FILED: NEW YORK COUNTY CLERK 01/25/ :07 PM INDEX NO /2016 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/25/2018

Transcription

1

2 e ~, t t er ~r ~ - ~ e,r SUPREMB COURT OF THE STATE OF NEW YORK COUNTY OF GNGS X STEPHANE CRLLO, Plaintiff, SUMMONS Plaintiff designates Kings County as a -against- place of trial. Basis of venue is plaintiffs residence NH%' THE CTY OF NEW YORK, EMPRE CTY SUBWAY Plaintiff resides at COMPANY, LTD., and VERZON NEW YORK, NC., Street Brooklyn, N.Y Defendants. ndex No.: QQ8 gs '5 L1 eel~~ X Date Filed: t~ -zo TO THE ABOVE NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to answer the complaint in this action, and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of J ' appearance on plaintiffs plaintiffs' ' attorneys within twenty (20) days after the service of this summons, exclusive of the day of service, where service is made by you personally within the State, or within thirty (30) days after completion of service where service is made in any other manner, and in case of your failure to appear or answer, Judgment shall be taken against you by default for the relief stated in the complaint. Dated: Brooklyn, New York July 6, 2015 MONACO 464 ACO LLP Defendants' Address: Attorneys for Plaintsf 13* Avenue Brooldyn, New York (718) NK%' THE CTY OF NEW YORK 100 Church Street New York, New York l0007

3 'V 1 f EMPRE CTY SUBWAY COMPANY, LTD. 140 West Street New York, New York Through the Secretary ofstate VERZON NEW YORK, NC. c/o C T CORPORATON SYSTEM 111 Eighth Avenue New York, New York Throu h the Secreta of State

4 4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KNGS , X STEPHANB CRLLO, Plaintiff, VERFED COMPLANT -against- THE CTY OF NEW YORK, EMPRE CTY SUBWAY COMPANY, LTD., and VERZON NEW YORK, NC., ndex No.: X Defendants. Plaintiff, through her attorneys, MONACO & MONACO, LLP, complaining of the Defendants herein, alleges as follows: AS AND FOR A FRST CAUSE OF ACTON ON BEHALF OF THE PLANTFF3 STEPHANE CRLLO 1. Plaintiff, STEPHANE CRLLO, was and adil is a resident of the County of Kings, State of New York. 2, At all times hereinafter mentioned, the Defendant, THE CTY OF NEW YORK, was and is a municipal corporation duly organized and existing under and by virtue of the Laws of the State of New York. 3. That heretofore and on July 9, 2014, Plaintiffs Notice of Claim and ntention to Sue was duly served upon and filed with the Office of the Comptroller of THE CTY OF NEW YORK; said notice was filed within ninety days (90) after the cause of action herein accrued. 4. On October 22, 2014, Plaintiff, STEPHANE CRLLO, appeared and testified at a 50-H hearing pursuant to the 6eneral Municipal ' Law' Section 50-h,

5 1 That at least thirty (30) \ days have elapsed since the demand or claim upon which this action is predicated were presented to the City for adjustment and that it has neglected and/or refused to make adjustment or payment thereof. 6. This action is being commenced within one year and ninety days after the cause. of action accrued and all necessary and required legal conditions have been complied with. 7. That all ofthe requirements of Section of the Administrative Code of the City of New York have been met or are not applicable. 8. That at all the times hereinafter mentioned the Defendant, CTY 01 NEW YORK, owned the roadway, crosswalk, manhole and street located at West 37* 37 Street and Eighth Avenue in the County ofnew York in the City and State of New York on or about April 14, That at all the times hereinafter mentioned, the Defendant, CTY OF NEW YORK, it agents, servantsand/or employees operated the aforesaid roadway, crosswalk, manhole and street on or about April 14, That at all the times hereinafter mentioned, the Defendant, CTY OF NEW YORK, its agent, servants and/or employees maintained the aforesaid roadway, crosswalk, manhole and street on or about April 14, That at al1the times hereinafter mentioned, the Defendant, CTY OF NEW YORK, its agents,servants and/or employees managed the aforesaid roadway, crosswalk, manhole and street on or about April 14, That at all times hereinafter mentioned the Defendant, CTY OF NEW YORK, its agents, servants and/or employees controlled the aforesaid roadway, crosswalk, manhole and street on or about April 14, 2014.

6 13. That at all times hereinafter mentioned, the Defendant, CTY OF NEW YORK, its agents servants and or employees constructed the aforesaid roadway, crosswalk, manhole and Street on or about April 14, That at all the times hereinafter mentioned, the Defendant, EMPPRE CTY SUBWAY COMPANY, LTD., owned the roadway, crosswalk, manhole and street located at West 37* 37 Street and Eighth Avenue in the County of New York in the City and State of New York on or about April 14, ht at all the times hereinafter mentioned, the Defendant, EMPRE CTY SUBWAY COMPANY, LTD., it agents, servants and/or employees operated the aforesaid roadway, crosswalk, manhole and street on or about April 14, ht at all the times hereinafter mentioned, the Defendant, EMPEE CTY SUBWAY COMPANY, LTD., its agent, servants and/or employees maintained the aforesaid roadway, crosswalk, manhole and street on or about April 14, That at all the times hereinafter mentioned, the Defendant, EMPRE CTY SUBWAY COMPANY, LTD., its agents, servants and/or employees managed the aforesaid roadway, crosswalk, manhole and street on or about April 14, That at all times hereinafter mentioned the Defendant, EMPRE CTY SUBWAY COMPANY, LTD., its agents, servants and/or employees controlled the aforesaid roadway, crosswalk, manhole and street on or about April 14, That at all times hereinafter mentioned, the Defendant, EMPRE CTY SUBWAY COMPANY, LTD., its agents, servants and or employees constructed the aforesaid roadway, crosswalk, manhole and Street on or about April 14, 2014.

7 20. That at all times hereinafter mentioned, the Defendant, EMPRE CTY SUBWAY COMPANY, LTD., its agents, servants and/or employees performed work, repairs, made cutouts and/or other services to the aforesaid roadway, crosswalk, manhole and Street on or about April 14, That at all the times hereinafter mentioned, the Defendant, VERZON NEW YORK, NC., it agents, servants and/or employees operated the aforesaid roadway, crosswalk, manhole and street on or about April 14, That at all the times hereinafter mentioned, the Defendant, VERZON NEW YORK, NC., its agent, servants and/or employees maintained the aforesaid roadway, crosswalk, manhole and street on or about April 14, That at all the times hereinafter mentioned, the Defendant, VERZON NEW YORK, NC., its agents, servants and/or employees managed the aforesaid roadway, crosswalk, manhole and street on or about April 14, That at all times hereinafter mentioned the Defendant, VERZON NEW YORK, NC., its agents, servants and/or employees controlled the aforesaid roadway, crosswalk, manhole and street on or about April 14, That at all times hereinafter mentioned, the Defendant, VERZON NEW YORK, NC., its agents, servants and or employees constructed the aforesaid roadway, manhole and Street on or about April 14, 2014, 26, That at all times hereinafter mentioned, the Defendant, VERZON NEW YORK, NC., its agents, servants and/or employees performed work, repairs, made cutouts and/or other services to the aforesaid roadway, crosswalk, manhole and Street on or about April 14, 2014.

8 WHÈREFORE, Plaintiff demands judgment against the Defendant in the First Cause of Action the amount of claim exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction and for such other further relief as this court shall deem just and proper. Dated: Brooklyn, New York July 6, 2015 Yours, etc. MONACO & MONACO LLP. Antonio lddnaco, Jr. Esq. Attorneys for Plaintiff * 13 Avenue Brooklyn, New York (718)

9 ' ATTORNEY VERFCATON STATE OF NEW YORK ) SS. COUNTY OF KNGS ) ANTONO MONACO, JR., an attorney-at-law, duly admitted to practice in the Courts of this State, affirms under the penalties of perjury that: He is the attorney for the Plaintiff in the above-entitled action. That he has read the foregoing SUMMONS AND VERFED COMPLANT and knows the contents thereof, and upon information and belief, deponent believes the matters alleged therein to be true. The reason this verification is made by deponent and not by Plaintiff is that the Plaintiff does reside in the County where his attorneys maintain their office, however Plaintiff is currently unavailable. The source of deponent's information and the grounds of his belief are communications, papers, reports and investigations contained in the file. Dated: Brooklyn, New York July 6, 2015 ANTONO MONACO, JR., KSQ.

10 ~ ~S ~ ~ ~ ~ T ' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KNOS --._..._ _.-..._ X STEPHANE CRLLO, EUMMONS AND VERFED COMPLANT Plaintiff, -against-. THE CTY OF NEW YORK, EMPRE CTY SUBWAY COMPANY, LTD,, and VERZON NEW YORK, NC., ndex No. Date Filed: Defendants, _ â --- â â â â â -- â â X MONACO 4 MONACO, LLP Attorneys for Plaintif 13* 2"d 7610 Avenue, Floor Brooklyn, NY (718) Mro: M fe4 CR Attorney(s) for CR CO ~ Service of a copy of the within is hereby admitted. CD CD ~ Dated, '... Attorney(s) for 1

11 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KNGS X -X STEPHANE CRLLO, ANSWER Plaintiff(s), -against- ndex #: /2015 THE CTY OF NEW YORK, EMPRE CTY SUBWAY Law Dept. #: COMPANY, LTD., AND VERZON NEW YORK, NC., Defendant(s). --x Defendant THE CTY OF NEW YORK, by ZACHARY W. CARTER, Corporation Counsel, answering the complaint, allege upon information and belief: 1. Deny each allegation set forth in paragraph(s) 7, 28, 33, 36, 38, inclusive. 2. Deny knowledge or information sufficient to form a belief with respect to the truth of the allegations set forth in paragraph(s) 1, 13, 19, 20, 25, 26,.inclusive. 3. Deny the allegations set forth in paragraph(s) 3-6, inclusive, except that a notice of a claim was presented, that more than thirty days have elapsed without adjustment thereof. 4. Deny each allegation set forth in paragraph(s) 8-12, 14-18, 21-24, 27, 30, 32, inclusive, except that with respect to those portions of the street(s), sidewalks and appurtenances referred to in the complaint which were or may have been owned by the City of New York, defendant(s) had such duties as were imposed by law. 5. Deny each allegation set forth in paragraph(s) 2, inclusive, except that the City of New York is a municipal. corporation,

12 6. Deny each allegation set forth in paragraph(s) 29, 3 1, 34, 35, 37, inclusive, so far as the same may refer to the defendant(s) answering hereby. AFFRMATVE DEFENSE(S) 7. Plaintiff(s)' culpable conduct caused or contributed, in whole or in part, to his/her/their injuries and or damages. 8. At all times mentioned in the complaint, plaintiff(s) knew or should have known in the exercise of due/reasonable care of the risks and dangers incident to engaging in the activity alleged. Plaintiff(s) voluntarily performed and engaged in the alleged activity and assumed the risk of the injuries and/or damages claimed. Plaintiff(s) failed to use all required, proper, appropriate and reasonable safety devices and/or equipment and failed to take all proper, appropriate and reasonable steps to assure his/her/their safety..plaintiff(s)' primary assumption of risk solely caused his/her/their injuries and/or damage and defendant(s) owed no duty to the plaintiff(s) with respect to the risk assumed. Plaintiff(s)' express assumption of risk solely caused his/her/their injuries and/or damage and defendant(s) owed no duty to the plaintiff(s) with respect to the risk assumed. Plaintiff(s)' implied assumption of risk caused or contributed, in whole or in part to his/her/their injuries. n any action for injuries arising from the use of a vehicle in, or upon which plaintiff(s) were riding; it will be claimed that the injuries and/or damages sustained were caused by the failure of the plaintiff(s) to use available seat-belts and/or other safety devices. 9. Defendants are immune from suit for their exercise of discretion in the performance of a governmental function and/or their exercise of professional judgment. 10. The amounts recoverable by plaintiff(s) are subject to limitation pursuant to Section 1601 of the Civil Practice Law and Rules, by reason of the culpable conduct of other person(s) who are, or with reasonable diligence could have been made party defendant(s) to this

13 action, or pursuant to Section of the General Obligations Law, by reason of a prior settlement between plaintiff(s) and said person(s), or pursuant to Section 4545 of the Civil Practice Law and Rules are subject to reduction by collateral sources received by plaintiff(s), or by reason of the fact that punitive damages are not recoverable against municipal defendant(s). CROSS-CLAMS 11. Any damages sustained by the plaintiff(s) were caused in whole or in part by the acts or omissions of defendant(s) EMPRE CTY SUBWAY COMPANY, LTD., AND VERZON ÑEW YORK, NC,, who are or may be liable to the defendant(s) answering hereby for contribution on the basis of their equitable shares of responsibility, or for indemnity on the basis of a contract between them, actual or implied. WHEREFORE, defendant(s) demand judgment dismissing the complaint and all cross-clairris against them, or, in the event that they are adjudged liable, granting judgment over, or apportioning equitable' such liability in accordance with their equitable shares of responsibility, and awarding the costs of this action, together with such other and further relief as to the court may seem just. ZACHARY W. CARTER Corporation Counsel 100 Church Street New York, New York 10007

14 VERFCATON Re: STEPHANLE CRJ LLO; LD #: KENNETH RE[D being duly sworn deposes and says that: deponent is an employee of the Office of the Corporation Counsel; that deponent has read the foregoing answer, cross-claim(s) and counterclaim(s), if any, and knows the contents thereof; that the same are true to deponent's own knowledge, except as to the matters alleged upon information and belief, which deponent believes to be true based upon the files, books and records maintained by The City of New York, New York City Health and Hospitals Corporation or the New York City Board/Department of Education, and the officers or agents thereof. Dated: New York, [ ork September ~,, 2015 KENN TH RELD Sw before me this day of to er, 2015 ~~naa. ANNA M. CHETNK CormnMeonor of Doods ~ N,i' ÝA 'l JBLC City of New York No /' / Certificate Filed n New York County Commission Expires July 01, 2010 STPULATON/CERT[FCATON T S HEREBY STPULATED AND AGREED, that at any time prior to the filing of a note of issue in this action, plaintiff(s) may amend the complaint to name additional defendants herein, provided that such additional defendants shall not include the City of New York, the Board/Department of Education, Health & Hospitals Corporation, City University of New York, or any of their respective departments, subdivisions or employees, nor any other person entitled to defense or indemnification by the City of New York. The signature below shall constitute the signature required pursuant to NYCRR a and pertains to all of the enclosed documents: answer, cross-claim(s) and counter-claims(s), if any, together with the accompanying combined demands for particulars and discovery. Dated: - New York, g York September ~ h, 2015 By: JOSP P. LLO Specia ssistant Corporation Counsel Attorney(s) for Plaintiff(s) Pie'as'e,",','do. Pie'aso';,'clo. not" n'ot" FÏesshndn send correspondence to 'the 'above h¼rsë individiial unless otherwise tlir'eete'd,,:8ee rlit"ecte'd,.:8ce Ans'wer Ans'vver back foi fot additional contact information, infatmatiott,

15 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KNG S x STEPHANS CRLLO, Plaintiff(s), AFFDAVT OF SERVCE -against- THE CTY OF NEW YORK, EMPERE CTY SUBWA Y ndex #: /2015 COMPANY', LTD., AND VERfZON NEW YORK, NC., Law Dept. #: Defendant(s) a----- x STATE OF NEW YORK ) : ss.: COUNTY OF NEW YORK ), being duly sworn deposes and says that: 1. The deponent is not a party to the action and is 8 years of age or older. 2. On ~S f 5 e deponent served the annexed ANSWER WTH CROSS CLAMS AND DEMANDS upon the following person or persons: STEPHANE CRLLO by mailing a copy to his/her/their attorney(s), MONACO & MONACO LLP at TH AVENUE BROOKLYN, NY being the address designated by said attorney(s) for that purpose by depositing the same in a first class, postpaid, properly addressed wrapper, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the State of New York pursuant to CPLR 2103(b)(2). 1 Sworn to before me this ~f nt' ~ ay of dtsdt 20f_C. JOYCELYN JACK Notary Public, State of New York No. 01JA Qualified n Queens County 20~d' Commission Expires Nav. 29 ~

16 ndex #: /20 t 5 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KNGS STEPHANE CRLLO, Plaintiff(s), - against - THE CTY OF NEW YORK, EMPRE CTY SUBWAY COMPANY, LTD., AND VERZON NEW YORK, NC., Defendant(s). ANSWER WTH CROSS-CLAMS AND DEMANDS ZACHARY W. CARTER Corporation Counsel Attorney for Defendant THE CTY OF NEW YORK, 100 Church Street New York, New York Telephone Nutnbers: Barly ntervention Unit (settlements (212) all Boroughs). Pleadings Unit (212) (pleadings matters only) All Other Matters (nquire by county of venue) Bronx Office: (718) (BBT's ) Brooklyn Office: (EBT's-5226) Manhattan Office: (212) (EBT's-2791) Queens Office: (718) (EBTs ) Staten sland Office: (718) (EBTs-5985) Please refer to the following Law Dept. #: and indicate the County in which the action is pending in all papers, correspondence and other communications v/ith respect thereto.