Answer

FILED: NEW YORK COUNTY CLERK 03/20/2015 04:19 PM
NYSCEF DOC. NO. 12
INDEX NO. 157549/2014

RECEIVED NYSCEF: 03/20/2015
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
--------------------------------------------------------------------------X
PETER ZUCKER,
Plaintiff,
-againstCITY OF NEW YORK; NEW YORK CITY DEPARTMENT
OF EDUCATION; DR. ALISON COVIELLO, PRINCIPAL
OF P.S.154, IN HER OFFICIAL AND INDIVIDUAL
CAPACITY; YOLANDA TORRES, SUPERINTENDENT OF
DISTRICT 7; MICHAEL AGONA, CONSULTANT TO
NEW YORK CITY DEPARTMENT OF EDUCATION,
Verified Answer
Index No. 157549/14
Defendants.
--------------------------------------------------------------------------X
Defendant Michael Agona, by his attorneys, Meyer, Suozzi, English & Klein, P.C.,
interposes the following answer to the plaintiffs complaint, upon information and belief:
1.
Denies knowledge or information sufficient to form a belief as to the truth or
accuracy of the allegations contained in paragraph 1 of the complaint.

2.

3.

4.

5.

6.
accuracy of the allegation contained in paragraph 6 of the complaint.
7.

8.
Admits that he served as a consultant to the Department of Education, City of
New York, but denies all the remaining allegations contained in paragraph 8 of the complaint.
9.

10.

11.

12.

13.

14.

15.

16.

17.
18.

19.

20.

21.

22.

23.

24.

25.
Denies the allegations contained in paragraph 25 of the complaint.
26.

27.
28.
29.

30.
31.

32.
Repeats and realleges each and every response contained in paragraphs 1
through 31 of this answer to the complaint.

33.
34.
35.

36.
37.
38.

39.
40.
41.
42.

43.
44.
45.

46.
47.
48.
49.
50.
51.
52.

53.

54.

55.
56.
57.
58.
Admits that plaintiff demands a trial by jury as alleged in paragraph 58 of the
complaint, but denies that plaintiff is entitled to a jury trial with respect to his claims seeking
injunctive or other equitable relief.
FIRST AFFIRMATIVE DEFENSE
59.
The complaint fails to state a cause of action upon which relief may be granted.
SECOND AFFIRMATIVE DEFENSE
60.
Not being fully advised of all the facts and circumstances surrounding the
allegations contained in the complaint, defendant hereby asserts and reserves unto himself the
defenses of assumption of risk, contributory negligence, illegality, waiver, and any other matter
constituting an available affirmative defense which the further investigation of this matter may
prove applicable herein.
THIRD AFFIRMATIVE DEFENSE
61.
Any damages sustained by the plaintiff were caused by the culpable conduct of
the plaintiff, including contributory negligence and assumption of risk, and not by the culpable
conduct or negligence of the defendant. But if judgment be awarded to the plaintiff, then and in
that event the damages shall be reduced in the proportion to which the culpable conduct of the
plaintiff bears to the culpable conduct that caused the damages.
FOURTH AFFIRMATIVE DEFENSE
62.
Pursuant to CPLR Article 16, the liability of the defendant to the plaintiff herein
for non-economic loss is limited to his equitable share determined in accordance with the relative
culpability of each person causing or contributing to the total liability for non-economic loss.
FIFTH AFFIRMATIVE DEFENSE
63.
Plaintiff may have recovered all or some of the costs of medical care,
psychological care, therapeutic care, custodial care, rehabilitation services, or loss of earnings or
other economic loss, and any future such cost or loss will, with reasonable certainty, be replaced
or indemnified in whole or in part from collateral sources. Any award made to plaintiff shall be
reduced, therefore, in accordance with the provisions of CPLR 4545.
SIXTH AFFIRMATIVE DEFENSE
64.
Plaintiff may have failed to mitigate damages.
SEVENTH AFFIRMATIVE DEFENSE

65.
Plaintiffs alleged loss and damage resulted wholly and solely from the fault,
neglect, or want of care of the plaintiff, or persons or parties other than the defendant, for whose
culpable acts and omissions the defendant is not liable or responsible, and not as a result of any
negligence or culpable conduct on the part of the defendant.
EIGHTH AFFIRMATIVE DEFENSE
66.
The defendant is entitled to a setoff if any other defendant or non-party tortfeasor
has or will settle with plaintiff, pursuant to General Obligations Law 15-108.
NINTH AFFIRMATIVE DEFENSE
67.
Plaintiff has failed to comply with the Notice of Claim requirements of Education
Law 3813, and thus any and all claims predating August 26, 2013 are barred for failure to
satisfy a necessary condition precedent.
TENTH AFFIRMATIVE DEFENSE
68.
Plaintiffs alleged causes of action are barred, in whole or in part, by the
applicable statutes of limitation.

ELEVENTH AFFIRMATIVE DEFENSE
69.
Plaintiffs alleged causes of action are barred, in whole or in part, by the election
of remedies doctrine.
TWELFTH AFFIRMATIVE DEFENSE
70.
Plaintiff has failed to plead his defamation (libel and slander) causes of action
with sufficient particularity under CPLR 3013, 3016, and 3211(a)(7).
THIRTEENTH AFFIRMATIVE DEFENSE

71.
At all times relevant to the complaint, any and all actions taken by the defendant
with respect to plaintiffs employment were based on legitimate and non-discriminatory grounds.
FOURTEENTH AFFIRMATIVE DEFENSE
72.
The defendant is shielded from suit, in whole or in part, by the doctrines of
absolute immunity, qualified immunity, common law immunity, or any combination of these
doctrines.
WHEREFORE, defendant Michael Agona respectfully requests that the complaint be
dismissed in its entirety with prejudice, and that he be awarded costs, disbursements, and
attorneys fees, together with such other relief as may be just and proper.
Dated: March 20, 2015
New York, New York
By:
/s/ Richard F.X. Guay

Richard F.X. Guay
MEYER, SUOZZI, ENGLISH
& KLEIN, P.C.
1350 Broadway, Suite 501
New York, New York 10018
P: 212.239.4999
F: 212.239.1311
rguay@msek.com
Attorneys for Defendant
Michael Agona
140595

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FILED: NEW YORK COUNTY CLERK 03/20/2015 04:19 PM

NYSCEF DOC. NO. 12

INDEX NO. 157549/2014

SUPREME COURT OF THE STATE OF NEW YORK

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations contained in paragraph 1 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations contained in paragraph 2 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations contained in paragraph 3 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations contained in paragraph 4 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations contained in paragraph 5 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 6 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 7 of the complaint.

Admits that he served as a consultant to the Department of Education, City of

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations contained in paragraph 9 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 10 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegations contained in paragraph 11 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 12 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 13 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 14 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 15 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 16 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 17 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 18 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 19 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 20 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 21 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 22 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 23 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 24 of the complaint.

Denies the allegations contained in paragraph 25 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 26 of the complaint.

Denies the allegations contained in paragraph 27 of the complaint.

Denies the allegations contained in paragraph 28 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 29 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 30 of the complaint.

Denies knowledge or information sufficient to form a belief as to the truth or

accuracy of the allegation contained in paragraph 31 of the complaint.

Repeats and realleges each and every response contained in paragraphs 1

through 31 of this answer to the complaint.