FILED: NEW YORK COUNTY CLERK 02/19/ :38 AM INDEX NO /2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/19/2016

Transcription

1 FILED: NEW YORK COUNTY CLERK 02/19/ :38 AM INDEX NO /2016 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 02/19/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LACHANDA WHITE, as Mother and Natural Guardian of A.P., an infant under the age of fourteen (14) years, and LACHANDA WHITE, Individually, Plaintiffs, Index No.: /2016 VERIFIED ANSWER -against- MONIQUE DE FOUR JONES, M.D., VICTORIA POMAA AMANKWA, M.D., PATIENCE EBENMELU, R.N., OUSSEINY COULIBALY, M.D., ESTHER ADEBAYO, R.N., LISA ROSS, M.D., JUNE V. BALISTA, R.N., VIVIAN SACKEYFIO, R.N., LIN WEI PING, D.O., JOHN/JANE DOE #1, R.N., [name unknown], JOHN/JANE DOE #2, R.N., [name unknown], THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, and HARLEM HOSPITAL CENTER, Defendants. Defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, by its attorneys, HEIDELL, PITTONI, MURPHY & BACH, LLP, upon information and belief, answers the Verified Complaint herein as follows: AS AND TO THE FIRST CAUSE OF ACTION FIRST: Denies knowledge or information sufficient to form a belief as to the allegations contained in the paragraphs of the complaint designated 1 through 115 insofar as the allegations pertain to the answering defendant and otherwise admits that at certain tines not specifically set forth in the complaint, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION was and is a public benefit corporation which operates the hospital facility HARLEM HOSPITAL CENTER located, in part, at 506 Lenox Avenue, New York, New York 10037, and admits that at certain times not specifically set forth in the complaint, professional

2 SECOND: Denies the allegations contained in the paragraphs of the complaint designated 116 through 135 insofar as the allegations pertain to the answering defendant and AS AND TO THE SECOND CAUSE OF ACTION THIRD: Answering the paragraph of the complaint designated 136 defendant repeats and realleges each and every denial and admission in answer to the paragraphs of the complaint designated 1 through 135 with the same force and effect as if herein set forth at length. FOURTH: Denies the allegations contained in the paragraphs of the complaint designated 137 through 145 insofar as the allegations pertain to the answering defendant and AS AND TO THE THIRD CAUSE OF ACTION FIFTH: Answering the paragraph of the complaint designated 146 defendant repeats and realleges each and every denial and admission in answer to the paragraphs of the complaint designated 1 through 145 with the same force and effect as if herein set forth at length.

3 SIXTH: Denies the allegations contained in the paragraphs of the complaint designated 147 through 168 insofar as the allegations pertain to the answering defendant and AS AND TO THE FOURTH CAUSE OF ACTION SEVENTH: Answering the paragraph of the complaint designated 169 defendant repeats and realleges each and every denial and admission in answer to the paragraphs of the complaint designated 1 through 168 with the same force and effect as if herein set forth at length. EIGHTH: Denies knowledge or information sufficient to form a belief as to the allegations contained in the paragraphs of the complaint designated 170. NINTH: Denies the allegations contained in the paragraphs of the complaint designated 171 through 178 insofar as the allegations pertain to the answering defendant and FOR A FIRST DEFENSE TENTH: That this action was not commenced against defendant until after the expiration of the time period specified in the applicable statute of limitations and any recovery based on the alleged causes of action herein is barred.

4 FOR A SECOND DEFENSE ELEVENTH: That whatever damages may have been sustained at the time and place alleged in the complaint by plaintiffs were caused, in whole or in part, by the culpable conduct of plaintiffs and without any negligence on the part of defendant. Damages, if any, are to be diminished proportionally to the culpable conduct of the plaintiffs. FOR A THIRD DEFENSE TWELFTH: The court does not have jurisdiction of the person of the defendant because defendant was not properly served with a copy of the summons and complaint. FOR A FOURTH DEFENSE THIRTEENTH: That as to the cause of action set forth in the complaint based upon alleged failure to obtain an informed consent, defendant pleads the defenses in Public Health Law, 2805-d. FOR A FIFTH DEFENSE FOURTEENTH: That the equitable share of liability, if any, of defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, shall be determined pursuant to the provisions of Article 16 of the CPLR. FOR A SIXTH DEFENSE FIFTEENTH: That one or more of the causes of action in the complaint fail to state a cause of action upon which relief may be granted. FOR A SEVENTH DEFENSE SIXTEENTH: This action is barred or defendant is entitled to a set-off against any award herein as plaintiffs have previously recovered sums for all or part of the damages claimed herein.

5 claimed herein. FOR A EIGHTH DEFENSE SEVENTEENTH: Plaintiffs have failed to mitigate their alleged damages FOR A NINTH DEFENSE EIGHTEENTH: The amount of alleged damages claimed by plaintiffs should be reduced pursuant to CPLR 4545 to the extent of any collateral source benefits, remuneration or compensation received. WHEREFORE, defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION demands judgment dismissing the complaint herein, together with the costs and disbursements of this action. Dated: New York, New York February 19, 2016 Yours, etc., HEIDELL, PITTONI, MURPHY & BACH, LLP By: DANIEL G. MAY Attorneys for Defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION Office & P.O. Address 99 Park Avenue New York, New York (212) TO: Bradley S. Zimmerman, Esq. The Jacob D. Fuchsberg Law Firm, LLP Attorneys for Plaintiffs 500 Fifth Avenue, 45 th Floor New York, New York (212)

6 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK LACHANDA WHITE, as Mother and Natural Guardian of A.P., an infant under the age of fourteen (14) years, and LACHANDA WHITE, Individually, Plaintiffs, Index No.: /2016 VERIFICATION -against- MONIQUE DE FOUR JONES, M.D., VICTORIA POMAA AMANKWA, M.D., PATIENCE EBENMELU, R.N., OUSSEINY COULIBALY, M.D., ESTHER ADEBAYO, R.N., LISA ROSS, M.D., JUNE V. BALISTA, R.N., VIVIAN SACKEYFIO, R.N., LIN WEI PING, D.O., JOHN/JANE DOE #1, R.N., [name unknown], JOHN/JANE DOE #2, R.N., [name unknown], THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, and HARLEM HOSPITAL CENTER, Defendants. I, the undersigned, an attorney admitted to practice law in the Courts of New York State, state that I am a Partner of the firm of HEIDELL, PITTONI, MURPHY & BACH, LLP, the attorneys of record for defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION; that I have read the foregoing ANSWER and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true. The reason this verification is made by me and not by defendant, is because defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, is not present within the County of New York which is where this attorney maintains her office. follows: Dated: New York, New York February 19, 2016 The grounds of my belief as to all matters not stated upon my own knowledge are as Papers and records of said defendant. I affirm that the foregoing statements are true, under the penalties of perjury. DANIEL G. MAY