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FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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Index No.: 805145/2022
JOSEPH CHAN as Administrator of the Estate of
YUK CHU CHAN and JOSEPH CHAN, Individually,
VERIFIED ANSWER
Plaintiff(s), TO VERIFIED AMENDED
COMPLAINT ON BEHALF
-against- OF NEW YORK CITY
HEALTH + HOSPITALS
NYC HEALTH AND HOSPITALS/GOTHAM HEALTH CORPORATION
GOUVERNEUR, GOTHAM HEALTH GOUVERNEUR
and NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION,
Defendants.
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C O U N S E L O R S:
Defendant NEW YORK CITY HEALTH + HOSPITALS CORPORATION s/h/a
NYC HEALTH AND HOSPITALS/GOTHAM HEALTH GOUVERNEUR, GOTHAM
HEALTH GOUVERNEUR and NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION, by its attorneys, KAUFMAN BORGEEST & RYAN LLP, hereby responds
to Plaintiff’s Verified Amended Complaint, upon information and belief as follows:
1. Answering Defendant denies knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in those paragraphs designated as “1”and “2”
of Plaintiff’s Verified Amended Complaint.
2. Answering Defendant denies each and every allegation contained in the paragraph
designated as “3” of Plaintiff’s Verified Amended Complaint and begs leave to refer all questions
of fact to the trier of fact and all questions of law to the court.
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3. Answering Defendant denies knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in the paragraph designated as “4” of
Plaintiff’s Verified Amended Complaint and begs leave to refer all questions of fact to the trier of
fact and all questions of law to the court.
4. Answering defendant denies each and every allegation contained in the paragraph
designated as “5” of Plaintiff’s Verified Amended Complaint except states that NEW YORK
CITY HEALTH + HOSPITALS CORPORATION is and was at all relevant times a public
benefit corporation established under the laws of the State of New York and that NEW YORK
CITY HEALTH + HOSPITALS CORPORATION operates New York City Health and
Hospital facilities pursuant to law and employs health care providers pursuant to section 50-k of
the General Municipal Law and begs leave to refer all questions of fact to the trier of fact and all
questions of law to the court.
5. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “6” and “7” of the Plaintiff’s Verified Amended Complaint in the form
alleged and states that on April 16, 2021 plaintiff served a Notice of Claim and begs leave to refer
all questions of fact to the trier of fact and all questions of law to the court.
6. Answering Defendant admits each and every allegation contained in the paragraph
designated as “8” of Plaintiff’s Verified Amended Complaint.
7. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “9” and “10” of Plaintiff’s Verified Amended Complaint and begs leave
to refer all questions of fact to the trier of fact and all questions of law to the court.
8. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “11” and “12” of Plaintiff’s Verified Amended Complaint.
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AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
9. With respect to that paragraph of Plaintiff’s Verified Amended Complaint
designated as “13”, answering Defendant repeats, reiterates and realleges each and every
allegation, denial, and denial of truth of each and every allegation contained in those paragraphs
designated as “1” through “12” with the same force and effect as if set forth fully herein.
10. Answering defendant denies each and every allegation contained in those
paragraphs designated as “14” and “15” of Plaintiff’s Verified Amended Complaint in the form
alleged except states that NEW YORK CITY HEALTH + HOSPITALS CORPORATION is
and was at all relevant times a public benefit corporation established under the laws of the State of
New York and that NEW YORK CITY HEALTH + HOSPITALS CORPORATION operates
New York City Health and Hospital facilities pursuant to law and employs health care providers
pursuant to section 50-k of the General Municipal Law.
11. Answering defendant denies each and every allegation contained in the paragraph
designated as “16” of Plaintiff’s Verified Amended Complaint except states that NEW YORK
CITY HEALTH + HOSPITALS CORPORATION operated certain facilities pursuant to law
and employs health care providers pursuant to section 50-k of the General Municipal Law and
begs leave to refer all questions of fact to the trier of fact and all questions of law to the court.
12. Answering Defendant denies each and every allegation contained in the paragraph
designated as “17” of Plaintiff’s Verified Amended Complaint except states that NEW YORK
CITY HEALTH + HOSPITALS CORPORATION employs health care providers pursuant to
section 50-k of the General Municipal Law and all services and treatment rendered were provided
in accordance with good and accepted standards of care and begs leave to refer all questions of
fact to the trier of fact and all questions of law to the court.
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13. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “18” and “19” of Plaintiff’s Verified Amended Complaint and states that
Answering Defendant rendered professional services to and for Plaintiff’s decedent in a skillful
manner in accordance with accepted standards of care and begs leave to refer all questions of fact
to the trier of fact and all questions of law to the court.
14. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “20”, “21”, “22”, “23”, “24”, “25” and “26” of Plaintiff’s Verified
Amended Complaint.
AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
15. With respect to that paragraph of Plaintiff’s Verified Amended Complaint
designated as “27”, answering Defendant repeats, reiterates and realleges each and every
allegation, denial, and denial of truth of each and every allegation contained in those paragraphs
designated as “1” through “26” with the same force and effect as if set forth fully herein.
16. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “28” and “29” of the Plaintiff’s Verified Amended Complaint except
states that at various times, Answering Defendant rendered professional services to Plaintiff’s
decedent in a skillful manner in accordance with accepted standards of care and begs leave to refer
all questions of fact to the trier of fact and all questions of law to the court.
17. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “30”, “31”, “32”, “33”, ‘34”, “35” and “36” of the Plaintiff’s Verified
Amended Complaint.
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AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
18. With respect to that paragraph of Plaintiff’s Verified Amended Complaint
designated as “37”, answering Defendant repeats, reiterates and realleges each and every
allegation, denial, and denial of truth of each and every allegation contained in those paragraphs
designated as “1” through “36” with the same force and effect as if set forth fully herein.
19. Answering Defendant denies each and every allegation contained in the paragraph
designated as “38” of the Plaintiff’s Verified Amended Complaint is and was a public benefit
corporation established under the laws of the State of New York and that NEW YORK CITY
HEALTH + HOSPITALS CORPORATION operates New York City Health and Hospital
facilities pursuant to law and employs health care providers pursuant to section 50-k of the
General Municipal Law and begs leave to refer all questions of fact to the trier of fact and all
questions of law to the court.
20. Answering Defendant denies each and every allegation contained in the paragraph
designated as “39” of the Plaintiff’s Verified Amended Complaint except states that Defendant
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION is and was at all relevant
times a public benefit corporation established under the laws of the State of New York and that
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION operates New York City
Health and Hospital facilities pursuant to law and employs health care providers pursuant to
section 50-k of the General Municipal Law and begs leave to refer all questions of fact to the trier
of fact and all questions of law to the court.
21. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “40” and “41” of the Plaintiff’s Verified Amended Complaint and begs
leave to refer all questions of fact to the trier of fact and all questions of law to the court.
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22. Answering Defendant denies each and every allegation contained in the paragraph
designated as “42” of the Plaintiff’s Verified Amended Complaint except states that at various
times, Answering Defendant rendered professional services to and for Plaintiff’s decedent in a
skillful manner in accordance with accepted standards of care and begs leave to refer all questions
of fact to the trier of fact and all questions of law to the court.
23. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “43” and “44” of the Plaintiff’s Verified Amended Complaint and begs
leave to refer all questions of fact to the trier of fact and all questions of law to the court.
24. Answering Defendant denies each and every allegation contained in the paragraph
designated as “45” of the Plaintiff’s Verified Amended Complaint except states that NEW
YORK CITY HEALTH + HOSPITALS CORPORATION complied with all applicable
regulations and begs leave to refer all questions of fact to the trier of fact and all questions of law
to the court.
25. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “46” and “47” of the Plaintiff’s Verified Amended Complaint and begs
leave to refer all questions of fact to the trier of fact and all questions of law to the court.
26. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “48”, “49” and “50” of the Plaintiff’s Verified Amended Complaint.
27. Answering Defendant denies each and every allegation contained in the paragraph
designated as “51” of the Plaintiff’s Verified Amended Complaint and begs leave to refer all
questions of fact to the trier of fact and all questions of law to the court.
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28. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “52”, “53”, “54”, “55” and “56” of the Plaintiff’s Verified Amended
Complaint.
AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION
29. With respect to that paragraph of Plaintiff’s Verified Amended Complaint
designated as “57”, answering Defendant repeats, reiterates and realleges each and every
allegation, denial, and denial of truth of each and every allegation contained in those paragraphs
designated as “1” through “56” with the same force and effect as if set forth fully herein.
30. Answering Defendant denies each and every allegation contained in those
paragraphs designated as “58”, “59”, “60”, “61”, “62” and “63” of the Plaintiff’s Verified
Amended Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
31. That the cause(s) of action herein may not be maintained because it is barred by the
applicable statute of limitations prescribed by the CPLR and the laws of the State of New York.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
32. Upon information and belief, CPLR Section 1600 et seq. is applicable to the instant
action and should be applied by the Court at the time of trial with regards to alleged liability on
the part of the Answering Defendant.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
33. That any sums or consideration paid to or promised to Plaintiff by any person(s) or
corporation(s) claimed to be liable for the injuries or damages alleged in the Complaint shall reduce
any judgment rendered in favor of Plaintiff as against these defendants to the extent of the greater
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of either the sums or consideration paid or promised to Plaintiff or the amount of the released
tortfeasor’s (s’) equitable share(s) of the damages in accordance with General Obligations Law
§15-108.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
34. CPLR §4545 is applicable to the instant action and should be applied by this Court
at time of trial.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
35. The negligence of those responsible for the accident or the occurrence alleged in
the Verified Complaint constituted a separate, independent, superseding, intervening act which
constitutes the sole proximate cause of the accident or occurrence alleged.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
36. That the complaint fails to state a cause or causes of action upon which relief can
be granted against the Answering Defendant.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
37. Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce
the injuries, damages and disabilities as alleged in the Verified Complaint.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
38. This matter is barred pursuant to the applicable provisions of New York Emergency
or Disaster Treatment Act, Art. 30-D, N.Y. Public Health Law, §§3080-82, as enacted on April 3,
2020, New York Executive Order 202.10, and any and all related Executive Orders issued by the
Governor of the State of New York.
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AS AND FOR A NINTH AFFIRMATIVE DEFENSE
39. The Defendant and its agents, servants and employees are immune from civil
liability in accordance with Executive Order 202.10, any and all related Executive Orders issued
by the Governor of the State of New York, and Public Health Law Article 30-D.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
40. Pursuant to the Public Readiness and Emergency Preparedness Act (PREP Act) (42
U.S.C. §247d-6d et seq.), the Declaration under the PREP Act for Medical Countermeasures
Against COVID-19 by the Secretary of the Department of Health and Human Services, and all
relevant regulations, the Defendant and its agents, servants and employees are covered persons
and their actions arose out of or related to the administration of covered countermeasures as
defined by the Act. Accordingly, this Court lacks subject matter jurisdiction and they are immune
from liability under state and federal law.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
41. The PREP Act provides the remedy for plaintiff’s claims under the
Countermeasures Injury Compensation Program (CCIP). Accordingly, plaintiff failed to exhaust
his/her administrative remedies and thus the Court lacks subject matter jurisdiction. 42 U.S.C.
§247d-6e(d)(1); Parker v. St. Lawrence County Public Health Department, 102 A.D.3d 140 (3d
Dept. 2012).
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
42. The allocation of health care resources during an emergency is a discretionary
governmental function and the Defendant, its agents, servants and employees are therefore
immune from civil liability.
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AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
43. The injuries complained of were due exclusively to causes of so extraordinary a
nature that they could not reasonably have been foreseen and the result avoided.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
44. Given the declared public health emergency, the Court lacks subject matter
jurisdiction pursuant to the Federal Officers Statute (28 U.S.C. §1442(a)(1)).
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
45. Given the declared public health emergency, the Defendant and its agents, servants
and employees acted at all times reasonably and in accordance with the applicable standard of care
in effect under the conditions existing at the time.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
46. Pursuant to the “Coronavirus Aid, Relief, and Economic Security Act” signed into
law on March 27, 2020, the defendant is immune from any cause of action arising under the Federal
or State law for any harm caused by an act or omission of the professional in the provision of
health care services during the COVID-19 public health emergency.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
47. This matter is barred pursuant to the applicable provisions of New York Emergency
or Disaster Treatment Act, Art. 30-D, N.Y. Public Health Law, §§3080-82, as enacted on April 3,
2020, New York Executive Order 202.10, and any and all related Executive Orders issued by the
Governor of the State of New York.
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AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
48. Pursuant to the Volunteer Protection Act of 1997, the defendant is immune from
any cause of action arising under Federal or State law for any harm caused by an act or omission
of the professional in the provision of health care services.
AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
49. Plaintiff’s Complaint fails to comply with CPLR 3014.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
50. Plaintiffs’ complaint fails to state a cause of action pursuant to CPLR 3012-a.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
51. The plaintiff, pursuant to Section 3211(a)(3) of the Civil Practice Laws and Rules,
lacks the capability to sue.
AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
52. Defendant invokes the protection of Public Health Law §2805-d(4) with respect to
the alleged cause of action for lack of informed consent, and reserves all rights pursuant thereto.
AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
53. Plaintiff’s complaint fails to state a cause of action pursuant to CPLR § 3013.
AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
54. This court has no jurisdiction in this matter inasmuch as plaintiffs’ summons fails
to comply with CPLR 305(a).
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AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
55. Plaintiff’s complaint fails to state a cause of action because it fails to meet the
requirements of Section 7401 of the Unconsolidated Laws of New York State.
AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
56. The defendant asserts all defenses and privileges pursuant to Public Health Law §
2801 and § 2803 inasmuch as the defendant facility exercised all care reasonably necessary to
prevent and limit the deprivation of rights and/or injury claimed herein. Moreover such claims are
not cognizable as to answering defendant.
AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
57. Plaintiff’s allegation regarding negligent hiring and retention are not cognizable in
the State of New York when the gravamen of the complaint sounds in medical malpractice.
AS AND FOR AN TWENTY-EIGHTH AFFIRMATIVE DEFENSE
58. Plaintiffs’ complaint fails to comply with the single allegation per paragraph
provision of CPLR 3014.
AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
59. Whatever injuries and/or damages Plaintiff may have sustained at the time and
place mentioned in the Verified Amended Complaint and/or as a result of the occurrence alleged
in the Verified Amended Complaint, all of which is denied by Answering Defendant, were
caused in whole or in part by the culpable conduct/comparative negligence of Plaintiff. The
amount of damages recovered, if any, shall therefore be diminished in proportion to which the
culpable conduct attributable to Plaintiff bears on his injuries.
AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
60. The Plaintiffs failed to properly plead a claim for punitive damages.
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AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
61. Plaintiffs’ claim for punitive damages is unwarranted and unconstitutional and
violative of due process based on the claims made in Plaintiff’s Verified Amended Complaint as the
acts or omissions alleged by this answering defendant do not rise to the level of conduct for which
exemplary damages are justified.
AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
62. The Answering Defendant avers that the Plaintiff’s intent to seek punitive damages
under New York law, without bifurcating the trial and trying all punitive damages issues only, if and
after liability on the merits has been found, would violate the defendant’s due process rights
guaranteed by the Fourteenth Amendment to the United State Constitution, as well as the due process
provisions of the New York Constitution, and would be improper under the common law and public
policies of the State of New York and under applicable court rules and statutes.
AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE
63. The Answering Defendant avers that Plaintiff’s intent to seek punitive damages
violates the Due Process Clause of the Fifth Amendment of the Constitution of the United States, the
Sixth Amendment, the right to trial by jury of the Seventh Amendment as applied on quasi criminal
actions of the proportionality principles contained in the Eighth Amendment, the Due Process Clause
of the Fourteenth Amendment, and Article 1, Section 1, 2, 5, 6 and 11 of the Constitution of the State
of New York for the following reasons, jointly and separately:
a. There are no standards provided by New York law for the imposition of punitive
damages and, therefore, the Defendants have not been put on notice and given the
opportunity to anticipate punitive liability or the potential size of an award and to
modify or conform its conduct accordingly.
b. The procedures to be followed would permit an award of punitive damages against
this defendant upon the satisfaction of a burden of persuasion (standard of proof) less
than the applicable to the imposition of criminal sanctions for equal culpability.
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c. The procedures to be followed would permit the award of multiple punitive damages
for the same act or omission.
d. There are no provisions for clear and consistent appellate standards of review of any
award of punitive damages against this defendant under present New York law.
e. The standard of conduct upon which punitive damages are sought against these
defendants are vague and ambiguous.
f. The procedures used by New York courts, and guidelines given to the jurors, jointly
and separately, are vague and ambiguous and thus impermissibly delegate to jurors
basic policy matters, impermissibly allow jurors broad, unlimited and undefined
power to make determinations on their notions of what the law should be instead of
what it is; and fail to eliminate the effects of, and to guard against, impressible juror
passion.
g. Present New York law does not provide for sufficiently objective and specific
standards to be used by the jury in its deliberations on whether to award punitive
damages and, if so, the amount to be awarded.
h. Present New York law does not provide a meaningful opportunity for challenging the
rational basis for, and any excessiveness of, any award of punitive damages.
i. Present New York law does not provide for adequate and independent review by the
trial court and the appellate court for the imposition of punitive damages by a jury or
of the amount of any punitive damages awarded by a jury.
j. Present New York law does not limit an award of punitive damages to conduct that
occurred within the state and otherwise permits recovery of punitive damages for
extra-territorial conduct on the part of this defendant.
AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE
64. As a further defense, the Answering Defendant avers that the imposition of punitive
damages in this case violates the Equal Protection Clause of the Fifth and Fourteenth Amendments
of the Constitution of the United States and deprives this defendant of the right to equal protection
under the laws provided in Article 1, Section 1, 6 and 11 of the Constitution of the State of New York
for the following reasons, jointly and separately:
a. The procedures to be followed would permit the awarding of punitive damages against
this defendant upon the satisfaction of a burden of persuasion (standard of proof) less
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than the applicable standard in criminal cases for criminal sanctions involving similar
or identical levels of culpability.
b. The absence of sufficiently specific and objective standards for the imposition of
punitive damages fails to insure the equality of treatment between and amount
similarly situated civil defendants.
c. The defendant, without procedure protections, is compelled to disclose documents
and/or other evidence without constitutional safeguards against self-incrimination,
whereas persons charged under criminal provisions for acts or omissions of similar
culpability are protected from being compelled to disclose documents and/or other
evidence by constitutional procedures and safeguards available in criminal cases.
WHEREFORE, Defendant NEW YORK CITY HEALTH + HOSPITALS
CORPORATION hereby demands judgment dismissing Plaintiff’s Verified Amended
Complaint, together with the costs and disbursements of this action.
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: Garden City, New York
October 17, 2022
Yours, etc.,
KAUFMAN BORGEEST & RYAN LLP
By:
Christine E. F. Rockwell
Attorneys for Defendant
NEW YORK CITY HEALTH + HOSPITALS
CORPORATION s/h/a NYC HEALTH AND
HOSPITALS/GOTHAM HEALTH
GOUVERNEUR, GOTHAM HEALTH
GOUVERNEUR and NEW YORK CITY
HEALTH AND HOSPITALS CORPORATION
1205 Franklin Avenue – 2nd Floor
Garden City, New York 11530
(516) 248-6000
KBR File No.: 961-110
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TO: SINEL & OLESEN, PLLC
Attorneys for Plaintiff
330 7th Avenue, 10th Floor
New York, New York 10001
(212) 465-1000
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JOSEPH CHAN as Administrator of the Estate of
YUK CHU CHAN and JOSEPH CHAN, Individually,
Index No.: 805145/2022
Plaintiff,
-against- VERIFICATION
NYC HEALTH AND HOSPITALS/GOTHAM HEALTH
GOUVERNEUR, GOTHAM HEALTH GOUVERNEUR and
NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION,
Defendants.
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STATE OF NEW YORK )
) ss:
COUNTY OF NASSAU )
CHRISTINE E. F. ROCKWELL, ESQ. being duly sworn states that I am partnered with
the firm of KAUFMAN BORGEEST & RYAN LLP, attorneys for the Defendant NEW YORK
CITY HEALTH + HOSPITALS CORPORATION s/h/a NYC HEALTH AND
HOSPITALS/GOTHAM HEALTH GOUVERNEUR, GOTHAM HEALTH
GOUVERNEUR and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION,
in this action and that the foregoing VERIFIED ANSWER is true to my knowledge, except as to
those matters therein stated up
Preview
FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------X Index No.: 805145/2022 JOSEPH CHAN as Administrator of the Estate of YUK CHU CHAN and JOSEPH CHAN, Individually, VERIFIED ANSWER Plaintiff(s), TO VERIFIED AMENDED COMPLAINT ON BEHALF -against- OF NEW YORK CITY HEALTH + HOSPITALS NYC HEALTH AND HOSPITALS/GOTHAM HEALTH CORPORATION GOUVERNEUR, GOTHAM HEALTH GOUVERNEUR and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendants. -----------------------------------------------------------------------X C O U N S E L O R S: Defendant NEW YORK CITY HEALTH + HOSPITALS CORPORATION s/h/a NYC HEALTH AND HOSPITALS/GOTHAM HEALTH GOUVERNEUR, GOTHAM HEALTH GOUVERNEUR and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, by its attorneys, KAUFMAN BORGEEST & RYAN LLP, hereby responds to Plaintiff’s Verified Amended Complaint, upon information and belief as follows: 1. Answering Defendant denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in those paragraphs designated as “1”and “2” of Plaintiff’s Verified Amended Complaint. 2. Answering Defendant denies each and every allegation contained in the paragraph designated as “3” of Plaintiff’s Verified Amended Complaint and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 8538501 1 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 3. Answering Defendant denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in the paragraph designated as “4” of Plaintiff’s Verified Amended Complaint and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 4. Answering defendant denies each and every allegation contained in the paragraph designated as “5” of Plaintiff’s Verified Amended Complaint except states that NEW YORK CITY HEALTH + HOSPITALS CORPORATION is and was at all relevant times a public benefit corporation established under the laws of the State of New York and that NEW YORK CITY HEALTH + HOSPITALS CORPORATION operates New York City Health and Hospital facilities pursuant to law and employs health care providers pursuant to section 50-k of the General Municipal Law and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 5. Answering Defendant denies each and every allegation contained in those paragraphs designated as “6” and “7” of the Plaintiff’s Verified Amended Complaint in the form alleged and states that on April 16, 2021 plaintiff served a Notice of Claim and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 6. Answering Defendant admits each and every allegation contained in the paragraph designated as “8” of Plaintiff’s Verified Amended Complaint. 7. Answering Defendant denies each and every allegation contained in those paragraphs designated as “9” and “10” of Plaintiff’s Verified Amended Complaint and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 8. Answering Defendant denies each and every allegation contained in those paragraphs designated as “11” and “12” of Plaintiff’s Verified Amended Complaint. 2 8538501 2 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION 9. With respect to that paragraph of Plaintiff’s Verified Amended Complaint designated as “13”, answering Defendant repeats, reiterates and realleges each and every allegation, denial, and denial of truth of each and every allegation contained in those paragraphs designated as “1” through “12” with the same force and effect as if set forth fully herein. 10. Answering defendant denies each and every allegation contained in those paragraphs designated as “14” and “15” of Plaintiff’s Verified Amended Complaint in the form alleged except states that NEW YORK CITY HEALTH + HOSPITALS CORPORATION is and was at all relevant times a public benefit corporation established under the laws of the State of New York and that NEW YORK CITY HEALTH + HOSPITALS CORPORATION operates New York City Health and Hospital facilities pursuant to law and employs health care providers pursuant to section 50-k of the General Municipal Law. 11. Answering defendant denies each and every allegation contained in the paragraph designated as “16” of Plaintiff’s Verified Amended Complaint except states that NEW YORK CITY HEALTH + HOSPITALS CORPORATION operated certain facilities pursuant to law and employs health care providers pursuant to section 50-k of the General Municipal Law and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 12. Answering Defendant denies each and every allegation contained in the paragraph designated as “17” of Plaintiff’s Verified Amended Complaint except states that NEW YORK CITY HEALTH + HOSPITALS CORPORATION employs health care providers pursuant to section 50-k of the General Municipal Law and all services and treatment rendered were provided in accordance with good and accepted standards of care and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 3 8538501 3 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 13. Answering Defendant denies each and every allegation contained in those paragraphs designated as “18” and “19” of Plaintiff’s Verified Amended Complaint and states that Answering Defendant rendered professional services to and for Plaintiff’s decedent in a skillful manner in accordance with accepted standards of care and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 14. Answering Defendant denies each and every allegation contained in those paragraphs designated as “20”, “21”, “22”, “23”, “24”, “25” and “26” of Plaintiff’s Verified Amended Complaint. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION 15. With respect to that paragraph of Plaintiff’s Verified Amended Complaint designated as “27”, answering Defendant repeats, reiterates and realleges each and every allegation, denial, and denial of truth of each and every allegation contained in those paragraphs designated as “1” through “26” with the same force and effect as if set forth fully herein. 16. Answering Defendant denies each and every allegation contained in those paragraphs designated as “28” and “29” of the Plaintiff’s Verified Amended Complaint except states that at various times, Answering Defendant rendered professional services to Plaintiff’s decedent in a skillful manner in accordance with accepted standards of care and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 17. Answering Defendant denies each and every allegation contained in those paragraphs designated as “30”, “31”, “32”, “33”, ‘34”, “35” and “36” of the Plaintiff’s Verified Amended Complaint. 4 8538501 4 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION 18. With respect to that paragraph of Plaintiff’s Verified Amended Complaint designated as “37”, answering Defendant repeats, reiterates and realleges each and every allegation, denial, and denial of truth of each and every allegation contained in those paragraphs designated as “1” through “36” with the same force and effect as if set forth fully herein. 19. Answering Defendant denies each and every allegation contained in the paragraph designated as “38” of the Plaintiff’s Verified Amended Complaint is and was a public benefit corporation established under the laws of the State of New York and that NEW YORK CITY HEALTH + HOSPITALS CORPORATION operates New York City Health and Hospital facilities pursuant to law and employs health care providers pursuant to section 50-k of the General Municipal Law and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 20. Answering Defendant denies each and every allegation contained in the paragraph designated as “39” of the Plaintiff’s Verified Amended Complaint except states that Defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION is and was at all relevant times a public benefit corporation established under the laws of the State of New York and that NEW YORK CITY HEALTH AND HOSPITALS CORPORATION operates New York City Health and Hospital facilities pursuant to law and employs health care providers pursuant to section 50-k of the General Municipal Law and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 21. Answering Defendant denies each and every allegation contained in those paragraphs designated as “40” and “41” of the Plaintiff’s Verified Amended Complaint and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 5 8538501 5 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 22. Answering Defendant denies each and every allegation contained in the paragraph designated as “42” of the Plaintiff’s Verified Amended Complaint except states that at various times, Answering Defendant rendered professional services to and for Plaintiff’s decedent in a skillful manner in accordance with accepted standards of care and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 23. Answering Defendant denies each and every allegation contained in those paragraphs designated as “43” and “44” of the Plaintiff’s Verified Amended Complaint and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 24. Answering Defendant denies each and every allegation contained in the paragraph designated as “45” of the Plaintiff’s Verified Amended Complaint except states that NEW YORK CITY HEALTH + HOSPITALS CORPORATION complied with all applicable regulations and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 25. Answering Defendant denies each and every allegation contained in those paragraphs designated as “46” and “47” of the Plaintiff’s Verified Amended Complaint and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 26. Answering Defendant denies each and every allegation contained in those paragraphs designated as “48”, “49” and “50” of the Plaintiff’s Verified Amended Complaint. 27. Answering Defendant denies each and every allegation contained in the paragraph designated as “51” of the Plaintiff’s Verified Amended Complaint and begs leave to refer all questions of fact to the trier of fact and all questions of law to the court. 6 8538501 6 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 28. Answering Defendant denies each and every allegation contained in those paragraphs designated as “52”, “53”, “54”, “55” and “56” of the Plaintiff’s Verified Amended Complaint. AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION 29. With respect to that paragraph of Plaintiff’s Verified Amended Complaint designated as “57”, answering Defendant repeats, reiterates and realleges each and every allegation, denial, and denial of truth of each and every allegation contained in those paragraphs designated as “1” through “56” with the same force and effect as if set forth fully herein. 30. Answering Defendant denies each and every allegation contained in those paragraphs designated as “58”, “59”, “60”, “61”, “62” and “63” of the Plaintiff’s Verified Amended Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 31. That the cause(s) of action herein may not be maintained because it is barred by the applicable statute of limitations prescribed by the CPLR and the laws of the State of New York. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 32. Upon information and belief, CPLR Section 1600 et seq. is applicable to the instant action and should be applied by the Court at the time of trial with regards to alleged liability on the part of the Answering Defendant. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 33. That any sums or consideration paid to or promised to Plaintiff by any person(s) or corporation(s) claimed to be liable for the injuries or damages alleged in the Complaint shall reduce any judgment rendered in favor of Plaintiff as against these defendants to the extent of the greater 7 8538501 7 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 of either the sums or consideration paid or promised to Plaintiff or the amount of the released tortfeasor’s (s’) equitable share(s) of the damages in accordance with General Obligations Law §15-108. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 34. CPLR §4545 is applicable to the instant action and should be applied by this Court at time of trial. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 35. The negligence of those responsible for the accident or the occurrence alleged in the Verified Complaint constituted a separate, independent, superseding, intervening act which constitutes the sole proximate cause of the accident or occurrence alleged. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 36. That the complaint fails to state a cause or causes of action upon which relief can be granted against the Answering Defendant. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 37. Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce the injuries, damages and disabilities as alleged in the Verified Complaint. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 38. This matter is barred pursuant to the applicable provisions of New York Emergency or Disaster Treatment Act, Art. 30-D, N.Y. Public Health Law, §§3080-82, as enacted on April 3, 2020, New York Executive Order 202.10, and any and all related Executive Orders issued by the Governor of the State of New York. 8 8538501 8 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 AS AND FOR A NINTH AFFIRMATIVE DEFENSE 39. The Defendant and its agents, servants and employees are immune from civil liability in accordance with Executive Order 202.10, any and all related Executive Orders issued by the Governor of the State of New York, and Public Health Law Article 30-D. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 40. Pursuant to the Public Readiness and Emergency Preparedness Act (PREP Act) (42 U.S.C. §247d-6d et seq.), the Declaration under the PREP Act for Medical Countermeasures Against COVID-19 by the Secretary of the Department of Health and Human Services, and all relevant regulations, the Defendant and its agents, servants and employees are covered persons and their actions arose out of or related to the administration of covered countermeasures as defined by the Act. Accordingly, this Court lacks subject matter jurisdiction and they are immune from liability under state and federal law. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 41. The PREP Act provides the remedy for plaintiff’s claims under the Countermeasures Injury Compensation Program (CCIP). Accordingly, plaintiff failed to exhaust his/her administrative remedies and thus the Court lacks subject matter jurisdiction. 42 U.S.C. §247d-6e(d)(1); Parker v. St. Lawrence County Public Health Department, 102 A.D.3d 140 (3d Dept. 2012). AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 42. The allocation of health care resources during an emergency is a discretionary governmental function and the Defendant, its agents, servants and employees are therefore immune from civil liability. 9 8538501 9 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 43. The injuries complained of were due exclusively to causes of so extraordinary a nature that they could not reasonably have been foreseen and the result avoided. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 44. Given the declared public health emergency, the Court lacks subject matter jurisdiction pursuant to the Federal Officers Statute (28 U.S.C. §1442(a)(1)). AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 45. Given the declared public health emergency, the Defendant and its agents, servants and employees acted at all times reasonably and in accordance with the applicable standard of care in effect under the conditions existing at the time. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 46. Pursuant to the “Coronavirus Aid, Relief, and Economic Security Act” signed into law on March 27, 2020, the defendant is immune from any cause of action arising under the Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services during the COVID-19 public health emergency. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 47. This matter is barred pursuant to the applicable provisions of New York Emergency or Disaster Treatment Act, Art. 30-D, N.Y. Public Health Law, §§3080-82, as enacted on April 3, 2020, New York Executive Order 202.10, and any and all related Executive Orders issued by the Governor of the State of New York. 10 8538501 10 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 48. Pursuant to the Volunteer Protection Act of 1997, the defendant is immune from any cause of action arising under Federal or State law for any harm caused by an act or omission of the professional in the provision of health care services. AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE 49. Plaintiff’s Complaint fails to comply with CPLR 3014. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 50. Plaintiffs’ complaint fails to state a cause of action pursuant to CPLR 3012-a. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 51. The plaintiff, pursuant to Section 3211(a)(3) of the Civil Practice Laws and Rules, lacks the capability to sue. AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 52. Defendant invokes the protection of Public Health Law §2805-d(4) with respect to the alleged cause of action for lack of informed consent, and reserves all rights pursuant thereto. AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 53. Plaintiff’s complaint fails to state a cause of action pursuant to CPLR § 3013. AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 54. This court has no jurisdiction in this matter inasmuch as plaintiffs’ summons fails to comply with CPLR 305(a). 11 8538501 11 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 55. Plaintiff’s complaint fails to state a cause of action because it fails to meet the requirements of Section 7401 of the Unconsolidated Laws of New York State. AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 56. The defendant asserts all defenses and privileges pursuant to Public Health Law § 2801 and § 2803 inasmuch as the defendant facility exercised all care reasonably necessary to prevent and limit the deprivation of rights and/or injury claimed herein. Moreover such claims are not cognizable as to answering defendant. AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 57. Plaintiff’s allegation regarding negligent hiring and retention are not cognizable in the State of New York when the gravamen of the complaint sounds in medical malpractice. AS AND FOR AN TWENTY-EIGHTH AFFIRMATIVE DEFENSE 58. Plaintiffs’ complaint fails to comply with the single allegation per paragraph provision of CPLR 3014. AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 59. Whatever injuries and/or damages Plaintiff may have sustained at the time and place mentioned in the Verified Amended Complaint and/or as a result of the occurrence alleged in the Verified Amended Complaint, all of which is denied by Answering Defendant, were caused in whole or in part by the culpable conduct/comparative negligence of Plaintiff. The amount of damages recovered, if any, shall therefore be diminished in proportion to which the culpable conduct attributable to Plaintiff bears on his injuries. AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE 60. The Plaintiffs failed to properly plead a claim for punitive damages. 12 8538501 12 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 61. Plaintiffs’ claim for punitive damages is unwarranted and unconstitutional and violative of due process based on the claims made in Plaintiff’s Verified Amended Complaint as the acts or omissions alleged by this answering defendant do not rise to the level of conduct for which exemplary damages are justified. AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 62. The Answering Defendant avers that the Plaintiff’s intent to seek punitive damages under New York law, without bifurcating the trial and trying all punitive damages issues only, if and after liability on the merits has been found, would violate the defendant’s due process rights guaranteed by the Fourteenth Amendment to the United State Constitution, as well as the due process provisions of the New York Constitution, and would be improper under the common law and public policies of the State of New York and under applicable court rules and statutes. AS AND FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 63. The Answering Defendant avers that Plaintiff’s intent to seek punitive damages violates the Due Process Clause of the Fifth Amendment of the Constitution of the United States, the Sixth Amendment, the right to trial by jury of the Seventh Amendment as applied on quasi criminal actions of the proportionality principles contained in the Eighth Amendment, the Due Process Clause of the Fourteenth Amendment, and Article 1, Section 1, 2, 5, 6 and 11 of the Constitution of the State of New York for the following reasons, jointly and separately: a. There are no standards provided by New York law for the imposition of punitive damages and, therefore, the Defendants have not been put on notice and given the opportunity to anticipate punitive liability or the potential size of an award and to modify or conform its conduct accordingly. b. The procedures to be followed would permit an award of punitive damages against this defendant upon the satisfaction of a burden of persuasion (standard of proof) less than the applicable to the imposition of criminal sanctions for equal culpability. 13 8538501 13 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 c. The procedures to be followed would permit the award of multiple punitive damages for the same act or omission. d. There are no provisions for clear and consistent appellate standards of review of any award of punitive damages against this defendant under present New York law. e. The standard of conduct upon which punitive damages are sought against these defendants are vague and ambiguous. f. The procedures used by New York courts, and guidelines given to the jurors, jointly and separately, are vague and ambiguous and thus impermissibly delegate to jurors basic policy matters, impermissibly allow jurors broad, unlimited and undefined power to make determinations on their notions of what the law should be instead of what it is; and fail to eliminate the effects of, and to guard against, impressible juror passion. g. Present New York law does not provide for sufficiently objective and specific standards to be used by the jury in its deliberations on whether to award punitive damages and, if so, the amount to be awarded. h. Present New York law does not provide a meaningful opportunity for challenging the rational basis for, and any excessiveness of, any award of punitive damages. i. Present New York law does not provide for adequate and independent review by the trial court and the appellate court for the imposition of punitive damages by a jury or of the amount of any punitive damages awarded by a jury. j. Present New York law does not limit an award of punitive damages to conduct that occurred within the state and otherwise permits recovery of punitive damages for extra-territorial conduct on the part of this defendant. AS AND FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 64. As a further defense, the Answering Defendant avers that the imposition of punitive damages in this case violates the Equal Protection Clause of the Fifth and Fourteenth Amendments of the Constitution of the United States and deprives this defendant of the right to equal protection under the laws provided in Article 1, Section 1, 6 and 11 of the Constitution of the State of New York for the following reasons, jointly and separately: a. The procedures to be followed would permit the awarding of punitive damages against this defendant upon the satisfaction of a burden of persuasion (standard of proof) less 14 8538501 14 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 than the applicable standard in criminal cases for criminal sanctions involving similar or identical levels of culpability. b. The absence of sufficiently specific and objective standards for the imposition of punitive damages fails to insure the equality of treatment between and amount similarly situated civil defendants. c. The defendant, without procedure protections, is compelled to disclose documents and/or other evidence without constitutional safeguards against self-incrimination, whereas persons charged under criminal provisions for acts or omissions of similar culpability are protected from being compelled to disclose documents and/or other evidence by constitutional procedures and safeguards available in criminal cases. WHEREFORE, Defendant NEW YORK CITY HEALTH + HOSPITALS CORPORATION hereby demands judgment dismissing Plaintiff’s Verified Amended Complaint, together with the costs and disbursements of this action. 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: Garden City, New York October 17, 2022 Yours, etc., KAUFMAN BORGEEST & RYAN LLP By: Christine E. F. Rockwell Attorneys for Defendant NEW YORK CITY HEALTH + HOSPITALS CORPORATION s/h/a NYC HEALTH AND HOSPITALS/GOTHAM HEALTH GOUVERNEUR, GOTHAM HEALTH GOUVERNEUR and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION 1205 Franklin Avenue – 2nd Floor Garden City, New York 11530 (516) 248-6000 KBR File No.: 961-110 15 8538501 15 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 TO: SINEL & OLESEN, PLLC Attorneys for Plaintiff 330 7th Avenue, 10th Floor New York, New York 10001 (212) 465-1000 16 8538501 16 of 18 FILED: NEW YORK COUNTY CLERK 10/17/2022 03:43 PM INDEX NO. 805145/2022 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/17/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------------X JOSEPH CHAN as Administrator of the Estate of YUK CHU CHAN and JOSEPH CHAN, Individually, Index No.: 805145/2022 Plaintiff, -against- VERIFICATION NYC HEALTH AND HOSPITALS/GOTHAM HEALTH GOUVERNEUR, GOTHAM HEALTH GOUVERNEUR and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendants. -------------------------------------------------------------------------X STATE OF NEW YORK ) ) ss: COUNTY OF NASSAU ) CHRISTINE E. F. ROCKWELL, ESQ. being duly sworn states that I am partnered with the firm of KAUFMAN BORGEEST & RYAN LLP, attorneys for the Defendant NEW YORK CITY HEALTH + HOSPITALS CORPORATION s/h/a NYC HEALTH AND HOSPITALS/GOTHAM HEALTH GOUVERNEUR, GOTHAM HEALTH GOUVERNEUR and NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, in this action and that the foregoing VERIFIED ANSWER is true to my knowledge, except as to those matters therein stated up