Preview
FILED: BRONX COUNTY CLERK 04/11/2018 10:34 AM INDEX NO. 30276/2017E
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/11/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
x
LANELL GAMBLE, As Administrator of the Estate
of BAHEA FANT, and LANELL GAMBLE,
Individually, VERIFIED ANSWER ON BEHALF
OF JANICE BARNHART, M.D.
Plaintiffs,
Index No. 30276/17E
- against -
MONTEFIORE MEDICAL CENTER, THE
UNIVERSITY HOSPITAL FOR ALBERT
EINSTEIN COLLEGE OF MEDICINE, CHAYA
B. ABELOW, M.D., and JANICE BARNHART,
M.D.,
Defendants.
Defendant, JANICE BARNHART, M.D., by her attorneys, AARONSON RAPPAPORT
FEINSTEIN & DEUTSCH, LLP, as and for her Answer to plaintiff's Amended Complaint,
respectfully shows to this Court and alleges upon information and belief:
AS AND FOR THE FIRST CAUSE OF ACTION
1. Denies the knowledge or information sufficient to form a belief as to the truth of
"5"
allegations contained in paragraph(s) "1", and "8".
..
"2" "7"
2. Denies the allegations contained in paragraph(s) and in the form alleged but
admits defendant MONTEFIORE MEDICAL CENTER was a fully accredited hospital in the
State of New York, and respectfully refers all questions of law to this Honorable Court.
"11" "15"
3. Denies the allegations contained in paragraph(s) "3", and in the form
alleged except admits that a patient calling herself BAHEA FANT was a patient at
MONTEFIORE MEDICAL CENTER, and respectfully refers to the medical and hospital records
for the specifies of the patient's treatment thereat.
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"4"
4. Denies the allegations contained in paragraph(s) in the form alleged but admits
defendant MONTEFIORE MEDICAL CENTER operated a fully accredited hospital facility
located at 111 East 210th Street, Bronx, New York 10467 and respectfully refers all questions of
law to this Honorable Court.
5. Denies the allegations contained in paragraph(s) "6", "9", "12", "13", "16", "17",
"18" "19"
and in the form alleged and respectfully refers all questions of law to this Honorable
Court.
6. Denies the allegations contained in paragraph(s) "20", "21", "22", "23", and "24".
AS AND FOR THE SECOND CAUSE OF ACTION
7. In response to paragraph "25", repeats each admission or denial contained in
"1" "24"
paragraphs through herein as though fully set forth hereat.
. .
"30"
8. Denies the allegations contained in paragraph(s) "26", "27", "28", "29", and "31".
! AS AND FOR THE THIRD CAUSE OF ACTION
9. In response to paragraph "32", repeats each admission or denial contained in
. .
"1" "31"
paragraphs through herein as though fully set forth hereat.
"34"
10. Denies the allegations contained in paragraph(s) "33", and "35".
AS AND FOR THE FOURTH CAUSE OF ACTION
11. In response to paragraph "36", repeats each admission or denial contained in
"1" "35"
paragraphs through herein as though fully set forth hereat.
12. Denies the knowledge or information sufficient to form a belief as to the truth of
allegations contained in paragraph(s) "37".
13. Denies the allegations contained in paragraph(s) "38".
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!
AS AND FOR THE FIFTH CAUSE OF ACTION
14. In response to paragraph "39", repeats each admission or denial contained in
"1" "38"
paragraphs through herein as though fully set forth hereat.
"44"
15. Denies the allegations contained in paragraph(s) "40", "41", "42", "43", and "45".
AS AND FOR THE SIXTH CAUSE OF ACTION
16. In response to paragraph "46", repeats each admission or denial contained in
"1" "45"
paragraphs through herein as though fully set forth hereat.
"51"
17. Denies the allegations contained in paragraph(s) "47", "48", "49", "50", and "52",
!
AS AND FOR THE FIRST AFFIRMATIVE DEFENSE
!
!
18, The answering defendant(s) assert those applicable defenses for which provision is
made at Public Health Law §2805-d.
AS AND FOR THE SECOND AFFIRMATIVE DEFENSE
19. The liability of the answering defendant(s), if any, is limited pursuant to CPLR
Article 16. !!
AS AND FOR THE THIRD AFFIRMATIVE DEFENSE
!
20. The cause(s) of action set forth in plaintiff's complaint are barred inasmuch as suit
was not instituted within the time period prescribed by all applicable Statute of Limitations.
AS AND FOR THE FOURTH AFFIRMATIVE DEFENSE
t
21. That the injuries claimed by plaintiff in the complaint were cause in whole or in part,
the culpable conduct of the plaintiff which either bars the claims completely or else
by
diminishes the damages by the proportion that such culpable conduct of the plaintiff bears to the
total culpable conduct causing the injuries.
I
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! AS AND FOR THE FIFTH AFFIRMATIVE DEFENSE
!
! 22. That the plaintiff has been or will be compensated in whole or in part for the damages
claimed in the complaint by a collateral source of payment as set forth in CPLR §4545.
AS AND FOR THE SIXTH AFFIRMATIVE DEFENSE
23. Plaintiff's right to recover damages, if any, are barred in whole or in part pursuant to
! the Patient Protection and Affordable Care Act, 26 USCS Section 5000A.
WHEREFORE, defendant, IANICE BARNHART, M.D., demands judgment dismissing
the Complaint, together with the costs and disbursements of the within action.
Dated: New York, New York
April 9, 2018
~P
Yours, etc.,
BY: David A. Mayeri
AARONSON RAPPAPORT FEINSTEIN
DEUTSCH, LLP
Attorneys for Defendant
JANICE BARNHART, M.D.
Office & P.O. Address
600 Third Avenue
New York, New York 10016
!
Tel.: (212) 593-6700
!
I
I
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ATTORNEY'S VERIFICATION
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
DAVID A. MAYERI, being duly sworn, deposes and says:
That I am a member in the firm of attorneys representing the defendant JANICE
BARNHART, M.D.
That I have read the attached ANSWER and the same is true to my own belief,
except as to matters alleged on information and belief, and as to those matters, I believe them to
be true to the best of my knowledge.
My sources of information are claims filed containing statements, reports and
records of investigation, investigators, parties and witnesses, with which I am fully familiar.
That this verification is made by me because my client does not reside within the
county where I maintain my office.
DAVID
~Q A. MAYERI
Sworn to before me this
// ay of April, 2018.
Nota Public'7
y
TRACY DASH
CGNmlsslor18f'
Commissioner of Deeds
O1r York - No. 4-4611
City of New
deytifleate Red in New York County
Commission Expires May 1, 20
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Preview
FILED: BRONX COUNTY CLERK 04/11/2018 10:34 AM INDEX NO. 30276/2017E NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/11/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX x LANELL GAMBLE, As Administrator of the Estate of BAHEA FANT, and LANELL GAMBLE, Individually, VERIFIED ANSWER ON BEHALF OF JANICE BARNHART, M.D. Plaintiffs, Index No. 30276/17E - against - MONTEFIORE MEDICAL CENTER, THE UNIVERSITY HOSPITAL FOR ALBERT EINSTEIN COLLEGE OF MEDICINE, CHAYA B. ABELOW, M.D., and JANICE BARNHART, M.D., Defendants. Defendant, JANICE BARNHART, M.D., by her attorneys, AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP, as and for her Answer to plaintiff's Amended Complaint, respectfully shows to this Court and alleges upon information and belief: AS AND FOR THE FIRST CAUSE OF ACTION 1. Denies the knowledge or information sufficient to form a belief as to the truth of "5" allegations contained in paragraph(s) "1", and "8". .. "2" "7" 2. Denies the allegations contained in paragraph(s) and in the form alleged but admits defendant MONTEFIORE MEDICAL CENTER was a fully accredited hospital in the State of New York, and respectfully refers all questions of law to this Honorable Court. "11" "15" 3. Denies the allegations contained in paragraph(s) "3", and in the form alleged except admits that a patient calling herself BAHEA FANT was a patient at MONTEFIORE MEDICAL CENTER, and respectfully refers to the medical and hospital records for the specifies of the patient's treatment thereat. (02142559.DOC ) 1 of 5 FILED: BRONX COUNTY CLERK 04/11/2018 10:34 AM INDEX NO. 30276/2017E NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/11/2018 "4" 4. Denies the allegations contained in paragraph(s) in the form alleged but admits defendant MONTEFIORE MEDICAL CENTER operated a fully accredited hospital facility located at 111 East 210th Street, Bronx, New York 10467 and respectfully refers all questions of law to this Honorable Court. 5. Denies the allegations contained in paragraph(s) "6", "9", "12", "13", "16", "17", "18" "19" and in the form alleged and respectfully refers all questions of law to this Honorable Court. 6. Denies the allegations contained in paragraph(s) "20", "21", "22", "23", and "24". AS AND FOR THE SECOND CAUSE OF ACTION 7. In response to paragraph "25", repeats each admission or denial contained in "1" "24" paragraphs through herein as though fully set forth hereat. . . "30" 8. Denies the allegations contained in paragraph(s) "26", "27", "28", "29", and "31". ! AS AND FOR THE THIRD CAUSE OF ACTION 9. In response to paragraph "32", repeats each admission or denial contained in . . "1" "31" paragraphs through herein as though fully set forth hereat. "34" 10. Denies the allegations contained in paragraph(s) "33", and "35". AS AND FOR THE FOURTH CAUSE OF ACTION 11. In response to paragraph "36", repeats each admission or denial contained in "1" "35" paragraphs through herein as though fully set forth hereat. 12. Denies the knowledge or information sufficient to form a belief as to the truth of allegations contained in paragraph(s) "37". 13. Denies the allegations contained in paragraph(s) "38". {02/42559.DOC ) 2 2 of 5 FILED: BRONX COUNTY CLERK 04/11/2018 10:34 AM INDEX NO. 30276/2017E NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/11/2018 ! AS AND FOR THE FIFTH CAUSE OF ACTION 14. In response to paragraph "39", repeats each admission or denial contained in "1" "38" paragraphs through herein as though fully set forth hereat. "44" 15. Denies the allegations contained in paragraph(s) "40", "41", "42", "43", and "45". AS AND FOR THE SIXTH CAUSE OF ACTION 16. In response to paragraph "46", repeats each admission or denial contained in "1" "45" paragraphs through herein as though fully set forth hereat. "51" 17. Denies the allegations contained in paragraph(s) "47", "48", "49", "50", and "52", ! AS AND FOR THE FIRST AFFIRMATIVE DEFENSE ! ! 18, The answering defendant(s) assert those applicable defenses for which provision is made at Public Health Law §2805-d. AS AND FOR THE SECOND AFFIRMATIVE DEFENSE 19. The liability of the answering defendant(s), if any, is limited pursuant to CPLR Article 16. !! AS AND FOR THE THIRD AFFIRMATIVE DEFENSE ! 20. The cause(s) of action set forth in plaintiff's complaint are barred inasmuch as suit was not instituted within the time period prescribed by all applicable Statute of Limitations. AS AND FOR THE FOURTH AFFIRMATIVE DEFENSE t 21. That the injuries claimed by plaintiff in the complaint were cause in whole or in part, the culpable conduct of the plaintiff which either bars the claims completely or else by diminishes the damages by the proportion that such culpable conduct of the plaintiff bears to the total culpable conduct causing the injuries. I t02142559,DOC 1 3 3 of 5 i i FILED: BRONX COUNTY CLERK 04/11/2018 10:34 AM INDEX NO. 30276/2017E NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/11/2018 ! AS AND FOR THE FIFTH AFFIRMATIVE DEFENSE ! ! 22. That the plaintiff has been or will be compensated in whole or in part for the damages claimed in the complaint by a collateral source of payment as set forth in CPLR §4545. AS AND FOR THE SIXTH AFFIRMATIVE DEFENSE 23. Plaintiff's right to recover damages, if any, are barred in whole or in part pursuant to ! the Patient Protection and Affordable Care Act, 26 USCS Section 5000A. WHEREFORE, defendant, IANICE BARNHART, M.D., demands judgment dismissing the Complaint, together with the costs and disbursements of the within action. Dated: New York, New York April 9, 2018 ~P Yours, etc., BY: David A. Mayeri AARONSON RAPPAPORT FEINSTEIN DEUTSCH, LLP Attorneys for Defendant JANICE BARNHART, M.D. Office & P.O. Address 600 Third Avenue New York, New York 10016 ! Tel.: (212) 593-6700 ! I I (02142559.DOC ) 4 4 of 5 FILED: BRONX COUNTY CLERK 04/11/2018 10:34 AM INDEX NO. 30276/2017E NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/11/2018 ATTORNEY'S VERIFICATION STATE OF NEW YORK ) ss: COUNTY OF NEW YORK ) DAVID A. MAYERI, being duly sworn, deposes and says: That I am a member in the firm of attorneys representing the defendant JANICE BARNHART, M.D. That I have read the attached ANSWER and the same is true to my own belief, except as to matters alleged on information and belief, and as to those matters, I believe them to be true to the best of my knowledge. My sources of information are claims filed containing statements, reports and records of investigation, investigators, parties and witnesses, with which I am fully familiar. That this verification is made by me because my client does not reside within the county where I maintain my office. DAVID ~Q A. MAYERI Sworn to before me this // ay of April, 2018. Nota Public'7 y TRACY DASH CGNmlsslor18f' Commissioner of Deeds O1r York - No. 4-4611 City of New deytifleate Red in New York County Commission Expires May 1, 20 (02143114 DOC ) 5 of 5