SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND FELIX GALARZA JR., as Administrator of the Estate of L***** G******, deceased infant; FELIX GALARZA, JR., Individually as father and Legal Guardian of L***** G******; and, MICHELLE GALARZA Individually and as Mother and Legal Guardian of L***** G******, -against- Plaintiff, Index No: 150756/2015 VERIFIED ANSWER TO FIRST AMENDED VERIFIED COMPLAINT COMPREHENSIVE PEDIATRICS, P.C.; RICHMOND UNIVERSITY MEDICAL CENTER; JERRY BADER M.D.; NICK FARACI, M.D.; MAYANK SHUKLA, M.D.; STATEN ISLAND UNIVERSITY HOSPITAL; FIDEL GARCIA, FERNANDEZ, M.D.; IRENE GRINBERG, M.D.; JENNIFER DIMA, M.D.; SABRINA DESTEFANO, D.O.; VIRTEEKA SINHA, M.D.; SUMON DAS, M.D.; JOHN DOE(S) 1 AND JANE DOE(S) 1, names being fictitious, true names unknown, persons intended to be nurses of the Hospital Defendants; NORTH SHORE UNIVERSITY HOSPITAL AMBULANCE SERVICE; BENEDICT GATTO; ASHTON JONES; ABC CORP. PARAMEDIC, name being fictitious, true name unknown and intended to be the paramedic service provider for Decedent; JOHN DOE(S) 2 AND JANE DOE(S) 2, names being fictitious, true names unknown and intended to be paramedics who treated Decedent, Defendants. The defendant, RICHMOND UNIVERSITY MEDICAL CENTER, by its attorneys, VIGORITO, BARKER, PORTER, & PATTERSON, LLP, answering the complaint of the plaintiff(s), upon information and belief, respectfully shows to this Court and alleges: ANSWERING "THE PARTIES": 1 Denies having knowledge or information sufficient to form a belief as to the allegations contained within paragraphs "1,""2,""3,""4,""5,""8,""9,""10,""11,""12,""13," 1 of 8
"14,""15,""16,""17,""18," "19," "20," " 1," "27," "28," "29," "30," "31," "32,""44,""45," "46," "47,""48,""49," "50," "51," "52," "53," "54," "55," "56," "57," "58," "59,""60,""61," "62,""63,""64,""65,""66," "67," "68," "69," "70," "71," "72," "73" and "74." 2. Denies each and every allegation in paragraph "6" in the form alleged. 3 Denies each and every allegation contained in paragraphs "7.". 4. Denies each and every allegation in paragraphs "22," "25," "34," "35," "37," "38," "40," "41" and "43" in the form alleged and refer questions of law to the Court and questions of fact to the trier of fact. 5. Denies each and every allegation in paragraph "23" in the form alleged except admits that Richmond University Medical Center was and is a domestic not-for-profit corporation duly organized in the State of New York. 6. The defendant(s) admit allegations contained in paragraphs "24," "26," "33," :36," "39" and "42." ANSWERING "FACTS RELEVANT TO EACH CAUSE OF ACTION": 7. Denies having knowledge or information sufficient to form a belief as to the allegations contained within paragraphs "75," "84,""85,""86,""87,""88,""89,""90,""109," "110," "111," "112," "113," "114," "115," "116," "117," "118," "119," "120," "121," "122," "123," "124," "125," "126," "127," "128,""129," "130," "131," "132," "133," "134," "135," "136," "137," "138," "139," "140," "141," "142," "146, "147," "148," "149," "150,""151," "152,""153,""154,""155,""156,""157,""158,""159" and "160." 8. Denies each and every allegation in paragraphs "76,""77,""78,""79,""80",""81," '82," "83," "91," "92,""93,""94," "95," "96," "97,""98,""99,""100," "101,""102,""103," "104," "105," "106," "107," "108," "143," "144" and "145" in the form alleged and refer questions of law to the Court and questions of fact to the trier of fact. 2 of 8
ANSWERING THE FIRST CAUSE OF ACTION: 9. Denies having knowledge or information sufficient to form a belief as to the allegations contained within paragraphs "161,""163" and "167." 10. Denies each and every allegation in paragraph "162,""164,""165,""166,""169," "170,""171,""172" in the form alleged. 1 1. Denies each and every allegation in paragraph "168" in the form alleged and refer questions of law to the Court and questions of fact to the trier of fact. 12. Denies each and every allegation alleged in paragraphs "173" and "174." ANSWERING THE SECOND CAUSE OF ACTION: 13. In response to paragraph "175", repeats and realleges each admission or denial made herein with the same force and effect herein as to paragraphs "1" through "174" as though 14. Denies each and every allegation in paragraph "176,""177,""178" and "179" in the form alleged. 15. Denies each and every allegation alleged in paragraphs "180" and "181." ANSWERING THE THIRD CAUSE OF ACTION: 16. In response to paragraph "182", repeats and realleges each admission or denial made herein with the same force and effect herein as to paragraphs "1" through "181" as though 17. Denies each and every allegation in paragraphs "183,""184,""185,""186" and "187" in the form alleged. ANSWERING THE FOURTH CAUSE OF ACTION: 3 of 8
18. In response to paragraph "188", repeats and realleges each admission or denial made herein with the same force and effect herein as to paragraphs "1" through "187" as though 19. Denies each and every allegation in paragraphs "189,""190" and "191." ANSWERING THE FIFTH CAUSE OF ACTION: 20. In response to paragraph "192", repeats and realleges each admission or denial made herein with the same force and effect herein as to paragraphs "I'- through "191" as though 21. Denies each and every allegation in paragraphs "193,""195" and "196." 22. Denies having knowledge or information sufficient to form a belief as to the allegations contained within paragraph "194." ANSWERING THE SIXTH CAUSE OF ACTION: 23. In response to paragraph "197", repeats and realleges each admission or denial made herein with the same force and effect herein as to paragraphs "1" through "196" as though 24. Denies each and every allegation in paragraphs "198" and "199" in the form alleged. 25. Denies each and every allegation in paragraphs "200" and "201." AS AND FOR A FIRST DEFENSE, 26. That any injuries sustained by plaintiff(s) at the time and place mentioned in the complaint were caused solely and wholly by reason of the carelessness, negligence, recklessness and acts or omissions on the part of the plaintiff and were not caused or contributed to by reason 4 of 8
of any carelessness, negligence, recklessness or acts or omissions on the part of this answering defendant. AS AND FOR A SECOND DEFENSE, 27. That the answering defendants} reserve(s) the right to claim the limitations of liability pursuant to Article 16 of the CPLR, for any recovery herein by the plaintiff for noneconomic loss. AS AND FOR A THIRD DEFENSE, 28. In the event plaintiffs recover a verdict or judgment against defendants, such verdict or judgment must be reduced pursuant to 4545 of the CPLR by those amounts which have been, or will, with reasonable certainty replace or indemnify plaintiffs in whole or in part, for any past or future claimed economic loss, from any collateral source. AS AND FOR A FOURTH DEFENSE, 29. If plaintiff is entitled to recover damages for loss of earnings or impairment of earning ability as against defendant RICHMOND UNIVERSITY MEDICAL CENTER 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 FIFTH DEFENSE, 5 of 8
30. The defendant asserts the defense of set-off to reduce the plaintiff's claims under 15-108 of the General Obligations Law. AS AND FOR A SIXTH DEFENSE, 31. If the plaintiff was caused to sustain personal injuries and resulting damages at the time and place set forth in the plaintiff's complaint and in the manner alleged therein through any carelessness, recklessness, acts, omissions, negligence and/or breaches of duty and/or warranty and/or contract other than of the plaintiff then the said injuries and damages arose out of the several and joint carelessness, recklessness, acts, omissions, negligence and breaches of duty and/or obligation and/or statute, and/or warranty, and/or contract in fact or implied in law, upon the part of non-parties subject to in-personam jurisdiction, and if this pleading defendant is found negligent as to the plaintiff for the injuries and damages set forth in the plaintiff's complaint, then and in that event, the relative responsibilities of said pleading defendant must be apportioned by the percentage of liability of said non-parties subject to in-personam jurisdiction. AS AND FOR A SEVENTH DEFENSE, 32. The alleged causes of action set forth in the complaint did not accrue within the applicable statutory period preceding the commencement of said actions, and said actions are barred by the statute of limitations. AS AND FOR AN EIGHTH DEFENSE, 33. Plaintiff failed to mitigate, diminish or otherwise act to lessen reduce the injuries and dathages alleged in the Complaint. 6 of 8
AS AND FOR AN NINTH DEFENSE, 34. That the defendant acted in accordance with the appropriate provisions of Section 2805-d of the Public Health Law and relies on the defenses set out therein. AS AND FOR AN TENTH DEFENSE, 35. The complaint is not accompanied by a valid Certificate of Merit and therefore should be dismissed. WHEREFORE, the defendant, RICHMOND UNIVERSITY MEDICAL CENTER, demands judgment dismissing the plaintiff(s)t complaint with the costs and disbursements of this action. Dated: Garden City, New York August 4, 2017 Yours, etc., V.IGORUFO, BA PATTERSON PORTER, & By: Tod Gil... Attorneys f.r Defendant(s) RICHM0). D UNIVERSITY MEDICAL CENTER 300 Garden City Plaza, Suite 308 Garden City, New York 11530 (516) 282-3355 TO: BALLON STOLL BADER & NADLER, P.C. Attorneys for. Plaintiffs 729 7th Avenue-17th Floor New York, New York 10019 (212) 575-7900 7 of 8
ATTORNEY'S VERIFICATION Todd Gilbert, an attorney duly admitted and licensed to practice in the courts of this State affirms the following pursuant to CPLR 2106: I am the attorney for the defendant, RICHMOND UNIVERSITY MEDICAL CENTER, herein; and I have read the foregoing answer and know the contents thereof; that the same is true to my own knowledge except as to the matters therein stated to be alleged upon information and belief, and that as to those matters, I believe them to be true. That the reason this verification is made by your affirmant and not by the defendant personally is, that the defendant is not within the county where your affirmant has an office. That the sources of your affirmant's information and the grounds of his/her belief as to the matters so alleged herein are investigations had by the defendant, his/her agents, servants and representatives into the subject matter hereof and correspondence relating thereto, reports of which investigations and copies of which correspondence are in the possession of your affirmant. Dated: Garden City, New York August 4, 2017 Dodd getiort Todd Gilbert, Esq. 8 of 8