You are on page 1of 8

INDEX NO.

807030/2016

FILED: ERIE COUNTY CLERK 09/16/2016 03:27 PM


NYSCEF DOC. NO. 3

RECEIVED NYSCEF: 09/16/2016

STATE OF NEW YORK


SUPREME COURT
COUNTY OF ERIE

RACHEL KUECHLE,
Plaintiff,

ANSWER AND
COUNTERCLAIM

vs.
Index No. 807030/2016
EVANDER KANE,
Defendant.

The defendant, EVANDER KANE, by his attorneys, LIPSITZ GREEN


SCIME CAMBRIA LLP, for his Answer to the plaintiff's Complaint, states:
1. Admits the allegations contained in paragraph numbered "9" of
plaintiff's Complaint.
2. Denies information sufficient to form a belief as to the allegations set
forth in paragraphs numbered "1", "3", "4", "7" and "10" of plaintiff's
Complaint.
3. Denies the allegations set forth in paragraphs numbered "2", "5", "6",
"8", "12", "13", "14", "15", "16", "19", "20", "21", "22", "25", "26", "29", "30" and
"31" of plaintiff's Complaint.
4. Neither admits nor denies the allegations contained in paragraphs
numbered "17", "23", "27" and "32" of plaintiff's Complaint in that same call for
legal conclusions. To the extent that these allegations do not call for legal
conclusions, defendant denies knowledge or information as to same.
5. Admits so much of the allegations contained in paragraphs numbered
"11", "18", "24" and "28" of plaintiff's Complaint as are elsewhere admitted, and

1 of 8

denies so much of the allegations of said paragraphs as are elsewhere herein


denied.
6. Denies each and every other allegation contained in plaintiff's
Complaint

not

heretofore

specifically

admitted,

denied

or

otherwise

controverted.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE,
THE DEFENDANT, EVANDER KANE, ALLEGES:
7. The plaintiff's culpable conduct caused or contributed to the accident,
injuries and/or damages alleged in the Complaint and plaintiff's potential
recovery in this action should be diminished in proportion to the culpable
conduct attributable to plaintiff.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE,
THE DEFENDANT, EVANDER KANE, ALLEGES:
8. That if this answering defendant is found liable to plaintiff by virtue of
the matters alleged in the Complaint, such liability will be based on the
culpability of other persons and non-parties which culpability will be less than
51% respectively of the total culpability of all persons liable. That in such
event, this answering defendant will claim the benefit of the limited liability
provisions of CPLR ~ 1601.
AS AND FORA THIRD AFFIRMATIVE DEFENSE,
THE DEFENDANT, EVANDER KANE, ALLEGES:
9. That if this answering defendant is found liable along with other
persons and non-parties, it is requested that the relative culpability of the tortfeasors be determined and a judgment order be granted in accordance with
that determination.

2
2 of 8

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE,


THE DEFENDANT, EVANDER KANE, ALLEGES:
10.

That said accident was caused solely or in part through the

culpable conduct, contributory negligence and/or assumption of risk of


plaintiff in failing to exercise reasonable care for her own safety and otherwise
through her negligent conduct under the circumstances presented to her and
defendant was free from negligence.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, THE
DEFENDANT, EVANDER KANE, ALLEGES:
1 1.

That any contact between the plaintiff and the defendant was

consensual and plaintiff willingly engaged in such contact.


AS AND FOR A SIXTH AFFIRMATIVE DEFENSE,
THE DEFENDANT, EVANDER KANE, ALLEGES:
12.

That in the event that plaintiff obtains a recovery in this matter, in

whole or in part, the recovery must be denied since, upon information and
belief, plaintiff failed to take reasonable precautions for her own safety and
otherwise failed to take reasonable actions to mitigate or minimize her alleged
damages.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE,
THE DEFENDANT, EVANDER KANE, ALLEGES:
13.

That the complaint of the plaintiff fails to state a proper cause of

action with respect to this defendant and therefore should be dismissed.


AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE,
THE DEFENDANT, EVANDER KANE, ALLEGES:
14.

That the recoverable damages available to the plaintiff, if any,

must be diminished under the "collateral source rule" contained in CPLR


4545.

3
3 of 8

AS AND FOR A NINETH AFFIRMATIVE DEFENSE,


THE DEFENDANT, EVANDER KANE, ALLEGES:
15.

This action was commenced in bad faith solely to harass the

defendant named herein, without any reasonable basis in law or fact to believe
such action could result in a settlement or judgment favorable to the plaintiff
and therefore defendant requests that this Court award defendant his costs,
disbursements and reasonable attorneys'fees pursuant to CPLR ~8303(a).
AS AND FOR A COUNTERCLAIM AGAINST THE
PLAINTIFF, RACHEL KUECHLE, THE DEFENDANT,
EVANDER KANE, ALLEGES:
16.

Upon information and belief, by her Complaint in this action, dated

and filed July 1, 2016, the plaintiff herein, RACHEL KUECHLE, falsely and
maliciously alleged and published certain false and defamatory statements
wherein it was asserted that the defendant acted in an illegal, criminal, willful,
wanton, reckless and outrageous manner and violated all norms of decency
and conduct. The particular false and defamatory statements were:
"While in the Defendant's hotel room on December 27, 2015, the
Defendant, EVANDER KANE, inflicted a battery upon the
Plaintiff, RACHEL KUECHLE."
"The physical battery inflicted upon the Plaintiff, RACHEL
KUECHLE,

by

the

Defendant,

EVANDER

KANE,

was

unconsented to."
"The physical battery inflicted upon the Plaintiff, RACHEL
KUECHLE, by the Defendant, EVANDER KANE, was violent, and
offensive in nature."
"As a direct and proximate result of the unwanted, unconsented
to, violent, and offensive in nature physical battery inflicted upon

0
4 of 8

the Plaintiff, the Plaintiff was caused to suffer bodily injury


including lacerations, extensive bleeding requiring multiple
surgeries and blood transfusions, and serious emotional trauma,
all to her detriment."
"As a result of the Defendant's unwanted, and unconsented to,
violent, and offensive physical battery upon the Plaintiff, the
Plaintiff, RACHEL KUECHLE, suffered serious, permanent and
painful personal injuries . . . ."
"On December 27, 2015, the Defendant, EVANDER KANE,
intentionally

and/or

recklessly

engaged

in

extreme

and

outrageous conduct towards the Plaintiff, RACHEL KUECHLE, in


a manner so shocking and outrageous that it exceeded all
reasonable bounds of decency."
"On December 27, 2015, the Defendant, EVANDER KANE, had
intent to cause to severe emotional distress, or disregarded a
substantial probability of causing severe emotional distress to
the Plaintiff, RACHEL KUECHLE, through his conduct towards
the Plaintiff which was so shocking and outrageous that it
exceeded all reasonable bounds of decency."
"As a direct and proximate result of the Defendant, EVANDER
KANE's, shocking and outrageous conduct towards the Plaintiff
on December 27, 2015, the Plaintiff, RACHEL KUECHLE, was
caused to suffer severe emotional distress of such an intensity
and duration that no reasonable person should be expected to
endure it."

5
5 of 8

"As a result of the Defendant's extreme and outrageous conduct,


the Plaintiff, RACHEL KUECHLE, suffered serious, permanent
and painful personal injuries . . . ."
"On December 27, 2015, the Defendant, EVANDER KANE,
engaged in conduct unreasonably endangering the Plaintiff,
RACHEL KUECHLE's physical safety by causing her to suffer
lacerations, bleeding, multiple surgeries and blood transfusions."
"As a direct and proximate result of the Defendant, EVANDER
KANE's, conduct unreasonably

endangering

the

Plaintiff's

physical safety, the Plaintiff, RACHEL KUECHLE was caused to


suffer severe emotional distress, and serious, permanent and
painful personal injuries . . . ."
"On December 27, 2015, the Defendant, EVANDER KANE,
negligently caused serious, permanent and painful personal
injuries to the Plaintiff, RACHEL KUECHLE."
"As a direct and proximate result of the negligence of the
Defendant, EVANDER KANE, the Plaintiff, RACHEL KUECHLE
was caused
extensive

to suffer bodily injury including lacerations,

bleeding requiring

multiple

surgeries and

blood

transfusions, and severe emotional trauma, all to her detriment.


"As a result of the Defendant, EVANDER KANE's, negligence the
Plaintiff, the Plaintiff, RACHEL KUECHLE, suffered serious,
permanent and painful personal injuries . . . ."

D
6 of 8

17.

By alleging and publishing the aforesaid statements of and

concerning the defendant, EVANDER KANE, the

plaintiff accused the

defendant and associated him with illegal, criminal, and immoral conduct.
18.

Upon information and belief, the aforesaid statements are false and

defamatory per se.


19.

Upon information and belief, the aforesaid statements were made

by the plaintiff, RACHEL KUECHLE, with actual malice and with intent to
injure and damage the defendant, EVANDER KANE, in his professional
standing and in his reputation and good name in the community.
20.

Upon information and belief, the aforesaid statements were made

by the plaintiff, RACHEL KUECHLE, in bad faith, without any basis in fact, and
for the sole purpose of defaming the defendant, EVANDER KANE.
21.

Upon information and belief, the plaintiff, RACHEL KUECHLE's

action against the defendant, EVANDER KANE, is a sham, and was brought for
the sole purpose of defaming defendant.
22.

By reason of the liber per se and slander per se of the defendant,

EVANDER KANE, by the plaintiff, RACHEL KUECHLE, the defendant has, upon
information and belief, been subjected to great indignity and humiliation, and
was injured in his good name and reputation in the community, all to his
damage in an amount that exceeds the jurisdictional limits of all lower courts
which would otherwise have jurisdiction.
23.

By reason of the foregoing, the defendant, EVANDER KANE, is,

upon information and belief, entitled to punitive damages in an amount that


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

7
7 of 8

WHEREFORE, defendant, EVANDER KANE, demands that:


1. The claims and causes of action of the plaintiff be
dismissed in their entirety;
2. Defendant
defenses;

have judgment on

his

affirmative

3. Defendant have judgment on his counterclaim


against the plaintiff in an amount that exceeds the
jurisdictional limits of all lower courts which would
otherwise have jurisdiction; and
4. Defendant have judgment for costs, disbursements
and attorneys'fees against the plaintiff.
DATED:

Buffalo, New York


September 16, 2016
LIPSITZ GREEN SCIME CAMBRIA LLP
~---~

J MES T. SCIME, ESQ.


At o eysfor Defendant
E NDER KANE
Office and P.O. Address
42 Delaware Avenue, Suite 120
Buffalo, New York 14202
(716) 849-1333
[JTS : #61175.0003]
TO:
COLLINS 8s COLLINS ATTORNEYS, LLC
Attorneysfor Plaintiff
RACHEL KUECHLE
Office and P.O. Address
267 North Street
Buffalo, New York 14201
(716) 885-9700

8 of 8

You might also like