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Adames v. G.B. Restaurants Inc.

United States District Court, Second Circuit

January 16, 2014

Jose Adames et al., Plaintiff,
v.
G.B. Restaurants Inc. et al., Defendant.

ORDER AND REPORT RECOMMENDATION

HUGH B. SCOTT, Magistrate Judge.

Before the Court are the following motions: plaintiff's motion to strike (Docket No. 15); plaintiff's motion for sanctions (Docket No. 43); plaintiff's motion for summary judgment (Docket No. 45); defendants' motion for relief from unanswered admissions (Docket No. 56); and plaintiff's supplemental motion for sanctions (Docket No. 61).

Background

The plaintiffs, Jose Adames and Sally Irizarry bring this action individually and as parents of Tatyana Adames (referred to collectively as "Adames") seeking damages relating to the personal injuries allegedly suffered by Tatyana (an infant) when a cup of coffee was spilled on her at the Denny's Restaurant located in Angola, New York. Named as defendants are G. B. Restaurants, Inc. ("G.B.") and Top Line Restaurants, Inc. ("Top Line"). The plaintiffs allege that Tatyana's injuries were due to the negligence of the defendants' employees. (Docket No. 1 [Count 1]). Jose Adames and Sally Irizarry also assert that they have also been injured due to the negligence of the defendants' employee in that, (a) they have been forced to incur expenses to deal with the medical care of Tatyana; (b) they have and will suffer great emotional injury as a result of being in the zone of danger and watching the injury to Tatyana; and (c) they have and will continue to suffer the loss of their daughter's services. (Docket No. 1 [Count 2]).

Motion to Strike

The plaintiffs seek to strike the defendants' Second, Third and Fourth Affirmative Defenses, as well as the defendants' Cross-Claim[1]. (Docket No. 15).

The defendants' Second Affirmative Defense asserts:

Upon information and belief, if the plaintiffs sustained any injuries or damages as alleged in the complaint, such injuries and damages were caused in whole or in part or were contributed to by plaintiffs' own culpable conduct, contributory negligence and want of care, without any culpable conduct, negligence or want of care on the part of defendants, and the amount of damages recoverable by plaintiffs, if any, should be diminished in whole or in part in proportion to plaintiffs' culpable conduct.

(Docket No. 11 qt ¶ 9).

The defendants' Third Affirmative Defense states:

Upon information and belief, if the plaintiffs sustained any injuries or damages, they assumed the risk inherent in the activity in which they were then engaged.

(Docket No. 11 at ¶ 10).

The defendants' Fourth Affirmative Defense alleges:

Upon information and belief, the plaintiffs have failed to mitigate their injuries and damages.

(Docket No. 11 at ¶ 11).

Affirmative ...


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