FILED: KINGS COUNTY CLERK 10/13/2016 10:25 AM INDEX NO. 513727/2016 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 10/13/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------------- JUDY E. HINDS, as Executor of the Estate of EARL H. CLARKE, and JUDY E. HINDS, Individually, Index No: 513727/2016 -against- Plaintiff, VERIFIED ANSWER DANIEL J. MORGAN, M.D., MOUNT SINAI HEALTH SYSTEM, INC., MOUNT SINAI HOSPITAL GROUP, INC., and SHEEPSHEAD NURSING AND REHABILITATION CENTER, LLC., Defendants. ------------------------------------------------------------------------- Defendant, SHEEPSHEAD NURSING AND REHABILITATION CENTER, LLC., by its attorneys, SHAUB, AHMUTY, CITRIN & SPRATT, LLP as and for its 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 enough to form a belief as to the allegations contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 21, 22, 27 and 37 of the Verified Complaint. SECOND: Denies the allegations contained in paragraphs 2, 23, 24, 25, 28, 29, 31, 32, 33, 34, 35, 38, 39, 41 and 42 of the Verified Complaint. THIRD: Denies in the form alleged the allegations contained in paragraphs 17, 18, 19 and 20 of the Verified Complaint, except admits Sheepshead Nursing and Rehabilitation Center, LLC lawfully operated a skilled nursing facility located at 2840 Knapp Street, Brooklyn, New York and provided quality care to residents including Earle Clarke on those dates referenced in the medical records. 1 of 5
FOURTH: In response to paragraphs 26, 30, 36 and 40 defendant repeats each admission or denial made herein as though fully set forth hereat. AS AND FOR A FIRST AFFIRMATIVE DEFENSE FIFTH: The complaint fails to state one of more causes of action upon which relief can be granted. AS AND FOR A SECOND AFFIRMATIVE DEFENSE SIXTH: That in the event of any judgment or verdict on behalf of the plaintiff, the defendant is entitled to a set-off or verdict with respect to the amounts of any payments made to the plaintiff for medical and other expenses prior thereto. AS AND FOR A THIRD AFFIRMATIVE DEFENSE SEVENTH: That if the defendant secures judgment against the answering defendant, and if the answering defendant is found to be 50% or less liable, then judgment against the answering defendant for non-economic loss, as defined in Article 16 of the Civil Practice Law and Rules, can only be had against the answering defendant to the extent the answering defendant is found to be liable. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE EIGHTH: That the plaintiff fails to assert or allege facts in his/her complaint of Wherefore clause sufficient to entitle plaintiff to seek punitive damages against the answering defendant. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE NINTH: The complaint fails to name an indispensable party. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE TENTH: The defendant asserts the defense of set-off to reduce the plaintiff s claims under 15-108 of the General Obligations Law. 2 of 5
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE ELEVENTH: Defendant invokes CPLR 4546 and demands that the amount of damages awarded, if any, be reduced accordingly. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE TWELFTH: Plaintiffs have failed to comply with CPLR 3012-a in that they have failed to serve a certificate of merit, and, as such, their complaint should be dismissed. AS AND FOR A NINTH AFFIRMATIVE DEFENSE THIRTEENTH: The causes of action pleaded herein are invalid as the answering defendant exercised all care necessary to prevent and limit the deprivation and injury for which liability is asserted herein. WHEREFORE, SHEEPSHEAD NURSING AND REHABILITATION CENTER, LLC demands judgment dismissing the Verified Complaint, together with costs and disbursements of the within action. Dated: New York, New York October 13, 2016 SHAUB, AHMUTY, CITRIN & SPRATT, LLP By: ANDREW T. SHEELEY, ESQ. Attorneys for Defendant SHEEPSHEAD NURSING AND REHABILITATION CENTER, LLC 77 Water Street New York, New York 10005 (212) 599-8200 OUR FILE NO.: 1011-00027 TO: Arnold I. Goldstein GOLDSTEIN & GOLDSTEIN Attorneys for Plaintiff 26 Court Street, 20 th Floor Brooklyn, NY 11242 (718) 855-0551 File No: 16-10991 3 of 5
ATTORNEY'S VERIFICATION STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK) ANDREW T. SHEELEY, being duly sworn, deposes and says: That he is of counsel in the firm of attorneys representing the defendant SHEEPSHEAD NURSING AND REHABILITATION CENTER, LLC That he has read the attached Verified Answer and the same is true to his own belief, except as to matters alleged on information and belief, and as to those matters he believes them to be true to the best of his knowledge. That deponent's sources of information are a claims file containing statements, reports and records of investigation, investigators, parties and witnesses, with which deponent is fully familiar. That this verification is made by deponent because his clients do not reside within the county where deponent maintains her office. ANDREW T. SHEELEY 4 of 5
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS JUDY E. HINDS, as Executor of the Estate of EARL H. CLARKE, and JUDY E. HINDS, Individually, Index No: 513727/2016 -against- Plaintiff, DANIEL J. MORGAN, M.D., MOUNT SINAI HEALTH SYSTEM, INC., MOUNT SINAI HOSPITAL GROUP, INC., and SHEEPSHEAD NURSING AND REHABILITATION CENTER, LLC., Defendants. VERIFIED ANSWER SHAUB, AHMUTY, CITRIN & SPRATT, LLP Attorneys for Defendant SHEEPSHEAD NURSING AND REHABILITATION CENTER, LLC., Office and Post Office Address 77 Water Street, Suite 702 New York, New York 10005 212-599-8200 TO: ALL PARTIES 5 of 5