FILED: BRONX COUNTY CLERK 07/16/2014 INDEX NO. 23643/2013E NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 07/16/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X LYNDON J. DAVIS, Plaintiff, U-HAUL CO. OF ARIZONA, U-HAUL CO. OF NEW YORK AND VERMONT, INC. and JONATHAN D. JEAN BAPTISTE, Defendants. ----------------------------------------------------------------------X Index No.: 23643/2013E VERIFIED ANSWER TO AMENDED VERIFIED THIRD PARTY COMPLAINT WITH DEFENSES, AFFIRMATIVE DEFENSES, CROSS CLAIMS and JURY DEMAND U-HAUL CO. OF ARIZONA, U-HAUL CO. OF NEW YORK AND VERMONT, INC. and JONATHAN D. JEAN BAPTISTE, -against- -against- Third-Party Plaintiffs, CITY OF NEW YORK and PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Third-Party Defendants. ----------------------------------------------------------------------X Third-Party Defendant, The Port Authority of New York and New Jersey (the "Port Authority"), by its attorney, James M. Begley, as and for its Verified Answer to the Amended Verified Third-Party Complaint, in the above-entitled action, respectfully shows to this Court as follows: 1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 1 of the Amended Verified Third-Party Complaint, except admits that a document purporting to be a Summons and Verified Complaint is attached to the Amended Verified Third-Party Complaint as Exhibit "A".
2. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 2 of the Amended Verified Third-Party Complaint, except admits that a document purporting to be a Verified Answer is attached to the Amended Verified Third-Party Complaint as Exhibit "B". 3. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 3 of the Amended Verified Third-Party Complaint, except admits that a document purporting to be a Supplemental Summons and Amended Verified Complaint is attached to the Amended Verified Third-Party Complaint as Exhibit "C". 4. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 4 of the Amended Verified Third-Party Complaint, except admits that a document purporting to be a Verified Answer to Amended Complaint is attached to the Amended Verified Third-Party Complaint as Exhibit "D". 5. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 5 of the Amended Verified Third-Party Complaint, except admits that a document purporting to be a Summon and Verified Third-Party Complaint is attached to the Amended Verified Third-Party Complaint as Exhibit "E". 6. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 6 of the Amended Verified Third-Party Complaint, except admits that a document purporting to be an Answer to Third-Party Complaint is attached to the Amended Verified Third-Party Complaint as Exhibit "F". 2
7. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 7 of the Amended Verified Third-Party 8. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 8 of the Amended Verified Third-Party 9. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 9 of the Amended Verified Third-Party 10. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 10 of the Amended Verified Third-Party 11. Denies the allegations contained in Paragraph 11 of the Amended Verified Third-Party Complaint, except admits that the Port Authority is a body, corporate and politic, created by Compact between the States of New York and New Jersey with consent of the Congress of the United States and that the Port Authority operates those portions of the premises known as the Lincoln Tunnel which are not operated by others pursuant to lease, license, permit, contract, or written agreement and respectfully refers all questions of law for the determination by the Court at the time of trial. 12. Neither admits nor denies the allegations contained in Paragraph 12 of the Amended Verified Third-Party Complaint inasmuch as said Paragraph states conclusions of law rather than allegations of facts and respectfully refers all questions of law for the determination by the Court at the time of trial. 3
13. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 13 of the Amended Verified Third-Party Complaint and respectfully refers the Court to the Amended Complaint for the allegations contained therein. 14. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 14 of the Amended Verified Third-Party Complaint and respectfully refers the Court to the Amended Complaint for the allegations contained therein. 15. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 15 of the Amended Verified Third-Party 16. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 16 of the Amended Verified Third-Party Complaint and respectfully refers the Court to the Amended Complaint for the allegations contained therein. 17. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 17 of the Amended Verified Third-Party Complaint and respectfully refers the Co1;1rt to the Amended Complaint for the allegations contained therein. ANSWERING THE FIRST CAUSE OF ACTION 18. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 18 of the Amended Verified Third-Party 4
19. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 19 of the Amended Verified Third-Party 20. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 20 of the Amended Verified Third-Party 21. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 21 of the Amended Verified Third-Party 22. Denies the allegations contained in Paragraph 22 of the Amended Verified Third-Party Complaint and respectfully refers all questions of law for the determination by the Court at the time of trial. 23. Denies the allegations contained in Paragraph 23 of the Amended Verified Third-Party Complaint which pertain to the Port Authority. 24. Denies the allegations contained in Paragraph 24 of the Amended Verified Third-Party Complaint which pertain to the Port Authority. 25. Denies the allegations contained in Paragraph 25 of the Amended Verified Third-Party Complaint which pertain to the Port Authority. ANSWERING THE SECOND CAUSE OF ACTION 26. Denies the allegations contained in Paragraph 26 of the Amended Verified Third-Party Complaint which pertain to the Port Authority. 27. Denies the allegations contained in Paragraph 27 of the Amended Verified Third-Party Complaint which pertain to the Port Authority. 5
AS AND FOR A FIRST DEFENSE 28. If plaintiff received compensation, in whole or in part, or any other remuneration for all or any portion of the claimed economic loss, or if plaintiff will or is likely with reasonable certainty to receive any compensation or remuneration for said loss in the future, then any recovery by plaintiff for economic loss and/or damages should be reduced by the amount of said compensation, or any other remuneration, in accordance with the provisions of 4545 of the C.P.L.R. AS AND FOR A SECOND DEFENSE 29. The Court lacks subject matter jurisdiction over the Port Authority if thirdparty plaintiffs have failed to comply with the statutory requirements or conditions precedent provided for in N.Y. Unconsolidated 7107 et seq. (McKinney's Consolidated Laws ofn.y. 2000). AS AND FOR A THIRD DEFENSE 30. Plaintiff and/or third-party plaintiffs cannot recover for any portion of the harm that by exercise of ordinary care plaintiff and/or third-party plaintiffs could have avoided. AS AND FOR A FOURTH DEFENSE 31. The Port Authority was not negligent in any way and did not cause or contribute to the injuries and/or damages complained of. AS AND FOR A FIFTH DEFENSE 32. If any injuries and/or damages were in fact sustained by plaintiff and/or third-party plaintiffs, the Port Authority did not proximately cause them. 6
AS AND FOR A SIXTH DEFENSE 33. There was a superseding cause which terminated the liability of the Port Authority. AS AND FOR A SEVENTH DEFENSE 34. Whatever injuries and/or damages were sustained by plaintiff were directly and proximately caused by the acts, omissions, fault and negligence of defendants and third-party plaintiffs or their agents, servants and/or employees, without any active or affirmative negligence or culpable conduct on the part of the Port Authority contributing thereto. AS AND FOR A EIGTH DEFENSE 35. In the event that plaintiff and/or third-party plaintiffs failed to mitigate or otherwise act to lessen or reduce the alleged damages and/or injuries, then the amount of damages recovered by plaintiff and/or third-party plaintiffs should be limited to reflect the failure to mitigate damages. AS AND FOR A NINTH DEFENSE 36. In designing and operating the Lincoln Tunnel and the selection of traffic control devices used in connection therewith, the Port Authority was required to and did exercise governmental discretion and therefore is immune from suit. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 37. The Amended Verified Complaint and Amended Verified Third-Party Complaint fail to state a cause of action, in whole or in part, upon which relief can be granted. 7
AS AND FOR A SECOND AFFIRMATIVE DEFENSE 38. The alleged incident and damages, if any, allegedly sustained by plaintiff was caused in whole or in part by the culpable conduct and/or negligence of the plaintiff and, accordingly, any damages, which may be recovered by plaintiff, should be dismissed, pursuant to C.P.L.R. 1411, in the proportion which the culpable conduct attributable to plaintiff bears to the culpable conduct which caused the damage. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 39. The alleged incident and damages, if any, allegedly sustained by thirdparty plaintiffs was caused in whole or in part by the culpable conduct and/or negligence of the third-party plaintiffs and, accordingly, any damages, which may be recovered by third-party plaintiffs, should be dismissed, pursuant to C.P.L.R. 1411, in the proportion which the culpable conduct attributable to third-party plaintiffs bears to the culpable conduct which caused the damage. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 40. Pursuant to 1601 of the C.P.L.R., the Port Authority demands that its liability, if any, to plaintiff for non-economic loss be limited to the Port Authority's equitable share, to be determined in accordance with the relative culpability of each person causing or contributing to the total liability for plaintiff's non-economic loss. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 41. If plaintiff and/or third-party plaintiffs could have, with due diligence, obtained personal jurisdiction over tortfeasors, not a party to this lawsuit, whose conduct in whole or in part caused or contributed to plaintiff's and/or third-party plaintiffs' injuries and/or damages, then the culpability of any missing or absent tortfeasors should 8
be determined in accordance with the provisions of 1601 of the C.P.L.R. and the Port Authority's liability, if any, for non-economic loss should be limited to its equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for such loss. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 42. To the extent that any affirmative defenses asserted by any other answenng defendants and/or third-party defendants in this action may otherwise be applicable to the claims against the Port Authority or to the extent any other are identified, available or appear during discovery to be applicable to the claims in this action, then the Port Authority hereby specifically reserves the right to amend its Verified Answer for the purpose of asserting such additional affirmative defenses. The Port Authority hereby includes by reference as if fully set forth at length herein all defenses, both affirmative and otherwise raised, pled or asserted by all other answering defendants and/or third-party defendants. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 43. The Port Authority repeats, reiterates and realleges each and every allegation contained in defenses designated First through Ninth of its Verified Answer, and to the extent the Court deems any of said defenses to properly be designated as an affirmative defense, then the Port Authority respectfully re-designates and reiterates any such defense as an affirmative defense. 9
CROSS-CLAIMS AGAINST THIRD-PARTY CO-DEFENDANT, CITY OF NEW YORK 44. Third-Party Defendant, the Port Authority, as and for its Cross-Claims against third-party co-defendant, City ofnew York (the "City"), for which it demands an Answer pursuant to 3011 of the C.P.L.R., sets forth upon information and belief as follows: AS AND FOR A FIRST CROSS-CLAIM AGAINST THIRD-PARTY CO-DEFENDANT, CITY OF NEW YORK 45. Whatever injuries and damages were sustained by the third-party plaintiffs were directly and proximately caused by the acts, omissions, fault and negligence of the City or its agents, servants and/or employees, without any active or affirmative negligence or culpable conduct on the part of the Port Authority contributing thereto. 46. If any verdict or judgment is recovered in this action by the third-party plaintiffs for the damages alleged in the Amended Verified Third-Party Complaint, such verdict of judgment will have been brought about and caused solely by the reason of the carelessness, negligence, both of omission or commission or other culpable conduct on the part of the City or its agents, servants and/or employees, and the Port Authority is therefore, entitled to full indemnity in an amount equal to the sum of any verdict or judgment from the City, together with costs and disbursements of the within action. AS AND FOR A SECOND CROSS-CLAIM AGAINST THIRD-PARTY CO-DEFENDANT, CITY OF NEW YORK 4 7. The Port Authority repeats and re-alleges each and every allegation as is contained in Paragraphs 44 through 46, inclusive with the same force and effect as though more fully set forth at length herein. 10
48. Whatever injuries and damages were sustained by the third-party plaintiffs were caused in substantial part by the acts, omissions, fault and negligence of the City or its agents, servants and/or employees. 49. If any verdict or judgment is recovered in this action by the third-party plaintiffs for the damages alleged in the Amended Verified Third-Party Complaint, such verdict of judgment will have been brought about in part by the carelessness, negligence, both of omission or commission or other culpable conduct on the part of the City or its agents, servants and/or employees, and the Port Authority is therefore entitled to contribution from the City or its agents, servants and/or employees, in accordance with the parties' respective culpability. PLEASE TAKE NOTICE, an Answer to these Cross-Claims 1s hereby demanded. JURY DEMANDED 50. Third-Party Defendant, the Port Authority, demands a trial by jury. WHEREFORE, Third-Party Defendant, the Port Authority, demands judgment dismissing the Amended Verified Third-Party Complaint, together with attorney's fees, costs and disbursements incurred by the Port Authority in defense of this action and further demands that it have judgment over and against the City on its cross-claims for the full amount of any verdict or judgment that may be recovered against the Port Authority in this action and further, in the alternative, demands that the relative responsibilities, if any, of all defendants and third-party defendants herein be established and apportioned amongst themselves and that Third-Party Defendant, the Port Authority, 11
recover all costs, disbursements, expenses and reasonable attorney' s fees incurred in the defense of this action and in the conduct of the cross-claims. Dated: New York, New York July 7, 2014 JAMES M. BEGLEY, ESQ. Attorneys for Third-Party Defendant, ~:e Po~~ZtG: York ond New Jersey Nicole K. Vachon, Esq. 225 Park A venue South, 13th Floor New York, New York 10003 (212) 435-3429 TO: Daniel P. Waxman, Esq. BRYAN CAVE LLP Attorneys for Defendants and Third-Party Plaintiffs, U-Haul Co. of Arizona, U-Haul Co. of New York and Vermont, Inc., and Jonathan D. Jean Baptiste 1290 A venue of the Americas New York, New York 10104 Edward H. Gersowitz, Esq. GERSOWITZ, LIBO & KOREK, P.C. Attorneys for Plaintiff, Lyndon J Davis 111 Broadway, l2 1 h Floor New York, New York 10006 Zachary W. Carter, Esq. CORPORATION COUNSEL THE CITY OF NEW YORK Attorneys for Third-Party Defendant, City of New York 100 Church Street New York, New York 10007 12
Lyndon.J Davis v. U-Haul Co. of Arizona, eta!. v. P A. STATEOFNEWYORK ) ) ss.: COUNTY OF NEW YORK ) LINDA C. HANDEL, being duly sworn, deposes and says: That she is the Deputy Secretary of THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY which is a body, corporate and politic, created by Compact between the States ofnew York and New Jersey with the consent of the Congress ofthe United States; that deponent has read the foregoing VERIFIED ANSWER and knows the contents thereof; that the same is true to the knowledge of deponent except as to those matters therein stated to be alleged on information and belief and as to those matters deponent believes it to be true; and the reason why this verification is made by deponent and not by defendant is that defendant is a body, corporate and politic, as above-described, and your deponent is its officer, to wit, its Deputy Secretary. Sworn to before me this 1M day ofjuly, 2014 @ < JENNIFER M BETHEl\ Notary Public, State ot New York '.. No.01BE618520B Qualified in Bronx County.. Commission Expires!\pril1 4, 20& I>