FILED: KINGS COUNTY CLERK 03/28/ :39 PM INDEX NO /2016 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 03/28/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS x LAKISHA TAYLOR as Administratrix of the Estate of JADA DANIELLE DUNCAN, Deceased and On behalf of her Distributees and Next of Kin, and WARREN DUNCAN, Individually, - against - Plaintiffs, EBENEZER KOFI ODOOM, M.D., STEPHEN E. OWUSU, D.P.M, M.A., MOUNT ZION PODIATRY, P.C., ROBERT SOLOMON, M.D., EXPRESS MOBILE DIAGNOSTIC SERVICES, INC., SENIORCARE EMERGENCY MEDICAL SERVICES, INC., CHARLES WILBORNE and STEVEN VEGA Defendants x COUNSEL: Index No.: /16 VERIFIED ANSWER ON BEHALF OF ROBERT SOLOMON, M.D. Defendant ROBERT SOLOMON, M.D. by his attorneys, SHAUB, AHMUTY, CITRIN & SPRATT, LLP as and for his verified answer to plaintiff's Verified Complaint respectfully shows to this honorable court and alleges upon information and belief: FIRST: Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8. 9, 10, 11, 12, 13, 14, 15, 16, 17, 21, 22, 23, 24, 25, 28, 29, 30, 31, 32, 33, 34, 35, 36 and 37 and refers questions of law to the Court. 1 of 8

2 SECOND: Denies the allegations contained in paragraphs 18 and 19 in the form alleged except admit at all relevant times ROBERT SOLOMON, M.D. was a physician authorized to practice his profession in the State of New York and refers questions of law to the Court. THIRD: Denies the allegation contained in paragraph "20" in the form alleged, and refers questions of law to the Court. FOURTH: Denies the allegations contained in paragraphs "26" and 27. FIRST CAUSE OF ACTION FIFTH: In response to paragraph "38 repeats each admission or denial made herein as though fully set forth hereat. SIXTH: Denies knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 39 and refers questions of law to the Court. SEVENTH: Denies the allegations contained in paragraphs "40", 41 and 42. SECOND CAUSE OF ACTION EIGHTH: In response to paragraph "43 repeats each admission or denial made herein as though fully set forth hereat. NINTH: Denies the allegations contained in paragraphs "44", 45, 46 and 47. THIRD CAUSE OF ACTION TENTH: In response to paragraph "48 repeats each admission or denial made herein as though fully set forth hereat. 2 of 8

3 ELEVENTH: Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 49, 50, and 51 and refers questions of law to the Court. TWELFTH: Denies knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 52. THIRTEENTH: Denies the allegations contained in paragraphs "53", 54, 55 and 56. FOURTH CAUSE OF ACTION FOURTEENTH: In response to paragraph "57 repeats each admission or denial made herein as though fully set forth hereat. FIFTEENTH: Denies the allegations contained in paragraphs "58", 59, 60 and 61. FIFTH CAUSE OF ACTION SIXTEENTH: In response to paragraph "62 repeats each admission or denial made herein as though fully set forth hereat. SEVENTEENTH: Denies knowledge or information sufficient to form a belief as to the truth of the allegation contained in paragraph 63 and refers questions of law to the Court. EIGHTEENTH: Denies the allegation contained in paragraph 64. FIRST AFFIRMATIVE DEFENSE NINETEENTH: That the injuries of the plaintiff were caused in whole or in part by the culpable conduct of the plaintiff which either bars the claims completely or 3 of 8

4 else diminishes the damages by the proportion that such culpable conduct of the plaintiff bears to the total culpable conduct causing the injuries. SECOND AFFIRMATIVE DEFENSE TWENTIETH: That if any liability is found as against these answering defendants, then said liability will constitute 50% or less of the total liability assigned to all persons liable and, as such, the liability of these answering defendants to plaintiff for non-economic loss shall be limited and shall not exceed these answering defendants' equitable share, as provided in Article 16 of the CPLR. THIRD AFFIRMATIVE DEFENSE TWENTY-FIRST: If plaintiff is entitled to recover damages for economic loss as against defendant ROBERT SOLOMON, M.D. by reason of the matters alleged in the Complaint, liability for which is hereby denied, then pursuant to CPLR 4545 the amount of damages recoverable against said defendant, if any, shall be reduced by the amount by which such economic loss was or will be replaced or indemnified from any collateral source of payment. FOURTH AFFIRMATIVE DEFENSE TWENTY-SECOND: If plaintiff is entitled to recover damages for loss of earnings or impairment of earning ability as against defendant ROBERT SOLOMON, M.D. by reason of the matters alleged in the Complaint, liability for which is hereby denied, then pursuant to CPLR 4546 the amount of damages recoverable against said defendant, if any, shall be reduced by the amount of federal, state and local income taxes which the plaintiff would have been obligated by law to pay. 4 of 8

5 FIFTH AFFIRMATIVE DEFENSE TWENTY-THIRD: In the event of any verdict or judgment in favor plaintiff, liability for which is hereby denied, the defendant is entitled to a set-off or credit with respect to the amounts of any payments made to plaintiff under GOL for any companion action or actions arising out of the same set of events as pleaded herein. SIXTH AFFIRMATIVE DEFENSE TWENTY-FOURTH: The complaint is time-barred inasmuch as suit was not instituted within the applicable Statute of Limitations. SEVENTH AFFIRMATIVE DEFENSE TWENTY-FIFTH: The plaintiff lacks the capacity/standing to commence this action. WHEREFORE, defendant ROBERT SOLOMON, M.D. demands judgment dismissing the Verified Complaint, together with costs and disbursements of the within action. Dated: TO: Lake Success, New York March 28, 2017 RONALD B. GROMAN, ESQ. SHAUB, AHMUTY, CITRIN & SPRATT, LLP By: LAURA M. PAPA Attorneys for Defendant ROBERT SOLOMON, M.D Marcus Avenue Lake Success, New York (516) OUR FILE NO.: of 8

6 Attorneys for Plaintiffs 104 South Marion Place Rockville Center, New York (516) of 8

7 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS LAKISHA TAYLOR as Administratrix of the Estate of JADA DANIELLE DUNCAN, Deceased and On behalf of her Distributees and Next of Kin, and WARREN DUNCAN, Individually, Index No.: /16 - against - Plaintiffs, EBENEZER KOFI ODOOM, M.D., STEPHEN F. OWUSU, D.P.M, M.A., ZION PODIATRY, P.C., ROBERT SOLOMON, M.D., EXPRESS MOBILE DIAGNOSIS SERVICES, INC., SENIORCARE EMERGENCY MEDICAL SERVICES, INC., CHARLES WILBORNE and STEVEN VEGA Defendants. VERIFIED ANSWER ON BEHALF OF ROBERT SOLOMON, M.D. SHAUB, AHMUTY, CITRIN & SPRATT, LLP Attorneys for Defendant ROBERT SOLOMON, M.D. Office and Post Office Address 1983 Marcus Avenue Lake Success, NY Telephone (516) Fax (516) TO: ALL PARTIES 7 of 8

8 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK ) ) ss.: COUNTY OF NASSAU ) Donna Hasfal, being duly sworn, deposes and says: that deponent is not a party to this action, is over 18 years of age and resides in Suffolk County, New York. That on March 28, 2017 deponent served the within VERIFIED ANSWER upon: RONALD B. GROMAN, ESQ. Attorneys for Plaintiffs 104 South Marion Place Rockville Center, New York (516) at the address designated by said attorney(s) for that purpose, by depositing a true copy thereof enclosed in a first class postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service department within the State of New York. Donna Hasfal Sworn to before me this 28 th day of March, Notary Public SANDRA T. LIVINGSTON Notary Public, State of New York No. 01LI Qualified in Nassau County COMMISSION EXPIRES APRIL 25, of 8