FILED: RICHMOND COUNTY CLERK 05/07/ :09 AM INDEX NO /2016 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/07/2018

A7

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SUPREME COURT OF THE

STATE

OF NEW YORK COUNTY OF RICHMOND

---X

Index No.:

INEZ

MAPP

and

ROSA

_HAYES, Date Purchased: 08/05/2016

Plaintiffs,

SUMMONS

-against- Plaintiffs designate Richmond

County as the place of trial.

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSP ORTATION AUTHORITY

The basis of venue is plaintiff and

WILLIAM

T.

McDERMOTT,

^{Inez.'lne'. Mapp's place} of residence

Defendants. Plaintiff Inez Mapp resides at

--- ---+---X

35 Holland Avenue, Staten

Island, New York 10303

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 appearance on the Plaintiff s attorneys within twenty days after the service of this summons, exclusive of the day of service, where service is made by delivery upon you personally within the state, or, within 30 days after completion of service where service is made in any other manner. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint.

Dated: Brooldyn,

New

York August 5*, 2016

Yours, etc.

Aleksandr Vakater, Esq.

LAW

OFFICES

OF ALEKSANDR VAKAREV

Attorneys for Plaintiffs 2566 86™

Street, Suite 1 Brooklyn,

New

York 11214

(718) 368-0690

Our File No.: 10573/74

DEFENDANTS' ADDRESSES:

NEW ^YORK

^CITY

^{TRANSIT AUTHORITY}

130 Livingston Street Brooklyn,

New

York 11201

1 of 13

METROPOLITAN TRANSPORTATION AUTHORITY

2 Broadway

New

_York,

New

York 10004

WILLIAM

T.

McDERMOTT

1304 Woodrow Avenue

Staten Island,

New

York 10309

I

i

I

—-—-- —

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND

.__. _ __

__.---X

Index

No

INEZ

MAPP

and

ROSA

_HAYES,

Plaintiff,

VERIFIED

-agamst'

COMPLAINT

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY

and

WILLIAM

T.

McDERMOTT,

Defendants.

___---X

Plaintiffs, by their attorneys,

LAW

OFFICES

OF ALEKSANDR VAKAREV,

complaining of the defendants, respectfully allege, upon information and belief, as follows:

AS AND FOR THE FIRST CAUSE OF ACTION ON BEHALF OF _PLAINTIFF, INEZ MAPP

L

At all times hereinafter mentioned, plaintiff, INEZ MAPP, was and still is a resident of

the County of Richmond, City and State of

New

York.

2. At all times hereinafter mentioned, defendant,

WILLIAM

T.

McDERMOTT,

^{was and still}

is a resident of the County of Richmond, City and State of

New

York.

3. That at all times hereinafter mentioned, defendant,

NEW YORK

CITY TRANSIT

AUTHORITY, was and still is a municipal corporation.

4. That at all times hereinafter mentioned, defendant,

METROPOLITAN

TRANSPORTATION AUTHORITY,

^{was and still} is a municipal corporation.

5. That prior hereto, and within the time prescribed by law, a sworn Notice of Claim

on January 7*, 2016, among other things, the time when, the place where and the manner in which the injuries and damages were sustained, together with plaintiff's demands for adjustment thereof

was duly served on the claimant's behalf on

NEW YORK

CITY TRANSIT

AUTHORITY

and that

3 3 ofof 1313

thereafter said defendant refused or neglected for more than thirty (30) days and up to the

commencement of this action to make any adjustment or payment thereof, and that thereafter, and

within the time provided by law, this action was commenced.

6. That prior hereto, and within the time prescribed by law, a sworn Notice of Claim on

7'

January 7*, 2016, among other things, the time when, the place where and the manner in which the

injuries and damages were sustained, together with plaintiff s demands for adjustment thereof was

duly served on the claimant's behalf on

METROPOLITAN TRANSPORTATION AUTHORITY

and that thereafter said defendant refused or neglected for more than thirty (30) days and up to the

commencement of this action to make any adjustment or payment thereof, and that thereafter, and

within the time provided by law, this action was commenced.

7. That on May 4th, 2016, a

hearing was held pursuant to General Municipal Law (Transit

Hearing). .

8. That this action is being commenced within one year and ninety days after accrual of this cause of action, or within the time allowed by law.

9. At all times hereinafter mentioned, defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/METROPOLITAN TRANSPORTATION

_AUTHORITY, did own a 1999 Orion

bus bearing

New

York State Registration number L28999.

10. At all times hereinafter mentioned, defendants,

NEW YORK

CITY TRANSIT

AUTHORITY/METROPOLITAN TRANSPORTATION

_AUTHORITY, maintained and

controlled the aforesaid bus bearing

New

York State Registration number L28999.

11. At all times hereinafter mentioned, defendant

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOJ,ITAN TRANSPORTATION

_AUTHORITY, did or should have

done the exercise of reasonable care to inspect the aforesaid bus bearing

New

York State

Registration number L28999.

12, At all times hereinafter mentioned, defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/METROPOLITAN TRANSPORTATION

_AUTHORITY, did or should have

done the exercise of reasonable care to repair the aforesaid bus bearing

New

York State Registration

number L28999.

13. At all times hereinafter mentioned, defendant,

WILLIAM

T.

McDERMOTT,

^operated

the aforesaid bus owned by defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/

METROPOLITAN TRANSPORTATION

AUTHORITY.

14. At all times hereinafter mentioned, defendant, WILLIAM T.

McDERMOTT,

^operated

the aforesaid bus in the course of his employment with defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOLITAN TRANSPORTATION

AUTHORITY.

15. At all times hereinafter mentioned, defendant,

WILLIAM

T.

McDERMOTT,

^operated

the aforesaid bus with the express consent of defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOLITAN TRANSPORTATION

AUTHORITY.

16. At all times hereinafter mentioned, defendant,

WILLIAM

T.

McDERMOTT,

^operated

the aforesaid bus with the express knowledge of defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOLITAN TRANSPORTATION

AUTHORITY.

17. At all times hereinafter mentioned, defendant,

WILLIAM

T.

McDERMOTT,

^operated

the aforesaid bus with the express permission of defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROP OLITAN TRANSPORTATION

AUTHORITY,

18. At all times hereinafter mentioned, defendant,

WILLIAM

T.

McDERMOTT,

^operated

the aforesaid bus with the implied consent of defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROP OLITAN TRANSPORTATION

AUTHORITY.

19. At all times hereinafter mentioned, defendant,

WILLIAM

T.

McDERMOTT,

^operated

the aforesaid bus with the implied knowledge of defendant,

NEW YORK

CITY TRANSIT

5 of 13

AUTHORITY/ METROP OLITAN TRANSPORTATION

AUTHORITY.

20. At all times hereinafter mentioned, defendant,

WILLIAM

T,

McDERMOTT,

^operated

! the aforesaid bus with the implied permission of defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOLITAN TRANSPORTATION

AUTHORITY.

21. That at all times and places hereinafter mentioned, Richmond Terrace, at or near its

intersection with Bard Avenue, in the County of Richmond, City and State of

New

_York, was and still

is a public street/highway in common use of the residents of the State of

New

York and others.

22. That on December 3rd, 2015, the plaintiff, INEZ MAPP, was a lawful passenger in a 2012

Honda motor vehicle bearing

New

York State Registration Number HBT6782, owned and operated

by non-party, Juanita C. Council.

23. Upon information and belief, that at all times and places hereinafter mentioned, the

defendant,

WILLIAM

T.

McDERMOTT,

^was solely responsible for the proper and prudent

operation, inanagement, maintenance and control of his aforesaid bus.

24. That on December 3rd, 2015, at the aforementioned location, the aforesaid bus, owned by

defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOLITAN

TRANSPORTATION AUTHORITY

and operated by defendant,

WILLIAM

T.

McDERMOTT,

struck the motor vehicle owned and operated by non-party, Juanita C. Council, where the plaintiff,

INEZ MAPP, was a lawful passenger.

25. That on December 3'd, 2015, at the aforementioned location, the aforesaid bus, owned by

defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOLITAN

TRANSPORTATION AUTHORITY

and operated by defendant

WILLIAM

T.

McDERMOTT,

came into contact with the motor vehicle owned and operated by non-party, Juanita C. Council, where

the plaintiff, INEZ MAPP, was a lawful passenger.

of'

26, That on December 3"i, 2015, at approximately 12:10 P.M., the aforesaid bus, owned by

defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOLITAN

TRANSPORTATION AUTHORITY

and operated by defendant,

WILLIAM

T.

McDERMOTT,

rear-ended the motor vehicle owned and operated by non-party, Juanita C. Council, where the

plaintiff, INEZ MAPP, was a lawful passenger causing the plaintiff,

INEZ

_MAPP, to sustain serious

and permanent injuries as hereinafter alleged.

27. That as a result thereof, the plaintiff, INEZ MAPP, was caused to sustain severe and

serious injuries.

28. That the aforesaid occurrence was caused by reason of the carelessness, recldessness and

negligence of the defendant,

WILLIAM

T.

McDERMOTT,

in operation, maintenance, management

and control of her aforesaid motor vehicle without any negligence on the part of the plaintiff

contributing thereto.

29. That as a result of the aforesaid occurrence, the plaintiff, was rendered sick, sore, lame and

disabled and has remained so since the said occurrence, The plaintiff, INEZ MAPP, has sustained

nervous shock and continues to suffer mental anguish and great physical pain. She has been compelled

to undergo medical aid, treatment and attention and expand money and incur obligations for

physicians'

services, medical and hospital expenses for the care and treatment of her injuries; and upon

information and belief, she will be compelled to expend additional sums of money and incur further obligations in the future for additional physicians'

services, medical and hospital expenses for the

further care and treatment of her injuries. Plaintiff, INEZ MAPP, has been incapacitated from

attending to her usual duties, functions, occupations, vocations and avocations, and in other ways she

was damaged, and upon information and belief may be so incapacitated in the future and will suffer

pecuniary losses.

7 of 13

30. That by reason of the foregoing, plaintiff, INEZ MAPP, sustained a serious injury as defined

by

New

York State Insurance Law Section 5102(d).

31. That by reason of the foregoing, plaintiff, INEZ MAPP, sustained serious injuries and

economic loss greater than basic economic loss as defined by Section 5104 of the

New

York State

Insurance Law.

32. That plaintiff is not seeking to recover any damages for which plaintiff has been reimbursed

by no-fault insurance and/or for which no-fault insurance is obligated to reimburse plaintiff. Plaintiff

is seeking only to recover those damages not recoverable through no fault insurance under the facts and circumstances of this action.

33. That this action falls within one of the exceptions of Article 16 of the C.P.L.R.

34. The amount of damages sought in this action by plaintiff, INEZ MAPP, exceeds the

jurisdictional limits of all lower courts which would otherwise have jurisdiction.

AS AND FOR THE SECOND ^{CAUSE OF ACTION} ON BEHALF OF INFANT _PLAINTIFF, ROSA HAYES

35. Plaintiff,

ROSA

_{HAYES, repeats,} reiterates and realleges each and every allegation contained

in the paragraphs 1-33 of this Complaint herein as though more fully set forth herein at length.

36. That on December 3 d, 2015, the plaintiff,

ROSA

_HAYES, was a lawful passenger in a 2012

Honda motor vehicle bearing

New

York State Registration Number HBT6782, owned and operated

by non party, Juanita C. Council.

37. Upon infortnation and belief, that at all times and places hereinafter mentioned, the

defendant,

WILLIAM

T.

McDERMOTT,

^was _solely responsible for the proper and prudent

operation, management, maintenance and control of his aforesaid bus.

. .

38. That on December 3", 2015, at the aforementioned location, the aforesaid bus, owned by

defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOLITAN

TRANSP ORTATION AUTHORITY

and operated by defendant,

WILLIAM

T.

McDERMOTT,

struck the motor vehicle owned and operated by non-party, Juanita C. Council, where the plaintiff, .

ROSA

_HAYES, was a lawful passenger.

39. That on December 3rd, 2015, at approximately 12:10 P.M., the aforesaid bus, owned by

defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOLITAN

TRANSPORTATION AUTHORITY

and operated by defendant

WILLIAM

T.

McDERMOTT,

came into contact with the motor vehicle owned and operated by non-party, Juanita C. Council, where

the plaintiff,

ROSA

_HAYES, was a lawful passenger.

40. That on December 3rd, 2015, at the aforementioned location, the aforesaid bus, owned by

defendant,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOLITAN

TRANSPORTATION AUTHORITY

and operated by defendant,

WILLIAM

T.

McDERMOTT,

rear-ended the motor vehicle owned and operated by non-party, Juanita C. Council, where the

plaintiff,

ROSA

_HAYES, was a lawful passenger causing the plaintiff,

ROSA

_HAYES, to sustain

serious and permanent injuries as hereinafter alleged.

41. That as a result thereof, the plaintiff,

ROSA

_HAYES, was caused to sustain severe and

serious injuries.

42. That the aforesaid occurrence was caused by reason of the carelessness, recldessness and

negligence of the defendant,

WILLIAM

T.

McDERMOTT,

ⁱⁿ operation, maintenance, management

and control of her aforesaid motor vehicle without any negligence on the part of the plaintiff

contributing thereto.

43. That as a result of the aforesaid occurrence, the plaintiff, was rendered sick, sore, lame and

disabled and has remained so since the said occurrence. The plaintiff,

ROSA

_HAYES, has sustained

nervous shock and continues to suffer mental anguish and great physical pain, She has been compelled

to undergo medical aid, treatment and attention and expand money and incur obligations for

9 9 ofof 1313

physicians'

services, medical and hospital expenses for the care and treatment of her injuries; and upon

information and belief, she will be compelled to expend additional sums of money and incur further

obligations in the future for additional physicians'

services, medical and hospital expenses for the

further care and treatment of her injuries. Plaintiff,

ROSA

_HAYES, has been incapacitated from

attending to her usual duties, functions, occupations, vocations and avocations, and in other ways she

was damaged, and upon information and belief may be so incapacitated in the future and will suffer

pecuniary losses.

44. That by reason of the foregoing, plaintiff,

ROSA

_HAYES, sustained a serious injury as

defined by

New

York State Insurance Law Section 5102(d).

45, That by reason of the foregoing, plaintiff,

ROSA

_HAYES, sustained serious injuries and

economic loss greater than basic economic loss as defined by Section 5104 of the

New

York State

Insurance Law.

46. That plaintiff is not

seeing to recover any damages for which plaintiff has been reitnbursed

by no-fault insurance and/or for which no-fault insurance is obligated to reimburse plaintiff. Plaintiff

is seeldng only to recover those damages not recoverable through no-fault insurance under the facts and circumstances of this action.

47. That this action falls within one of the exceptions of Article 16 of the C.PL.R.

48. The amount of damages sought in this action by plaintiff,

ROSA

_HAYES, exceeds the

jurisdictional limits of all lower courts which would otherwise have jurisdiction.

WHEREFORE,

plaintiffs, INEZ

MAPP

and

ROSA

_HAYES, demand judgment against the

defendants,

NEW YORK

CITY TRANSIT

AUTHORITY/ METROPOLITAN

TRANSPORTATION AUTHORITY

and

WILLIAM

T.

McDERMOTT,

^{herein on all causes of}

action, in a sum exceeding the jurisdictional limits of all lower courts which would otherwise have

jurisdiction, together with the costs and disbursements of this action.

4

4 Y~d~M Y~d~M

Dated: Brooldyn,

New

York August 501, 2016

Yours, etc.

Aleksandt Vakarey, Esq,

LAW

OFFICES

OF ALEKSANDR VAKAREV

Attorneys for Plaintiffs 2566 86™

86

86 Street,

ate

1 Brooklyn,

New

York 11214 (718) 368-0690

Our File No.:10573/74

TO:

NEW'

NEW YORK

CITY TRANSIT

AUTHORITY

130 Livingston Street Brooklyn,

New

York 11201

METROPOLITAN TRANSPORTATION AUTHORITY

2 Broadway

New

_York,

New

York 10004

WILLIAM

T.

McDERMOTT

1304 Woodrow Avenue Staten Island,

New

York10309

11

11 ofof 1313

COMPLAINT'

4 _Y~da ~

STATE

OF NEW YORK

₎

)ss.:

COUNTY OF KINGS

₎

The undersigned,

ALEKSANDR VAKAREV,

ESQ., an attorney at law, admitted to practice law in the Courts of the State of

New

_York, affirms the following under the

penalties of perjury:

That he is a

PARTNER

of the firm of

LAW

OFFICES

OF ALEKSANDR VAKAREV,

attorneys for Plaintiff in the above-entitled action.

That he has read the foregoing

SUMMONS AND COMPLAINT

and knows the

contents thereof, and upon information and belief, deponent believes that matters alleged

therein to be true.

The reason this Verification is made by deponent and not by Plaintiffs is because

Plaintiffs are individuals and reside in another county from where affirmant maintains his

office.

The source of deponent's information and the ground of her belief are communications,

paper, reports and investigations contained in the file.

Dated: Brooldyn,

New

York August 56, 2016

Aleksandr Vakarev, Esq.

Index No.:

SUPREME COURT OF THE STATE OF NEW

^NE%'NE%'

YORK COUNTY OF RICHMOND

INEZ

MAPP

and

ROSA

_HAYES,

Plaintiffs,

-against -

NEW YORK

CITY TRANSIT

AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY

and

WILLIAM

T.

McDERMOTT,

Defendants.

SUMMONS AND VERIFIED COMPLAINT

LAW OFFICES OF ALEKSANDR VAKAREV

Attorneys for Plaintiffs 2566 86™

Street, Buite 1 Brooklyn,

New

York 11214

Phone: (718) 368-0690 Fax: (718) 368-0692

I

13

13 ofof 1313

of'

HDC/ 1700168/BU-2015-12-0%0004-001, 00Z

SUPREME

COURT

OF THE STATE OF

NEW YORK

COUNTY

OF

RICHMOND

- - - --X

X

INEZ

MAPP

and ROSA HAYES, INDEX NO.: 150990/2016

Plaintiffs, VERIFIED

ANSWER

-against~

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY

and WILLIAM T.

MCDERMOTT,

Defendants.

.. _ , - - , - - -

X

Defendants

NEW YORK

CITY TRANSIT AUTHORITY, METROPOLITAN

TRANSPORTATION AUTHORITY and WILLIAM T.

MCDERMOTT,

^{for their verified answer to}

the verified complaint of the plaintiffs herein:

ANSWERING THE FIRST CAUSE OF

ACTIONON

BEHALF OF INEZ

MAPP

1. Deny that they have any knowledge or information thereof sufficient to form a

belief as to each and every allegation contained in paragraphs of the verified complaint

numbered 1, 2, 21 and 22.

2. Deny, upon information and belief, each and every allegation contained in

paragraphs of the verified complaint numbered 5, 6, 7 and 8 except admit that a certain paper

purporting to be a notice of claim was received by the office of the defendants,

NEW

YORK CITY

TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY; that more than

thirty days elapsed since receipt thereof; that plaintiff INEZ

MAPP

appeared for her statutory

hearing; that this action is being commenced within one year and thirty days after accrual of

this cause of action, and said matter remains unadjusted and unpaid.

3, Deny, upon information and belief, each and every allegation contained in

paragraphs of the verified complaint numbered 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and

MCDERMOTI'

MCDERMOTI'

23 except admit that at all times mentioned herein, defendant

NEW

YORK CITY TRANSIT

AUTHORITY, owned, maintained and controlled a bus bearing

New

York State RegistrationRegistration'

Number L28999, and that defendant WILLIAM T.

MCDERMOTT

operated the aforesaid bus in

the course of his employment with

NEW YORK

CITY TRANSIT AUTHORITY, and with the

permission and consent of

NEW YORK

CITY TRANSIT AUTHORITY.

4. Deny, upon information and belief, each and every allegation contained in

paragraph(s) of the verified complaint numbered 24, 25, 26, 27, 28, 29, 30, 31, 32, 33 and 34.

ANSWERING THE

SECOND

CAUSE OF ACTION

ON

BEHALF OF ROSA HAYES

5. Defendants repeat and reiterate the aforementioned allegations and denials as if

fully set forth herein.

6. Deny that they have any knowledge or information thereof sufficient to form a

belief as to each and every allegation contained in paragraphs of the verified complaint

numbered 36.

7. Deny, upon information and belief, each and every allegation contained in

paragraphs of the verified complaint numbered 37 except admit that at all times mentioned

herein, defendant WILLIAM T.

MCDERMOTT

operated the aforesaid bus in the course of his

employment with

NEW YORK

CITY TRANSIT AUTHORITY and with the permission and consent

of

NEW YORK

CITY TRANSIT AUTHORITY.

8, Deny, upon information and belief, each and every allegation contained in

paragraphs of the verified complaint numbered 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 and 48.

FOR

A

FIRST SEPARATE

AND

DISTINCT AFFIRMATIVE

DEFENSE

TO

THE ALLEGED CAUSE(S) OF ACTION OF

PLAINTIFFS

AND

IN DIMINUTION OF DAMAGES,

DEFENDANTS ALLEGE

UPON

INFORMATION

AND

BELIEF:

- 9, That whatever injuries or damages plaintiffs may have sustained at the time and

place mentioned in the verified complaint, were caused, in whole or in part, by the culpable

conduct of the said plaintiffs, said culpable conduct having contributed thereto.

2 of 19

MCDERMOTI'

ey

Hh ee CQ 'rea, Esq,

10. The amount of damages recovered, if any, shall therefore be diminished in the

proportion which the said culpable conduct attributable to plaintiffs bears to the culpable

conduct which caused the said damages,

FOR

A SECOND

SEPARATE

AND

DISTINCT AFFIRMATIVE

DEFENSE

TO

THE ALI,EGED CAUSES OF ACTION OF

PLAINTIFFS

AND

IN DIMINUTION OF DAMAGES,

DEFENDANTS ALLEGE

UPON

INFORMATION

AND

BELIEF:

11. Any award for recovery of the cost of medical care, dental care, custodial care or

rehabilitation services, loss of earnings or other economic loss claimed by plaintiffs shall be

reduced to the extent that any such cost or expense was or will with reasonable certainty be

replaced or indemnified from any collateral source pursuant to CPLR 4545.

FOR

A

THIRD SEPARATE

AND

DISTINCT AFFIRMATIVE

DEFENSE

TO

THE ALLEGED CAUSE(S) OF ACTION OF

PLAINTIFF

AND

IN DIMINUTION OF DAMAGES,

DEFENDANTS ALLEGE

UPON

INFORMATION

AND

BELIEF:

12. Plaintiffs have failed to state a cause of action.

WHEREFORE, defendants

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY and WILLIAM T.

MCDERMOTF

demand

judgment dismissing the verified complaint of the plaintiffs with costs.

Date: Brooklyn,

New

York

October 19, 2016

Yours, etc.,

LAWRENCE HEISLER

Attorney for Defendants

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY and

WILLIAM T.

MCDERMOTT

Office and Post Office Address 130 Livingston Street

Bree *

y

New

York 1120 .

Executive ency Counsel Telephone No.: 718.694.5785

>T

Defendants.'

----X

of'

COUNTY

OF

RICHMOND

---X

INEZ

MAPP

and ROSA HAYES, Index No.: 150990/2016

Plaintiffs, THIRD PARTY

SUMMONS

-against-

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY

and WILLIAM T.

MCDERMOTT,

Defendants

---__---X

NEW

YORK CITY TRANSIT AUTHORITY, Third Party Index No.:

METROPOLITAN TRANSPORTATION AUTHORITY

and WILLIAM T.

MCDERMOTT,

Third Party Plaintiffs,

-against-

JUANITA COUNCIL,

Third Party Defendant.

To the Above Named Third Party Defendant:

You are hereby summoned and required to serve upon the third party

plaintiffs'

attorney an answer to the annexed complaint of the third party plaintiffs, which is herewith served upon you together with all prior pleadings in the action, within twenty (20) days after the service thereof, exclusive of the day of service. If the third party summons was not personally delivered to you within the State of

New

York the answer must be served within thirty (30) days after service of the summons is complete as provided by law. In case of your failure to answer, judgment will be taken against you by default for the relief demanded in the third party complaint.

Dated: Brooklyn,

New

York

October 24, 2016 Yours, etc.,

LAWRENCE

_HEISLER, ESQ.

Attorney for Defendants/Third Party Plaintiffs

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY

and WILLIAM T.

MCDERMOTT

^MCDERMOTI' 130 Livingston Street, 11thplOOr Brooldyn,

New

York 11201

3 of 12

P4'I Y 'IT . I

By: f I covcLee

Correæ

Haydee Correa, Esq.

Executive Agency Counsel 718.694.5785

To: Juanita Council Third Party Defendant

Staten Island,

New

York 10303

—----X

plaintiffs"

or'

COUNTY

OF

RICHMOND

---X

INEZ

MAPP

and ROSA HAYES, Index No.: 150990/2016

Plaintiffs, THIRD PARTY COMPLAINT

against- -agamst-

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY

and WILLIAM T.

MCDERMOTT,

Defendants.

NEW YORK

CITY TRANSIT AUTHORITY, Third Party Index No.:

METROPOLITAN TRANSPORTATION AUTHORITY

and WILLIAM T.

MCDERMOTT,

Third Party Plaintiffs,

-against-

JUANITA COUNCIL,

Third Party Defendant

---X

The complaint of the third party plaintiffs,

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY and WILLIAM T.

MCDERMOTT,

(hereinafter

referred to as "third party plaintiffs"), >by their attorney, LAWRENCE HEISLER, ESQ., for their third

party complaint as against the third party defendant JUANITA COUNCIL, alleges upon information

and belief:

FIRST: That at all times hereinafter mentioned, the third party plaintiffs

NEW YORK

CITY

TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY were and still are

public benefit corporations, existing under and by virtue of the laws of the State of

New

York.

SECOND: That on or about August 5, 2016, the plaintiffs, INEZ

MAPP

and ROSA HAYES,

commenced an action in Richmond County Supreme Court, under Index Number 150990/2016,

5 of 12

to recover damages, as is more fully set forth in plaintiff's Complaint, a copy of which is annexed

hereto as Exhibit "A". Issue was joined by service of the Answer of defendants

NEW

YORK CITY

TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY and WILLIAM T.

MCDERMOTT,

^{on or about October} 21, 2016.

A

_copy of said Answer is annexed hereto as Exhibit

"B".

THIRD: That the defendant/third party plaintiff

NEW YORK

CITY TRANSIT AUTHORITY,

owned an Orion bus bearing

New

York State License Plate Number "L28999"

on December 3,

2015.

FOURTH: That third party defendantJUANITA COUNCIL resides at 55 Holland Avenue,

Apt. #8E, Staten Island,

New

York.

FIFTH: That on or about December 3, 2015, third party defendant JUANITA COUNCIL

owned and maintained a motor vehicle bearing

New

York State License Plate Number

"HBT6782."

SIXTH: That on or about December 3, 2015, said motor vehicle bearing

New

York State

License Plate Number "HBT6782"

was being operated, managed and controlled by third party

defendant JUANITA COUNCIL.

SEVENTH: That on or about December 3, 2015, said motor vehicle bearing

New

York State

License Plate Number "HBT6782"

was being operated, managed and controlled by third party

defendant JUANITA COUNC1L on Richmond Terrace at or near its intersection with Bard Avenue,

County of Richmond, City and State of

New

York,

EIGHTH: That at the aforementioned date and location, the motor vehicle bearing

New

York

State License Plate Number "HBT6782"

was owned, maintained, operated, managed and controlled

in a negligent, careless and reckless manner by third party defendant JUANITA COUNCIL.

NINETH: That at the aforementioned date and location, the Orion bus bearing

New

York

State License Plate Number "L28999"

and belonging to defendant/third party plaintiff

NEW

YORK

CITY TRANSIT AUTHORITY was being operated by defendant/third party plaintiff WILLIAM T.

MCDERMOYI' .That

TENTH: That at the aforementioned date and location, defendant/third party plaintiff

WILLIAM T.

MCDERMOTT

operated the aforesaid bus in the course of his employment with

defendant/third party plaintiff

NEW YORK

CITY TRANSIT AUTHORITY and with the consent,

knowledge and permission of defendant/third party plaintiff

NEW YORK

CITY TRANSIT

AUTHORITY.

ELEVENTH: That at the aforementioned date and location, the aforesaid bus was being

operated by defendant/third party plaintiff WILLIAM T.

MCDERMOTF

^MCDERMOTI' _along Richmond Terrace at

or near its intersection with Bard Avenue, when the motor vehicle bearing

New

York State License

Plate Number "HBT6782"

and operated by third party defendant JUANITA COUNCIL came to a

sudden, abrupt and complete stop in front of said bus without warning and came into contact with

the aforesaid bus.

TWELFTH: That the aforementioned occurrence happened without any negligence on the

part of the defendants/third party plaintiffs contributing thereto.

THIRTEENTH: That by reason of the rec1dessness, carelessness and negligence on the part

of third party defendant JUANITA COUNCIL herein in the ownership, maintenance, management,

operation and control of the aforementioned motor vehicle, plaintiffs INEZ

MAPP

and ROSA HAYES,

allegedly passengers in third party defendant JUANITA COUNCIL's motor vehicle, were caused to

sustain the damages complained of in plaintiffs'

Complaint.

FOURTEENTH: That by reason of this action the defendants/third party plaintiffs have been

and will be put to costs and expenses, none of which have been paid by the third party defendant.

FIFTEENTH: That by reason of the foregoing facts and circumstances and in the event the

plaintiffs shall recover judgment herein against

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY and WILLIAM T.

MCDERMOTT

because of the

matters and things stated in the plaintiffs'

Complaint, the third party defendant JUANITA COUNCIL

will be liable to the defendants/third party plaintiffs

NEW YORK

CITY TRANSIT AUTHORITY,

7 of 12

MCDERMOTI'

MCDERMOTI'

METROPOLITAN TRANSPORTATION AUTHORITY and WILLIAM T.

MCDERMOTT

for the whole

amount of such recovery together with the costs and disbursements incurred in the defense of this

action

WHEREFORE, defendants/third party plaintiffs

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY and WILLIAM T.

MCDERMOTT,

^demand

judgment dismissing the complaint of the plaintiffs herein as to them; and further demand that the

ultimate rights of the defendants/third party plaintiffs

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY and WILLIAM T.

MCDERMOTT,

^{and third} party

defendant JUANITA COUNCIL be determined in this action; and further demand judgment against

third party defendant JUANITA COUNCIL for any recovery by the plaintiffs against

NEW

YORK

CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY and WILLIAM T.

MCDERMOTI'

MCDERMOTT

and for any and all expenses incurred by

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY and WILLIAM T.

MCDERMOTT

in the defense

of this action.

Dated: Brooldyn,

New

York October 24, 2016

Yours, etc.,

LAWRENCE HEISLER, ESQ.

Attorney for Defendants/Third Party Plaintiffs

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY

and WILLIAM T.

MCDERMOTT

130 Livingston Street, 11thplOOr Brooldyn,

New

York 11201 718.694.5785

To: Juanita Council

Third Party Defendant .

55 Holland Avenue

Staten Island,

New

York 10303

F

The undersigned, an attorney associated with LAWRENCE HEISLER, ESQ., attorney for

defendants/third party plaintiffs

NEW YORK

CITY TRANSIT AUTHORITY, METROPOLITAN

TRANSPORTATION AUTHORITY and WILLIAM T.

MCDERMOTT

_herein, states that she has read

the foregoing THIRD-PARTY

SUMMONS &

COMPLAINT and the same is true to her knowledge

except as to·matters therein stated to be alleged on information and belief, and as to those matters

she believes them to be true. Deponent further states that the sources of her information and the

grounds of her belief are books, records and papers of the said defendants/third party plaintiffs

NEW YORK

CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY,

relating to the matter in issue and/or statements made by officers, agents and employees of the

defendants/third party plaintiffs and that the reason why this verification is not made by the

defendants/third party plaintiffs

NEW YORK

CITY TRANSIT AUTHORITY and METROPOLITAN

TRANSPORTATION AUTHORITY is that they are public benefit corporations, and defendant/third

party plaintiff WILLIAM T.

MCDERMOTT

does not reside in the County in which defendant/third

party plaintiff

NEW YORK

CITY TRANSIT AUTHORITY maintains its Law Department.

The undersigned affirms that the foregoing statements are true, under penalties of perjury.

Dated: Brooklyn,

New

York October 24, 2016

Yours, etc.,

LAWRENCE

_HEISLER, ESQ.

Attorney for Defendants/Third Party Plaintiffs

NEW YORK

CITY TRANSIT AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY

and WILLIAM T.

MCDERMOTF

130 Livingston Street, 11th Floor Brooldyn,

New

York 11201

By: ff

aydes Corree

Haydee Correa, Esq.

Executive Agency Counsel .

718.694.5785

C

9 oC 12

I ATTORNEY AFFIRMATION

HAYDEE CORREA, hereby affirms the following under penalties of perjury:

That she is an attorney and counselor-at-law admitted to practice in the Courts of this State.

That on the 24th

day of Octobei', 2016, affiant served the THIRD-PARTY

SUMMONS AND

COMPLAINT, hereto annexed on (SEE ATTACHED RIDER), by depositing a true copy thereof

properly enclosed in a securely closed and duly post-paid wrapper in a post office box regularly by the government of the United States under the care of the Post Office at 130

Livingston Street, Brooldyn,

New

York 11201, directed to said attorney(s) at (SEE ATTACHED

RIDER), those being the address(es) within the State designated by said attorney(s) for the purpose

upon the preceding papers in this action.

Dated: Brooldyn,

New

York October 24, 2016

NaydeoCorresv

Fiaydee Correa, Esq.

ot' ot' To: Juanita Council

Third Party Defendant Holland Avertue

Staten Island,

New

York.10303

Law Oftice of Aleksandr Vakarev Attorneys for Plaintiffs

INEZ

MAPP AND

ROSA HAYES

2566 86th

street, suite 1 Brooklyn,

New

York 11214

F

11

11 ofof 1212

l

1

!r

1

PARTI|'

i COUNTY OF RICHMOND

INEZ MAPP and ROSA HAYES, Index No.: 150990/2016

Plaintiffs,

-against~

NEW

YORK CITY TRANSIT AUTHORITY, METROPOIJTAN TRANSPORTATION

AUTHORIÑ

and

WILLIAM T. MCDERMOTT,

Defendants / Third Party Plaintiffs, Third Party Index No.:

~against-

JUANITA COUNCIL,

Third Party Defendant.

STATEMENT PURSUANT

TO

CPLR 3402(B),

THIRD PARTY

SUMMONS AND

COMPLAINT

Pursuant to NYCRR Rule 330-1.1-a, the undersigned, an attorney admitted to practice in the State of New York certifies that, upon information and belief and reasonable inquiry, the contentions contained in the annexed paper(s) are not frivolous.

Maydee

corres Haydee Correa, Esq.

To:

Attorney(s) for

Service of a copy of the within is hereby admitted.

Dated Attorneys for

Please take notice

Notice of to

that the within is a (certified) true copy of a duly entered in the office of the clerk of the within court on

* * N_o_ticeoff_SeXIgggnt

that a which within is a true copy will be presented to Hon.

_.

. one of the judges

of the within named court on at 9:SOa.m.

Dated: October 24, 2016

Yours, etc.,

LAWRENCE

_HEISLER, ESQ.

Executive General Counsel - Torts

NEW YORK

CITY TRANSIT AUTHORITY

Office of the General Counsel

OF RICHMOND COUNTY

INEZ

MAPP

and

ROSA HAYES

SUPREME COURT OF THE STATE OF NEW YORK

Plaintiffs,

- against-

NEW YORK

CITY TRANSIT

AUTHORITY,

METROPOLITAN TRANSPORTATION AUTHORITY

and

WILLIAM

T.

MCDERMOTT

THIRD

PARTY ANSWER

. Defendants

DEMANDS

NEW YORK

CITY TRANSIT

AUTHORITY,

METROPOLITAN TRANSPORTATION

Index No: 150990/2016

AUTHORITY

and

WILLIAM

T.

MCDERMOTT

Third Party Plaintiffs,

- against -

JUANITA

COUNCIL

Third Party Defendant.

CERTIFICATION PURSUANT TO SECTION

130-1.1a

OF THE RULES OF THE CHIEF ADMINISTRATOR

(22NYCRR)

The undersigned certifies the following documents pursuantto

22NYCRR

Section 130-1.1a:

ANSWER TO

TH1RD

PARTY

_COMPLAINT,

DEMAND FOR A

VERIFIED BILL

OF

PARTICULARS,

COMBINED DEMAND FOR DISCOVERY AND

INSPECTION,NOTICE

TO TAKE DEPOSITIONUPON ORAL EXAMINAITON, REFUSAL TO ACCEPT

SERVICE

BY

FACSIMILE

TRANSMISSION AND NOTICE TO SUBMIT TO PHYSICAL

EXAMINATION.

DATED:

_Westbury,

New

York February 21, 2017

1 of 22

!y

/ )

1

!y I

j

Dimitry Bepjphai , F b'

q

Law Offid6 of

D

nyfis C. Bc tling Attornpýs fdr Defendant

Juanj.t'

C

ncil 875 e 1Ti'ckck Avenue

Wes ,

NY

11590

S16-229-4330

Our File No: 17R0212

Claim No: 0537731200101014 (J814) I

Lawrence Heisler

Attorneys for Defendants and Third Party Plaintiffs

New

York City Transit Authority

130 Livingston Street Brooklyn, N.Y. 11201 718-694-5616

Law

Office of Aleksandr Vakarey Attorneys for Plaintiffs . 2566 86th Street

Suite 1

Brooklyn,

NY

11214 718 368-0690

I

!

TRANSI'I'

Defendants,

3

SUPREME COURT OF THE STATE OF NEW YORK

CO NTY OF RICHMONR

---- --- ---

INEZ

MAPP

and

ROSA HAYES

Plaintiffs,

- againsG

ANSWER TO THIRD

P

ARTY COMPLAINT

NEW YORK

CITY

TRANSIT AOTHORITY,

^{. . ...}

METROPOLITAN TRANSPORTATION AUTHORITY

and

WILLIAM

T.

MCDERMOTT

ÑEŸ7ŸÖÏEP UlÏŸ fiUiN5Ïi-ÄÚ I I

METROPOLITAN TRANSPORTATION AUTHORITY

and

WILLIAM

T.

MCDERMOTT

Third Party Plaintiffs '

Third Party Index #: 150990/2016A

- against - .

JUANITA

COUNCIL

Third Party Defendant. l

Third Party Defendant, Juanita Council, by the undersigned answering the Third-Party complaint of the Third-Party plaintiffs, upon information and belief, states as follows:

ANSWERING A

FIRST

CAUSE OF ACTION

FIRST: Denies having any knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs numbered and designated as: FIRST,

SECOND,

THIRD,

SEVENTH,

NINTH,

TENTH, FOURTEENTH

and

FIFTEENTH

.SECOND: Denies each and every allegation contained in paragraphs numbered and designated as:

FIFTH

(except Admits Juanita Council owned a motor vehicle bearing

NYS

license plate number HBT6782,

SIXTH

(except Admits Juanita Council operated a motor

vehicle bearing

NYS

license plate number HBT6782,

EIGHTH, ELEVENTH, TWELFTH

and

THIRTEENTH

THIRD: Admit each and every allegation contained in paragraphs numbered and designated as:

FOURTH

3 of 22

DK<FKNSK<'

LA%' AS AND FOR AN AFFIRMATIVE DEFENSE

^-

COMPARATIVE NEGLIGENCE

The personal injuries and/or property dainage alleged to have been sustained by the plaintiff were caused entirely or in part through the culpable conduct attributable to the plaintiff, and the third party defendant seeks a dismissal or reduction in any recovery had by the plaintiff in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the damages.

.

AS AND FOR AN AFFIRMATIVE DEFENSE

^-

SEAT BELT

.TheThe plaintiff'siamages mustlie mitigated by the j5lnintiff½ failure to use the available seat belts or infant restraining devices and that the damages claimed to have been sustained were caused by the lack of use of said seat belts and/or infant restraining devices.

AS AND FOR AN AFFIRMATIVE DEFENSE

^-

PERSONAL

JURISDICTION

Service of process was not in conformity with the C.PLR.; therefore this Court does not have jurisdiction over the person of the third party defendant.

AS AND FOR AN AFFIRMATIVE DEFENSE

^-

COLLATERAL SOURCE

The costs incurred, or paid by plaintiff, if any, for medical care, dental care, custodial care or rehabilitation services, loss of earning or other economic loss, in the past or future, were or will, with reasonable certainty be replaced or indemnified, in whole or in part, from a collateral source of the type described in

CPLR

§4545 and any award should be reduced in the amount of such payments,

AS AND FOR AN AFFIRMATIVE DEFENSE

^-

GENERAL OBLIGATIONS LAW

Plaintiff's recovery must be offset by a settlement pursuant General Obligations Law section 15- 108.

WHEREFORE,

^third party defendant demands judgment dismissing the third-party plaintiffs'

complaint herein together with the costs and disbursements of this action.

DATED: Westbury,

New

York

February 21, 2017

Dimitry Benjamin, Esq.

Law

Office of Dennis C. Bartling Attorneys for Third Party Defendant Juanita Council

875 Merrick Avenue Westbury,

NY

11590 516-229-4330

Our File No. 17R0212

Claim No: 0537731200101014 (J814)

TO:

Lawrence Heisler

Attorneys for Defendants and Third Party Plaintiffs

New

York City Transit Authority

130 Livingston Street Brooklyn, N.Y. 11201 718-694-5616

Law Office of Aleksandr Vakarev Attorneys for Plaintiffs

2566 86th Street Suite 1

Brooklyn,

NY

11214 718 368-0690

5 of 22

I

/$)

/

/ I(

'j j i VERIFICATION

Dimitry Benjamin, Esq., an attorney admitted to practice in the Courts of this State, and

associated with the firm of Law Office of Dennis C. Bartling, attorneys for the third-party j

defendant, Juanita Council, states:

That your affirmant has read the foregoing Third Party Answer and knows the contents thereof; that the same is true to your affirmant's own knowledge except as to the matters which are stated therein to be alleged on infoñiiâti61tand beliefraud as to those matters-which_are-stated....

therein to be alleged on information and belief, and as to those matters your affirmant believes it to be true. The source of your affirmant's information and belief, is an investigation caused to be made with respect to the facts in this action.

That the reason this verification is made by affirmant and not by the third party defendant is because the third party defendant does not reside within the county where Law Office of Dennis C. Bartlings maintain their office.

The undersigned affirms that the foregoing statement is true, under penalties of perjury.

Date: Westbury,

New

York

February 21, 2017 / 7(

Dimit ÿ aidan, q

!

( /

/