Preview
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017
JOSEPH V MCCARTHY
Roach, Brown,
OF COUNSEL
J. MARK GRUBER
JOHN P. DANIEU McCarthy & Gruber, P.C T . ALAN BROWN
ELIZABETH G. ADYMY ARTHUR J. MALONEY
GREGORY T MILLER
(1920-2011 )
JOEL J. JAVA, JR.
KEVIN D. McCARTHY
KEVIN VASQUEZ HUTCHESON DANIEL T. ROACH
MARK R. AFFRONTI (1929-2013)
ADAM P. DEISINGER 1920 LIBERTY BUILDING
KAIT R. MICELI NURSE CONSULTANTS
424 MAIN STREET KATHLEEN BITTNER, R.N.
SPECIAL COUNSEL BUFFALO, NEW YORK 14202-3619 EILEEN ULRICH, R.N.
BARBARA LALAMA, R.N.
RUTHANNE WANNOP
(716) 852-0400
FAX (716) 852-2535 LEGAL ASSISTANTS
KAREN E. BUZZELLI
MARIA R. BRAID
October 25, 2016
Brian P. Fitzgerald, Esq.
Brian P. Fitzgerald, P.C
509 Liberty Building
424 Main Street
Buffalo, New York 14202
Re: Kausner vs. Eastern Niagara Hospital, et al
Our Ftle No. 7-16-273
Dear Mr. Fitzgerald:
Enclosed herewith please find an Answer, Demand for Billof Particulars, Demand for
Statements, etc., Notice of Examination Before Trial, Demand Pursuant to CPLR Section 3 IO I (d),
Demand for Collateral Sources and Demand for Medicare/Medicaid Lien Information on behalf of
the Defendants, Eastern Niagara Hospital, Inc. and Robert E. Lutnick, M.D., in the above-captioned
action.
Sincerely,
_ ..--··
... ----\
ROACH, BROWN, McCARTHY & GRUBER, P.C
('----------7-"·~·1
/)p,I1/1
/ · ;
Jog,e~h V. McCarthy
JVM/cas
Enclosure
Cc: The Tarantino Law Firm
Michael J. Roach, Esq.
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017
STATE OF NEW YORK
SUPREME COURT : COUNTY OF NIAGARA
THOMAS and CHERYL KAUSNER,
-rmltvi"dmrlly-ami-a-s-I=Iusband-IDI-d-Wife~-- - -
Plaintiffs, ANSWER
E159518/2016
-vs-
BUFFALO SPINE SURGERY, PLLC,
ANDREW CAPPUCCINO, M.D.,
ERIC DEAN, RPA-C,
HARNATH CLERK, M.D., P.C.,
HARNATH CLERK, M.D.,
EASTERN NIAGARA HOSPITAL, INC.,
and ROBERT E. LUTNICK, M.D .,
Defendants.
The Defendant, ROBERT E. LUTNICK, M.D., above named by ROACH, BROWN,
McCARTHY & GRUBER, P.C., his attorneys, answering the complaint of the plaintiff, herein
allege:
FIRST: Admits the allegations contained in the plaintiffs' complaint numbered
"9".
SECOND: Denies the allegations contained in the plaintiffs' complaint numbered
"l O", "14", "15", and "18".
THIRD: Denies any knowledge or information sufficient to form a belief as to any
of the allegations contained in plaintiffs' complaint numbered "1 ", "2", "3 ", "6", "7", "13 ", and
"17".
FOURTH: Admits so much of Paragraph "4" of plaintiffs' complaint as alleges that at
all times herein mentioned, Dr. Andrew Cappuccino was a physician duly licensed to practice
medicine in the State of New York, but denies knowledge or information sufficient to form a
belief as to each and every other allegation contained in said Paragraph "4" of plaintiffs'
complaint.
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017
FIFTH: Admits so much of Paragraph "5" of plaintiffs' complaint as alleges that at
all times herein mentioned, Eric Dean RPC-A was a registered physician assistant - certified,
duly registered as a physician assistant in the State of New York, but denies knowledge or
_infonnatio.n sufficient t_g_ioon_a be1ief_as to .ea.c.h.and__e_yery _Qthe_r_allegatiQn.c.ontaine.rl_i.n...s.aid_ __ __.. _____ _
Paragraph "5" of plaintiffs' complaint.
SIXTH: Admits so much of Paragraph "8" of plaintiffs' complaint as alleges that at
all times herein mentioned, Dr. Harnath Clerk was a physician duly licensed to practice medicine
in the State of New York, but denies knowledge or information sufficient to form a belief as to
each and every other allegation contained in said Paragraph "8" of plaintiffs' complaint.
SEVENTH: Admits so much of Paragraph "11" of plaintiffs' complaint as alleges that
at all times herein mentioned, Dr. Robert E. Lutnick was a physician duly licensed to practice
medicine in the State of New York, but denies knowledge or information sufficient to form a
belief as to each and every other allegation contained in said Paragraph "11" of plaintiffs'
complaint.
EIGHTH: With respect to paragraphs numbered "12" and "16" of the plaintiffs'
complaint that repeat and re-allege prior paragraphs of the complaint, the defendant admits or
denies to the same extent as previously admitted or denied in this answer.
NINTH: Denies any knowledge or information sufficient to form a belief as to any
of the allegations contained in plaintiffs said Complaint except as hereinbefore specifically
admitted or denied.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, TillS DEFENDANT, ('
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
TENTH: The alleged cause of action stated in the complaint herein was not
commenced within the applicable statute of limitations of this action and said action is barred by
the statute of limitations.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS DEFENDANT,
UPON INFORMATION AND BELIEF HEREIN ALLEGES: ·
ELEVENTH: Service upon the person of this defendant was improper and not in
compliance with the CPLR and therefore the court lacks jurisdiction over the person of the
defendant.
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017
FOR A FURHTER ANSWER ANS AS AN
AFFIRMATIVE DEFENSE, THIS DEFENDANT
UPON INFORMATION AND BELIEF HEREIN ALLEGES
TWELFTH: The plaintiffs' complaint should be dismissed for failure to file and serve a
.-- -- ----- - - - -- - - ~ ----------------------- ---··--- -- - ---- ------- - . - ·--------- ..
- --- ------···
--- --
Notice of Malpractice Action as required by CPLR 3406.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS DEFENDANT, ~
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
THIRTEENTH: This answering defendant has no present knowledge of culpable
conduct on the part of the plaintiffs which may have caused or contributed to the incident or
damages alleged in the complaint, but in order to preserve his defense in the event that he obtains
such knowledge, this defendant hereby alleges that culpable conduct on the part of the plaintiffs
caused or contributed to said incident or damages.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, Tms DEFENDANT, )
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
FOURTEENTH: That if the plaintiffs recover a verdict against this answering
defendant, this said defendant requests the court to have the liability of all of the defendants and
their various culpability apportioned among them pursuant to Article 14 of the Civil Practice
Law and Rules.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS DEFENDANT, I
UPON INFORMATION AND BELIEF HEREIN ALLEGES: k:?
FIFTEENTH: In the event that the plaintiffs are successful in recovering a verdict
against this answering defendant, the liability of this answering defendant to the plaintiffs (for
non-economic loss) shall not exceed the defendant's equitable share determined in accordance
with the relative culpability of each person C?-using or contributing to the total liability (for non-
economic loss) pursuant to Article 16 of the Civil Practice Law and Rules.
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, TIDS DEFENDANT,
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
SIXTEENTH: In the event that the plaintiffs recover damages in this action which
·-- -·---- - --- - - --- -·-·-------------- - ·---···---
~ ..---·---- ----· ------ -
-·-- --- -·-·
-··· ·--···· -
··-·-·-· -
have been paid or are payable by a collateral source, this answering defendant will seek a
collateral source offset pursuant to Article 45 of the CPLR.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS DEFENDANT,
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
SEVENTEENTH: Plaintiffs' injuries and damages, if any, were proximately caused
or contributed to by unnamed third parties.
In the event plaintiffs sustained any of the injuries or damages alleged in the complaint
by reason of fault other than their own, and if any judgment is recovered by them against this
answering defendant, said judgment will have been due in whole or in part to the culpable
conduct of the unnamed third parties and your answering defendant will be entitled to
indemnification and/or contribution.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, TIDS DEFENDANT,
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
EIGHTEENTH: That the defendant, ROBERT E. LUTNICK, M.D., hereby pleads
and seeks the full benefit of§ 15-108 of the General Obligations Law that plaintiffs' claim
against said defendant be reduced to the extent of the amount stipulated by the release of
settlement with other tortfeasors, or in the amount of the consideration paid for it or in the
amount of the released tortfeasor's equitable share of the damages under Article 14 of the CPLR,
whichever is the greatest.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, Tms DEFENDANT I c)
UPON INFORMATION AND BELIEF HEREIN ALLEGES
NINETEENTH: The plaintiff assumed any and all risks and particularly such risks
of injury as allegedly occurred herein.
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017
FOR A FURTHER ANSWER AND AS AN / !
AFFIRMATIVE DEFENSE, TIDS DEFENDANT ' I
UPON INFORMATION AND BELIEF HEREIN ALLEGES
__ .... ___ T..W.ENTIETH: .. The.complaint.fails to -prop€rly state any cause of.action-as againstthis
defendant.
FOR A SEPARATE CROSSCLAIM AGAINST THE
CO-DEFENDANT, PURSUANT TO ARTICLE 14
OF THE CIVIL PRACTICE LAW AND RULES
THESE ANSWERING DEFENDANTS ALLEGE:
TWENTY-FIRST: If this answering defendant is found liable to plaintiffs, and if
liability has been brought about by reason of the active and primary negligence on the part of the
co-defendants, then, and in that event, this answering defendant will be entitled to
indemnification by and judgment over and against the co-defendants, for the full amount of such
liability, or for contribution in such proportionate share of the negligence attributable to the co-
defendants, pursuant to Article 14 of the Civil Practice Law and Rules.
WHEREFORE, the defendant, demands judgment dismissing the plaintiffs' complaint
together with the costs and disbursements ofthis action.
DATED: Buffalo, New York
October 25, 2016
oseph V. McCa y, Esq.
Attorneys for Defendant
ROBERT E. LUTNICK, M.D.
1920 Liberty Building
424 Main Street
Buffalo, New York 14202
(716) 852-0400
(716) 852-2535 (fax)
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017
TO: Brian P. Fitzgerald, Esq.
BRIAN P. FITZGERALD, P.C.
Attorneys for Plaintiffs
509 Liberty Building,
·-~221--Mam Street
Buffalo, New York 14202
(716) 852-2000
Cc: Michael J. Roach, Esq.
Connors LLP
Attorneys for Defendants,
Harnath B. Clerk, MD. , P.C.
and Harnath B. Clerk, MD.
1000 Liberty Building
424 Main Street
Buffalo, New York 14202
The Tarantino Law Firm, LLP
Attorneys for Defendants,
Andrew Cappuccino, MD., Eric Dean, RPA-C
and Buffalo Spine Surgery, PLLC
1500 Rand Building
14 Lafayette Square
Buffalo, New York 14203
Preview
FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017 FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017 JOSEPH V MCCARTHY Roach, Brown, OF COUNSEL J. MARK GRUBER JOHN P. DANIEU McCarthy & Gruber, P.C T . ALAN BROWN ELIZABETH G. ADYMY ARTHUR J. MALONEY GREGORY T MILLER (1920-2011 ) JOEL J. JAVA, JR. KEVIN D. McCARTHY KEVIN VASQUEZ HUTCHESON DANIEL T. ROACH MARK R. AFFRONTI (1929-2013) ADAM P. DEISINGER 1920 LIBERTY BUILDING KAIT R. MICELI NURSE CONSULTANTS 424 MAIN STREET KATHLEEN BITTNER, R.N. SPECIAL COUNSEL BUFFALO, NEW YORK 14202-3619 EILEEN ULRICH, R.N. BARBARA LALAMA, R.N. RUTHANNE WANNOP (716) 852-0400 FAX (716) 852-2535 LEGAL ASSISTANTS KAREN E. BUZZELLI MARIA R. BRAID October 25, 2016 Brian P. Fitzgerald, Esq. Brian P. Fitzgerald, P.C 509 Liberty Building 424 Main Street Buffalo, New York 14202 Re: Kausner vs. Eastern Niagara Hospital, et al Our Ftle No. 7-16-273 Dear Mr. Fitzgerald: Enclosed herewith please find an Answer, Demand for Billof Particulars, Demand for Statements, etc., Notice of Examination Before Trial, Demand Pursuant to CPLR Section 3 IO I (d), Demand for Collateral Sources and Demand for Medicare/Medicaid Lien Information on behalf of the Defendants, Eastern Niagara Hospital, Inc. and Robert E. Lutnick, M.D., in the above-captioned action. Sincerely, _ ..--·· ... ----\ ROACH, BROWN, McCARTHY & GRUBER, P.C ('----------7-"·~·1 /)p,I1/1 / · ; Jog,e~h V. McCarthy JVM/cas Enclosure Cc: The Tarantino Law Firm Michael J. Roach, Esq. FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017 STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA THOMAS and CHERYL KAUSNER, -rmltvi"dmrlly-ami-a-s-I=Iusband-IDI-d-Wife~-- - - Plaintiffs, ANSWER E159518/2016 -vs- BUFFALO SPINE SURGERY, PLLC, ANDREW CAPPUCCINO, M.D., ERIC DEAN, RPA-C, HARNATH CLERK, M.D., P.C., HARNATH CLERK, M.D., EASTERN NIAGARA HOSPITAL, INC., and ROBERT E. LUTNICK, M.D ., Defendants. The Defendant, ROBERT E. LUTNICK, M.D., above named by ROACH, BROWN, McCARTHY & GRUBER, P.C., his attorneys, answering the complaint of the plaintiff, herein allege: FIRST: Admits the allegations contained in the plaintiffs' complaint numbered "9". SECOND: Denies the allegations contained in the plaintiffs' complaint numbered "l O", "14", "15", and "18". THIRD: Denies any knowledge or information sufficient to form a belief as to any of the allegations contained in plaintiffs' complaint numbered "1 ", "2", "3 ", "6", "7", "13 ", and "17". FOURTH: Admits so much of Paragraph "4" of plaintiffs' complaint as alleges that at all times herein mentioned, Dr. Andrew Cappuccino was a physician duly licensed to practice medicine in the State of New York, but denies knowledge or information sufficient to form a belief as to each and every other allegation contained in said Paragraph "4" of plaintiffs' complaint. FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017 FIFTH: Admits so much of Paragraph "5" of plaintiffs' complaint as alleges that at all times herein mentioned, Eric Dean RPC-A was a registered physician assistant - certified, duly registered as a physician assistant in the State of New York, but denies knowledge or _infonnatio.n sufficient t_g_ioon_a be1ief_as to .ea.c.h.and__e_yery _Qthe_r_allegatiQn.c.ontaine.rl_i.n...s.aid_ __ __.. _____ _ Paragraph "5" of plaintiffs' complaint. SIXTH: Admits so much of Paragraph "8" of plaintiffs' complaint as alleges that at all times herein mentioned, Dr. Harnath Clerk was a physician duly licensed to practice medicine in the State of New York, but denies knowledge or information sufficient to form a belief as to each and every other allegation contained in said Paragraph "8" of plaintiffs' complaint. SEVENTH: Admits so much of Paragraph "11" of plaintiffs' complaint as alleges that at all times herein mentioned, Dr. Robert E. Lutnick was a physician duly licensed to practice medicine in the State of New York, but denies knowledge or information sufficient to form a belief as to each and every other allegation contained in said Paragraph "11" of plaintiffs' complaint. EIGHTH: With respect to paragraphs numbered "12" and "16" of the plaintiffs' complaint that repeat and re-allege prior paragraphs of the complaint, the defendant admits or denies to the same extent as previously admitted or denied in this answer. NINTH: Denies any knowledge or information sufficient to form a belief as to any of the allegations contained in plaintiffs said Complaint except as hereinbefore specifically admitted or denied. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, TillS DEFENDANT, (' UPON INFORMATION AND BELIEF HEREIN ALLEGES: TENTH: The alleged cause of action stated in the complaint herein was not commenced within the applicable statute of limitations of this action and said action is barred by the statute of limitations. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT, UPON INFORMATION AND BELIEF HEREIN ALLEGES: · ELEVENTH: Service upon the person of this defendant was improper and not in compliance with the CPLR and therefore the court lacks jurisdiction over the person of the defendant. FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017 FOR A FURHTER ANSWER ANS AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT UPON INFORMATION AND BELIEF HEREIN ALLEGES TWELFTH: The plaintiffs' complaint should be dismissed for failure to file and serve a .-- -- ----- - - - -- - - ~ ----------------------- ---··--- -- - ---- ------- - . - ·--------- .. - --- ------··· --- -- Notice of Malpractice Action as required by CPLR 3406. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT, ~ UPON INFORMATION AND BELIEF HEREIN ALLEGES: THIRTEENTH: This answering defendant has no present knowledge of culpable conduct on the part of the plaintiffs which may have caused or contributed to the incident or damages alleged in the complaint, but in order to preserve his defense in the event that he obtains such knowledge, this defendant hereby alleges that culpable conduct on the part of the plaintiffs caused or contributed to said incident or damages. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, Tms DEFENDANT, ) UPON INFORMATION AND BELIEF HEREIN ALLEGES: FOURTEENTH: That if the plaintiffs recover a verdict against this answering defendant, this said defendant requests the court to have the liability of all of the defendants and their various culpability apportioned among them pursuant to Article 14 of the Civil Practice Law and Rules. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT, I UPON INFORMATION AND BELIEF HEREIN ALLEGES: k:? FIFTEENTH: In the event that the plaintiffs are successful in recovering a verdict against this answering defendant, the liability of this answering defendant to the plaintiffs (for non-economic loss) shall not exceed the defendant's equitable share determined in accordance with the relative culpability of each person C?-using or contributing to the total liability (for non- economic loss) pursuant to Article 16 of the Civil Practice Law and Rules. FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017 FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, TIDS DEFENDANT, UPON INFORMATION AND BELIEF HEREIN ALLEGES: SIXTEENTH: In the event that the plaintiffs recover damages in this action which ·-- -·---- - --- - - --- -·-·-------------- - ·---···--- ~ ..---·---- ----· ------ - -·-- --- -·-· -··· ·--···· - ··-·-·-· - have been paid or are payable by a collateral source, this answering defendant will seek a collateral source offset pursuant to Article 45 of the CPLR. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT, UPON INFORMATION AND BELIEF HEREIN ALLEGES: SEVENTEENTH: Plaintiffs' injuries and damages, if any, were proximately caused or contributed to by unnamed third parties. In the event plaintiffs sustained any of the injuries or damages alleged in the complaint by reason of fault other than their own, and if any judgment is recovered by them against this answering defendant, said judgment will have been due in whole or in part to the culpable conduct of the unnamed third parties and your answering defendant will be entitled to indemnification and/or contribution. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, TIDS DEFENDANT, UPON INFORMATION AND BELIEF HEREIN ALLEGES: EIGHTEENTH: That the defendant, ROBERT E. LUTNICK, M.D., hereby pleads and seeks the full benefit of§ 15-108 of the General Obligations Law that plaintiffs' claim against said defendant be reduced to the extent of the amount stipulated by the release of settlement with other tortfeasors, or in the amount of the consideration paid for it or in the amount of the released tortfeasor's equitable share of the damages under Article 14 of the CPLR, whichever is the greatest. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, Tms DEFENDANT I c) UPON INFORMATION AND BELIEF HEREIN ALLEGES NINETEENTH: The plaintiff assumed any and all risks and particularly such risks of injury as allegedly occurred herein. FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017 FOR A FURTHER ANSWER AND AS AN / ! AFFIRMATIVE DEFENSE, TIDS DEFENDANT ' I UPON INFORMATION AND BELIEF HEREIN ALLEGES __ .... ___ T..W.ENTIETH: .. The.complaint.fails to -prop€rly state any cause of.action-as againstthis defendant. FOR A SEPARATE CROSSCLAIM AGAINST THE CO-DEFENDANT, PURSUANT TO ARTICLE 14 OF THE CIVIL PRACTICE LAW AND RULES THESE ANSWERING DEFENDANTS ALLEGE: TWENTY-FIRST: If this answering defendant is found liable to plaintiffs, and if liability has been brought about by reason of the active and primary negligence on the part of the co-defendants, then, and in that event, this answering defendant will be entitled to indemnification by and judgment over and against the co-defendants, for the full amount of such liability, or for contribution in such proportionate share of the negligence attributable to the co- defendants, pursuant to Article 14 of the Civil Practice Law and Rules. WHEREFORE, the defendant, demands judgment dismissing the plaintiffs' complaint together with the costs and disbursements ofthis action. DATED: Buffalo, New York October 25, 2016 oseph V. McCa y, Esq. Attorneys for Defendant ROBERT E. LUTNICK, M.D. 1920 Liberty Building 424 Main Street Buffalo, New York 14202 (716) 852-0400 (716) 852-2535 (fax) FILED: NIAGARA COUNTY CLERK 11/15/2017 12:31 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 11/15/2017 TO: Brian P. Fitzgerald, Esq. BRIAN P. FITZGERALD, P.C. Attorneys for Plaintiffs 509 Liberty Building, ·-~221--Mam Street Buffalo, New York 14202 (716) 852-2000 Cc: Michael J. Roach, Esq. Connors LLP Attorneys for Defendants, Harnath B. Clerk, MD. , P.C. and Harnath B. Clerk, MD. 1000 Liberty Building 424 Main Street Buffalo, New York 14202 The Tarantino Law Firm, LLP Attorneys for Defendants, Andrew Cappuccino, MD., Eric Dean, RPA-C and Buffalo Spine Surgery, PLLC 1500 Rand Building 14 Lafayette Square Buffalo, New York 14203