FILED: BRONX COUNTY CLERK 01/08/2014 INDEX NO. 21865/2012E NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 01/08/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------------------------------------------------------------------------------X JOHNNY FLORES, as Administrator of the Estate of MELISSA FLORES, Deceased and JOHNNY FLORES, Individually, Plaintiffs, Index No.: 21865/2012E THIRD-PARTY SUMMONS -against- VASSAR BROTHERS MEDICAL CENTER and MEERA P. LOBO, M.D., JASON FRIEDMAN, M.D., HUDSON VALLEY EMERGENCY MEDICINE, PLLC, Defendants. ------------------------------------------------------------------------------X VASSAR BROTHERS HOSPITAL, s/h/a VASSAR BROTHERS MEDICAL CENTER, Third-Party Index No.: Third-Party Plaintiff, -against- LYNN A. CLEMENTS-NORTHLAND, M.D., BRYAN YEN, M.D., IMAGING ON CALL, LLC, HUDSON VALLEY RADIOLOGISTS, P.C. and DRA IMAGING, P.C., Third-Party Defendants. ------------------------------------------------------------------------------X COUNSELORS: TO THE ABOVE NAMED THIRD-PARTY DEFENDANTS: YOU ARE HEREBY SUMMONED and required to serve upon all parties a Verified Third-Party Answer to the annexed Verified Third-Party Complaint, which is hereby served upon you, within twenty (20) days after service thereof, exclusive of the date of service (or within thirty (30) days after complete service is made by any method other than personal delivery to you within the State of the New York).
In the event you fail to answer, a judgment will be taken against you by default for the relief demanded in the Verified Third-Party Complaint. Dated: Valhalla, New York January 8, 2014 Yours etc., KAUFMAN BORGEEST & RYAN LLP By: Steven J. Auletta, Esq. Attorneys for Defendant/Third-Party Plaintiff VASSAR BROTHERS HOSPITAL, s/h/a VASSAR BROTHERS MEDICAL CENTER 200 Summit Lake Drive First Floor Valhalla, New York 10595 (914) 449-1000 File No.: 730.002 To: Bruce J. Ressler, Esq. RESSLER & RESSLER Attorneys for Plaintiff 48 Wall Street New York, New York 10005 MARTIN CLEARWATER & BELL Attorneys for Defendant MEERA P. LOBO, M.D. 245 Main Street, Suite 510 White Plains, New York 10601 SCHIAVETTI, COGAN, DIEDWARDS, WEINBERG & NICHOLOSON, LLP Attorneys for Defendants JASON FRIEDMAN, M.D. and HUDSON VALLEY EMERGENCY MEDICINE, PLLC 575 Eighth Avenue New York, New York 10001 Lynn A. Clements-Northland, M.D. c/o Imaging on Call, LLC 695 Dutchess Turnpike, Suite 105 Poughkeepsie, New York 12603 Bryan Yen, M.D. 1 Columbia Street Poughkeepsie, New York 12601 Imaging on Call, LLC 695 Dutchess Turnpike, Suite 105 Poughkeepsie, New York 12603 2
Hudson Valley Radiologists, P.C. 169 Myers Corners Road, Suite 250 Wappingers Falls, New York, 12590 DRA Imaging, P.C. 1 Columbia Street Poughkeepsie, New York 12601 3
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------------------------------------------------------------------------------X JOHNNY FLORES, as Administrator of the Estate of MELISSA FLORES, Deceased and JOHNNY FLORES, Individually, Plaintiffs, Index No.: 21865/2012E VERIFIED THIRD-PARTY COMPLAINT -against- VASSAR BROTHERS MEDICAL CENTER and MEERA P. LOBO, M.D., JASON FRIEDMAN, M.D., HUDSON VALLEY EMERGENCY MEDICINE, PLLC, Defendants. ------------------------------------------------------------------------------X VASSAR BROTHERS HOSPITAL, s/h/a VASSAR BROTHERS MEDICAL CENTER, Third-Party Index No.: Third-Party Plaintiff, -against- LYNN A. CLEMENTS-NORTHLAND, M.D., BRYAN YEN, M.D., IMAGING ON CALL, LLC, HUDSON VALLEY RADIOLOGISTS, P.C. and DRA IMAGING, P.C., Third-Party Defendants. ------------------------------------------------------------------------------X COUNSELORS: Third-Party Plaintiff, VASSAR BROTHERS HOSPITAL, s/h/a VASSAR BROTHERS MEDICAL CENTER (hereinafter, VASSAR BROTHERS HOSPITAL ), by its attorneys, KAUFMAN BORGEEST & RYAN, LLP, as and for its Verified Third-Party Complaint against the Third-Party Defendants, herein allege, upon information and belief, as follows: 1. That at all times hereinafter mentioned, defendant/third-party plaintiff, VASSAR BROTHERS HOSPITAL, s/h/a VASSAR BROTHERS MEDICAL CENTER (hereinafter VASSAR ) was and is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York. 2. That at all times hereinafter mentioned, third-party defendant LYNN A. CLEMENTS-NORTHLAND, M.D. was and is a physician licensed to practice medicine in the State of New York. 4
3. That at all times hereinafter mentioned, third-party defendant BRYAN YEN, M.D. was and is a physician licensed to practice medicine in the State of New York. 4. That at all times hereinafter mentioned, third-party defendant IMAGING ON CALL, LLC was and is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York. 5. That at all times hereinafter mentioned, third-party defendant HUDSON VALLEY RADIOLOGISTS, P.C. was and is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York. 6. That at all times hereinafter mentioned, third-party defendant DRA IMAGING, P.C. was and is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York. 7. That on or about February 2, 2012, plaintiff JOHNNY FLORES, individually, and as Administrator of the Estate of MELISSA FLORES, deceased, commenced an action in the Supreme Court of the State of New York, County of Bronx, against defendant/third-party plaintiff VASSAR, as well as defendant MEERA P. LOBO, M.D., which was assigned Index Number 301084/2012. 8. That on or about February 21, 2012, defendant/third-party plaintiff was served with plaintiff s Summons and Complaint, a copy of which is annexed hereto as Exhibit A. Annexed hereto as Exhibit B is a copy of defendant/third-party plaintiff s Verified Answer. 9. That on or about August 20, 2012, plaintiff JOHNNY FLORES, individually, and as Administrator of the Estate of MELISSA FLORES, deceased, commenced a second action in the Supreme Court of the State of New York, County of Bronx, against defendants JASON FRIEDMAN, M.D. and HUDSON VALLEY EMERGENCY MEDICINE, PLLC, which was assigned Index Number 21865/2012E. 10. That by Order of Judge Stanley Green, dated January 30, 2013, the actions bearing Index Numbers 301084/2012 and 21865/2012E were consolidated under Index Number 5
21865/2012E, and the caption was amended to include the defendants from both actions. Annexed hereto as Exhibit C is a copy of the January 30, 2013 Order. 11. That plaintiff has alleged that plaintiff s decedent came under the care of the defendant/third-party plaintiff VASSAR, on March 8, 2009 and March 9, 2009. 12. That plaintiff has alleged that defendant/third-party plaintiff VASSAR departed from accepted standards of medical practice and was negligent in the care rendered to plaintiff s decedent. 13. That plaintiff has alleged that as a result of defendant/third-party plaintiff VASSAR s negligence and medical malpractice, plaintiff's decedent was caused to sustain severe personal injuries and pain and suffering, as well as decedent s wrongful death on March 9, 2009. 14. That plaintiff has alleged that defendant/third-party plaintiff VASSAR will be vicariously liable for the acts of negligence and malpractice and omissions of affiliated physicians and all physicians who treated the decedent. 15. That on or about March 8-9, 2010, third-party defendant LYNN A. CLEMENTS- NORTHLAND, M.D. rendered professional medical services to plaintiff s decedent, including, but not limited to, reading, interpreting, and reporting on radiology studies performed while decedent was at VASSAR. 16. That on or about March 8-9, 2010, third-party defendant BRYAN YEN M.D. rendered professional medical services to plaintiff s decedent, including, but not limited to, reading, interpreting, and reporting on radiology studies performed while decedent was at VASSAR. 17. That on or about March 8-9, 2010, third-party defendant IMAGING ON CALL, LLC rendered professional medical services to plaintiff s decedent, including, but not limited to, reading, interpreting, and reporting on radiology studies performed while decedent was at VASSAR. 6
18. That on or about March 8-9, 2010, third-party defendant HUDSON VALLEY RADIOLOGISTS, P.C. rendered professional medical services to plaintiff s decedent, including, but not limited to, reading, interpreting, and reporting on radiology studies performed while decedent was at VASSAR. 19. That on or about March 8-9, 2010, third-party defendant DRA IMAGING, P.C. rendered professional medical services to plaintiff s decedent, including, but not limited to, reading, interpreting, and reporting on radiology studies performed while decedent was at VASSAR. 20. That on March 8-9, 2010, third-party defendant LYNN A. CLEMENTS- NORTHLAND, M.D. was not employed by defendant/third-party plaintiff VASSAR. 21. That on March 8-9, 2010, third-party defendant LYNN A. CLEMENTS- NORTHLAND, M.D. was an employee of third-party defendant IMAGING ON CALL, LLC. 22. That on March 8-9, 2010, third-party defendant LYNN A. CLEMENTS- NORTHLAND, M.D. had an independent contractor relationship with third-party defendant IMAGING ON CALL, LLC. 23. That on March 8-9, 2010, third-party defendant LYNN A. CLEMENTS- NORTHLAND, M.D. was an employee of third-party defendant HUDSON VALLEY RADIOLOGISTS, P.C. 24. That on March 8-9, 2010, third-party defendant LYNN A. CLEMENTS- NORTHLAND, M.D. had an independent contractor relationship with third-party defendant HUDSON VALLEY RADIOLOGISTS, P.C. 25. That on March 8-9, 2010, third-party defendant LYNN A. CLEMENTS- NORTHLAND, M.D. was an employee of third-party defendant DRA IMAGING, P.C. 26. That on March 8-9, 2010, third-party defendant LYNN A. CLEMENTS- NORTHLAND, M.D. had an independent contractor relationship with third-party defendant DRA IMAGING, P.C. 7
27. That on March 8-9, 2010, third-party defendant LYNN BRYAN YEN, M.D. was an employee of third-party defendant HUDSON VALLEY RADIOLOGISTS, P.C. 28. That on March 8-9, 2010, third-party defendant BRYAN YEN, M.D. had an independent contractor relationship with third-party defendant HUDSON VALLEY RADIOLOGISTS, P.C. 29. That on March 8-9, 2010, third-party defendant BRYAN YEN, M.D. was an employee of third-party defendant DRA IMAGING, P.C. 30. That on March 8-9, 2010, third-party defendant BRYAN YEN, M.D. had an independent contractor relationship with third-party defendant DRA IMAGING, P.C. 31. That on or about October 18, 2007, defendant/third-party plaintiff VASSAR, thirdparty defendants HUDSON VALLEY RADIOLOGISTS, P.C., and DRA IMAGING, P.C. entered into a Professional Services Agreement (hereinafter, the Agreement ). A copy of the Agreement is annexed hereto as Exhibit D. 32. That the Agreement remained in effect as of March 8-9, 2010. 33. That as part of the Agreement, third-party defendants HUDSON VALLEY RADIOLOGISTS, P.C. and DRA IMAGING, P.C. agreed to provide radiological services at VASSAR. 34. That as part of the Agreement, third-party defendants HUDSON VALLEY RADIOLOGISTS, P.C. and DRA IMAGING, P.C. had the sole responsibility for the operation and maintenance of the Department of Radiology and the practice of radiology at VASSAR. 35. That as part of the Agreement, third-party defendants HUDSON VALLEY RADIOLOGISTS, P.C. and DRA IMAGING, P.C. agreed to furnish, as employees or independent contractors, radiologists, including nighthawk radiologists. 36. That as of March 8-9, 2010, third-party defendant HUDSON VALLEY RADIOLOGISTS, P.C. maintained a contractual relationship with third-party defendant IMAGING 8
ON CALL, LLC, pursuant to which IMAGING ON CALL, LLC agreed to provide nighthawk radiology services to patients at VASSAR. 37. That as of March 8-9, 2010, third-party defendant DRA IMAGING, P.C. maintained a contractual relationship with third-party defendant IMAGING ON CALL, LLC, pursuant to which IMAGING ON CALL, LLC agreed to provide nighthawk radiology services to patients at VASSAR. AS AND FOR A FIRST CAUSE OF ACTION 38. Defendant/third-party plaintiff hereby repeats, reiterates and realleges each and every allegation contained in paragraphs numbered 1 through 37 with the same force and effect as if set forth fully herein. 39. If a judgment or settlement is recovered by the plaintiff from defendant/third-party plaintiff VASSAR, such recovery will have come about because of the negligence of third-party defendants LYNN A. CLEMENTS-NORTHLAND, M.D., BRYAN YEN, M.D., IMAGING ON CALL, LLC, HUDSON VALLEY RADIOLOGISTS, P.C. and DRA IMAGING, P.C., and/or their employees, licensees, servants, agents and/or contractors. 40. If, upon the trial of this matter, defendant/third-party plaintiff VASSAR is held legally responsible to the plaintiff for the injuries and damages alleged, defendant/third-party plaintiff will have been damaged as a proximate result of the acts and omissions of third-party defendants LYNN A. CLEMENTS-NORTHLAND, M.D., BRYAN YEN, M.D., IMAGING ON CALL, LLC, HUDSON VALLEY RADIOLOGISTS, P.C. and DRA IMAGING, P.C., and/or their employees, licensees, servants, agents and/or contractors, as hereinbefore alleged in the amount equal to the total sums awarded to the plaintiff pursuant to judgment. 41. If, upon the trial of this matter, defendant/third-party plaintiff VASSAR was held in some manner legally responsible for the injuries and damages alleged by the 9
plaintiff, if any, which suppositions is not admitted, but merely stated for the purpose of pleading this cause of action, that any such injuries or damages found to have been incurred by the plaintiff in this action were directly and proximately caused or contributed to by the third-party defendants LYNN A. CLEMENTS-NORTHLAND, M.D., BRYAN YEN, M.D., IMAGING ON CALL, LLC, HUDSON VALLEY RADIOLOGISTS, P.C. and DRA IMAGING, P.C., and/or their employees, licensees, servants, agents and/or contractors, and it is necessary that the proportionate degree of negligence and/or fault of the third-party defendant be determined so that the defendant/third-party plaintiff will not be required to pay more than the proportionate share of any judgment according to that degree of negligence and/or fault attributable to defendant/third-party plaintiff; and defendant/third-party plaintiff should be entitled to equitable, partial and/or total indemnification from third-party defendants in an amount consistent with their degree and percentage of negligence and/or fault. 42. By reason of the foregoing, third-party defendants LYNN A. CLEMENTS- NORTHLAND, M.D., BRYAN YEN, M.D., IMAGING ON CALL, LLC, HUDSON VALLEY RADIOLOGISTS, P.C. and DRA IMAGING, P.C. are liable over to the defendant/thirdparty plaintiff, VASSAR, in common law indemnification or contribution for all or thirdparty defendants proportionate shares of any judgment or settlement that the plaintiff may recover from the defendant/third-party plaintiff. WHEREFORE, defendant/third-party plaintiff VASSAR demands judgment against third-party defendants, LYNN A. CLEMENTS-NORTHLAND, M.D., BRYAN YEN, M.D., IMAGING ON CALL, LLC, HUDSON VALLEY RADIOLOGISTS, P.C. and DRA IMAGING, P.C., and for a judicial determination that third-party defendants must fully indemnify and/or contribute in favor of defendant/third-party plaintiff VASSAR, for any 10
and all sums which defendant/third-party plaintiff may be obligated to pay in settlement or compromise, or in payment for any judgment plaintiff obtains as against defendant/third-party plaintiff, according to their proportionate shares of fault and liability; To the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, the presentation of this paper or the contentions herein are not frivolous, as that term is defined in Part 130 of the Court Rules. Dated: Valhalla, New York January 8, 2014 Yours etc., KAUFMAN BORGEEST & RYAN LLP By: Steven J. Auletta, Esq. Attorneys for Defendant/Third-Party Plaintiff VASSAR BROTHERS HOSPITAL, s/h/a VASSAR BROTHERS MEDICAL CENTER 200 Summit Lake Drive First Floor Valhalla, New York 10595 (914) 449-1000 File No.: 730.002 To: Bruce J. Ressler, Esq. RESSLER & RESSLER Attorneys for Plaintiff 48 Wall Street New York, New York 10005 MARTIN CLEARWATER & BELL Attorneys for Defendant MEERA P. LOBO, M.D. 245 Main Street, Suite 510 White Plains, New York 10601 SCHIAVETTI, COGAN, DIEDWARDS, WEINBERG & NICHOLOSON, LLP Attorneys for Defendants JASON FRIEDMAN, M.D. and HUDSON VALLEY EMERGENCY MEDICINE, PLLC 575 Eighth Avenue New York, New York 10001 Lynn A. Clements-Northland, M.D. c/o Imaging on Call, LLC 695 Dutchess Turnpike, Suite 105 Poughkeepsie, New York 12603 11
Bryan Yen, M.D. 1 Columbia Street Poughkeepsie, New York 12601 Imaging on Call, LLC 695 Dutchess Turnpike, Suite 105 Poughkeepsie, New York 12603 Hudson Valley Radiologists, P.C. 169 Myers Corners Road, Suite 250 Wappingers Falls, New York, 12590 DRA Imaging, P.C. 1 Columbia Street Poughkeepsie, New York 12601 12
VERIFICATION STATE OF NEW YORK ) ) COUNTY OF WESTCHESTER ) STEVEN J. AULETTA, ESQ., being duly sworn, states that he is an associate of the firm of KAUFMAN BORGEEST & RYAN LLP, attorneys for defendant/third-party plaintiff, VASSAR BROTHERS HOSPITAL, s/h/a VASSAR BROTHERS MEDICAL CENTER, in this action, and that the foregoing VERIFIED THIRD-PARTY COMPLAINT is true to his knowledge, except as to those matters therein stated upon information and belief, and as to those matters he believes them to be true; that the grounds of his belief as to all matters not stated upon his knowledge are correspondence and other writings furnished by the defendant/third-party plaintiff and other documentations maintained in the office of its attorneys; and that the reason why this Verification is not made by defendant/third-party plaintiff is that the defendant/third-party plaintiff resides in a county other than the county where its attorney has his office. Dated: Valhalla, New York January 8, 2014 STEVEN J. AULETTA, ESQ. 13