`NYSCEF DOC. NO. 9
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`INDEX NO. 2023-5539
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`RECEIVED NYSCEF: 08/24/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF CHEMUNG
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`CAPREECE MOORE
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`X
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`INDEX NO. 2023-5539
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`NOTICE OF APPEARANCE AND
`VERIFIED ANSWER TO VERIFIED
`COMPLAINT
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`Plaintiff,
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`-against-
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`LESHA P. MASSOUP, DUKE HUR, J.B.
`HUNT TRANSPORT, INC., and COSTCO
`WHOLESALE CORPORATION
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`Defendants.
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`PLEASE TAKE NOTICE, that the above-named defendants, DUKE HUR and J.B.
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`HUNT TRANSPORT, INC., (hereinafter “defendants” and/or “answering defendants”), hereby
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`appear in this action and the undersigned have been retained as attorneys for said defendants and
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`demand that you serve all papers in this proceeding upon them at the address stated below.
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`PLEASE TAKE FURTHER NOTICE that answering defendants hereby interpose the
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`following answer to the verified complaint:
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`1.
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`Deny knowledge or information sufficient to form a belief as to the allegations
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`contained in paragraphs numbered “1”, “2”, “4”, “5”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “15”,
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`“16”, “26”, “27”, “28”, “29”, “30”, “31”, “32”, “33”, “34”, “61”, “62”, “63”, “64”, “65”, “66”,
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`“67”, “68”, “69”, “70”, and “71”, and as a conclusion of law to which no responsive pleading is
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`required and refer all questions of law to the trial court.
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`2.
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`3.
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`Admit the allegations contained in paragraphs numbered “3” and “14”.
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`Deny the allegations contained in paragraphs numbered “13”, “17”, “18”, “19”,
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`“20”, “21”, “22”, “23”, “24”, “25”, “35”, “36”, “37”, “38”, “39”, “40”, “41”, “42,” “43”, “44”,
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`“45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”, “53”, “54”, “55”, “56”, “57”, “58”, “59”, and “60”,
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`and refer all questions of law to the trial court.
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`1 of 6
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`FILED: CHEMUNG COUNTY CLERK 08/24/2023 09:17 AM
`NYSCEF DOC. NO. 9
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`INDEX NO. 2023-5539
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`RECEIVED NYSCEF: 08/24/2023
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
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`Plaintiff is not the proper party in interest and has no standing to bring this action.
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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`Plaintiff’s claim is time barred by the relevant Statute of Limitations and/or the contract(s)
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`governing shipment and all applicable federal regulations and statutes.
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
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`Plaintiff’s Complaint fails to state a cause of action against answering defendants for which
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`relief can be granted.
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
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`Any damages claimed by plaintiff, said damages being specifically denied by answering
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`defendants, were caused by the culpable conduct of parties or entities other than answering
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`defendants and/or other parties or entities or persons, over which answering defendants have no
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`control and for whose conduct answering defendants have no liability or responsibility.
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
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`Answering defendants are not guilty of any negligence which was a proximate cause of
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`any alleged incident, injuries or damages of which plaintiff complains.
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
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`Plaintiff failed to mitigate any alleged damages, said damages being specifically denied by
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`answering defendants.
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
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`Plaintiff’s damages are speculative and, therefore, plaintiff is barred from recovery.
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`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
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`2 of 6
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`FILED: CHEMUNG COUNTY CLERK 08/24/2023 09:17 AM
`NYSCEF DOC. NO. 9
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`INDEX NO. 2023-5539
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`RECEIVED NYSCEF: 08/24/2023
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`To the extent plaintiff seeks special and/or consequential damages, plaintiff’s claims are
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`barred because plaintiff and/or its subrogors failed to provide such damages would be sought in
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`the event of a claim of loss.
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
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`In the event plaintiff recovers a verdict or judgment against answering defendants, then
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`the verdict or judgment must be reduced pursuant to CPLR §4545(c) by those amounts which
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`have been, or will, with reasonable certainty, replace or indemnify plaintiff, in whole or in part,
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`for any past or future claimed economic loss, from any collateral source such as insurance.
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
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`The provisions of C.P.L.R. Article 50-B apply to this action.
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
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`Answering defendants do not employ or otherwise hire the alleged tortfeasor, Lesha P.
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`Massop.
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`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
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`The Complaint is barred by lack of personal jurisdiction over answering defendants.
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`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
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`The Complaint is improperly venued in the Supreme Court of New York, County of
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`Chemung.
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
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`Answering defendants reserve the right to assert such further affirmative defenses as may
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`become known through discovery or as this matter progresses.
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`AS AND FOR A FIRST CROSS-CLAIM OVER AND AGAINST DEFENDANT, LESHA
`P. MASSOUP, ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND
`BELIEF
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`3 of 6
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`FILED: CHEMUNG COUNTY CLERK 08/24/2023 09:17 AM
`NYSCEF DOC. NO. 9
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`INDEX NO. 2023-5539
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`RECEIVED NYSCEF: 08/24/2023
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`Without admitting or being deemed to admit any of the allegations contained in the
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`Complaint and while expressly disclaiming any liability therefore, if plaintiff sustained the injuries
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`and damages in the manner, time and place alleged, and if it is found that defendants are liable to
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`plaintiff herein, then said damages were sustained by reason of the sole, active and primary
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`negligence, carelessness, and recklessness by the defendant, LESHA P. MASSOUP and answering
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`defendants are entitled to complete indemnification from any judgment or damages from said
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`defendant, LESHA P. MASSOUP, as well as partial indemnification or contribution from said
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`defendant, LESHA P. MASSOUP, for any liability to the plaintiff in excess of the answering
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`defendants’ proportionate share of active negligence.
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`AS AND FOR A SECOND CROSS-CLAIM OVER AND AGAINST DEFENDANT,
`LESHA P. MASSOUP, ANSWERING DEFENDANTS ALLEGE UPON INFORMATION
`AND BELIEF
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`That if the plaintiff sustained damages as alleged in the Complaint, through the negligence,
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`breach of contract, breach of warranty, carelessness and/or strict liability of defendants, then such
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`damages were sustained due to the primary, active and sole fault of the defendant, LESHA P.
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`MASSOUP, by reason of negligence, breach of contract, breach of warranty, carelessness and/or
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`strict liability and if the plaintiff should obtain and/or recover judgment against answering
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`defendants, then the defendant, LESHA P. MASSOUP shall be liable to answering defendants for
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`the full amount of said judgment or for any part hereof obtained and/or recovered on the basis of
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`apportionment of responsibility for the alleged occurrence as found by the Court or jury.
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`WHEREFORE, the answering defendants demand judgment dismissing the Verified
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`Complaint, together with the costs and disbursements of this action, including attorneys' fees.
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`4 of 6
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`FILED: CHEMUNG COUNTY CLERK 08/24/2023 09:17 AM
`NYSCEF DOC. NO. 9
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`INDEX NO. 2023-5539
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`RECEIVED NYSCEF: 08/24/2023
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`Dated: August 24, 2023
`New York, New York.
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`WEBER GALLAGHER SIMPSON
`STAPLETON FIRES & NEWBY LLP
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`By:
`JAMES A. WESCOE
`Attorneys for Defendants
`Duke Hur and J.B. Hunt Transport, Inc.
`1500 Broadway, Suite 2401
`New York, New York 10036
`Phone: (929) 342-6000
`Fax: (929) 342-6001
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`TO (Via ECF):
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`THE PARIS LAW GROUP, P.C.
`Attorneys for Plaintiff
`Deborah Lara, Esq.
`60 East 42nd Street, Suite 4000
`New York, New York 10165
`(212) 970-8754
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`5 of 6
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`FILED: CHEMUNG COUNTY CLERK 08/24/2023 09:17 AM
`NYSCEF DOC. NO. 9
`
`INDEX NO. 2023-5539
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`RECEIVED NYSCEF: 08/24/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF CHEMUNG
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`CAPREECE MOORE
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`X
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`INDEX NO. 709124/2023
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`NOTICE OF APPEARANCE AND
`VERIFIED ANSWER TO VERIFIED
`COMPLAINT
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`Plaintiff,
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`-against-
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`LESHA P. MASSOUP, DUKE HUR, J.B.
`HUNT TRANSPORT, INC., and COSTCO
`WHOLESALE CORPORATION
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`Defendants.
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`X
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`JAMES A. WESCOE, ESQ., an attorney at law duly admitted to practice before the courts
`of the State of New York, affirms the following to be true under the penalties of perjury:
`1.
`That I am a partner in the law firm of WEBER GALLAGHER SIMPSON
`STAPLETON FIRES & NEWBY, LLP, attorneys for answering defendants DUKE HUR and J.B.
`HUNT TRANSPORT, INC. in the above-entitled action.
`2.
`That I have read the foregoing answer and know the contents thereof, and that the
`same is true to my own knowledge except as to the matters therein stated to be alleged upon
`information and belief, and that as to those matters, I believe it to be true.
`3.
`This verification is made by myself and not by the defendants because the
`defendants are not in the county in which your deponent maintains his office.
`4.
`The grounds of my belief as to all matters not stated upon my knowledge are based
`upon the books, records and documents in my possession.
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`Dated: August 24, 2023
`New York, New York
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`By:
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`JAMES A. WESCOE
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`6 of 6
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