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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

 

JOSEPH MARTINEZ

                                                                                    x
                        Plaintiff,                                                             ANSWER

            -against-

MR. ROBERT ORTIZ (WARDEN), PETE CURCIO
(SHIELD #1077 A.D.W.), LAHRUZZO (CORR,
CAPTAIN), P. MISTRETTA (CORR. CAPTAIN),
JOSEPH SAGLIMBENE (SHIELD #606 CORR.
CAPTAIN), BRUCE BOYD (SHIELD #14356 C.O.),
ROBERT GREEN (SHIELD #13038 C.O.),
DARREN HILL (SHIELD # 12299 C.O.), KEVIN
SMALL (SHIELD #841I C.O.), MARK CARNEY
(SHIELD # 14137 C.O.), MARK WYNTER
(SHIELD #13548 C.O.), ELVIN ALVARADO
(SHIELD # 10217 C.O.), and DR.
HOLCOMB in their individual and official
capacities,

                        Defendants.
                                                                                    x

Defendants[1] PHILIP MISTRETTA, ROBERT GREEN, DARRIN HILL, ELVIN ALVARADO, and MARK WYNTER, by their attorney, Michael D. Hess, Corporation Counsel of the City of New York, for their answer to the second amended complaint (“complaint”), respectfully allege, upon information and belief, as follows:

1.            Deny the allegations set forth in paragraph “1” of the complaint, except admits that plaintiff purports to proceed as stated herein.

2.            Deny the allegations set forth in paragraph “2” of the complaint, except admits that plaintiff purports to invoke the Court’s jurisdiction as stated herein.

3.            Deny the allegations set forth in paragraph “3” of the complaint, except admit that plaintiff purports to base venue as stated herein.

4.            Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “4” of the complaint.

5.            Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “4”[2] of the complaint, except admit that defendants MISTRETTA, GREEN, HILL, ALVARADO, and WYNTER were and are currently employed by the New York City Department of Correction (“DOC”).

6.            Deny the allegations set forth in paragraph “6” of the complaint, except admit that plaintiff was incarcerated.

7.            Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “7” of the complaint.

8.            Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “8” of the complaint.

9.            Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “9” of the complaint.

10.            Deny the allegations set forth in paragraph “10” of the complaint.

11.            Deny the allegations set forth in paragraph “11” of the complaint.

12.            Deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph “12” of the complaint.

13.            Deny the allegations set forth in paragraph “13” of the complaint.

14.            Deny the allegations set forth in paragraph “14” of the complaint.

15.            In response to the allegations set forth in paragraph “15” of the complaint, defendants repeat and reallege their responses to paragraphs “1” through “14” of the complaint as if fully set forth herein.

16.            Deny the allegations as set forth in paragraph “16” of the complaint.

17.            In response to the allegations set forth in paragraph “17” of the complaint, defendants repeat and reallege their responses to paragraphs “1” through “16” of the complaint as if fully set forth herein.

18.            Deny the allegations set forth in paragraph “18” of the complaint.

19.            In response to the allegations set forth in paragraph “19” of the complaint, defendants repeat and reallege their responses to paragraphs “1” through “18” of the complaint as if fully set forth herein.

20.            Deny the allegations set forth in paragraph “20” of the complaint.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE:

21.            The complaint fails to state a claim upon which relief can be granted.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE:

22.            Any injuries alleged to have been sustained resulted from plaintiff’s own culpable or negligent conduct and were not the proximate result of any act of the defendants.

AS AND FOR A THIRD AFFIRMATIVE DEFENSE:

23.            Defendants have not violated any rights, privileges or immunities secured to plaintiff by the Constitution or laws of the United States, the State of New York or any political subdivision thereof, nor have defendants violated any act of Congress providing for the protection of civil rights.

AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:

24.            At all times relevant to the acts alleged in the complaint, defendants, their agents and officials acted reasonably, properly, lawfully, and in good faith in the exercise of their discretion.  As a result, defendants are entitled to governmental immunity.

AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:

25.            The defendants have not violated any clearly established constitutional or statutory rights of which reasonable persons would have known and therefore are protected by qualified immunity.

AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:

26.            This action is barred, in whole or in part by the applicable statute of limitations.

AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE:

27.            This action is barred in whole or in part by the doctrines of res judicata and/or collateral estoppel.


WHEREFORE, defendant requests judgment dismissing the complaint, awarding costs, disbursements and reasonable attorneys’ fees and such other and further relief as the Court deems just and proper.

Dated:  New York, New York
July 11, 2001

MICHAEL D. HESS
Corporation Counsel of the
City of New York
Attorney for Defendants
100 Church Street, Room 3-193
New York, New York 10007
(212) 788-8683

By:                                                                       
Brett H. Klein (BK 4744)
Assistant Corporation Counsel

To: Michael Hueston, Esq.
Attorney for Plaintiff
285 Fifth Avenue, No. 487
Brooklyn, New York 11215-2425
(718) 922-3105


DECLARATION OF SERVICE

RACHEL A. SELIGMAN declares, under penalty of perjury and pursuant to 28 U.S.C. § 1746, that the following is true and correct: On July 11th, 2001 I served the annexed “Defendants’ Answer” upon Joseph Martinez, plaintiff herein, by depositing a copy of same, enclosed in a first class, postpaid properly addressed wrapper in a post office/official depository located at 100 Church Street, in the Borough of Manhattan, City of New York, directed to plaintiff’s attorney at:

To:       Michael Hueston, Esq.
Law Office of Michael Hueston
285 Fifth Avenue, No. 487
Brooklyn, New York 11215-2425

Dated:  New York, New York
July 11th, 2001

                                               
Rachel A. Seligman

 



[1] Upon information and belief, Robert Ortiz, Pete Curcio, “Lahruzzo”, Joseph Sanglimbene, Bruce Boyd, Kevin Small, Mark Carney, and Dr. Holcomb have not been served with process in this action.

[2] The complaint contains two paragraphs numbered “4.”

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