FILED: SUFFOLK COUNTY CLERK 01/13/2025 05:37 PM
`NYSCEF DOC. NO. 6
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`INDEX NO. 629958/2024
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`RECEIVED NYSCEF: 01/13/2025
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF SUFFOLK
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`XAVIER M. AUSTIN,
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`-against-
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`Plaintiff,
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`KIMBERLY S. WEATHERS and TOWN OF BABYLON,
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`Defendants,
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`Index No.: 629958/2024
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`VERIFIED ANSWER
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` The Defendants, KIMBERLY S. WEATHERS and TOWN OF BABYLON,
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`by its attorneys, BRODY LAW GROUP, PLLC. answering the Verified Complaint herein states
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`upon information and belief:
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`1.
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`Defendants deny having knowledge or information sufficient to form a
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`belief as to the allegations set forth in paragraphs marked “1” and “2”, and each and every part
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`thereof.
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`2.
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`Defendants deny having knowledge or information sufficient to form a
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`belief as to the allegations set forth in paragraph marked “3”, and respectfully refers all questions
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`of law to the trial Court.
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`3.
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`Defendants deny having knowledge or information sufficient to form a
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`belief as to the allegations set forth in paragraph marked “4”, and each and every part thereof.
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`4.
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`Defendants admit the allegations set forth in paragraph marked “5”, and
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`each and every part thereof.
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`5.
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`Defendants deny the allegations set forth in paragraph marked “6”, except
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`admit that a paper designated “Notice of Claim” was received by Defendant, Town of Babylon
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`and that Defendant, Town of Babylon has declined payment of said claim and respectfully refers
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`all questions of law to the trial Court.
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`6.
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`Defendants deny the allegations set forth in paragraph marked “7”, except
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`admit that Defendant, Town of Babylon on March 14, 2024 conducted a hearing of the Plaintiff,
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`FILED: SUFFOLK COUNTY CLERK 01/13/2025 05:37 PM
`NYSCEF DOC. NO. 6
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`INDEX NO. 629958/2024
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`RECEIVED NYSCEF: 01/13/2025
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`Xavier M. Austin pursuant to General Municipal Law §50-h and respectfully refers all questions
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`of law to the trial Court.
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`7.
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`Defendants deny having knowledge or information sufficient to form a
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`belief as to the allegations set forth in paragraph marked “8”, and respectfully refers all questions
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`of law to the trial Court.
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`8
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`Defendants deny the allegations set forth in paragraph marked “9”, except
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`admit that on October 5, 2023, Defendant, Town of Babylon was the owner of a 2015 Chevrolet
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`motor vehicle bearing New York State registration number AW4266 and respectfully refers all
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`questions of law to the trial Court.
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`9.
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`Defendants deny the allegations set forth in paragraph marked “10”, except
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`admit that on October 5, 2023, Defendant, Kimberly S. Weathers, operated a 2015 Chevrolet
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`vehicle bearing New York State registration number AW4266 and respectfully refers all questions
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`of law to the trial Court.
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`10.
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`Defendants deny the allegations set forth in paragraph marked “11”, except
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`admit that on October 5, 2023, Defendant, Kimberly S. Weathers, operated the aforementioned
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`motor vehicle with the knowledge, permission and consent of Defendant, Town of Babylon and
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`respectfully refers all questions of law to the trial Court.
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`11.
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`Defendants deny the allegations set forth in paragraph marked “12”, except
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`admit that on October 5, 2023, Defendant, Kimberly S. Weathers operated a 2015 Chevrolet motor
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`vehicle bearing license plate AW4266 within the scope and course of her employment with
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`Defendant, Town of Babylon and respectfully refers all questions of law to the trial Court.
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`12. Defendants deny the allegations set forth in paragraph marked “13”
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`through “24”, and respectfully refers all questions of law to the trial Court.
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`13.
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`Defendants deny having knowledge or information sufficient to form a
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`belief as to the allegations set forth in paragraphs marked “25” through “27”, and each and every
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`part thereof.
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`FILED: SUFFOLK COUNTY CLERK 01/13/2025 05:37 PM
`NYSCEF DOC. NO. 6
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`INDEX NO. 629958/2024
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`RECEIVED NYSCEF: 01/13/2025
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`14.
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`Defendants deny having knowledge or information sufficient to form a
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`belief as to the allegations set forth in paragraph marked “28”, and respectfully refers all questions
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`of law to the trial Court.
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`15.
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`Defendants deny the allegations set forth in paragraph marked “29”, except
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`admit that on October 5, 2023, Defendant, Kimberly S. Weathers operated the vehicle owned by
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`Defendant, Town of Babylon and respectfully refers all questions of law to the trial Court.
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`16.
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`Defendants deny having knowledge or information sufficient to form a
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`belief as to the allegations set forth in paragraph marked “30”, and each and every part thereof.
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`17.
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`Defendants deny the allegations set forth in paragraph marked “31”, and
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`respectfully refers all questions of law to the trial Court.
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`18.
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`Defendants deny the allegations set forth in paragraph marked “32” through
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`“35”, and each and every part thereof.
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`19.
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`Defendants deny the allegations set forth in paragraph marked “36” through
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`“38”, and respectfully refers all questions of law to the trial Court.
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`20.
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`Defendants deny having knowledge or information sufficient to form a
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`belief as to the allegations set forth in paragraph marked “39”, and respectfully refers all questions
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`of law to the trial Court.
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`21.
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`Defendants deny the allegations set forth in paragraph marked “40”, and
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`respectfully refers all questions of law to the trial Court.
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
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`22.
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`Plaintiff did not sustain serious injuries as defined by §5102(d) of the New
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`York State Insurance Law and plaintiffs exclusive remedy, therefore, is confined and limited to
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`the benefits and provisions of Article 51 of the New York State Insurance Law.
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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`23.
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`Plaintiffs sole and exclusive remedy is confined and limited to the benefits
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`and provisions of Article 51 of the New York State Insurance Law.
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`FILED: SUFFOLK COUNTY CLERK 01/13/2025 05:37 PM
`NYSCEF DOC. NO. 6
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`INDEX NO. 629958/2024
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`RECEIVED NYSCEF: 01/13/2025
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
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`24.
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`Plaintiffs cause of action is barred by Article 51, §5104, of the New York
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`State Insurance Law.
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
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`25.
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`Plaintiff is guilty of culpable conduct, including contributory negligence
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`and should an award be made to plaintiff, same should be diminished in the proportion which the
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`culpable conduct and/or contributory negligence attributable to the plaintiff bears to the culpable
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`conduct and/or negligence which caused the injuries and/or damages.
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
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`26.
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`In the event that plaintiff recovers judgment against these answering
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`defendants and it is determined that plaintiffs damages were caused in whole or in part by two or
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`more joint tortfeasors, then these answering defendants’ liability herein for non-economic loss
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`may not exceed its equitable share of damages in accordance with its relative culpability of all
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`persons or entities contributing to the total liability for non-economic loss, including named
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`parties and others whom plaintiff could have obtained personal jurisdiction with due diligence,
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`as provided by Section 1601 of the CPLR. Defendants are not liable for acts of another even when
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`this answering defendant does not have contribution.
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
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`27.
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`Plaintiff’s recovery, if any, shall be reduced by the amount of any collateral
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`payments received, in accordance with CPLR §4545.
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
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`28.
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`Plaintiff failed to take all reasonable measures to reduce, mitigate and/or
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`minimize the injuries and/or damages alleged.
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`AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
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`29.
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`If plaintiff sustained any injuries and/or damages alleged in the Verified
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`Complaint, said injuries and/or damages were proximately caused by independent, intervening
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`FILED: SUFFOLK COUNTY CLERK 01/13/2025 05:37 PM
`NYSCEF DOC. NO. 6
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`INDEX NO. 629958/2024
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`RECEIVED NYSCEF: 01/13/2025
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`and superseding causes which could not reasonably have been foreseen and for which these
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`answering defendants are not liable or responsible.
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
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`30.
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`The injuries and/or damages as alleged in the Verified Complaint were
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`caused by the culpable conduct of some third person or persons over whom these answering
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`defendants neither had nor exercised control over.
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
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`31.
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`That plaintiffs Verified Complaint fails to state a cause of action against
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`these answering defendants upon which relief can be granted.
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`AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
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`32.
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`That if the plaintiff has or does receive sums of money in settlement of the
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`claims asserted herein, by reason thereof these answering defendants are entitled to the
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`protection, provisions and limitations of § 15-108 of the General Obligations Law of the State of
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`New York in reducing the claim of the plaintiffs against these answering defendants by the
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`amount stipulated in the Release or covenant not to sue, the amount of consideration paid for it
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`or the amount of the released defendant’s equitable share for the damages, whichever is the
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`greatest.
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`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
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`33.
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`If plaintiff sustained injuries and/or damages at the same time and place
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`alleged in the Verified Complaint, then upon information and belief, said injuries and/or damages,
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`if any, were caused and/or exacerbated by plaintiffs failure to comply with federal, state and local
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`traffic regulations, including but not limited to Vehicle and Traffic Law, and these answering
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`defendants will seek exemption from and/or mitigation of damages at the time of trial.
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`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
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`34.
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`That the amount of plaintiff’s damages, if any, must be reduced in
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`accordance with CPLR Article 14 and 14A based upon plaintiffs contributory negligence.
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`FILED: SUFFOLK COUNTY CLERK 01/13/2025 05:37 PM
`NYSCEF DOC. NO. 6
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`INDEX NO. 629958/2024
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`RECEIVED NYSCEF: 01/13/2025
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
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`35.
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`The plaintiff lacks standing to pursue the claims asserted in the Verified
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`Complaint.
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
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`36.
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`This Court lacks jurisdiction of the person of these answering defendants
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`due to failure to properly serve them.
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
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`37.
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`Liability cannot be imposed on these answering defendants because the sole
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`proximate cause of the plaintiff’s injuries and/or damages as alleged in plaintiffs Verified
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`Complaint were plaintiffs own acts and/or omissions.
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`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
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`38.
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`That if, at the time of trial, any of the issues herein have finally been
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`determined against the plaintiff by a tribunal, forum or court, all of competent jurisdiction, then
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`in that event, the plaintiffs will be estopped from relitigating said issues.
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`AS AND FOR A EIGHTEENTH AFFIRMATIVE DEFENSE
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`39.
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`That any injuries and/or damages alleged in the Verified Complaint were
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`the result of the plaintiffs assumption of risk, in realizing and knowing the hazards and dangers
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`thereof, and that plaintiff assumed all the risks incidental to such an undertaking.
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`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
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`40. The plaintiff was negligent in not wearing a seatbelt, passive restraint or
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`safety harness at the time of the occurrence and under the applicable law may not recover
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`damages for those injuries which plaintiff would not have received if a seatbelt, passive restraint
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`or safety harness had been worn.
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`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
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`41.
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`That alleged acts of these answering defendants did not proximately cause
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`the alleged damages of the plaintiff
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`FILED: SUFFOLK COUNTY CLERK 01/13/2025 05:37 PM
`NYSCEF DOC. NO. 6
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`INDEX NO. 629958/2024
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`RECEIVED NYSCEF: 01/13/2025
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`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
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`42.
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`That all the risks and dangers connected with the situation at the time and
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`place mentioned in the Verified Complaint were open, obvious and apparent and were known to
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`and assumed by the plaintiff herein.
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`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
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`43.
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`That the Verified Complaint must be dismissed as the purported Notice of
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`Claim was vague and not proper or sufficient in form, content, substance and/or method of
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`manner of service as required by the General Municipal Law.
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`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
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`44.
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`Plaintiff cannot prosecute this action due to their failure to comply with
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`§50-e, §50-h, and §50-i of the General Municipal Law.
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`AS AND FORA TWENTY-FOURTH AFFIRMATIVE DEFENSE
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`45.
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`Notwithstanding that these answering defendants have denied liability
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`herein, if liability is found as against these answering defendants, and such liability shall be
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`determined to be fifty percent or less of the total liability of all parties to the plaintiff for the non-
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`economic loss of the plaintiffs, then these pleading parties’ financial responsibility shall not exceed
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`their equitable share in accordance with the relative culpability of each person causing or
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`contributing to the total liability for non-economic loss.
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`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
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`46.
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`If the plaintiff sustained the injuries and/or damages as alleged in the
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`Verified Complaint, all of which are expressly denied by these answering defendants, then those
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`injuries and/or damages are as a result, in whole or in part, of the conduct of others over whom
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`this answering defendant exercised no influence or control.
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`FILED: SUFFOLK COUNTY CLERK 01/13/2025 05:37 PM
`NYSCEF DOC. NO. 6
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`INDEX NO. 629958/2024
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`RECEIVED NYSCEF: 01/13/2025
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`AS AND FORA TWENTY-SIXTH AFFIRMATIVE DEFENSE
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`47.
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`Plaintiffs failed to effectuate service on necessary parties under Vehicle and
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`Traffic Law §253.
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`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
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`48.
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`That the within action is barred by the applicable statute of limitations.
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`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
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`49.
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`The plaintiff did not use, or misused the seat belt and/or shoulder harness
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`therein provided. The injuries claimed to have been sustained were caused, contributed to and/or
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`exacerbated by the lack of use, or misuse, of those protective devices, and the plaintiff’s failure
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`to obviate and/or mitigate any injuries sustained herein was in contravention of the decision of
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`Spier V. Barker, 35 N.Y.2d 444 (1974) and in violation of Vehicle and Traffic Law §1229-c.
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`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
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`50.
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`That the answering defendants were confronted with an emergency not of
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`their own making at the time and place alleged and acted reasonably under such circumstances and
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`therefore plead the defense of emergency doctrine.
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`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
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`Plaintiff cannot prosecute this action as the alleged hazard vehicle operated
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`51.
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`by defendant KIMBERLY S. WEATHERS was engaged in work on a highway within the meaning
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`of Vehicle and Traffic Law § 1103(b); defendant KIMBERLY S. WEATHERS did not operate
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`said vehicle recklessly and, as such, is exempted from the rules of the road and subjected to a
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`minimal recklessness standard.
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`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
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`52.
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`This action is barred as against these answering defendants, as the Town of
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`Babylon is immune from some or all of the allegations asserted in the Verified Complaint.
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`FILED: SUFFOLK COUNTY CLERK 01/13/2025 05:37 PM
`NYSCEF DOC. NO. 6
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`INDEX NO. 629958/2024
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`RECEIVED NYSCEF: 01/13/2025
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`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
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`53.
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`This action is barred as against this answering defendant, as the Town
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`of Babylon did not owe a duty to the plaintiff and did not have a “special relationship” with
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`the plaintiff.
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`WHEREFORE, Defendants, KIMBERLY S. WEATHERS and TOWN OF
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`BABYLON, hereby demands judgment dismissing the plaintiffs Verified Complaint in its entirety,
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`with prejudice, together with costs and expenses, inclusive of counsel fees, and together with such
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`other and further relief as this Court may deem just and proper.
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`Dated: Huntington, New York
` January 13, 2025
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`Yours, etc.
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`BRODY LAW GROUP, PLLC.
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`By:
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`____________________________________
`AISHA K. BROSNAN
`Attorneys for Defendants
`46 Green Street
`Huntington, New York 11743
`(631) 350-5109
`File No.: TB 24-627 AB
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`TO: GRUENBERG KELLY DELLA
`Attorneys for the Plaintiff
`700 Koehler Avenue
`Ronkonkoma, New York 11779
`(631) 737-4110
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`FILED: SUFFOLK COUNTY CLERK 01/13/2025 05:37 PM
`NYSCEF DOC. NO. 6
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`INDEX NO. 629958/2024
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`RECEIVED NYSCEF: 01/13/2025
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`AFFIRMATION BY ATTORNEY
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`The undersigned, an attorney admitted to practice in the Courts of the State of New
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`York, shows:
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`That affirmant is the attorney for the defendants in the within action; that affirmant
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`has read the foregoing Verified Answer and knows the contents thereof; that the same is true to
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`the affirmant’s knowledge, except as to the matters therein stated to be alleged on information and
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`belief; and that as to those matters, affirmant believes it to be true.
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`Affirmant further says that the reason this Verification is made by deponent and not
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`by the defendants is that defendants are foreign limited liability companies and/or corporations
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`that do not have an office in the county where Affirmant’s office is located.
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`The grounds of belief as to all matters not stated upon deponent’s knowledge are
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`documents, correspondence and records maintained in your deponent’s files and conversations and
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`conferences had with the defendant.
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`The undersigned affirms that the foregoing statements are true under the penalties
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`of perjury.
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`Dated: Huntington, New York
` January 13, 2025
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`__________________________________________
`AISHA K. BROSNAN
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