On September 12, 2016 a
Exhibit,Appendix
was filed
involving a dispute between
Cheryl Kausner,
Thomas Kausner,
and
Andrew Cappuccino M.D.,
Buffalo Spine Surgery, Pllc,
Eastern Niagara Hospital, Inc.,
Eastern Niagara Radiology And Nuclear Medicine Associates Pc,
Eric Dean Rpa-C,
Harnath B. Clerk M.D.,
Harnath B. Clerk, M.D., P.C.,
Robert E. Lutnick M.D.,
for Torts - Medical, Dental, or Podiatrist Malpractice
in the District Court of Niagara County.
Preview
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/15/2017
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC.• NO. 86
r'l r" RECEIVED NYSCEF: 11/15/2017
~CONNORS LLP lfoJ IE ©IE DWlE fol
l1I] JUL 27 2017 /ij /
July 25, 2017
By U\i~~ -~
~_)
·--·--
Attorneys At Law
Terrence M. Connors Brian P. Fitzgerald, Esq.
Randall D. White• FITZGERALD & ROLLER, P.C.
John T. Loss
Vincent E. Doyle Ill
509 Liberty Building
Mich ael J. Roach Buffalo, New York 14202
Lawlor F. Quinlan III
James W. Grable, Jr.
Joseph D. Morath, Jr.
Re: Kausner v. Clerk, M.D.
Mollie C. McGorry
Paul A. Woodard Dear Mr. Fitzgerald:
Nicholas A. Romano
Caitlin M. Higgins
Christina S. Parker In response to your letter dated July 14, 2017, defendants' Verified
Christopher J . Larrabee Bill of Particulars and the responses therein are proper in all respects.
Caitlin E . O'Nei l Affirmative defenses must be pleaded in order to avoid waiver. See CPLR
Trevor N. ,-\'hite
Sarah M. Washington § 3018(b) . At this early stage of discovery and litigation, the defe nda nts
are not yet aware of each of the facts and circumstances underlying the
asserted affirmative defenses, but will r ely on any and all facts in the
Paralegal,;
Curtis J. Ahrens, J r.
m edical records, elicited at the examinations before trial, through other
John P. Kromer discovery devices, and at the t rial of this action to establish these
Sara E . Lyons affirmative defenses. This was properly communicated through .
Christine A. Trojan, R.N. defe ndants; Verified Bill ~f Pa rticulars. . . . .
Katherine M. Grossberg
Margaret Dickey, R.N. , . ' .
Julie Scott, L.P.N. The cases you have cited questio~i11:g these responses are
Lea Ann ,vtlczak, R.N.
ina pposite. In McLean V. Huntington Hospital, the defendant "never
Dianne M. Lysarz, R.N.
s upplied a bill of p a rticulars" in response to the plaintiffs dem a nd. 227
•Also admitted in
District 01Columbia
A.D.2d 533, 534, 642 N.Y.S.2d 951, 952 (2d Dep't 1996) . Instead, the
defendant stated in an unsworn letter t hat it lacked all information
underlying its defenses. That response was improper both because : (1)
the response was not contained within a bill of particulars; and (2) the
defendant in t hat case was the hospital with sole ·'possession and control
of t he informah0n" required to substantiate the defenses. Neither
circumstance applies her e, where Dr. Clerk is not the hospital, lacks
p ossession and control of all relevant information , is yet unaware of each
fact s upporting his affirmative defe nses, and stated so in defendan ts'
Verified Bill of Particulars.
The other case cited by you s upports defe ndants' position. In
Mahar v. Fichte, the defendant again failed to serve a bill of particulars
responsive to the demand. 298 A.D.2d 948, 949, 748 N.Y.S.2d 103, 103
(4th Dei)'t 2002). The Fourt h Department did not fault t he defendant for
r esponding that he lacked all knowledge underlying his affirmative
defe n_se, but simply criticized the defendant for failing to submit that
1000 Liberty Building, Buffalo, New York 14202 I P: 716-852-5533
F: 716-852-5649
1www.connorsllp.com
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/15/2017
~
Re: Ka usner v. Clerk
Page 12
response in a bill of particulars. See id. ; see also Moore v. Chrysler Corp.,
100 A.D.2d 955, 955·56, 475 N.Y.S.2d 96, 98 (2d Dep't 1984) ("In the
event that the plaintiffs ... are presently without sufficient knowledge to
answer the above-numbered demands [in the defendant's demand for a
bill of particulars] more fully, they need only state so under oath as they
did with regard to [their other response s] and furnish the [defendant]
with a supplementary bill of particulars when and if they acquire the
requisite knowledge."). Likewise, once discovery is complete and
defendants possess the relevant information, they will supplement their
responses.
Additionally, please confirm plaintiffs status as a Medicare or
Medicaid b eneficiary, a nd please confirm the existence and amount of any
lien r elated to this matter. When we met for plaintiffs deposition on
June 7, 2017, you indicated that you h ad recently become aware of
information r elated to the existence and amount of a lien.
Further , please provide authorizations allowing our office to obtain
records from : (1) Dan Horn Pharmacy; a nd (2) Rural Metro Ambulance
Services. Finally, please provide Mr. Kausner's tax forms for 2012·2016.
Very truly yours ,
Christopher J. Larrabee
klw
cc: Joseph V. McCarthy, E sq.
Brian J. Vi,7eidner, Esq.
Preview
FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/15/2017 FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC.• NO. 86 r'l r" RECEIVED NYSCEF: 11/15/2017 ~CONNORS LLP lfoJ IE ©IE DWlE fol l1I] JUL 27 2017 /ij / July 25, 2017 By U\i~~ -~ ~_) ·--·-- Attorneys At Law Terrence M. Connors Brian P. Fitzgerald, Esq. Randall D. White• FITZGERALD & ROLLER, P.C. John T. Loss Vincent E. Doyle Ill 509 Liberty Building Mich ael J. Roach Buffalo, New York 14202 Lawlor F. Quinlan III James W. Grable, Jr. Joseph D. Morath, Jr. Re: Kausner v. Clerk, M.D. Mollie C. McGorry Paul A. Woodard Dear Mr. Fitzgerald: Nicholas A. Romano Caitlin M. Higgins Christina S. Parker In response to your letter dated July 14, 2017, defendants' Verified Christopher J . Larrabee Bill of Particulars and the responses therein are proper in all respects. Caitlin E . O'Nei l Affirmative defenses must be pleaded in order to avoid waiver. See CPLR Trevor N. ,-\'hite Sarah M. Washington § 3018(b) . At this early stage of discovery and litigation, the defe nda nts are not yet aware of each of the facts and circumstances underlying the asserted affirmative defenses, but will r ely on any and all facts in the Paralegal,; Curtis J. Ahrens, J r. m edical records, elicited at the examinations before trial, through other John P. Kromer discovery devices, and at the t rial of this action to establish these Sara E . Lyons affirmative defenses. This was properly communicated through . Christine A. Trojan, R.N. defe ndants; Verified Bill ~f Pa rticulars. . . . . Katherine M. Grossberg Margaret Dickey, R.N. , . ' . Julie Scott, L.P.N. The cases you have cited questio~i11:g these responses are Lea Ann ,vtlczak, R.N. ina pposite. In McLean V. Huntington Hospital, the defendant "never Dianne M. Lysarz, R.N. s upplied a bill of p a rticulars" in response to the plaintiffs dem a nd. 227 •Also admitted in District 01Columbia A.D.2d 533, 534, 642 N.Y.S.2d 951, 952 (2d Dep't 1996) . Instead, the defendant stated in an unsworn letter t hat it lacked all information underlying its defenses. That response was improper both because : (1) the response was not contained within a bill of particulars; and (2) the defendant in t hat case was the hospital with sole ·'possession and control of t he informah0n" required to substantiate the defenses. Neither circumstance applies her e, where Dr. Clerk is not the hospital, lacks p ossession and control of all relevant information , is yet unaware of each fact s upporting his affirmative defe nses, and stated so in defendan ts' Verified Bill of Particulars. The other case cited by you s upports defe ndants' position. In Mahar v. Fichte, the defendant again failed to serve a bill of particulars responsive to the demand. 298 A.D.2d 948, 949, 748 N.Y.S.2d 103, 103 (4th Dei)'t 2002). The Fourt h Department did not fault t he defendant for r esponding that he lacked all knowledge underlying his affirmative defe n_se, but simply criticized the defendant for failing to submit that 1000 Liberty Building, Buffalo, New York 14202 I P: 716-852-5533 F: 716-852-5649 1www.connorsllp.com FILED: NIAGARA COUNTY CLERK 11/15/2017 01:04 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 11/15/2017 ~ Re: Ka usner v. Clerk Page 12 response in a bill of particulars. See id. ; see also Moore v. Chrysler Corp., 100 A.D.2d 955, 955·56, 475 N.Y.S.2d 96, 98 (2d Dep't 1984) ("In the event that the plaintiffs ... are presently without sufficient knowledge to answer the above-numbered demands [in the defendant's demand for a bill of particulars] more fully, they need only state so under oath as they did with regard to [their other response s] and furnish the [defendant] with a supplementary bill of particulars when and if they acquire the requisite knowledge."). Likewise, once discovery is complete and defendants possess the relevant information, they will supplement their responses. Additionally, please confirm plaintiffs status as a Medicare or Medicaid b eneficiary, a nd please confirm the existence and amount of any lien r elated to this matter. When we met for plaintiffs deposition on June 7, 2017, you indicated that you h ad recently become aware of information r elated to the existence and amount of a lien. Further , please provide authorizations allowing our office to obtain records from : (1) Dan Horn Pharmacy; a nd (2) Rural Metro Ambulance Services. Finally, please provide Mr. Kausner's tax forms for 2012·2016. Very truly yours , Christopher J. Larrabee klw cc: Joseph V. McCarthy, E sq. Brian J. Vi,7eidner, Esq.