Preview
FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022
EXHIBIT “B”
FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE .
MIMMA MALLOZZl, As Administrator Of the Estate
of N.M., Deceased, and MIMMA MALLOZZI and
JOSEPH MALLOZZl, Individually
Plaintdth)etitioner,
- against - Index No.
SIMRANJ1T S. GiLL, D.O., MARK A. KENYON, M.D.
and KALElDA HEALTH-OISHEI CHILDREN'S
HOSPITAL,
Defendant/Respondent.
X
NOTICE OF COMMENCEMENT OF ACTION
SUBJECT TO MANDATORY ELECTRONIC FILING
PLEASE TAKB NOTICB that the matter captioned above, which has been commenced by fding of the
accompanying documents with the County Clerk,is subject tomandatory electronic filingpursuant toSection202.5-bb
of the Unitbrm Rules for the Trial Courts. This notice is being served as required by Subdivision (b) (3) of that
Scotion.
The New York State Courts Electronic Filing System ("NYSCEF") is designed for the electronic filing of
documents with the Coimty Clerk and the court and for the electronic service of those documents, court documents,
and court notices upon counsel and self-represented parties. Counsel and/or parties who do not notify the court of a
claimed exemption (see below) as requiredby Section202.5-bb(e) mustimmediatelyrecord theirrepresentation within
the e-filed matter on the Consent page in NYSCEF. Failure to do so may result in an inability to receive electronic
notice of document fdings.
Exemptions from
mandatory e-filing are limited to: 1) attorneys who certify in good faith that they lack the
computer equipment and (along with all employees) the requisite knowledge to comply; and 2) self-represented parties
who choosenot to participate in e-filing. For additionalinformation about electronic filing, including access to Section
202.5-bb, consult the NYSCEF website at www.nycourts.gov/efile or contact the NYSCEF Resource Center at 646-
386-3033 or ofile@courts.state.ny.us.
Dated: 09/21/2018
AA. R¾ian-ture) -(Adore-s)
NEW YORK, NEW YORK 10007
CARMINE A. RUBlNO
(Name)
KRAMER, DILLOF, LIVINGSTON &
MOORE, E8Q 8' 212 267 4177
(Firm Name) (Phone)
crubinO@kdim.com
(s-wain
D.O. 100 High Street - Rm D-6 - NY 14203
SIMRANJfT S. Gil.L, Buffalo,
Ta - Buffalo,
MARK A. KENYON, M.D. 219 Bryant Street NY 14222
HEALTH-OISHEl CHILDREN'S HOSPITAL - 818 Ellicot Street - NY 14203
KALEADA Buffalo,
swu
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NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022
SUPREME COURT OF THE STATE OF NEW YORK INDEX NO:S/f955 o/F
COUNTY OF ERIE
___---------.----------..---------------------x
MIMMA MALLOZZi, As Administrator of the Estate Plaintiffs designate
Of N.M., Deceased, and MIMMA MALLOZZI and ERIE COUNTY
JOSEPH MALLOZZI, Individually, as the place of trial
Plaintiffs, SUMMONS
-against-
The basis of the venue:
Defendants'
SIMRANJIT S. GILL, D.O., MARK A. KENYON, M.D. and address
KALEIDA HEALTH-OlSHE1 CHILDREN'S HOSPITAL,
Plaintiffs Residence:
161 Adams Lane
Defendants. New Canaan, CT 06840
---- .--------.-----...---..---....-...-------------..x
To the above named defendant(s): COUNTY OF ERIE
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy. of
your answer or, if the complaint is not served with this summons, to serve a notice of appearance, on
the Plaintiff's Attorneys within 20 days after the service of this summons, exclusive of the day of service
(or within 30 days after the service is complete if this summons is not personally delivered to you within
the State of New York): and in case of your failure to appear or answer, judgment will be taken for the
relief demanded herein.
A COPY OF THIS SUMMONS WAS E-FILED WITH THE CLERK OF THE COURT, ERIE COUNTY, ON
IN COMPLIANCE WITH CPLR §§305(a) AND 306(a).
Dated: New York, New York
September 20, 2018
KRAMER, D1LLOF, LIVINGSTON & MOORE
By: CARMINE A. RUBINO Q.
Attorneys for Plaintiffs
217 Broadway
New York, New York 10007
Tel: (212) 267-4177
DEFENDANTS'
ADDRESSES
SIMRANJIT S. GILL, D.O. 100 High Street - Rm D-6 - NY 14203
Buffalo,
MARK A. KENYON, M.D. 219 Bryant Street - NY 14222
Buffalo,
KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL - 818 Ellicot Street - NY 14203
Buffalo,
FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022
CAR/ec
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
--X Inde
MIMMA MALLOZZl, As Administrator of the
Estate of N.M., Deceased, and MIMMA
MALLOZZI And JOSEPH MALLOZZl, Individually,
Plaintiffs,
- against - VERIFIED COMPLAINT
SIMRANJiT S. GlLL, D.O., MARK A. KENYON, M.D.,
and KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL,
Defendants.
______-..--______________________________---------x
Plaintiffs, MIMMA MALLOZZI and JOSEPH MALLOZZl, above named, complaining of
the defendants by their attorneys, KRAMER, DILLOF, LIVINGSTON & MOORE, ESQS.,
respectfully allege, upon information and belief, as follows:
AS AND FOR THE FIRST CAUSE OF ACTION
1. Prior to the commencement of this action, plaintiff, MIMMA MALLOZZI was
appointed Administrator of the Estate of the Order of Darien- New
duly N.M., deceased, by
Canaan Probate Court, dated July 12, 2018.
2. At all times herein mentioned, defendant SIMRANJIT S. GlLL, D.O., was a
Doctor of Osteopathic duly licensed to practice medicine in the State of New York.
plaintiffs'
3. At all times herein mentioned, decedent, N.M., was a patient of
SIMRANJIT S. GlLL, D.O.
4. At all times herein mentioned, defendant MARK A. KENYON, M.D., was a
physician duly licensed to practice medicine in the State of New York,
1
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plaintiffs'
5. At all times herein mentioned, decedent, N.M., was a patient of
MARK A. KENYON, M.D.
6. At all times herein mentioned defendant KALE1DA HEALTH-OISHEl
CHILDREN'S HOSPITAL was a domestic corporation, duly incorporated and existing under
and by virtue of the law of the State of New York.
7. At all times herein mentioned defendant KALEADA HEALTH-OISHEl
CHILDREN'S HOSPITAL was the owner of a hospital known as KALElDA HEALTH-OISHEl
CHILDREN'S HOSPITAL located at 818 Ellicott Street, Buffalo, NY 14203.
8. At all times herein mentioned, defendant KALElDA HEALTH-OISHEl
CHILDREN'S HOSPITAL operated, managed and controlled defendant KALElDA HEALTH-
OISHEI CHILDREN'S HOSPITAL.
plaintiffs'
9. At all times herein mentioned, decedent, N.M., was a patient of
defendant KALEiDA HEALTH-OISHEl CHILDREN'S HOSPITAL.
10. At all times herein mentioned, all of the physicians, nurses and medical
personnel involved in the medical diagnosis, care, and treatment of the plaintiff N.M. in
defendant KALEADA HEALTH-OISHEl CHILDREN'S HOSPITAL were agents, servants and/or
employees of defendant KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL.
11. At all times herein mentioned defendants SIMRANJIT S. G1LL, D.O., MARK A.
KENYON, M.D. and KALElDA HEALTH-OISHEI CHILDREN'S HOSPITAL, were agents, servants
and/or employees of each other with regard to the medical care, treatment and diagnosis
plaintiffs'
of the decedent, N.M.
2
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12. At all times herein mentioned defendants SIMRANJIT S. GlLL, D.O., was an
agent, servant and/or employee of defendant KALEIDA HEALTH-OISHEl CHILDREN'S
HOSPITAL.
13. At all times herein mentioned defendants MARK A. KENYON, M.D. was an
agent, servant and/or employee of defendant KALElDA HEALTH-OISHEl CHILDREN'S
HOSPITAL.
14. On or about January 13, 2018, plaintiff's decedent, N.M., was a patient of the
defendants SIMRANJiT S. GlLL, D.O., MARK A. KENYON, M.D. and KALElDA HEALTH-OISHEl
CHILDREN'S HOSPITAL, their agents, servants, and/or employees, under the medical and
emergency diagnosis, care and treatment of the aforesaid defendants, their agents,
servants and/or employees, in the Emergency Room of defendant KALEADA HEALTH-OISHEl
CHILDREN'S HOSPITAL in its premises, and as a result of the failure by defendants
SIMRANJIT S. GlLL, D.O., MARK A. KENYON, M.D. and KALEADA HEALTH-OISHEl
CHILDREN'S HOSPITAL, their agents, servants and/or employees, to properly and timely
diagnose, care for and treat N.M., including but not limited to the failure to diagnose and
treat N.M.'s sepsis and/or infection; the failure to timely examine the plaintiff's decedent;
the failure to perform a CBC; the failure to timely admit the plaintiffs decedent to the
hospital; the failure to properly take vital signs prior to discharging the plaintiff's decedent;
the failure to rule out pneumonia; the failure to take a chest X-Ray; the failure to take the
plaintiffs decedent blood pressure and in improperly discharging the patient from the
plaintiffs'
Emergency Room, the decedent, N.M. sustained severe injuries and complications
resulting in N.M.'s death on January 14, 2018.
3
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15. Said occurrence was due to the carelessness and negligence to the plaintiff's
decedent N.M. by the defendants, their agents, servants and/or employees in failing to
plaintiffs'
treat the decedent in a good, accepted and proper medical manner, and without
plaintiffs'
any fault or lack of care on the part of the decedent herein.
plaintiffs'
16. By reason of the foregoing, decedent, N.M., sustained severe and
serious personal injuries, a severe shock to his nervous system and certain internal injuries,
and was caused to suffer severe physical pain and mental anguish as a result thereof.
17. The amount of damages sought herein exceeds the jurisdiction of all lower
courts which would otherwise have jurisdiction.
18. This action falls within exceptions to Article 16 of the CPLR.
AS FOR A SECOND CAUSE OF ACTION
FOR A LACK OF INFORMED CONSENT
19. Plaintiffs repeat, reiterate and reallege each and every allegation contained
in those paragraphs of the complaint marked and designated 1. through 18. inclusive, with
the same force and effect as if hereinafter set forth at length.
20. The defendants failed to inform the parent of N.M. of the risks, hazards and
alternatives connected with the procedures utilized and treatment rendered so that so that
an informed consent could be given.
21. That reasonable prudent persons in the plaintiff's decedent's parent's
position would not have agreed to the procedures utilized and/or treatment rendered if she
had been fully informed of the risks, hazards and alternatives connected with said
procedures and treatments.
4
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plaintiffs'
22. The failure to adequately and fully inform the parent of the
decedent, N.M., of the risks, hazards and alternatives of the procedures utilized and/or
plaintiffs'
treatment rendered is a proximate cause of the injuries decedent sustained.
23. That as a consequence of the foregoing there was no informed consent to
plaintiffs'
the procedures utilized and treatment rendered to decedent.
24. The amount of damages sought exceeds the jurisdiction of all lower courts
which would otherwise have jurisdiction.
AS AND FOR A THIRD CAUSE OF ACTION
FOR LOSS OF SERVICES
25. Plaintiffs repeat, reiterate and reaIlege each and every allegation contained
in those paragraphs of the complaint marked and designated 1through 24. inclusive, with
the same force and effect as if hereinafter set forth at length.
26. That by reason of the foregoing, plaintiffs MIMMA MALLOZZI and JOSEPH
MALLOZZI have been deprived of the services and companionship of their son, N.M., from
on or about , through the date of his death on January 14, 2018.
27. That the amount of damages sought exceeds the jurisdiction of all lower
courts which would otherwise have jurisdiction.
AS AND FOR A FOURTH CAUSE OF ACTION
FOR WRONGFUL DEATH
28. Plaintiffs repeat, reiterate and reallege each and every allegation contained
in those paragraphs of the complaint marked and designated 1. through 27. inclusive, with
the same force and effect as if hereinafter set forth at length.
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29. By reason of the foregoing carelessness, negligence and gross negligence of
the defendants, their agents, servants and/or employees, same caused, precipitated and/or
hastened the death of decedent, N.M., on or about January 14, 2018.
Plaintiffs'
30. decedent left surviving his parents, MIMMA MALLOZZI and JOSEPH
MALLOZZl, both of whom suffered pecuniary loss as a result.
31. The amount of damages sought exceeds the jurisdiction of all lower courts
which would otherwise have jurisdiction.
AS AND FOR THE FIFTH CAUSE OF ACTION AGAINST
KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL
32. That plaintiffs repeat, reiterate, and reallege each and every allegation
contained in those paragraphs of the complaint marked and designated 1. through 31.
inclusive, with the same force and effect as if hereinafter set forth at length.
33. That defendant KALElDA HEALTH-OISHE1 CHILDREN'S HOSPITAL, prior to the
granting or renewing of privileges or employment of defendants, residents, nurses,
physician's assistants and others involved in plaintiff's decedent's care, failed to investigate
the qualifications, competence, capacity, abilities and capabilities of said defendants,
residents, nurses and other employees, including but not limited to obtaining the following
information: patient grievances, negative health care outcomes, incidents, injurious to
patients, medical malpractice actions commenced against said persons, including the
outcome thereof, any history of association, privilege and/or practice at other institutions,
any discontinuation of said association, employment privilege and/or practice at said
institution, and any pending professional misconduct proceeding in this State of another
6
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State, the substance of the allegations in such proceedings and any additional information
concerning such proceedings and hospital failed to make sufficient inquiry of the physician,
nurse and/or employees and institutions which should and did have information relevant to
the capacity capability, ability and competence of said persons rendering treatment.
34. That had the defendant KALEADA HEALTH-OISHEI CHILDREN'S HOSPITAL
made the above stated inquiry or in the alternative had defendant reviewed and analyzed
the information obtained in a proper manner, privileges and/or employment would not
have been granted and/or renewed.
35. That by reason of the defendant's failure to meet the aforementioned
plaintiffs'
obligation, decedent was treated by physicians, nurses, physician's assistants,
and/or other employees who were lacking the requisite skills, abilities, competence and
capacity, as a result of which plaintiff's decedent sustained severe injuries and
complications which ultimately led to her death.
36. The amount of damages sought exceeds the jurisdiction of all lower courts
which would otherwise have jurisdiction.
WHEREFORE, plaintiffs demand judgment against defendants on the first, third,
fourth, fifth and sixth causes of action and second cause of action for punitive damages, in
such sum as the jury finds fair, adequate and just.
Date: New York, New York
September 20, 2018
7
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NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022
KRAMER, DILLOF, LIVINGSTON & MOORE, ESQS.
CARMINE A. RUBlNO, ESQ.
Attorneys for Plaintiffs
-10th
217 Broadway FlOOr
New York, New York 10007
Tel: 212- 267- 4177
8
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NYSCEF DOC. NO. 33
Preview
FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022 EXHIBIT “B” FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE . MIMMA MALLOZZl, As Administrator Of the Estate of N.M., Deceased, and MIMMA MALLOZZI and JOSEPH MALLOZZl, Individually Plaintdth)etitioner, - against - Index No. SIMRANJ1T S. GiLL, D.O., MARK A. KENYON, M.D. and KALElDA HEALTH-OISHEI CHILDREN'S HOSPITAL, Defendant/Respondent. X NOTICE OF COMMENCEMENT OF ACTION SUBJECT TO MANDATORY ELECTRONIC FILING PLEASE TAKB NOTICB that the matter captioned above, which has been commenced by fding of the accompanying documents with the County Clerk,is subject tomandatory electronic filingpursuant toSection202.5-bb of the Unitbrm Rules for the Trial Courts. This notice is being served as required by Subdivision (b) (3) of that Scotion. The New York State Courts Electronic Filing System ("NYSCEF") is designed for the electronic filing of documents with the Coimty Clerk and the court and for the electronic service of those documents, court documents, and court notices upon counsel and self-represented parties. Counsel and/or parties who do not notify the court of a claimed exemption (see below) as requiredby Section202.5-bb(e) mustimmediatelyrecord theirrepresentation within the e-filed matter on the Consent page in NYSCEF. Failure to do so may result in an inability to receive electronic notice of document fdings. Exemptions from mandatory e-filing are limited to: 1) attorneys who certify in good faith that they lack the computer equipment and (along with all employees) the requisite knowledge to comply; and 2) self-represented parties who choosenot to participate in e-filing. For additionalinformation about electronic filing, including access to Section 202.5-bb, consult the NYSCEF website at www.nycourts.gov/efile or contact the NYSCEF Resource Center at 646- 386-3033 or ofile@courts.state.ny.us. Dated: 09/21/2018 AA. R¾ian-ture) -(Adore-s) NEW YORK, NEW YORK 10007 CARMINE A. RUBlNO (Name) KRAMER, DILLOF, LIVINGSTON & MOORE, E8Q 8' 212 267 4177 (Firm Name) (Phone) crubinO@kdim.com (s-wain D.O. 100 High Street - Rm D-6 - NY 14203 SIMRANJfT S. Gil.L, Buffalo, Ta - Buffalo, MARK A. KENYON, M.D. 219 Bryant Street NY 14222 HEALTH-OISHEl CHILDREN'S HOSPITAL - 818 Ellicot Street - NY 14203 KALEADA Buffalo, swu FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022 SUPREME COURT OF THE STATE OF NEW YORK INDEX NO:S/f955 o/F COUNTY OF ERIE ___---------.----------..---------------------x MIMMA MALLOZZi, As Administrator of the Estate Plaintiffs designate Of N.M., Deceased, and MIMMA MALLOZZI and ERIE COUNTY JOSEPH MALLOZZI, Individually, as the place of trial Plaintiffs, SUMMONS -against- The basis of the venue: Defendants' SIMRANJIT S. GILL, D.O., MARK A. KENYON, M.D. and address KALEIDA HEALTH-OlSHE1 CHILDREN'S HOSPITAL, Plaintiffs Residence: 161 Adams Lane Defendants. New Canaan, CT 06840 ---- .--------.-----...---..---....-...-------------..x To the above named defendant(s): COUNTY OF ERIE YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a copy. of your answer or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attorneys within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York): and in case of your failure to appear or answer, judgment will be taken for the relief demanded herein. A COPY OF THIS SUMMONS WAS E-FILED WITH THE CLERK OF THE COURT, ERIE COUNTY, ON IN COMPLIANCE WITH CPLR §§305(a) AND 306(a). Dated: New York, New York September 20, 2018 KRAMER, D1LLOF, LIVINGSTON & MOORE By: CARMINE A. RUBINO Q. Attorneys for Plaintiffs 217 Broadway New York, New York 10007 Tel: (212) 267-4177 DEFENDANTS' ADDRESSES SIMRANJIT S. GILL, D.O. 100 High Street - Rm D-6 - NY 14203 Buffalo, MARK A. KENYON, M.D. 219 Bryant Street - NY 14222 Buffalo, KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL - 818 Ellicot Street - NY 14203 Buffalo, FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022 CAR/ec SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE --X Inde MIMMA MALLOZZl, As Administrator of the Estate of N.M., Deceased, and MIMMA MALLOZZI And JOSEPH MALLOZZl, Individually, Plaintiffs, - against - VERIFIED COMPLAINT SIMRANJiT S. GlLL, D.O., MARK A. KENYON, M.D., and KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL, Defendants. ______-..--______________________________---------x Plaintiffs, MIMMA MALLOZZI and JOSEPH MALLOZZl, above named, complaining of the defendants by their attorneys, KRAMER, DILLOF, LIVINGSTON & MOORE, ESQS., respectfully allege, upon information and belief, as follows: AS AND FOR THE FIRST CAUSE OF ACTION 1. Prior to the commencement of this action, plaintiff, MIMMA MALLOZZI was appointed Administrator of the Estate of the Order of Darien- New duly N.M., deceased, by Canaan Probate Court, dated July 12, 2018. 2. At all times herein mentioned, defendant SIMRANJIT S. GlLL, D.O., was a Doctor of Osteopathic duly licensed to practice medicine in the State of New York. plaintiffs' 3. At all times herein mentioned, decedent, N.M., was a patient of SIMRANJIT S. GlLL, D.O. 4. At all times herein mentioned, defendant MARK A. KENYON, M.D., was a physician duly licensed to practice medicine in the State of New York, 1 FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022 plaintiffs' 5. At all times herein mentioned, decedent, N.M., was a patient of MARK A. KENYON, M.D. 6. At all times herein mentioned defendant KALE1DA HEALTH-OISHEl CHILDREN'S HOSPITAL was a domestic corporation, duly incorporated and existing under and by virtue of the law of the State of New York. 7. At all times herein mentioned defendant KALEADA HEALTH-OISHEl CHILDREN'S HOSPITAL was the owner of a hospital known as KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL located at 818 Ellicott Street, Buffalo, NY 14203. 8. At all times herein mentioned, defendant KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL operated, managed and controlled defendant KALElDA HEALTH- OISHEI CHILDREN'S HOSPITAL. plaintiffs' 9. At all times herein mentioned, decedent, N.M., was a patient of defendant KALEiDA HEALTH-OISHEl CHILDREN'S HOSPITAL. 10. At all times herein mentioned, all of the physicians, nurses and medical personnel involved in the medical diagnosis, care, and treatment of the plaintiff N.M. in defendant KALEADA HEALTH-OISHEl CHILDREN'S HOSPITAL were agents, servants and/or employees of defendant KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL. 11. At all times herein mentioned defendants SIMRANJIT S. G1LL, D.O., MARK A. KENYON, M.D. and KALElDA HEALTH-OISHEI CHILDREN'S HOSPITAL, were agents, servants and/or employees of each other with regard to the medical care, treatment and diagnosis plaintiffs' of the decedent, N.M. 2 FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022 12. At all times herein mentioned defendants SIMRANJIT S. GlLL, D.O., was an agent, servant and/or employee of defendant KALEIDA HEALTH-OISHEl CHILDREN'S HOSPITAL. 13. At all times herein mentioned defendants MARK A. KENYON, M.D. was an agent, servant and/or employee of defendant KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL. 14. On or about January 13, 2018, plaintiff's decedent, N.M., was a patient of the defendants SIMRANJiT S. GlLL, D.O., MARK A. KENYON, M.D. and KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL, their agents, servants, and/or employees, under the medical and emergency diagnosis, care and treatment of the aforesaid defendants, their agents, servants and/or employees, in the Emergency Room of defendant KALEADA HEALTH-OISHEl CHILDREN'S HOSPITAL in its premises, and as a result of the failure by defendants SIMRANJIT S. GlLL, D.O., MARK A. KENYON, M.D. and KALEADA HEALTH-OISHEl CHILDREN'S HOSPITAL, their agents, servants and/or employees, to properly and timely diagnose, care for and treat N.M., including but not limited to the failure to diagnose and treat N.M.'s sepsis and/or infection; the failure to timely examine the plaintiff's decedent; the failure to perform a CBC; the failure to timely admit the plaintiffs decedent to the hospital; the failure to properly take vital signs prior to discharging the plaintiff's decedent; the failure to rule out pneumonia; the failure to take a chest X-Ray; the failure to take the plaintiffs decedent blood pressure and in improperly discharging the patient from the plaintiffs' Emergency Room, the decedent, N.M. sustained severe injuries and complications resulting in N.M.'s death on January 14, 2018. 3 FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022 15. Said occurrence was due to the carelessness and negligence to the plaintiff's decedent N.M. by the defendants, their agents, servants and/or employees in failing to plaintiffs' treat the decedent in a good, accepted and proper medical manner, and without plaintiffs' any fault or lack of care on the part of the decedent herein. plaintiffs' 16. By reason of the foregoing, decedent, N.M., sustained severe and serious personal injuries, a severe shock to his nervous system and certain internal injuries, and was caused to suffer severe physical pain and mental anguish as a result thereof. 17. The amount of damages sought herein exceeds the jurisdiction of all lower courts which would otherwise have jurisdiction. 18. This action falls within exceptions to Article 16 of the CPLR. AS FOR A SECOND CAUSE OF ACTION FOR A LACK OF INFORMED CONSENT 19. Plaintiffs repeat, reiterate and reallege each and every allegation contained in those paragraphs of the complaint marked and designated 1. through 18. inclusive, with the same force and effect as if hereinafter set forth at length. 20. The defendants failed to inform the parent of N.M. of the risks, hazards and alternatives connected with the procedures utilized and treatment rendered so that so that an informed consent could be given. 21. That reasonable prudent persons in the plaintiff's decedent's parent's position would not have agreed to the procedures utilized and/or treatment rendered if she had been fully informed of the risks, hazards and alternatives connected with said procedures and treatments. 4 FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022 plaintiffs' 22. The failure to adequately and fully inform the parent of the decedent, N.M., of the risks, hazards and alternatives of the procedures utilized and/or plaintiffs' treatment rendered is a proximate cause of the injuries decedent sustained. 23. That as a consequence of the foregoing there was no informed consent to plaintiffs' the procedures utilized and treatment rendered to decedent. 24. The amount of damages sought exceeds the jurisdiction of all lower courts which would otherwise have jurisdiction. AS AND FOR A THIRD CAUSE OF ACTION FOR LOSS OF SERVICES 25. Plaintiffs repeat, reiterate and reaIlege each and every allegation contained in those paragraphs of the complaint marked and designated 1through 24. inclusive, with the same force and effect as if hereinafter set forth at length. 26. That by reason of the foregoing, plaintiffs MIMMA MALLOZZI and JOSEPH MALLOZZI have been deprived of the services and companionship of their son, N.M., from on or about , through the date of his death on January 14, 2018. 27. That the amount of damages sought exceeds the jurisdiction of all lower courts which would otherwise have jurisdiction. AS AND FOR A FOURTH CAUSE OF ACTION FOR WRONGFUL DEATH 28. Plaintiffs repeat, reiterate and reallege each and every allegation contained in those paragraphs of the complaint marked and designated 1. through 27. inclusive, with the same force and effect as if hereinafter set forth at length. 5 FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022 29. By reason of the foregoing carelessness, negligence and gross negligence of the defendants, their agents, servants and/or employees, same caused, precipitated and/or hastened the death of decedent, N.M., on or about January 14, 2018. Plaintiffs' 30. decedent left surviving his parents, MIMMA MALLOZZI and JOSEPH MALLOZZl, both of whom suffered pecuniary loss as a result. 31. The amount of damages sought exceeds the jurisdiction of all lower courts which would otherwise have jurisdiction. AS AND FOR THE FIFTH CAUSE OF ACTION AGAINST KALElDA HEALTH-OISHEl CHILDREN'S HOSPITAL 32. That plaintiffs repeat, reiterate, and reallege each and every allegation contained in those paragraphs of the complaint marked and designated 1. through 31. inclusive, with the same force and effect as if hereinafter set forth at length. 33. That defendant KALElDA HEALTH-OISHE1 CHILDREN'S HOSPITAL, prior to the granting or renewing of privileges or employment of defendants, residents, nurses, physician's assistants and others involved in plaintiff's decedent's care, failed to investigate the qualifications, competence, capacity, abilities and capabilities of said defendants, residents, nurses and other employees, including but not limited to obtaining the following information: patient grievances, negative health care outcomes, incidents, injurious to patients, medical malpractice actions commenced against said persons, including the outcome thereof, any history of association, privilege and/or practice at other institutions, any discontinuation of said association, employment privilege and/or practice at said institution, and any pending professional misconduct proceeding in this State of another 6 FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022 State, the substance of the allegations in such proceedings and any additional information concerning such proceedings and hospital failed to make sufficient inquiry of the physician, nurse and/or employees and institutions which should and did have information relevant to the capacity capability, ability and competence of said persons rendering treatment. 34. That had the defendant KALEADA HEALTH-OISHEI CHILDREN'S HOSPITAL made the above stated inquiry or in the alternative had defendant reviewed and analyzed the information obtained in a proper manner, privileges and/or employment would not have been granted and/or renewed. 35. That by reason of the defendant's failure to meet the aforementioned plaintiffs' obligation, decedent was treated by physicians, nurses, physician's assistants, and/or other employees who were lacking the requisite skills, abilities, competence and capacity, as a result of which plaintiff's decedent sustained severe injuries and complications which ultimately led to her death. 36. The amount of damages sought exceeds the jurisdiction of all lower courts which would otherwise have jurisdiction. WHEREFORE, plaintiffs demand judgment against defendants on the first, third, fourth, fifth and sixth causes of action and second cause of action for punitive damages, in such sum as the jury finds fair, adequate and just. Date: New York, New York September 20, 2018 7 FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 08/09/2022 KRAMER, DILLOF, LIVINGSTON & MOORE, ESQS. CARMINE A. RUBlNO, ESQ. Attorneys for Plaintiffs -10th 217 Broadway FlOOr New York, New York 10007 Tel: 212- 267- 4177 8 FILED: ERIE COUNTY CLERK 08/09/2022 04:18 PM INDEX NO. 814855/2018 NYSCEF DOC. NO. 33