
Denied to the extent that this is a conclusion of law to which no response is required.
10 Denied to the extent that this is a conclusion of law to which no response is required
11 Denied to the extent that this is a conclusion of law to which no response is required.
12 Denied to the extent that this is a conclusion of law to which no response is required.
13 Denies having knowledge or information sufficient to form a belief as to the truth of the
allegations of the Second Amended Verified Complaint set forth in paragraph numbered 13.
14, Denies each and every allegation of the Second Amended Verified Complaint contained in
paragraph numbered 14.
15. Denies each and every allegation of the Second Amended Verified Complaint contained in
paragraph numbered 15.
16. Denies each and every allegation of the Second Amended Verified Complaint contained in
paragraph numbered 16.
17. Denied to the extent that this is a conclusion of law to which no response is required.
18. Denies each and every allegation of the Second Amended Verified Complaint contained in
paragraph numbered 18,
AS AND FOR AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Upon information and belief, the liability of defendant, ProMed Corinthian, LLC, if any,
constitutes fifty percent (50%) or less of the culpable conduct causing or contributing to the plaintiff's
injuries by reason of which the liability of defendant, ProMed Corinthian, LLC, if any, for non-economic
loss should not exceed its equitable share determined in accordance with each party’s relative culpability.
SECOND AFFIRMATIVE DEFENSE
Whatever injuries were sustained by the plaintiff or whatever damages were sustained by said
plaintiff at the time of the incident involved herein were the result of the culpable conduct of the plaintiff,
or the codefendants and/or of third persons, without any culpable conduct on the part of the defendant,
ProMed Corinthian, LLC or its agents, servants and/or employees contributing thereto.
THIRD AFFIRMATIVE DEFENSE
Any injuries and/or damages sustained by the plaintiff were not as a result of any culpable
conduct of the defendant herein, or in the alternative, the amount of damages otherwise recoverable shall
be diminished in the proportion to which the culpable conduct attributable to the plaintiff bears to the
culpable conduct which caused the damages.
FOURTH AFFIRMATIVE DEFENSE
Plaintiff has recovered the cost of medical care, custodial care, rehabilitation services, loss of
earnings and other economic loss and any other such future loss or expense will, with reasonable
certainty, be replaced or indemnified in whole or in part from collateral sources. Any award made to
plaintiff shall be reduced in accordance with the applicable provisions of C.P. L. R. §4545.
FIFTH AFFIRMATIVE DEFENSE
Plaintiffs Second Amended Verified Complaint should be dismissed as to this answering
defendant for failure to state a cause of action.
SIXTH AFFIRMATIVE DEFENSE
Plaintiff's method of service and manner of commencing this action was improper and this Court
does not have jurisdiction over the defendant.
SEVENTH AFFIRMATIVE DEFENSE
If plaintiff sustained injury or damage as alleged, such injury or damage was exacerbated by
plaintiff's failure to mitigate such injury or damage.
EIGHTH AFFIRMATIVE DEFENSE
This answering defendant will rely upon the provisions of Article 16 of the CPLR with regard to
the limitation of joint and several liabilities.
NINTH AFFIRMATIVE DEFENSE
Any verdict in the within action for the costs or expenses of past, present and future medical care,
dental care, custodial care, or rehabilitation services, loss of earnings and other economic loss, should be
reduced by the amount that any such costs or expenses have been or will be, with reasonable certainty,
replaced or indemnified in whole or in part from any collateral source, in accordance with the provisions
of Section 4545(c) of the Civil Practice Law and Rules.
TENTH AFFIRMATIVE DEFENSE
Plaintiff has recovered in full, on his claim for non-economic loss from collateral sources. Any
award made to plaintiff shall be reduced in accordance with the applicable provisions of C.P.L.R. §4533-
b
WHEREFORE, defendant demands judgment dismissing plaintiff's Second Amended Verified
Complaint with prejudice and awarding it attorneys’ fees, costs of suit and such other and further relief as
this Court may deem just and proper.
AS_AND_FOR_A_CROSSCLAIM AGAINST THE CO-DEFENDANTS, THE
A NSWERING
I DEFENDANT,
—S——_—So————
A en PROMED
N CORINTHIAN,
, LLC, BUSINESS UL
EE, BUSINESS OR
ENTITY AS FOLLOWS:
That if plaintiff was caused to sustain injuries and/or damages as alleged in the Second Arnended
Verified Complaint and in the manner alleged therein, same was occasioned through the sole
carelessness, recklessness, acts, omissions, negligence and/or breaches of contract and/or duty and/or
obligation and/or statute and/or warranty and/or strict liability and/or nuisance and/or trespass of plaintiff,
in which event this answering defendant would be entitled to judgment dismissing the Second Amended
Verified Complaint of the plaintiff; but, in the event plaintiff has found to be entitled to judgment, that
said injuries and/or damages were occasioned through the sole, carelessness, recklessness, acts and/or
obligation and/or statue and/or warranty and/or strict liability and/or nuisance and/or trespass in fact
and/or implied in law by the co-defendants herein, other than this answering defendant, in which event
this answering defendant, would be entitled, on the basis of all the facts and the law, to an adjudication of
the comparative negligence/culpable conduct or relative responsibilities of all or some of said parties, as
the case may be, and upon such adjudication to an apportionment of damages in accordance with such
findings, be same pursuant to common law or statute, and said parties will be liable over jointly and
severally to answering defendant and to fully indemnify and hold answering defendant harmless for the
full or apportioned amount of any judgment herein recovered against answering defendant in this action,
including all costs of investigation, disbursements, expenses and attorneys’ fees incurred in the defense
of this action and in the conduct of this crossclaim.
WHEREFORE, defendant demands judgment dismissing the Second Amended Verified
Complaint of the plaintiff herein, together with costs and disbursements, and in the event any judgment is
recovered herein against this answering defendant, it is further demanded that such judgment be reduced
by the amount which is proportionate to the plaintiff's degree of culpability, and further demands
judgment on its cross-complaint against , for such amount of the judgment recovered herein by plaintiff
which is attributable to the conduct of co-defendants .
ANSWER TO CROSSCLAIMS
This defendant denies the allegations of any and all cross-claims filed or which may be filed
against this defendant in this matter.
Dated: New York, New York
November 14, 2014
Yours, etc. fi ! i
f
hive /h Mal
THERESE M. HOUGH
Attorneys for Defendant, ProMed Corinthian, LLC
BRAFF, HARRIS, SUKONECK & MALOOF
570 W. Mt. Pleasant Avenue, Suite 200
Livingston, New Jersey 07039
TO Herbert S, Subin, Esq.
Subin Associates, L.L.P.
Attorneys for Plaintiff
LIEB WEISS
150 Broadway
23rd floor
New York, NY 10038
Dominic Boone, Esq.
John C. Buratti and Associates
Attorneys for Defendant/Third Party Plaintiff
STUART M. WEISS
150 Broadway, Suite 1400
New York, NY 10038-4381
ATTORNEY’S VERIFICATION
The undersigned, an attorney, admitted to practice law in the State of New York, affirms under
penalty of perjury as follows:
That affirmant is aan attorney associated with the firm of Braff, Harris, Sukoneck & Maloof,
attorneys for Defendant, ProMed Corinthian, LLC, in the within action; that affirmant has read the
foregoing Answer to Second Amended Verified Complaint knows the contents thereof; that the same is
true to affirmant’s knowledge; except as to the matters stated to be alleged on information and belief and
that as to those matters, affirmant believes them to be true.
Affirmant further states that the reason this Verification is made by affirmant and not by the
Defendant is that the Defendant either does not reside or maintain offices in the County in which
affirmant maintains his office.
The undersigned affirms that the foregoing statements are true under the penalties of perjury.
Dated: Livingston, New Jersey
November 14, 2014
fj
y
“Nitya / 6 Lee
THERESE M. HOUGH
AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW JERSEY )
SS
COUNTY OF ESSEX )
JENNIFER VOROS, being duly sworn, deposes and says
lam not a party to this action, am over 18 years of age and reside in New Jersey. On the 14th day
of November, 2014, I served a true copy of the foregoing Answer to Second Amended Verified
Complaint, via Regular Mail addressed to the last known address of the addressee(s) as indicated below.
TO Herbert S. Subin, Esq.
Subin Associates, L.L.P.
Attorneys for Plaintiff
LIEB WEISS
150 Broadway
23rd floor
New York, NY 10038
Dominic Boone, Esq.
John C. Buratti and Associates
Attorneys for Defendant/Third Party Plaintiff
STUART M. WEISS
150 Broadway, Suite 1400
New York, NY 10038-4381
A Uwidhy
IFER VORS*
pe
Subscribed and sworn to before
on this fi day of
icky , 2014.
Witness mynd “4 official seal.
4
~ fetin Aa he iL
Ch.
Notary Public | Wome: df boss
Shte bu
Preview
(FILED: NEW YORK COUNTY CLERK 1171772014 02:44 PM INDEX NO. 159120/2012 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/17/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LIEB WEISS, INDEX NO. 159120/2012 Plaintiff, -against- ANSWER TO SECOND AMENDED VERIFIED COMPLAINT STUART M. WEISS and PROMED CORINTHIAN, LLC Defendants. Third party defendant, ProMed Corinthian, LLC, as and for its Answer to the Second Amended Verified Complaint, upon information and belief, respectfully alleges: ANSWERING AS AND FOR A FIRST CAUSE OF ACTION 1 Denies having knowledge or information sufficient to form a belief as to the truth of the allegations of the Second Amended Verified Complaint set forth in paragraph numbered 1. 2 Denies having knowledge or information sufficient to form a belief as to the truth of the allegations of the Second Amended Verified Complaint set forth in paragraph numbered 2. 3 Denies having knowledge or information sufficient to form a belief as to the truth of the allegations of the Second Amended Verified Complaint set forth in paragraph numbered 3. 4 Denies having knowledge or information sufficient to form a belicf as to the truth of the allegations of the Second Amended Verified Complaint set forth in paragraph numbered 4. 5. Denies having knowledge or information sufficient to form a belief as to the truth of the allegations of the Second Amended Verified Complaint set forth in paragraph numbered 5. 6 Denied to the extent that this is a conclusion of law to which no response is required. 7 Denies having knowledge or information sufficient to form a belief as to the truth of the allegations of the Second Amended Verified Complaint set forth in paragraph numbered 7. Denied to the extent that this is a conclusion of law to which no response is required. Denied to the extent that this is a conclusion of law to which no response is required. 10 Denied to the extent that this is a conclusion of law to which no response is required 11 Denied to the extent that this is a conclusion of law to which no response is required. 12 Denied to the extent that this is a conclusion of law to which no response is required. 13 Denies having knowledge or information sufficient to form a belief as to the truth of the allegations of the Second Amended Verified Complaint set forth in paragraph numbered 13. 14, Denies each and every allegation of the Second Amended Verified Complaint contained in paragraph numbered 14. 15. Denies each and every allegation of the Second Amended Verified Complaint contained in paragraph numbered 15. 16. Denies each and every allegation of the Second Amended Verified Complaint contained in paragraph numbered 16. 17. Denied to the extent that this is a conclusion of law to which no response is required. 18. Denies each and every allegation of the Second Amended Verified Complaint contained in paragraph numbered 18, AS AND FOR AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Upon information and belief, the liability of defendant, ProMed Corinthian, LLC, if any, constitutes fifty percent (50%) or less of the culpable conduct causing or contributing to the plaintiff's injuries by reason of which the liability of defendant, ProMed Corinthian, LLC, if any, for non-economic loss should not exceed its equitable share determined in accordance with each party’s relative culpability. SECOND AFFIRMATIVE DEFENSE Whatever injuries were sustained by the plaintiff or whatever damages were sustained by said plaintiff at the time of the incident involved herein were the result of the culpable conduct of the plaintiff, or the codefendants and/or of third persons, without any culpable conduct on the part of the defendant, ProMed Corinthian, LLC or its agents, servants and/or employees contributing thereto. THIRD AFFIRMATIVE DEFENSE Any injuries and/or damages sustained by the plaintiff were not as a result of any culpable conduct of the defendant herein, or in the alternative, the amount of damages otherwise recoverable shall be diminished in the proportion to which the culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the damages. FOURTH AFFIRMATIVE DEFENSE Plaintiff has recovered the cost of medical care, custodial care, rehabilitation services, loss of earnings and other economic loss and any other such future loss or expense will, with reasonable certainty, be replaced or indemnified in whole or in part from collateral sources. Any award made to plaintiff shall be reduced in accordance with the applicable provisions of C.P. L. R. §4545. FIFTH AFFIRMATIVE DEFENSE Plaintiffs Second Amended Verified Complaint should be dismissed as to this answering defendant for failure to state a cause of action. SIXTH AFFIRMATIVE DEFENSE Plaintiff's method of service and manner of commencing this action was improper and this Court does not have jurisdiction over the defendant. SEVENTH AFFIRMATIVE DEFENSE If plaintiff sustained injury or damage as alleged, such injury or damage was exacerbated by plaintiff's failure to mitigate such injury or damage. EIGHTH AFFIRMATIVE DEFENSE This answering defendant will rely upon the provisions of Article 16 of the CPLR with regard to the limitation of joint and several liabilities. NINTH AFFIRMATIVE DEFENSE Any verdict in the within action for the costs or expenses of past, present and future medical care, dental care, custodial care, or rehabilitation services, loss of earnings and other economic loss, should be reduced by the amount that any such costs or expenses have been or will be, with reasonable certainty, replaced or indemnified in whole or in part from any collateral source, in accordance with the provisions of Section 4545(c) of the Civil Practice Law and Rules. TENTH AFFIRMATIVE DEFENSE Plaintiff has recovered in full, on his claim for non-economic loss from collateral sources. Any award made to plaintiff shall be reduced in accordance with the applicable provisions of C.P.L.R. §4533- b WHEREFORE, defendant demands judgment dismissing plaintiff's Second Amended Verified Complaint with prejudice and awarding it attorneys’ fees, costs of suit and such other and further relief as this Court may deem just and proper. AS_AND_FOR_A_CROSSCLAIM AGAINST THE CO-DEFENDANTS, THE A NSWERING I DEFENDANT, —S——_—So———— A en PROMED N CORINTHIAN, , LLC, BUSINESS UL EE, BUSINESS OR ENTITY AS FOLLOWS: That if plaintiff was caused to sustain injuries and/or damages as alleged in the Second Arnended Verified Complaint and in the manner alleged therein, same was occasioned through the sole carelessness, recklessness, acts, omissions, negligence and/or breaches of contract and/or duty and/or obligation and/or statute and/or warranty and/or strict liability and/or nuisance and/or trespass of plaintiff, in which event this answering defendant would be entitled to judgment dismissing the Second Amended Verified Complaint of the plaintiff; but, in the event plaintiff has found to be entitled to judgment, that said injuries and/or damages were occasioned through the sole, carelessness, recklessness, acts and/or obligation and/or statue and/or warranty and/or strict liability and/or nuisance and/or trespass in fact and/or implied in law by the co-defendants herein, other than this answering defendant, in which event this answering defendant, would be entitled, on the basis of all the facts and the law, to an adjudication of the comparative negligence/culpable conduct or relative responsibilities of all or some of said parties, as the case may be, and upon such adjudication to an apportionment of damages in accordance with such findings, be same pursuant to common law or statute, and said parties will be liable over jointly and severally to answering defendant and to fully indemnify and hold answering defendant harmless for the full or apportioned amount of any judgment herein recovered against answering defendant in this action, including all costs of investigation, disbursements, expenses and attorneys’ fees incurred in the defense of this action and in the conduct of this crossclaim. WHEREFORE, defendant demands judgment dismissing the Second Amended Verified Complaint of the plaintiff herein, together with costs and disbursements, and in the event any judgment is recovered herein against this answering defendant, it is further demanded that such judgment be reduced by the amount which is proportionate to the plaintiff's degree of culpability, and further demands judgment on its cross-complaint against , for such amount of the judgment recovered herein by plaintiff which is attributable to the conduct of co-defendants . ANSWER TO CROSSCLAIMS This defendant denies the allegations of any and all cross-claims filed or which may be filed against this defendant in this matter. Dated: New York, New York November 14, 2014 Yours, etc. fi ! i f hive /h Mal THERESE M. HOUGH Attorneys for Defendant, ProMed Corinthian, LLC BRAFF, HARRIS, SUKONECK & MALOOF 570 W. Mt. Pleasant Avenue, Suite 200 Livingston, New Jersey 07039 TO Herbert S, Subin, Esq. Subin Associates, L.L.P. Attorneys for Plaintiff LIEB WEISS 150 Broadway 23rd floor New York, NY 10038 Dominic Boone, Esq. John C. Buratti and Associates Attorneys for Defendant/Third Party Plaintiff STUART M. WEISS 150 Broadway, Suite 1400 New York, NY 10038-4381 ATTORNEY’S VERIFICATION The undersigned, an attorney, admitted to practice law in the State of New York, affirms under penalty of perjury as follows: That affirmant is aan attorney associated with the firm of Braff, Harris, Sukoneck & Maloof, attorneys for Defendant, ProMed Corinthian, LLC, in the within action; that affirmant has read the foregoing Answer to Second Amended Verified Complaint knows the contents thereof; that the same is true to affirmant’s knowledge; except as to the matters stated to be alleged on information and belief and that as to those matters, affirmant believes them to be true. Affirmant further states that the reason this Verification is made by affirmant and not by the Defendant is that the Defendant either does not reside or maintain offices in the County in which affirmant maintains his office. The undersigned affirms that the foregoing statements are true under the penalties of perjury. Dated: Livingston, New Jersey November 14, 2014 fj y “Nitya / 6 Lee THERESE M. HOUGH AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW JERSEY ) SS COUNTY OF ESSEX ) JENNIFER VOROS, being duly sworn, deposes and says lam not a party to this action, am over 18 years of age and reside in New Jersey. On the 14th day of November, 2014, I served a true copy of the foregoing Answer to Second Amended Verified Complaint, via Regular Mail addressed to the last known address of the addressee(s) as indicated below. TO Herbert S. Subin, Esq. Subin Associates, L.L.P. Attorneys for Plaintiff LIEB WEISS 150 Broadway 23rd floor New York, NY 10038 Dominic Boone, Esq. John C. Buratti and Associates Attorneys for Defendant/Third Party Plaintiff STUART M. WEISS 150 Broadway, Suite 1400 New York, NY 10038-4381 A Uwidhy IFER VORS* pe Subscribed and sworn to before on this fi day of icky , 2014. Witness mynd “4 official seal. 4 ~ fetin Aa he iL Ch. Notary Public | Wome: df boss Shte bu