H. Speken; and (2) compelling the plaintiff Ralph H. Speken to

appear for an examination before trial with respect to those

issues raised by the proposed counterclaim; and (3) compelling

the plaintiff Ralph H. Speken to appear for a further examination

before trial; and (4) for such other and further relief as this

Court may deem just and proper.

     This personal injury and wrongful death action was commenced

on October 11, 1994 with the filing of the Summons and Verified

Complaint with the County Clerk (Exhibit A). The plaintiffs,

Ralph H. Speken and Stephanie Z. Speken, sue on behalf of their

deceased son Seth S. Speken. On November 8, 1994, a Verified

Answer was served on behalf of the defendant (Exhibit B)

Contemporaneous with the service of a Verified Answer, a Demand

for a Bill of Particulars was served (Exhibit B)

As the Court will note, the defendant's Verified Answer

contains a "First, Separate and Distinct Affirmative Defense"

reading as follows:

          7. The injuries and damages of the
          plaintiffs, RALPH H. SPEKEN and STEPHANIE Z.
          SPEKEN, for which these causes of action have
          been instituted, were caused wholly or in
          part through the culpable conduct and
          contributory negligence on the part of said
          plaintiffs and therefore the amount of
          damages, if any, shall be diminished in the
          proportion which said conduct attributable to
          said plaintiffs bears to this defendant's
          conduct, if any, which caused the damages.
          (See Exhibit B)
     The Court should note that this "Affirmative Defense" is not

the more commonly seen "culpable conduct" affirmative defense,

wherein it is claimed that the person sustaining the physical

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