FILED: RICHMOND COUNTY CLERK 09/28/2023 03:21 PM
`NYSCEF DOC. NO. 6
`
`INDEX NO. 150980/2023
`
`RECEIVED NYSCEF: 09/28/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF RICHMOND
`_______________________________________________X
`HEATHER FONT,
`
` Plaintiff,
`
` -against-
`
`GEORGE BRANDON MORCILLO and GINA
`MORCILLO,
`
` Defendants.
`
`_______________________________________________X
`
`
`Index No.: 150980/2023
`
`
`ANSWER TO
`VERIFIED
`COMPLAINT
`
`The defendants, GEORGE BRANDON MORCILLO and GINA MORCILLO, by their
`
`attorneys, HANNUM FERETIC PRENDERGAST & MERLINO, LLC, answering the Verified
`
`Complaint herein:
`
`1.
`
`Denies knowledge and information sufficient to form a belief thereof as to the
`
`allegations contained in paragraphs numbered “1”, “4”, “6” and “12” of the Verified Complaint.
`
`2.
`
`Denies each and every allegation contained in paragraphs numbered “10”, “11”,
`
`“13”, “14”, “15”, “16”, “17”, “18” and “19” of the Verified Complaint, and respectfully refers all
`
`questions of law to the Honorable Court.
`
`AS AND FOR THE FIRST AFFIRMATIVE DEFENSE
`
`
`
`3.
`
`Upon information and belief, the injuries and damages alleged were caused by the
`
`contributory negligence and/or culpable conduct of plaintiff.
`
`AS AND FOR THE SECOND AFFIRMATIVE DEFENSE
`
`
`
`4.
`
`Upon information and belief, if plaintiff failed to properly wear an available seat
`
`belt and shoulder harness, such failure is pleaded in mitigation of damages.
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`1 of 5
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`NYSCEF DOC. NO. 6
`
`INDEX NO. 150980/2023
`
`RECEIVED NYSCEF: 09/28/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF RICHMOND
`_______________________________________________X
`HEATHER FONT,
`
` Plaintiff,
`
` -against-
`
`GEORGE BRANDON MORCILLO and GINA
`MORCILLO,
`
` Defendants.
`
`_______________________________________________X
`
`
`Index No.: 150980/2023
`
`
`ANSWER TO
`VERIFIED
`COMPLAINT
`
`The defendants, GEORGE BRANDON MORCILLO and GINA MORCILLO, by their
`
`attorneys, HANNUM FERETIC PRENDERGAST & MERLINO, LLC, answering the Verified
`
`Complaint herein:
`
`1.
`
`Denies knowledge and information sufficient to form a belief thereof as to the
`
`allegations contained in paragraphs numbered “1”, “4”, “6” and “12” of the Verified Complaint.
`
`2.
`
`Denies each and every allegation contained in paragraphs numbered “10”, “11”,
`
`“13”, “14”, “15”, “16”, “17”, “18” and “19” of the Verified Complaint, and respectfully refers all
`
`questions of law to the Honorable Court.
`
`AS AND FOR THE FIRST AFFIRMATIVE DEFENSE
`
`
`
`3.
`
`Upon information and belief, the injuries and damages alleged were caused by the
`
`contributory negligence and/or culpable conduct of plaintiff.
`
`AS AND FOR THE SECOND AFFIRMATIVE DEFENSE
`
`
`
`4.
`
`Upon information and belief, if plaintiff failed to properly wear an available seat
`
`belt and shoulder harness, such failure is pleaded in mitigation of damages.
`
`1 of 5
`
`
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`FILED: RICHMOND COUNTY CLERK 09/28/2023 03:21 PM
`NYSCEF DOC. NO. 6
`
`INDEX NO. 150980/2023
`
`RECEIVED NYSCEF: 09/28/2023
`
`AS AND FOR THE THIRD AFFIRMATIVE DEFENSE
`
`5.
`
`Plaintiff’s claims are barred by the doctrine of assumption of risk.
`
`AS AND FOR THE FOURTH AFFIRMATIVE DEFENSE
`
`6.
`
`Upon information and belief, the Court does not have personal jurisdiction over the
`
`
`
`
`
`
`
`defendants, GEORGE BRANDON MORCILLO and GINA MORCILLO.
`
`AS AND FOR THE FIFTH AFFIRMATIVE DEFENSE
`
`
`
`7.
`
`Upon information and belief, plaintiff failed to use available means to mitigate
`
`damages.
`
`AS AND FOR THE SIXTH AFFIRMATIVE DEFENSE
`
`
`
`8.
`
`Upon information and belief, plaintiff failed to comply with Article 51 of the
`
`Insurance Law.
`
`AS AND FOR THE SEVENTH AFFIRMATIVE DEFENSE
`
`
`
`9.
`
`Upon information and belief, a serious injury, as defined in Article 51 of the
`
`Insurance Law has not been sustained by plaintiff.
`
`AS AND FOR THE EIGHTH AFFIRMATIVE DEFENSE
`
`
`
`10.
`
`If the answering defendants are found liable, such liability is less than or equal to
`
`50% of the total liability of all persons who may be found liable and, therefore, the answering
`
`defendants’ liability shall be limited to its equitable share, pursuant to CPLR Article 1600, Section
`
`1602.
`
`AS AND FOR THE NINTH AFFIRMATIVE DEFENSE
`
`
`
`11.
`
`Upon information and belief, any past or future costs of expenses incurred or to be
`
`incurred by the plaintiff for medical care, dental care, custodial care or rehabilitative services, loss
`
`of earnings or other economic loss, has been or will with reasonable certainty be replaced or
`
`2 of 5
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`FILED: RICHMOND COUNTY CLERK 09/28/2023 03:21 PM
`NYSCEF DOC. NO. 6
`
`INDEX NO. 150980/2023
`
`RECEIVED NYSCEF: 09/28/2023
`
`indemnified in whole or in part from a collateral source as defined in Section 4545(c) of the New
`
`York Civil Practice Law and Rules.
`
`AS AND FOR THE TENTH AFFIRMATIVE DEFENSE
`
`
`
`12.
`
`Upon information and belief, the Complaint fails to state a cause of action upon
`
`which relief can be granted.
`
`AS AND FOR THE ELEVENTH AFFIRMATIVE DEFENSE
`
`
`
`13.
`
`Upon information and belief, the defendants, GEORGE BRANDON MORCILLO
`
`and GINA MORCILLO, cannot be held liable to the plaintiff because the defendant was faced
`
`with an emergency situation, not of his own making, and acted reasonably under the circumstances
`
`then and there existing.
`
`
`
`WHEREFORE, the defendants, GEORGE BRANDON MORCILLO and GINA
`
`MORCILLO, demand Judgment dismissing the plaintiff’s Verified Complaint, together with such
`
`other and further relief as the Court deems just and proper.
`
`
`DATED:
`
`
`
`
`New York, New York
`September 27, 2023
`
`Yours, etc.,
`
`HANNUM FERETIC PRENDERGAST
`& MERLINO, LLC
`
`
`Marla Miller Ostrover
`
`
`
`Marla Miller Ostrover
`Attorneys for Defendants
`GEORGE BRANDON MORCILLO
`and GINA MORCILLO
`Office and Post Office Address
`55 Broadway, Suite 202
`New York, New York 10006
`(212) 530-3900
`
`3 of 5
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`FILED: RICHMOND COUNTY CLERK 09/28/2023 03:21 PM
`NYSCEF DOC. NO. 6
`
`INDEX NO. 150980/2023
`
`RECEIVED NYSCEF: 09/28/2023
`
`
`
`TO:
`
`Cellino Law LLP
`Attorneys for Plaintiff
`HEATHER FONT
`420 Lexington Avenue, Suite 830
`New York, NY 10170
`(805) 555-5555
`
`
`
`
`
`4 of 5
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`FILED: RICHMOND COUNTY CLERK 09/28/2023 03:21 PM
`NYSCEF DOC. NO. 6
`
`INDEX NO. 150980/2023
`
`RECEIVED NYSCEF: 09/28/2023
`
`ATTORNEY VERIFICATION
`
`1.
`
`I am an attorney at law in the firm of HANNUM FERETIC PRENDERGAST &
`
`MERLINO, LLC, attorneys for the defendants, GEORGE BRANDON MORCILLO and GINA
`
`MORCILLO, herein. I have read the annexed Answer and it is true to the knowledge of this
`
`deponent, except as to the matters alleged upon information and belief, and as to those matters, I
`
`believe each to be true.
`
`2.
`
`This verification is made by the deponent and not by the defendants, GEORGE
`
`BRANDON MORCILLO and GINA MORCILLO, because the defendants do not reside within
`
`the county where HANNUM FERETIC PRENDERGAST & MERLINO, LLC, has its office.
`
`The information set forth within the annexed Answer was obtained from an examination of the file
`
`in the office of HANNUM FERETIC PRENDERGAST & MERLINO, LLC.
`
`
`DATED:
`
`
`
`New York, New York
`September 27, 2023
`
`
`
`Marla Miller Ostrover
`
`Marla Miller Ostrover
`
`5 of 5
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