FILED: NEW YORK COUNTY CLERK 06/26/2014 INDEX NO /2013 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 06/26/2014

Transcription

1 FILED: NEW YORK COUNTY CLERK 06/26/2014 INDEX NO /2013 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 06/26/2014 C:,.,",:h.i'" n

2 KH:dv (Our File No.: ) StJPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK )( ANTHONY N. SCARPATI, as the Administrator of the Index No.: /13 Estate of MICHELE HAYES-SCARPATI, Deceased, and ANTHONY N. SCARPATI, Individually, VERIFIED ANSWER TO JL '-.J TUV.J...1 '- rol\/ípt. 'L 1. T.....l.l-1Jl.. A TNT., JJ Plaintiff, -against- RAJASHREE PATIL, M.D., PREETI KHETARPAL, M.D., TIMOTHY B. RAPP, M.D., WILLIAM A. COOK, M.D., GERALD ROSEN, M.D., STATEN ISLAND PHYSICIAN PRACTICE and NYU HOSPITAL FOR JOINT DISEASES, Defendants ~ )( Defendants, RAJASHREE PATIL, M.D, WILLIAM A. COOK, M.D. and STATEN ISLAND PHYSICIAN PRACTICE, by their attorneys, V ASLAS LEPO WSKY HAUSS & DANK.E, LLP, as and for their Verified Answer to Plaintiffs Complaint, respectfully shows to this Court and alleges: AS AND FOR A FIRST CAUSE OF ACTION 1. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs "1", "2", "3", "19", "25", "34", "35", "36", "37", "38", "39", "40", "41", "42", "43", "44", "45", "48", "63", '''64'', "65", "66", "67", "68", "69", "70", "71", "72", "73", "74", "75" and "76". 2. Admits the allegations contained in paragraphs "4", "6" and "46". 3. Denies each and every allegation contained in paragraphs "5", "8", "10", "II" "12", oj, "13" "14","15", "16", "1'7",,"18","10"-, "21" "22",,"23", "')6'" ~, "27", "28",

3 "29","30", "31"., "32","33","47","51", "52", "53","54", "55" ~, "56", "57", "58","59", "60", "61" and "62". 4. Denies each and every allegation contained in paragraph "7" but admits P A TIL was a licensed practicing physician. J: npl~ll~pq ~-. +hö ,...11errci;l f.l,.ci nllcirrn+~o~n Ao..f.n~Y\.orl ~Y\ 1?t"1"rirr1"n--h" "0".J. ~ ~ ~u 111 LllC aii bl-u UIL- alll-bclll 11;: L- lllall1l-u ILL Fai asi úyu;: J, "24" and "50". 6. Denies in the form alleged the allegations contained in paragraph "49" but admits COOK is a practicing Hematologist and Oncologist. 7. Denies each and every allegation contained in paragraphs "77" and "78" AS AND FOR A SECOND CAUSE OF ACTION 8. Repeats and reiterates each admission or denial heretofore made II response to paragraph "79". 9. Denies in the form alleged the allegations contained in paragraphs "80", "84", "85" and "86". 10. Denies in the form alleged the allegations contained in paragraphs "81" but admits Defendant, STATEN ISLAND PHYSICIAN PRACTICE, was and is a domestic professional corporation, duly organized and existing under and by virtue of the laws of the State of New York. 11. Denies each and every allegation contained in paragraphs "82", "83", "87", "88", "89" and "90".

4 12. Denies each and every allegation contained in paragraphs "91" and "92" AS AND FOR A THIRD CAUSE OF ACTION 13. Repeats and reiterates each admission or denial heretofore made in response to paragraph "93". 14. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs "94", "95", "96", "97", "98", "99", "100", "101", "102", "103", "104" 15. Denies each and every allegation contained in paragraphs "105" and "106" AS AND FOR A FOURTH CAUSE OF ACTION 16. Repeats and reiterates each admission or denial heretofore made in response to paragraph" 1 07" Denies each and every allegation contained in paragraphs "108", "109", "110" and "IiI". 18. Denies each and every allegation contained in paragraphs "112" and "113" AS AND FOR A FIFTH CAUSE OF ACTION 19. Repeats and reiterates each admission or denial heretofore made in response to paragraph "114".

5 20. Denies each and every allegation contained in paragraphs "1 IS", "116" and "117". 21. Denies each and every allegation contained in paragraphs" 118" and" 119" AS AND FOR A SIXTH CAUSE OF ACTION 22. Repeats and reiterates each admission or denial heretofore made in response to paragraph "120". 23. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph "121". 24. Denies each and every allegation contained in paragraph "122". 25. Denies each and every allegation contained in paragraphs" 123" and "124" AS AND FOR A FIRST AFFIRMATIVE DEFENSE 26. Upon information and belief, that any injury which plaintiff and/or plaintifi's decedent may have sustained at the time and place set forth in the Complaint herein was caused wholly or in part, or was contributed to by the culpable conduct and negligence of said plaintiff and/or plaintiffs decedent, and the amount of damages awarded herein, if any, should be denied or diminished in proportion to the amount of said culpable conduct and negligence of said plaintiff and/or plaintiffs decedent.

6 AS AND FOR A SECOND AFFIRMATIVE DEFENSE 27. Upon information and belief: any past or future costs or expenses incurred or to be incurred by the plaintiff(s) for medical care, dental care, custodial care of rehabilitative services, loss of earnings or other economic loss has been or will with reasonable certainty, be paid or indemnified in whole or in part ffom collateral source as defined in Section 4545 of the New York Civil Practice law. If any damages are recoverable against said defendant, the amount of such damages shall be diminished by the amount of the funds which plaintiff(s) has or shall receive from collateral source. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 28. If plaintiff is entitled to recover damages for loss of earnings or impairment of earning abilty as against defendants, RAJASHREE PATIL, M.D., WILLIAM A.A COOK and STATEN ISLAND PHYSICIAN PRACTICE, 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. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 29. Recovery on the claims set forth in the Complaint is diminished or barred by the failure of the plaintiff to mitigate damages.

7 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 30. Any claim based upon lack of informed consent is barred by Public Health Law Section 2805-d. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 31. That the defendant(s) reserves the right to claim the limitations of liability provided pursuant to General Obligations Law 15- i 08 and Article 16 of the Civil Practice Law and Rules. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 32. The third cause of action fails to state a claim upon which relief can be granted against STATEN ISLAND PHYSICIAN PRACTICE. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 33. The fifth cause of action fails to state a claim upon which relief can be granted against the answering defendants. denied. PLEASE BE ADVISED, any paragraph of plaintiffs complaint not answered is WHEREFORE, defendants, RAJASHREE PATIL, M.D., WILLIAM A. COOK and STATEN ISLAND PHYSICIAN PRACTICE, demands judgment dismissing the Complaint herein as to said defendant(s), with costs and further demands that the ultimate rights of said defendant(s) and all other defendant(s) as between

8 themselves be determined in this action, and that the answenng defendant(s) have II judgment over and against all other defendant(s) for all or any part of any verdict or II judgment which may be obtained herein by the plaintiffs against defendants, RAJASHREE P ATIL, M.D., WILLIAM A.A COOK and STATEN ISLAND I 1/ puvç:irt A N UD A rtjrr ~OrTnthn~ n';~h 1'hn Aon+~ ;~h_,~nn+ ~~r1 r1;nhn~no'ne~1'n ~+ 1'h;~ Â Jl... Jl. U.J'-..Ir1.L'L.. Jl~'L Jl..B'-.L, L, is\, vi. YVLLL U.L\. \.,:ll), 111l\"l\..:L UJ.iU Ul':UU1~vl1. ill;) VI UIL') action. Dated: Staten Island, New York August 12, 2013 Yours, etc. V ASLAS LEPOWSKY HAUSS & DANKE, LLP,-, TO: Jeffrey A. Guzman, Esq. Krentsel & Guzman, LLP i 7 Battery Place, 6th Floor New York, New York By: f ILL~JL_./'Jfll/tt/l~)...""'" KAREN HAUSS Attorneys for Defendants RAJASHREE PATIL, M.D., WILLIAM A. COOK, M.D. and STATEN ISLAND PHYSICIAN PRACTICE 201 Edward Curry Avenue, Suite 100 Staten Island, New York 103 i 4 (718)

9 KH:dv (Our File No ,025-15) VERIFICATION STATE OF NEW YORK ) ss:- COUNTY OF RICHMOND ) Krt\REN HAUSS, being duly svvorn, deposes and says: That she is a member with the firm of VASLAS LEPOWSKY HAUSS DANKE, LLP, attorneys for defendant, WILLIAM A. COOK, M.D., in this action. That she has read the foregoing ANSWER and knows the contents thereof: and upon information and belief, deponent believes the matters alleged therein to be true. The reason this verification is made by deponent and not by said defendant( s) is that the defendant(s) herein is in a county other than the one in which deponent maintains her office. The source of deponent's information and the grounds of her belief are communications, papers, reports and investigations contained in the fie.,! l""'j JI,"', /1, I \ I! J / :,/ia Aj,c/,,;, i / 01j /) " / "i/! /1 '/ l! / ' ".'1..-! KAREN HAUSS Sw~ to before me this, A ' L', I' '/r ". lt1l í(!u i. l(iary Public -11- day of August, 2013 r, //,1 "I. ',,/ i/ /I~ÏI '/ /, :. " M.8HEHI I'!otiry PUblic, State of New orl ; ú2sh /:7 in f\l:~, Countv :_/ Expires Oetobe, 4, 20Pt.')

10 STATE OF NEW YORK ) ss: ) COUNTY OF RICHMOND ) DANIELLE VIOLANTE, being duly sworn deposes and says: I am not a paiiy to the action, am over 18 years of age and reside at Staten Island, New York. On August I ~), 2013,! served a true copy of the aruicxcd VERIFIED ANSWER AND DEMAND,FOR A BILL OF PARTICULARS by mailing the same in a sealed envelope, with postage prepaid thereon, in a post-office or official depository of the u.s. Postal Service within the State of New York, addressed to the last known address or the address( s) as indicated below: Sworn to before me on this p;:.),ylàay of August, /' " / /:., I" ~ ej/i i" "'11/ 0Lfi J/fJ IJ j~u//'-" ) NOT ÃRY PUBLIC Jeffrey A. Guzman, Esq. Krentsel & Guzman, LLP Attorneys for Plaintiff 17 Battery Place, 6th Floor New York, NY i )'"",,7 Ij vel, (If LÆ-llA! V CÔ/ Zi) ll' DANIELLE VIOLANTE 'KI- pcl\1 \.~l/\!, )'38 i "', ':'" '.w'íork Notary r,.." Qua"it:;;:; ::;,d.:.: ;.~,; ~~i 3~',"~i~ Y l.) Commission t:~qj\ld'" h'r '

11 AFFIDAVIT OF SERVICE STATE OF NEW YORK ) ss: ) COUNTY OF RICHMOND ) JOANN SPERANZA, being duly sworn deposes and says: I am not a party to the action, am II over 18 years of age and reside at Staten Island, New York. On May 5, 2014, I served a true copy of the annexed NOTICE OF CROSS-MOTION AND AFFIRMATION IN SUPPORT via Federal Express overnight delivery, addressed to the last known address or the address( s) as indicated below: Jeffrey A. Guzman, Esq. Krentsel & Guzman, LLP Attorneys for Plaintiff 17 Battery Place, 6th Floor New York, NY McAloon & Friedman, P.C. 123 Wiliam Street New York, NY Attorneys for Defendants GERALD ROSEN, M.D., TIMOTHY B. RAPP, M.D. and NYU HOSPITAL FOR JOINT DISEASES Swom to l2~jore.me on this l '/,. 1:J I, Y"I yi/, f 5th da' ol~' ~ ~lti4. '7 i i ii II L" d.. l v, f :/ V\ l i./ j l o,~_..',.. /~,. \'- \'-'''N0TARY PUBLIC mfk- j'!t '\(tn?.~ " r,~, I"j. r',~' v (/2SHGi :.~, Or NCi.:l 1t3623 Vbrl\:." /./,~ ( ri't-1~, C Ii ' L'i", " CC""'""""'0 "...~v,. j L. "~ :.XPll(13. 0" UI',",citi"l1ty OctobiiS' t c.~'",',.'.c.y'ljvl.a i)r)íi" tl,*~i(ï'-r ") i ~p