FILED: QUEENS COUNTY CLERK 11/04/ :17 PM INDEX NO /2016 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/04/2016

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1 FILED: QUEENS COUNTY CLERK 11/04/ :17 PM INDEX NO /2016 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/04/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ECF File X KARLA A. WECKERLE, Index No.: /16 Plaintiff, VERIFIED ANSWER -against- RIPON UDDIN, ABRAR H. HANIF and ARIEL T. RAFAEL-LINAREZ, Defendants. X Defendants RIPON UDDIN and ABRAR H. HANIF, by their attorneys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Verified Complaint of the plaintiff, upon information and belief, respectfully show to this Court and allege: ANSWERING THE FIRST CAUSE OF ACTION 1. Defendants deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs numbered "1," "2," "3," "4," "5," "6," "7," "8," "9," "10," "11," "12," "13," "14," "15," "16," "17,"'"18," "20," "21," "22," "23," "24" and "31" of plaintiffs Verified Complaint. 2. Defendants deny having knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph numbered "19" of the plaintiffs Verified Complaint, and refer all questions of law and fact to this Honorable Court and the triers of fact at the trial of this action. 3. Defendants deny each and every allegation contained in paragraphs numbered "25," "26," "27," "28" and "33" of the plaintiff s Verified Complaint. 1 of 10

2 4. Defendants deny each and every allegation contained in paragraphs numbered "29," "30" and "32" of plaintiffs Verified Complaint, and refer all questions of law and fact to this Honorable Court and the triers of fact at the trial of this action. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 5. The plaintiffs cause of action is barred by Article 51, Section 5104 of the Insurance Law of the State of New York. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 6. The plaintiffs sole and exclusive remedy 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 THIRD AFFIRMATIVE DEFENSE 7. The plaintiff did not sustain serious and permanent injuries as defined by section 5102 of the Insurance Law of the State of New York, and plaintiffs exclusive remedy 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 FOURTH AFFIRMATIVE DEFENSE 8. The plaintiff did not use, or misused, the seat belt and/or shoulder harness therein provided. The injuries claimed to have been sustained were caused, contributed to and/or exacerbated by the lack of use, or misuse, of those protective devices, and the plaintiffs failure to obviate and/or mitigate any injuries sustained herein was in contravention of the decision of Spier V. Barker, 35 N.Y.2d 444 (1974) and in violation of Vehicle and Traffic Law 1229-c. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 9. If the plaintiff has been injured and damaged as alleged in plaintiffs Verified Complaint, upon information and belief, such injuries and damages were caused, in whole or in part, or were contributed to by reason of the carelessness, negligence or want of care on the part 2 of 10

3 of the plaintiff and not by any carelessness, negligence or want of care on the part of the answering defendants, and if any carelessness, negligence or want of care other than that of the plaintiff caused or contributed to said alleged injuries and damages, it was the carelessness, negligence or want of care on the part of some other party or persons, firm or corporation, his, agents, servants or employees, over whom the answering defendants had no control and for whose carelessness, negligence or want of care the defendants are not and were not responsible or liable. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 10. 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 plaintiffs own culpable conduct. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 11. Plaintiffs Verified Complaint fails to state a claim against these answering defendants upon which relief can be granted. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 12. Upon information and belief, any past or future costs and/or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation 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 Section 4545(a) of the CPLR. 13. If any damages are recoverable against the answering defendants, the amount of such damages shall be diminished by the amount of the funds which plaintiff has received or shall receive from such collateral source. 3 of 10

4 AS AND FOR A NINTH AFFIRMATIVE DEFENSE 14. If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit arising from the same incident to which the within action pertains, and/or does so in the future as against one or more of the defendants herein and/or any other alleged tortfeasor, the defendants assert their right to any and all set-offs in accordance with General Obligations Law Section AS AND FOR A TENTH AFFIRMATIVE DEFENSE 15. The answering defendants were faced with sudden and unexpected events, or a combination of events, which left little or no time for reflection or deliberate judgment, and caused them to be reasonably so disturbed that they were required to make speedy decisions, without weighing alternative courses of conduct, which made the defendants the victims of an emergency, of which they did nothing to create and for which they did everything reasonably possible to attempt to avoid such incident. AS AND FOR A CROSS-CLAIM AGAINST THE CO-DEFENDANT, ARIEL T. RAFAEL-LINAREZ, DEFENDANTS RIPON UDDIN and ABRAR H. HANIF ALLEGE UPON INFORMATION AND BELIEF: 16. If the plaintiff recovers herein, it will be by virtue of the recklessness, carelessness and negligence of the codefendant above-named, and not of defendants RIPON UDDIN and ABRAR H. HANIF, for which the answering defendants demand judgment for contribution and/or indemnification according to the respective degrees of negligence to be ascertained, determined and adjudicated at trial. WHEREFORE, defendants demand judgment dismissing the plaintiffs Verified Complaint herein, and further demand judgment over and against the codefendant for the amount of any judgment obtained against these answering defendants, on the basis of apportionment of responsibility, in such amounts as a jury or Court may direct, together with the costs and disbursements of this action. 4 of 10

5 Dated: Islandia, New York November 4, 2016 Yours, etc., LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendants RIPON UDDIN and ABRAR H. HANIF One CA Plaza, Suite 225 Islandia, New York L J By: ROBERT W. DOYLE, JR. LJAA File No.: TO: HOFFMAN & SCHWEITZER Attorneys for Plaintiff 360 West 3L^ Street, Suite 1506 New York, New York ARIEL T. RAFAEL-LINAREZ Defendant Pro Se 167 North Main Street Paterson, New Jersey of 10

6 STATE OF NEW YORK) COUNTY OF SUFFOLK) ss.: ROBERT W. DOYLE, JR., an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury. Affirmant is the attorney of record for defendants RIPON UDDIN and ABRAR H. HANIF in the within action. Affirmant has read the foregoing Answer, knows the contents thereof, and the same is true to affirmant's own knowledge, except as to those matters therein stated to be alleged upon information and belief, and that those matters affirmant believes to be true. This verification is made by affirmant, and not by the answering defendants, because the answering defendants are not located in the county wherein your affirmant maintains an office. The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are as follows: statements of the defendants; office records; and affirmant's general investigation into the facts of this case. Dated: Islandia, New York November 4, 2016 ROBERT W. DOYLE, JR. 6 of 10

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS KARLA A. WECKERLE, -X ECF File Index No.: /16 -against- Plaintiff, NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION RIPON UDDIN, ABRAR H. HANIF and ARIEL T. RAFAEL-LINAREZ, SIRS: Defendants. -X PLEASE TAKE NOTICE that, pursuant to sections 3101 and 3107 of the Civil Practice Law and Rules, defendants will cause to be taken testimony of the plaintiff and codefendant, their agents, servants or employees of said parties having knowledge of the subject matter concerning all of the relevant facts and circumstances in connection with the issues alleged in plaintiffs complaint, including negligence, contributory negligence, liability and damages, and said persons to be examined are required to produce all books, records and papers in their custody and possession that may be relevant to the issues herein. PLEASE TAKE FURTHER NOTICE that such examination and deposition will be taken at Lewis Jobs Avallone Aviles, LLP, One CA Plaza, Suite 225, Islandia, New York on the 4**^ day of January 2017, at 10 o'clock in the forenoon of that day, or at such time and place to which the parties or their attorneys may stipulate. Dated: Islandia, New York November 4, 2016 Yours, etc., LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendants RIPON UDDIN and ABRAR H. HANIF One CA Plaza, Suite 225 Islandia, New York By: ROBERT W. DOYLE, JR. LJAA File No.: of 10

8 TO: HOFFMAN & SCHWEITZER Attorneys for Plaintiff 360 West 3 Street, Suite 1506 New York, New York ARIEL T. RAFAEL-LINAREZ Defendant Pro Se 167 North Main Street Paterson, New Jersey of 10

9 STATE OF NEW YORK) COUNTY OF SUFFOLK) ss.: JACQUELYN A. YILMAZ, being duly sworn, deposes and says: That deponent is not a party to the within action, is over 18 years of age and resides in Nassau County, New York. That on the 4'^ day of November, 2016, deponent served the within VERIFIED ANSWER and NOTICE OF EXAMINATION BEFORE TRIAL upon the attorneys in this action at the addresses designated by said attorneys for that purpose, by depositing a true copy of same enclosed in a postpaid properly addressed wrapper in an official depository under the exclusive care and custody of the United States Post Office Department within the State of New York: HOFFMAN & SCHWEITZER Attorneys for Plaintiff 360 West 3U' Street, Suite 1506 New York, New York ARIEL T. RAFAEL-LINAREZ 167 North Main Street Paterson, New Jersey YILM Sworn to before me this 4^*^ day of November, Notary Public LOIS A. DIPOL NOTARY PUBklC-STATE OF NEW YORK No. 01DI Qualified ih Suffolk County My Commission Expires May 07, 2q/^ 9 of 10

10 LEWIS i JOHS Lewis Jobs Avallone Aviles, LLP CtmnHjIlorv ai. I^w Index No Year 2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS KARLA A. WECKERLE, Plaintiff, -against- RIPON UDDIN, ABRAR H. HANIF and ARIEL T. RAFAEL-LINAREZ, Defendants. VERIFIED ANSWER and NOTICE OF EXAMINATION BEFORE TRIAL LEWIS 0 JOHS Lewis Jobs Avallone Aviles, LLP ai 1..JW Attorneys for Lewis Jobs Avallone Aviles, LLP One CA Plaza, Suite 225 Islandia, N.Y Tel: Fax: File No.: ww^w.lewisiohs.com CERTIFICATION PURSUANT TO 22N.Y.C.R.R.S130-l.la The undersigned hereby certifies that, pursuant to 22 N.Y.C.R.R. 130-l.la, the contentions contained in the annexed document(s) is not fiivolous nor frivolously presented Service of a copy of the within is hereby admitted. Dated, Attorney(s) for 10 of 10