2018 12:13 pm

FILED: KINGS COUNTY CLERK 04/11/2018 12:13 PM INDEX NO. 501446/2014

NYSCEF DOC. NO. 65 RECEIVED NYSCEF: 04/11/2018

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SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS________________.. _,, _____, _.__ _ ........._ ___. .........-X XEVELYN WRIGHT PATTISHAW,

ANSWER TO AMENDEDPlaintiff, COMPLAINT WITH

CROSS CLAIM-against-

Index No.: 501446/l4

TODD CHIOVARO, SIMONE M. VALENTINO,

CERTIFIED SERVICES OF NY INC, VILLAGE

PLUMBING AND HEATING, INC. and

A&R ELECTRICAL CONTRACTING INC.,

Defendants.

_____.,..,----,-,.....,..--------..,-----------------------------X

Defendants, TODD CHIOVARO, CERTIFIED SERVICES OF NY INC., VlLLAGE

PLUMBING AND HEATING, INC., and A&R CONTRACTING OF NY INC. s/h/a A&R

ELECTRICAL CONTRACTING INC., appearing by HARRIS, KING, FODERA & CORREIA

their attorneys, answering the Amended Complaint of the Plaintiff herein:

1. Deny any knowledge or information sufficient to form a belief as to each and

every allegation contained in paragraphs designated "1", "18","19"

and"20"

of the Amended

Complaint.

2. Deny each and every allegation contained in paragraphs designated "S", "7",

"12", "15", "16", "17", "21","23"

and"26"

of the Amended Complaint.

3. Deny each and every allegation contained in paragraph designated"10"

of the

Amended Complaint except admits, Todd Chiovaro, was operating the aforementioned motor

vehicle in the course of his employment.


of the

except was operation of aforesaid motorAmended Complaint admits, Todd Chiovaro, in the



vehicle owned by the defendant,"Certified"

with the knowledge, consent and permission,

either expressed or implied of the defendant owner thereof.


of the

Amended Complaint except admits, Todd Chiovaro, was operating the aforementioned motor

vehicle of the defendant, "Village", in the course of his employment.


of the

Amended Complaint except admits, Todd Chiovaro, was in operation of the aforesaid motor

vehicle owned by the defendant,"Village"

with the knowledge, consent and permission, either

expressed or implied of the defendant owner thereof.

7. Deny each and every allegation contained in paragraphs designated "22","24"

and"25"

of the Amended Complaint and respectfully refer all questions of law to the Honorable

Court.

AS AND FOR A FIRST SEPARATE AND COMPLETE DEFENSE TO THE

AMENDED COMPLAINT OF THE PLAINTIFF HEREIN, DEFENDANTS

ALLEGE UPON INFORMATION AND BELIEF AS FOLLOWS:

8. That the accident of occurrence referred to in the Plaintiff's Amended Complaint

and the injuries claimed were caused in whole or in part by the carelessness, contributory

negligence or the assumption of risk of the Plaintiff and the answering Defendants demand that

the Plaintiff's damages be accordingly diminished or denied.

AS AND FOR A SECOND SEPARATE AND COMPLETE DEFENSE TO THE



9. That pursuant to Article 51 of the New York State Insurance Law, the Plaintiff is

not entitled to recover any sums of money for basic economic loss.



AS AND FOR A THIRD SEPARATE AND COMPLETE DEFENSE TO THEAMENDED COMPLAINT OF THE PLAINTIFF HEREIN, DEFENDANTS


10. In the event Plaintiff recovers a verdict or judgment against the answering

Defendants, then said verdict or judgment must be reduced, pursuant to CPLR 4545(c), by those

amounts which have been or will, with reasonable certainty, be paid on behalf of, or indemnify,

Plaintiff in whole or in part, for any past or future claimed economic loss, from any collateral

source, including, but not limited to, no-fault, insurance, social security,workers'

compensation

or employee benefit programs.

AS AND FOR A FOURTH SEPARATE AND COMPLETE DEFENSE TO THEAMENDED COMPLAINT OF THE PLAINTIFF HEREIN, DEFENDANTS


11. Plaintiff's injuries/damages shall be diminished in whole or in part by reason of

Plaintiff's own provocative acts, failure to mitigate his damages and culpable conduct.

AS AND FOR A FIFTH SEPARATE AND COMPLETE DEFENSE TO THEAMENDED COMPLAINT OF THE PLAINTIFF HEREIN, DEFENDANTS


12. That the Amended Complaint does not set forth facts sufficient to constitute a

cause of action.

AS AND FOR A SIXTH SEPARATE AND COMPLETE DEFENSE TO THEAMENDED COMPLAINT OF THE PLAINTIFF HEREIN, DEFENDANTS


13. That the Amended Complaint does not state facts sufficient to constitute a cause

of action under Comprehensive Motor Vehicle Insurance Reparations Act as defined in Article

51 of the Insurance Law.

AS AND FOR A SEVENTH SEPARATE AND COMPLETE DEFENSE TO THE





14. That if Plaintiff failed to use an available seat belt and/or shoulder harness at the

time of the accident, then the injuries and/or damages allegedly sustained by the Plaintiff were

more severe because of the non-use of that equipment; and Plaintiff would not have sustained

some or all the injuries alleged by the Plaintiff.

AS AND FOR A FIRST CROSS CLAIM AGAINST THE DEFENDANT, SIMONE

M. VALENTINO, THE ANSWERING DEFENDANTS, TODD CHIOVARO,CERTIFIED SERVICES OF NY INC., VILLAGE PLUMBING AND HEATING,

INC., AND A&R CONTRACTING OF NY INC., S/H/A A&R ELECTRICALCONTRACTING INC. ALLEGE UPON INFORMATION AND BELIEF AS

FOLLOWS:

15. If Plaintiff recovers herein against the answering Defendants, TODD

CHIOVARO, CERTIFIED SERVICES OF NY INC., VILLAGE PLUMBING AND HEATING,

INC., and A&R CONTRACTING OF NY INC., s/h/a A&R ELECTRICAL CONTRACTING

INC., such recovery will have been brought about solely by reason of the active negligence,

carelessness, recklessness and wrongdoing of Defendant, SIMONE M. VALENTINO, without

any negligence on the part of the answering Defendants and in such event answering Defendants

are entitled to full common law indemnification from Defendant, SIMONE M. VALENTINO.

WHEREFORE, Defendants, TODD CHIOVARO, CERTIFIED SERVICES OF NY

INC., VILLAGE PLUMBING AND HEATING, INC., and A&R CONTRACTING OF NY

INC. s/h/a A&R ELECTRICAL CONTRACTING INC., demand judgment dismissing the

Amended Complaint of the Plaintiff herein and further demands judgment over and against the

Defendant, SIMONE M. VALENTINO, for all or part of any sums recovered by the Plaintiff

against the answering Defendants, together with the costs and disbursements incurred in the

defense of this action.

Dated: New York, New York

April 27, 2015

Yours etc.,



HARRIS, KING, FODERA & CORREIAAttorneys for Defendants

TODD CHIOVARO, CERTIFIED

SERVICES OF NY INC., VILLAGEPLUMBING AND HEATING, INC., and

A&R CONTRACTING OF NY INC. s/h/a

A&R ELECTRICAL CONTRACTING

INC.

One Battery Park Plaza,29*2929 Floor

New York, NY 10004

(212) 487-9701

TO: ANTIN, EHRLICH & EPSTElN, LLP

Attorney for Plaintiff

EVELYN WRIGHT PATTISHAW

49 West 37th Street, Seventh Floor

New York, NY 10018

(212) 221-5999

DONOHUE LAW FIRM. P.C.

Attorney for Co-Defendant

SIMONE M. VALENTINO

90 Broad Street, Suite 1503

New York, NY 10004

(212)(212) 972-5252972-5252



ATTORNEY'S VERIFICATION

VINCENT BRESCIA, pursuant to the CPLR, affirms that he is an attorney associated

with HARRIS, KING, FODERA & CORREIA, attorneys for the Defendants in the within action.

The foregoing Answer is true to his own knowledge except as to the matters therein stated to be

alleged upon information and belief , and that as to those matters he believes it to be true.

That this Answer is verified by your affirmant and not by the Defendants because upon

information and belief the Defendants:

Is a foreign corporation;

XX Is a corporation, none of whose officers are within the County wherein HARRIS,

KING, FODERA & CORREIA have their offices;

Is a corporation whose main office is not within the County wherein HARRIS,


Is a limited liability company, none of whose officers/members are within the

County wherein HARRIS, KING, FODERA & CORREIA have their offices;

Is a limited liability partnership, none of whose partners are within the Countywherein HARRIS, KING, FODERA 4 CORREIA have their offices;

Is a partnership, none of whose partners are within the County wherein HARRIS,


Is an individual not within the County wherein HARRIS, KING, FODERA &CORREIA have their offices.

The sources of affirmant's information and the grounds for his beliefs as to all matters

not stated upon his knowledge are the record and reports of investigation kept in the office of the

said attorneys for the Defendants and in connection with this action and the accident out of

which said action arises.


April 27, 2015



â€”

- â€”- â€”â€”

16li 7ll

SUPREME COURT OF THE STATE OF NEW YORKCOUNT ( OF KINGS___.____ ..-----------------------X Index No. 501446/14

EVELYN WRIGHT PATTISHAW,

Plaintiff,

VERIFIED ANSWER-against-

TODD CHIOVARO, SIMONE M. VALENTINO,CERTIFIED SERVICES OF NY INC.,VILLAGE PLUMBING AND HEATING, INC. and

A&R ELECTRICAL CONTRACTING INC.,

Defendants .

----------------------------------------------X

The defendant, A&R ELECTRIC, INC. s/h/a A&R ELECTRICAL CONTRACTING INC.,

by its attorneys, PICCIANO & SCAHILL, P.C., as and for its Verified Answer, hereby

alleges as follows:

FIRST: Denies having knowledge or information sufficient to form a belief as to

each and every allegation set forth in paragraphs enumerated"1"

through "6","8"

through "14", "18", "19", "20", "25".

SECOND: Denies each and every allegation set forth in paragraphs enumerated

It7lf 51l ll 11 l(221\"7", I "15", I "16", 1 "17", "21", f "22", I "23",

1123'ffI "24",

ll2qlI"26".f12611

AS AND FOR A FIRST SEPARATE ANDDISTINCT AFFIRMATIVE DEFENSE

THIRD: The Plaintiff has failed to obtain personal jurisdiction over the defendant,

A&R ELECTRIC, INC. s/h/a A&R ELECTRICAL CONTRACTING INC.

AS AND FOR A SECOND SEPARATE ANDDISTINCT AFFIRMATIVE DEFENSE

FOURTH: If it be determined that the Plaintiff failed to use available seat belts

and/or harness, defendant pleads said fact as an absolute defense on the issue of liability



and in mitigation of damages.

AS AND FOR A THIRD SEPARATE ANDDISTINCT AFFIRMATIVE DEFENSE

FIFTH: In the event Plaintiff recovers a verdict or judgment against this

defendant, then said verdict or judgment must be reduced pursuant to CPLR 4545(c) by

those amounts which have been, or will, with reasonable certainty, replace or indemnify

Plaintiff, in whole or in part, for any past or future claimed economic loss, from any

collateral source such as insurance, social security,workers'

compensation or employee

benefits programs.

AS AND FOR A FOURTH SEPARATE ANDDISTINCT AFFIRMATIVE DEFENSE

SIXTH: The accident described in the Complaint did not result in a "seriousinjury"

. .

to Plaintiff as so defined in and by Section 5102(d) of the Insurance Law of the State of

New York, and as such, Plaintiff had and has no right to institute, maintain or prosecute

this action and is barred from doing so.

The Plaintiff did not sustain serious injury as defined by Section 5102(d) and her

exclusive remedy therefore 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 FIFTH SEPARATE ANDDISTINCT AFFIRMATIVE DEFENSE

SEVENTH: The plaintiff's claims are barred by the emergency doctrine. Due to

sudden and unexpected actions of the plaintiff, co-defendant, as yet unidentified party, or

other emergency, the defendant was left without time to contemplate or weigh alternative

courses of action and therefore cannot reasonably be held to the standard of care

required of one who has had a full opportunity to reflect and therefore was not negligent.



.

AS AND FOR A SIXTH SEPARATE ANDDISTINCT AFFIRMATIVE DEFENSE

EIGHTH: The plaintiff's cause of action is barred and/or non-actionable pursuant

to the provisions of the New York StateWorkers'

Compensation Law, Sections 11 and

29.

AS AND FOR A CROSS-COMPLAINT AGAINST

THE CO-DEFENDANTS, TODD CHIOVARO, SIMONE M. VALENTINO, CERTIFIED

SERVICES OF NY INC. and VILLAGE PLUMBING AND HEATING, INC.

NINTH: If the Plaintiff was caused to sustain injury and damage at the time

and place as set forth in the complaint through any carelessness, negligence or culpable

conduct other than that of the Plaintiff, said injuries and damages were caused by the

negligence, carelessness and culpable conduct on the part of the co-defendants, TODD

CHIOVARO, SIMONE M. VALENTINO, CERTIFIED SERVICES OF NY INC. and VILLAGE

PLUMBING ·AND HEATING, INC., their agents, servants and/or employees with the

negligence, if any, on the part of the answering defendant being slight and/or derivative

only. By reason of the foregoing, the co-defendants, TODD CHIOVARO, SIMONE M.

VALENTINO, CERTIFIED SERVICES OF NY INC. and VILLAGE PLUMBING AND HEATING,

INC., will be liable to the answering defendant in the event, and in the amount, of

recovery herein by the Plaintiff, or in such amounts as the Court or jury may direct.

WHEREFORE, the defendant, A&R ELECTRIC, INC. s/h/a A&R ELECTRICAL

CONTRACTING INC., demands judgment dismissing the complaint herein as to the

answering defendant, and further demands judgment over and against the co-

defendants, TODD CHIOVARO, SIMONE M. VALENTINO, CERTIFIED SERVICES OF NY

INC. and VILLAGE PLUMBING AND HEATING, INC., for the amount of any judgment

which may be obtained herein by the Plaintiff against the answering defendant or in such



amount as the Court or jury may direct, together with the costs and disbursements of this

action.

DATED: Westbury, New York

July 22, 2015

JOHN F. PICCIANO, ESQ.

PICCIANO 5 SCAHILL, P.C.

Attorneys for Defendant

A&R ELECTRIC, INC. s/h/a

A&R ELECTRICAL CONTRACTING INC.

900 Merchants Concourse, Suite 310

Westbury, New York 11590

(516) 294-5200

Claim No. 32 688H 195

TO: ANTIN, I EHRLICH & EPSTEIN, I LLP

Attorneys for Plaintiff

49 West 37th Street, 7th Floor

New York, New York 10018

(212) 221-5999

DONOHUE LAW FIRM

Attorney for Defendant

SIMONE M. VALENTINO

90 Broad Street, Suite 1503


(212) 972-5252

HARRIS, KING, FODERA 5 CORREIA, ESQS.

Attorneys for Defendants

TODD CHIOVARO, CERTIFIED SERVICES OF NY INC.,

VILLAGE PLUMBING AND HEATING, INC. and

A&R CONTRACTING OF NY INC. s/h/a

A&R ELECTRICAL CONTRACTING INC.

One Battery Park Plaza, 29th Floor


(212)(212) 087-9701087-9701



â€”

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS . -

·--------------------------··------------- ------------------------X

EVELYN WRIGHT PATTISHAW,

VERIFIED ANSWERPlaintiff,

Index No.: 501446/14-against-

WARWICK AUTO SALES, INC., TODD CHIOVARO,and SIMONE M. VALENTINO,

Defendants.--------- ----------- --------------------------------------X

Defendant, SIMONE M. VALENTINO, by and through his attorneys, DONOHUE LAW

FIRM, P.C., answering the Elaintiff's Verified Complaint, upon information and belief, states as follows:

1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations of

the Verified Complaint as contained in the paragraphs thereof numbered "1", "2", "3", "4", "5", "6", "7",

and "10".

2. Denies each and every allegation of the Verified Complaint as contained in the paragraphs thereof

numbered "11",>

"12",cc12> "136"

("13"), "14",c>14» "15"

>c] and "16".c>16»

AS AND FOR A FIRST AFFIRMATIVE DEFENSE

3. That any verdict in the within action, for past, present, and future medical care, dental care,

custodial care, or rehabilitation services, loss of earnings or other economic loss, should be reduced by the

amount that any such expense has or will with reasonable certainty be replaced or indemnified in whole

or in part of or from any collateral source, in accordance with the provisions and limitations of Section

4545(c) of the CPLR.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE

4. Theplaintiffs' sole and exclusive remedy is confined and limited to the benefits and provisions of

of oftheArticle 51 of Insurance Law the State New York.



AS AND FOR A THIRD AFFIRMATIVE DEFENSE

5. Plaintiffs did not sustain a serious injury as defined by Section 5102 of the Insurance law of the

State of New York and their exclusive remedy therefore 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

6.Plaintiffs' cause of action is barred by Article 51, Section 5103 of the Insurance Law of the State

of New York.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE

7. Any damages sustained by the plaintiffs were caused by the culpable conduct of the plaintiffs,

including contributory negligence or assumption of risk, and not by the culpable conduct or negligence of

the answering defendants.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE

8. The Verified Complaint should be dismissed for failure to state a cause of action against the

answering defendants.

AS AND FOR AN SEVENTH AFFIRMATIVE DEFENSE

9. The Verified Complaint should be dismissed on the ground that the Court lacks personal

jurisdiction over the answering defendants.

AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE

10. Upon information and belief, plaintiff failed to use or misused available seat belts, and thereby

contributed to the alleged injuries.

AS AND FOR A CROSS-CLAIM AGAINST WARWICK AUTO SALES, INC. and TODD

CHIOVARO

11. In the event that the Plaintiffs recover any judgment against the answering Defendant

herein, the answering Defendant demands that any judgment be divided among all Defendants in

accordance with the degree of culpability of each herein, and further demands that the answering



Defendant be granted indemnification in accordance with any applicable contracts, agreements,

warranties, express or implied, or by reason of the active and primary negligence of the other

Defendants herein.

WHEREFORE, the answering defendants demand judgment dismissing the Complaint, together

with the costs and disbursements of this action, includingattorneys' fees.


September 18, 2014

BY:

ROBERT D. DONOHUEDONOHUE LAW FIRM, P.C.

Attorneys for Defendants

90 Broad St., Suite 1503

New York, NY 10004

(212) 972-5252

To: ANTIN EHRLICH & EPSTEIN, LLP

Attorneys for Plaintiff

49 West37d'37 Street,

76 Floor

New York, NY 10018

(212) 354-5048

Warwick Auto Sales, Inc.

1388 Merrick Road

Copiague, NY 11726 -

Todd Chiovardo

27 Dogwood Lane

Patchogue, NY 11772



VERIFICATION

ROBERT D. DONOHUE, an attorney admitted to practice in the Courts of the State of

New York, affirm: that I am a member of the DONOHUE LAW FIRM, P.C., attorneys of record for the

defendant, SIMONE M. VALENTINO, in the within action; that I have read the foregoing Verified

Answer and know the contents thereof; that the same is true to my knowledge, except as to the matters

therein stated to be alleged on information and belief, and that as to those matters I believe them to be

true. I further say that the reason this verification is made by me and not by the defendant is that the

answering defendant does not maintain a place of business within the County of New York where I

maintain my office.

The grounds of my belief as to all matters not stated upon my knowledge are as follows:

the records of the defendant made available to me.

I affirm that the foregoing statements are true, under penalties of perjury.


September 18, 2014

ROBERT D. DONOHUE



2018 12:13 pm

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