Preview
FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016
NO.
INDEX NYSCEF: E159518/2016
NYSCEFLED DOC.: NIAGARA
NO. 130 COUNTY CLERK 10/25/ 2016 02 : 38 PM RECEIVED 09/04/2020
NYSCEF / OC. NO. 10 RECEIVED NYSCEF: 10/25/2 16
STATE OF NEW YORK
SUPREME COURT : COUNTY OF NIAGARA
THOMAS and CHERYL KAUSNER,
IIIdividually and as Husband and Wife,
Plaintiffs, A N S WE R
E159518/2016
-vs-
BUFFALO SP1NE 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, EASTERN NIAGARA HOSPITAL, INC., above named by ROACH,
BROWN, McCARTHY & GRUBER, P.C., its attorneys, answering the coraplaint of the
plaintiff, herein allege:
plaintiffs'
FIRST: Admits the allegations contained in the complaiñt numbered
"9".
plaintiffs'
SECOND: Denies the allegations contained in the coraplaint numbered
"10", "14", "I5", and "18".
THIRD: Denies any knowledge or information sufficient to form a belief as to any
plaintiffs'
of the allegations contained in complaint numbered "1", "2", "3", "6", "7", "13", and
"17".
"4" plaintiffs'
FOURTH: Admits so much of Parãgraph of 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
"4" plaintiffs'
belief as to each and every other allegation contained in said Paragraph of
complaint.
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FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020
"5" plaintiffs'
FIFTH: Admits so much of Paragraph of complaint as alleges that at
alltimes herein Eric Dean RPC-A was a registered physician assistant -
mentiered, certified,
duly registered as a physician assistant in the State of New York, but denies knowledge or
..informationaufficient.to form a belief as to each and every other allegation contained in said
"5" plaintiffs'
Paragraph of complaint.
"8" plaintiffs'
SIXTH: Admits so much of Paragraph of complaint as alleges that at
alltimes 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
"8" plaintiffs'
each and every other allegation contained in said Paragraph of complaint.
"11" plaintiffs'
SEVENTH: Admits so much of Paragraph of complaint as alleges that
at alltimes herein mentioned, Dr. Robert E. Lutnick was a physician duly licensed to practice
mêdici-le in the State of New York, but denies knowicdge or information sufficient to form a
"11" plaintiffs'
belief as to each and every other allegation contained in said Paragraph of
complaint.
"12" "16" plaintiffs'
EIGHTH: With respect to paragraphs numbered and of the
complaint that repeat and re-allege prior paragraphs of the complaint, the acfcndañt 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 plaintiff's said Complaint except as hereinbefore specifically
admitted or denied.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS 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.
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NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020
FOR A FURTHER ANSWER ANS AS AN
. . . AFFIRMATIVE THIS DEFENDANT
DEFENSE,
UPON INFORMATION AND BELIEF HEREIN ALLEGES
plaintiffs'
TWELFTH: The complaint should be dismissed for failure to fileand selve 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, THIS DEFENDANT,
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
FOURTEENTH: That ifthe 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 theni pursuant to Article 14 of the Civil Practice
Law and Rules.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS DEFENDANT,
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
FIFTEENTH: In the event that the plaintiffs are successfal 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 of each person or to the total (for non-
culpability causing contributing liability
economic loss) pursuant to Article 16 of the Civil Practice Law and Rules.
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NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS 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:
Plaintiffs'
. SEVENTEENTH: 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 complaiñt
by reason of fault other than their own, and if any judgrnent is recovered by them against this
answering defen at, saidjudgment 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, THIS DEFENDANT,
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
EIGHTEENTH: That the defendant, EASTERN NIAGARA HOSPITAL, INC.,
hereby pleads and seeks the fullbenefit 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 itor 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, THIS DEFENDANT
UPON INFORMATION AND BELIEF HEREIN ALLEGES
NINETEENTH: The plaintiff assumed and allrisks and particularly such risks
any
of injury as allegedly occurred herein.
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NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS DEFENDANT
UPON INFORMATION AND BELI EF HEREIN ALLEGES
. ___ TENTIETH:. The complaint failsto properly stateany cause of action as against this
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
liabilityhas been brought about by irason of the active and primary segligence 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
or for contribution in such proportionate share of the negligence attributable to the co-
liability,
defendants, pursuant to Article 14 of the Civil Practice Law and Rules.
plaintiffs'
WHEREFORE, the defendant, demeds judgment dismissing the complaint
together with the costs and disbursements of this action.
DATED: Buffalo, New York
October 25, 2016
ROAC ,McCARTHY & GRUBER,
P.C.
By:
eph V. McC y, Esq.
Attorneys for Defendant
EASTERN NIAGARA HOSPITAL, INC.
1920 Liberty Building
424 Main Street
Buffalo, New York 14202
(716) 852-0400
(716) 852-2535 (fax)
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FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020
TO: Brian P. Fitzgerald, Esq.
BRIAN P. FITZGERALD, P.C.
Attorneys for Plaintiffs
509 Liberty Building,
....._...--424-Main Street
Buffalo, New York 14202
(716) 852-2000
Ce: Michael J. Roach, Esq.
Connors LLP
Attorneys for Defendants,
Harnath B. Clerk, M D., P.C.
and Harnath B. Clerk, M.D.
1000 Liberty Building
424 Main Street
Buffalo, New York 14202
The Tarantino Law Firm, LLP
Attorneys for Defendants,
Andrew Cappuccino, M D., Eric Dean, RPA-C
and Buffalo Spine Surgery, PLLC
1500 Rand Building
14 Lafayette Square
Buffalo, New York 14203
FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016
NYSCEF INDEX NYSCEF:
No. E159518/2016
FILED DOC. : NO. 130
NIAGARA COUNTY CLERK 10 / 25/2016 02 : 38 PM)
RECEIVED 09/04/2020
NYSCEF DOC. NO.. 11 RECEIVED NYSCEF: 10/25/2C16
STATE OF NEW YORK
SUPREME COURT : COUNTY OF NIAGARA
THOMAS and CHERYL KAUSNER,
Individùally aiid as Husband and Wife,
Plaintiffs, A N S WE R
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:
plaintiffs'
FIRST: Admits the allegations contained in the complaint numbered
"9".
plaintiffs'
SECOND: Denies the allegations contained in the courglaint numbered
"10", "14", "15", and "18".
THIRD: Denies any knowledge or information sufficient to form a belief as to any
plaintiffs'
of the allegations contained in ccmplaint numbered "1", "2", "3", "6", "7", "13", and
"17".
"4" plaintiffs'
FOURTH: Admits so much of Paragraph of complaint as alleges that at
alltimes herein mentioned, Dr. Andrew Cappuccino was a physician duly licensed to practice
medicine in the State of New York, but denies Imowledge or information sufficient to form a
"4" plaintiffs'
belief as to each and every other allegation contained in said Paragraph of
complaint.
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FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020
"5" plaintiffs'
FIFTH: Admits so much of Paragraph of complaint as alleges that at
alltimes herein Eric Dean RPC-A was a registered physiciañ assistant -
mentioned, certified,
duly registered as a physician assistant in the State of New York, but denies knowledge or
information sufficient to form a belief as to each and every other allegation contaiñêd in said
"5" plaintiffs'
Paragraph of complaint.
"8" plaintiffs'
SIXTH: Admits so much of Paragraph of complaint as alleges thatat
alltimes herein mentioned, Dr. Harnath Clerk was a physician duly licensed to practice =edicine
in the State of New York, but denies knowledge or information sufficient to form a belief as to
"8" plaintiffs'
each and every other allegation contelnal in said Paragraph of complaint.
"11" plaintiffs'
SEVENTH: Admits so much of Paragraph of complaint as alleges that
at alltimes herein mentlened, Dr. Robert E. Lutnick was a physiciâñ duly licensed to practice
medicine in the State of New York, but denies knowledge or information sufficient to form a
"11" plaintiffs'
belief as to each and every other allegation contained in said Paragraph of
complaint.
"12" "16" plaintiffs'
EIGHTH: . With respect to paragraphs. numbered and of the
complaiñt 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 plaintiff s said Complaint except as hareinbefore specificelly
admitted or denied.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS 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 li=i+=*iana 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.
2 of 6
FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020
FOR A FURHTER ANSWER ANS AS AN
AFFIRMATIVE DEFENSE, THIS DEFENDANT
UPON INFORMATION AND BELIEF HEREIN ALLEGES
plaintiffs'
. . TWELFTH: The complaint should be dismissed for failure to file and serve a
Notice of Malpractice Action as required by CPLR 3406.
FOR A FUltTHER 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 dcfcñse 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, THIS DEFENDANT,
UPON INFORMATION AND BELIEF I-lEREIN ALLEGES:
FOURTEENTH: That if the plaintiffs recover a verdict against this answering
defendant, this said defendant requests the court to have the liability of allof the defendãñts 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,
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
FIFTEENTH: In the event that the plaintiffs are successful in recovering a verdict
agaimt 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 of each person or to the total (fornon-
culpability causing contributing liability
economic loss) pursuant to Article 16 of the Civil Practice Law and Rules.
. . . .. _ . .. .
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NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS DEFENDANT,
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
.
SIXTEENTH: In the event that the plaintiffs recover damages in thisaction 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:
Plaintiffs'
SEVENTEENTH: injuries and damages, if any, were prokimately caused
or contributed to by unnamed third parties.
In the event plaintiffs sustained any of the injuries or damages alleged in the cesplaint
by reason of fault other than their own, and ifany 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 entitledto
indemnification and/or contribution.
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS DEFENDANT,
UPON INFORMATION AND BELIEF HEREIN ALLEGES:
EIGHTEENTH: That the defendant, ROBERT E. LUTNICK, M.D., hereby pleads
plaintiffs'
and seeks the full benefit of §15-108 of the General Obligations Law that claim
against said defendant be reduced to the extent of the amount stipulated by the release of
settlement with other tortfessors, or in the amount of the consideration paid for itor inthe
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, TIHS DEFENDANT
UPON INFORMATION AND BELIEF HEREIN ALLEGES
NINETEENTH: The plaintiff assumed any and all risks and particularly such risks
of injury as allegedly occurred herein.
4 crf 6
FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020
FOR A FURTHER ANSWER AND AS AN
AFFIRMATIVE DEFENSE, THIS DEFENDANT
UPON INFORMATION AND BELIEF HEREIN ALLEGES
TWENT-IETH÷ The complaint fails to properly state any cause of action as agaiñst this
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 thisanswering 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
iñdcmñification by and judgment over and against the co-defendants, for the fullamount of such
liability,or for contribution in such proportionate share of the negligence attributablê to the co-
defendants, pursuant to Article 14 of the Civil Practice Law and Rules.
plaintiffs'
WHEREFORE, the defendant, demands judgment dismissing the complaint
together with the costs and disbursements of this action.
DATED: Buffalo, New York
October 25, 2016
RO GHTBR WN, McCARTHY & GRUBER,
oseph'V. McC 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)
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FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020
TO: Brian P. Fitzgerald, Esq.
BRIAN P. FITZGERALD, P.C.
Attorneys for Plaintiffs
509 Liberty_Building,
424 Main Street
Buffalo, New York 14202
(716) 852-2000
Ce: Michael J. Roach, Esq.
Connors LLP
Attorneys for Defendants,
Harnath B. Clerk, M D., P.C
and Harnath B. Clerig M.D.
1000 Liberty Building
424 Main Street
Buffalo, New York 14202
The Tarantino Law Firm, LLP
Attorneys for Defendants,
Andrew Cappuccino, M D., Eric Dean, RPA-C
and Buffalo Spine Surgery, PLLC
1500 Rand Building
14 Lafayette Square
Buffalo, New York 14203
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Preview
FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NO. INDEX NYSCEF: E159518/2016 NYSCEFLED DOC.: NIAGARA NO. 130 COUNTY CLERK 10/25/ 2016 02 : 38 PM RECEIVED 09/04/2020 NYSCEF / OC. NO. 10 RECEIVED NYSCEF: 10/25/2 16 STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA THOMAS and CHERYL KAUSNER, IIIdividually and as Husband and Wife, Plaintiffs, A N S WE R E159518/2016 -vs- BUFFALO SP1NE 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, EASTERN NIAGARA HOSPITAL, INC., above named by ROACH, BROWN, McCARTHY & GRUBER, P.C., its attorneys, answering the coraplaint of the plaintiff, herein allege: plaintiffs' FIRST: Admits the allegations contained in the complaiñt numbered "9". plaintiffs' SECOND: Denies the allegations contained in the coraplaint numbered "10", "14", "I5", and "18". THIRD: Denies any knowledge or information sufficient to form a belief as to any plaintiffs' of the allegations contained in complaint numbered "1", "2", "3", "6", "7", "13", and "17". "4" plaintiffs' FOURTH: Admits so much of Parãgraph of 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 "4" plaintiffs' belief as to each and every other allegation contained in said Paragraph of complaint. 1 of 6 FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020 "5" plaintiffs' FIFTH: Admits so much of Paragraph of complaint as alleges that at alltimes herein Eric Dean RPC-A was a registered physician assistant - mentiered, certified, duly registered as a physician assistant in the State of New York, but denies knowledge or ..informationaufficient.to form a belief as to each and every other allegation contained in said "5" plaintiffs' Paragraph of complaint. "8" plaintiffs' SIXTH: Admits so much of Paragraph of complaint as alleges that at alltimes 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 "8" plaintiffs' each and every other allegation contained in said Paragraph of complaint. "11" plaintiffs' SEVENTH: Admits so much of Paragraph of complaint as alleges that at alltimes herein mentioned, Dr. Robert E. Lutnick was a physician duly licensed to practice mêdici-le in the State of New York, but denies knowicdge or information sufficient to form a "11" plaintiffs' belief as to each and every other allegation contained in said Paragraph of complaint. "12" "16" plaintiffs' EIGHTH: With respect to paragraphs numbered and of the complaint that repeat and re-allege prior paragraphs of the complaint, the acfcndañt 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 plaintiff's said Complaint except as hereinbefore specifically admitted or denied. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS 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. 2 of 6 FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020 FOR A FURTHER ANSWER ANS AS AN . . . AFFIRMATIVE THIS DEFENDANT DEFENSE, UPON INFORMATION AND BELIEF HEREIN ALLEGES plaintiffs' TWELFTH: The complaint should be dismissed for failure to fileand selve 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, THIS DEFENDANT, UPON INFORMATION AND BELIEF HEREIN ALLEGES: FOURTEENTH: That ifthe 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 theni pursuant to Article 14 of the Civil Practice Law and Rules. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT, UPON INFORMATION AND BELIEF HEREIN ALLEGES: FIFTEENTH: In the event that the plaintiffs are successfal 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 of each person or to the total (for non- culpability causing contributing liability economic loss) pursuant to Article 16 of the Civil Practice Law and Rules. 3 of 6 FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020 FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS 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: Plaintiffs' . SEVENTEENTH: 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 complaiñt by reason of fault other than their own, and if any judgrnent is recovered by them against this answering defen at, saidjudgment 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, THIS DEFENDANT, UPON INFORMATION AND BELIEF HEREIN ALLEGES: EIGHTEENTH: That the defendant, EASTERN NIAGARA HOSPITAL, INC., hereby pleads and seeks the fullbenefit 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 itor 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, THIS DEFENDANT UPON INFORMATION AND BELIEF HEREIN ALLEGES NINETEENTH: The plaintiff assumed and allrisks and particularly such risks any of injury as allegedly occurred herein. 4 of 6 FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020 FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT UPON INFORMATION AND BELI EF HEREIN ALLEGES . ___ TENTIETH:. The complaint failsto properly stateany cause of action as against this 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 liabilityhas been brought about by irason of the active and primary segligence 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 or for contribution in such proportionate share of the negligence attributable to the co- liability, defendants, pursuant to Article 14 of the Civil Practice Law and Rules. plaintiffs' WHEREFORE, the defendant, demeds judgment dismissing the complaint together with the costs and disbursements of this action. DATED: Buffalo, New York October 25, 2016 ROAC ,McCARTHY & GRUBER, P.C. By: eph V. McC y, Esq. Attorneys for Defendant EASTERN NIAGARA HOSPITAL, INC. 1920 Liberty Building 424 Main Street Buffalo, New York 14202 (716) 852-0400 (716) 852-2535 (fax) 5 of 6 FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020 TO: Brian P. Fitzgerald, Esq. BRIAN P. FITZGERALD, P.C. Attorneys for Plaintiffs 509 Liberty Building, ....._...--424-Main Street Buffalo, New York 14202 (716) 852-2000 Ce: Michael J. Roach, Esq. Connors LLP Attorneys for Defendants, Harnath B. Clerk, M D., P.C. and Harnath B. Clerk, M.D. 1000 Liberty Building 424 Main Street Buffalo, New York 14202 The Tarantino Law Firm, LLP Attorneys for Defendants, Andrew Cappuccino, M D., Eric Dean, RPA-C and Buffalo Spine Surgery, PLLC 1500 Rand Building 14 Lafayette Square Buffalo, New York 14203 FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NYSCEF INDEX NYSCEF: No. E159518/2016 FILED DOC. : NO. 130 NIAGARA COUNTY CLERK 10 / 25/2016 02 : 38 PM) RECEIVED 09/04/2020 NYSCEF DOC. NO.. 11 RECEIVED NYSCEF: 10/25/2C16 STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA THOMAS and CHERYL KAUSNER, Individùally aiid as Husband and Wife, Plaintiffs, A N S WE R 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: plaintiffs' FIRST: Admits the allegations contained in the complaint numbered "9". plaintiffs' SECOND: Denies the allegations contained in the courglaint numbered "10", "14", "15", and "18". THIRD: Denies any knowledge or information sufficient to form a belief as to any plaintiffs' of the allegations contained in ccmplaint numbered "1", "2", "3", "6", "7", "13", and "17". "4" plaintiffs' FOURTH: Admits so much of Paragraph of complaint as alleges that at alltimes herein mentioned, Dr. Andrew Cappuccino was a physician duly licensed to practice medicine in the State of New York, but denies Imowledge or information sufficient to form a "4" plaintiffs' belief as to each and every other allegation contained in said Paragraph of complaint. 1 of 6 FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020 "5" plaintiffs' FIFTH: Admits so much of Paragraph of complaint as alleges that at alltimes herein Eric Dean RPC-A was a registered physiciañ assistant - mentioned, certified, duly registered as a physician assistant in the State of New York, but denies knowledge or information sufficient to form a belief as to each and every other allegation contaiñêd in said "5" plaintiffs' Paragraph of complaint. "8" plaintiffs' SIXTH: Admits so much of Paragraph of complaint as alleges thatat alltimes herein mentioned, Dr. Harnath Clerk was a physician duly licensed to practice =edicine in the State of New York, but denies knowledge or information sufficient to form a belief as to "8" plaintiffs' each and every other allegation contelnal in said Paragraph of complaint. "11" plaintiffs' SEVENTH: Admits so much of Paragraph of complaint as alleges that at alltimes herein mentlened, Dr. Robert E. Lutnick was a physiciâñ duly licensed to practice medicine in the State of New York, but denies knowledge or information sufficient to form a "11" plaintiffs' belief as to each and every other allegation contained in said Paragraph of complaint. "12" "16" plaintiffs' EIGHTH: . With respect to paragraphs. numbered and of the complaiñt 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 plaintiff s said Complaint except as hareinbefore specificelly admitted or denied. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS 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 li=i+=*iana 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. 2 of 6 FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020 FOR A FURHTER ANSWER ANS AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT UPON INFORMATION AND BELIEF HEREIN ALLEGES plaintiffs' . . TWELFTH: The complaint should be dismissed for failure to file and serve a Notice of Malpractice Action as required by CPLR 3406. FOR A FUltTHER 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 dcfcñse 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, THIS DEFENDANT, UPON INFORMATION AND BELIEF I-lEREIN ALLEGES: FOURTEENTH: That if the plaintiffs recover a verdict against this answering defendant, this said defendant requests the court to have the liability of allof the defendãñts 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, UPON INFORMATION AND BELIEF HEREIN ALLEGES: FIFTEENTH: In the event that the plaintiffs are successful in recovering a verdict agaimt 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 of each person or to the total (fornon- culpability causing contributing liability economic loss) pursuant to Article 16 of the Civil Practice Law and Rules. . . . .. _ . .. . 3 of 6 FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020 FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT, UPON INFORMATION AND BELIEF HEREIN ALLEGES: . SIXTEENTH: In the event that the plaintiffs recover damages in thisaction 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: Plaintiffs' SEVENTEENTH: injuries and damages, if any, were prokimately caused or contributed to by unnamed third parties. In the event plaintiffs sustained any of the injuries or damages alleged in the cesplaint by reason of fault other than their own, and ifany 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 entitledto indemnification and/or contribution. FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT, UPON INFORMATION AND BELIEF HEREIN ALLEGES: EIGHTEENTH: That the defendant, ROBERT E. LUTNICK, M.D., hereby pleads plaintiffs' and seeks the full benefit of §15-108 of the General Obligations Law that claim against said defendant be reduced to the extent of the amount stipulated by the release of settlement with other tortfessors, or in the amount of the consideration paid for itor inthe 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, TIHS DEFENDANT UPON INFORMATION AND BELIEF HEREIN ALLEGES NINETEENTH: The plaintiff assumed any and all risks and particularly such risks of injury as allegedly occurred herein. 4 crf 6 FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020 FOR A FURTHER ANSWER AND AS AN AFFIRMATIVE DEFENSE, THIS DEFENDANT UPON INFORMATION AND BELIEF HEREIN ALLEGES TWENT-IETH÷ The complaint fails to properly state any cause of action as agaiñst this 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 thisanswering 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 iñdcmñification by and judgment over and against the co-defendants, for the fullamount of such liability,or for contribution in such proportionate share of the negligence attributablê to the co- defendants, pursuant to Article 14 of the Civil Practice Law and Rules. plaintiffs' WHEREFORE, the defendant, demands judgment dismissing the complaint together with the costs and disbursements of this action. DATED: Buffalo, New York October 25, 2016 RO GHTBR WN, McCARTHY & GRUBER, oseph'V. McC 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) 5 of 6 FILED: NIAGARA COUNTY CLERK 09/04/2020 12:37 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 09/04/2020 TO: Brian P. Fitzgerald, Esq. BRIAN P. FITZGERALD, P.C. Attorneys for Plaintiffs 509 Liberty_Building, 424 Main Street Buffalo, New York 14202 (716) 852-2000 Ce: Michael J. Roach, Esq. Connors LLP Attorneys for Defendants, Harnath B. Clerk, M D., P.C and Harnath B. Clerig M.D. 1000 Liberty Building 424 Main Street Buffalo, New York 14202 The Tarantino Law Firm, LLP Attorneys for Defendants, Andrew Cappuccino, M D., Eric Dean, RPA-C and Buffalo Spine Surgery, PLLC 1500 Rand Building 14 Lafayette Square Buffalo, New York 14203 6 of 6