Preview
FILED: KINGS COUNTY CLERK 09/25/2020
11/10/2022 12:45
10:21 PM
AM INDEX NO. 514577/2020
NYSCEF DOC. NO. 16
76 RECEIVED NYSCEF: 09/25/2020
11/10/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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BARBARA SACKAROFF, Index No.: 514577/2020
Plaintiff, VERIFIED ANSWER
-against-
SUDHIR DIWWAN, M.D., SUDHIR DIWAN. MD LLC,
ADVANCED SPIINE ON PARK AVENUE MSO, LLC,
MANHATTAN SPINE AND PAIN MANAGEMENT, PLLC,
IGOR AMIGUD, M.D., JANDE WEEKS, CRNA,
IGOR AMIGUD PHYSICAN P.C. and
FIFTH AVENUE SURGERY CENTER, LLC,
Defendants.
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Defendants, IGOR AMIGUD, M.D. and IGOR AMIGUD PHYSICIAN P.C. by their
attorneys, KAUFMAN BORGEEST & RYAN LLP, hereby responds to the plaintiff’s
Complaint, upon information and belief as follows:
BACKGROUND
1. Answering defendants deny knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in the paragraphs designated as “1”, “2”,
“3”, “4”, “5”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “27”,
“28”, “32”, “33”, “34”, “37” and “38” of the plaintiff’s Verified Complaint.
2. Answering defendants deny in the form alleged each and every allegation
contained in those paragraphs designated as “20”, “35” and “36” of the plaintiff’s Verified
Complaint, and beg leave to refer all questions of fact to the trier of fact and all questions of law
to the Court.
3. Answering defendants admits each and every allegation contained in those
paragraphs designated as “19” and “21” of the plaintiff’s Verified Complaint.
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AM INDEX NO. 514577/2020
NYSCEF DOC. NO. 16
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11/10/2022
4. Answering defendants deny each and every allegation contained in those
paragraphs designated as “22”, “23”, “24”, “25”, “26”, “29”, “30” and “31” of the plaintiff’s
Verified Complaint.
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION AS AGAINST
DEFENDANTS SUDHIR DIWWAN, M.D. and SUDHIR DIWAN. MD LLC, ADVANCED
SPINE ON PARK AVENUE MSOO, LLC and MANHATTAN SPINE AND PAIN
MANAGEMENT, PLC
5. With respect to that paragraph of the plaintiff’s Verified Complaint designated as
“39”, answering defendants repeat, reiterate and reallege each and every admission or denial
heretofore made in the response to paragraphs “1” through “38” of the plaintiff’s Verified
Complaint.
6. Answering defendants denies knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in those paragraphs designated as “40”,
“41”, “43”, “44”, “45” and “46” of the plaintiff’s Verified Complaint.
7. Answering defendants deny in the form alleged each and every allegation
contained in those paragraphs designated as “42” and “49” of the plaintiff’s Verified Complaint,
and beg leave to refer all questions of fact to trier of fact and all questions of law to the Court.
8. Answering defendants denies each and every allegation contained in those
paragraphs designated as “47”, “48”, and “50” of the plaintiff’s Verified Complaint.
AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION AS AGAINST
DEFENDANTS IGOR AMIGUD, M.D., JANDE WEEKS, CRNA, IGOR AMIGUD
PHYSICAN P.C. and FIFITH AVENUE SURGERY CENTER, LLC
9. With respect to that paragraph of the plaintiffs’ Verified Complaint designated as
“51”, answering defendants repeat, reiterate and reallege each and every admission or denial
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AM INDEX NO. 514577/2020
NYSCEF DOC. NO. 16
76 RECEIVED NYSCEF: 09/25/2020
11/10/2022
heretofore made in the response to paragraphs “1” through “50” of the plaintiff’s Verified
Complaint.
10. Answering defendants denies in the form alleged each and every allegation
contained in those paragraphs designated as “53” and “54” of the plaintiff’s Verified Complaint.
11. Answering defendants deny each and every allegation contained in those
paragraphs designated as “52”, “55”, “56”, “57”, “58”, “59” “60”, “61” and “62” of the
plaintiff’s Verified Complaint.
AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION AS AGAINST
ALL DEFENDANTS
12. With respect to that paragraph of the plaintiff’s Verified Complaint designated as
“63”, answering defendants repeat, reiterate and reallege each and every admission or denial
heretofore made in the response to paragraphs “1” through “62” of the plaintiff’s Verified
Complaint.
13. Answering defendants deny each and every allegation contained in those
paragraphs designated as “64”, “65”, “66” and “67” of the plaintiff’s Verified Complaint.
AFFIRMATIVE DEFENSES
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
14. That the complaint fails to state a cause or causes of action upon which relief can
be granted against the answering defendants.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
15. That pursuant to CPLR §1600 et seq., ifit is determined by verdict or decision
that two or more tortfeasors are jointly liable to the plaintiffs, and if the liability of the answering
defendants are found to be 50% or less of the total liability assigned to all persons liable, the
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liability of such defendants to the plaintiff for non-economic loss shall not exceed the defendants
equitable share determined in accordance with the relative culpability of each person causing or
contributing to the total liability for non-economic loss.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
16. Upon information and belief, any past or future costs or expenses incurred or to
be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitative services,
loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or
indemnified in whole or in part from a collateral source as defined in Section 4545 (c) of the
New York Civil Practice Law and Rules.
17. If any damages are recoverable against these answering defendants, the amount of
such damages shall be diminished by the amount of the funds which plaintiff has or shall receive
from such collateral source.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
18. Any damages awarded to plaintiff is subject to a set off pursuant to CPLR 4546,
to the extent plaintiff received any reimbursement of his damages through any collateral source
provider but not limited to insurer, Workers’ Compensation or social security/disability.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
19. Although these defendants deny the allegations of the plaintiff as to injuries and
damages alleged, these injuries and damages, if any, were caused by the intervening acts or
superseding negligence of persons, parties or corporate entities over whom these defendants had
no control or right to exercise such control.
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NYSCEF DOC. NO. 16
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
20. If upon trial, itmay appear that some or all of the damages claimed by plaintiff
herein were brought about or contributed to by reason of plaintiff’s own acts, actions or
negligence; and if so, plaintiff’s damages, if any must be diminished accordingly.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
21. 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 A EIGHTH AFFIRMATIVE DEFENSE
22. Pursuant to Section 15-108 of the General Obligations Law, any recovery by the
plaintiff must be reduced by such amounts and/or such percentages of negligence as may result
from settlements or trial with any tortfeasor or others.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
23. Plaintiff’s claim for lack of informed consent is barred by reason of the applicable
provisions of Section 2805(d) of the Public Health Law.
WHEREFORE, defendants, IGOR AMIGUD, M.D., and IGOR AMIGUD
PHYSICIAN P.C. MD LLC demand judgment dismissing the Complaint of the plaintiff
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.
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11/10/2022 12:45
10:21 PM
AM INDEX NO. 514577/2020
NYSCEF DOC. NO. 16
76 RECEIVED NYSCEF: 09/25/2020
11/10/2022
Dated: New York, New York
September 25, 2020
Yours, etc.,
KAUFMAN BORGEEST & RYAN LLP
Rocco P. Matra
By:________________________________
Rocco P. Matra, Esq.
Attorneys for Defendants
IGOR AMIGUD, M.D., and IGOR AMIGUD
PHYSICIAN P.C.
120 Broadway – 14th Floor
New York, New York 10271
Tel. No.: (212) 980–9600
Fax No.: (212) 980-9291
KBR File No.: 703.911
TO: THE SLEVIN LAW FIRM, PLLC
Attorneys for Plaintiff
3956 Merrick Road
Seaford, New York 11783
(516) 992-0805
MARTIN CLEARWATER & BELL LLP
Attorneys for Defendant
JANDE WEEKS, CRNA
220 East 42nd Street
New York, New York 10017
(212) 697-3122
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Preview
FILED: KINGS COUNTY CLERK 09/25/2020 11/10/2022 12:45 10:21 PM AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 16 76 RECEIVED NYSCEF: 09/25/2020 11/10/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------------------X BARBARA SACKAROFF, Index No.: 514577/2020 Plaintiff, VERIFIED ANSWER -against- SUDHIR DIWWAN, M.D., SUDHIR DIWAN. MD LLC, ADVANCED SPIINE ON PARK AVENUE MSO, LLC, MANHATTAN SPINE AND PAIN MANAGEMENT, PLLC, IGOR AMIGUD, M.D., JANDE WEEKS, CRNA, IGOR AMIGUD PHYSICAN P.C. and FIFTH AVENUE SURGERY CENTER, LLC, Defendants. -------------------------------------------------------------------------X Defendants, IGOR AMIGUD, M.D. and IGOR AMIGUD PHYSICIAN P.C. by their attorneys, KAUFMAN BORGEEST & RYAN LLP, hereby responds to the plaintiff’s Complaint, upon information and belief as follows: BACKGROUND 1. Answering defendants deny knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in the paragraphs designated as “1”, “2”, “3”, “4”, “5”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “27”, “28”, “32”, “33”, “34”, “37” and “38” of the plaintiff’s Verified Complaint. 2. Answering defendants deny in the form alleged each and every allegation contained in those paragraphs designated as “20”, “35” and “36” of the plaintiff’s Verified Complaint, and beg leave to refer all questions of fact to the trier of fact and all questions of law to the Court. 3. Answering defendants admits each and every allegation contained in those paragraphs designated as “19” and “21” of the plaintiff’s Verified Complaint. 6753447 1 of 6 FILED: KINGS COUNTY CLERK 09/25/2020 11/10/2022 12:45 10:21 PM AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 16 76 RECEIVED NYSCEF: 09/25/2020 11/10/2022 4. Answering defendants deny each and every allegation contained in those paragraphs designated as “22”, “23”, “24”, “25”, “26”, “29”, “30” and “31” of the plaintiff’s Verified Complaint. AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION AS AGAINST DEFENDANTS SUDHIR DIWWAN, M.D. and SUDHIR DIWAN. MD LLC, ADVANCED SPINE ON PARK AVENUE MSOO, LLC and MANHATTAN SPINE AND PAIN MANAGEMENT, PLC 5. With respect to that paragraph of the plaintiff’s Verified Complaint designated as “39”, answering defendants repeat, reiterate and reallege each and every admission or denial heretofore made in the response to paragraphs “1” through “38” of the plaintiff’s Verified Complaint. 6. Answering defendants denies knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in those paragraphs designated as “40”, “41”, “43”, “44”, “45” and “46” of the plaintiff’s Verified Complaint. 7. Answering defendants deny in the form alleged each and every allegation contained in those paragraphs designated as “42” and “49” of the plaintiff’s Verified Complaint, and beg leave to refer all questions of fact to trier of fact and all questions of law to the Court. 8. Answering defendants denies each and every allegation contained in those paragraphs designated as “47”, “48”, and “50” of the plaintiff’s Verified Complaint. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION AS AGAINST DEFENDANTS IGOR AMIGUD, M.D., JANDE WEEKS, CRNA, IGOR AMIGUD PHYSICAN P.C. and FIFITH AVENUE SURGERY CENTER, LLC 9. With respect to that paragraph of the plaintiffs’ Verified Complaint designated as “51”, answering defendants repeat, reiterate and reallege each and every admission or denial 2 6753447 2 of 6 FILED: KINGS COUNTY CLERK 09/25/2020 11/10/2022 12:45 10:21 PM AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 16 76 RECEIVED NYSCEF: 09/25/2020 11/10/2022 heretofore made in the response to paragraphs “1” through “50” of the plaintiff’s Verified Complaint. 10. Answering defendants denies in the form alleged each and every allegation contained in those paragraphs designated as “53” and “54” of the plaintiff’s Verified Complaint. 11. Answering defendants deny each and every allegation contained in those paragraphs designated as “52”, “55”, “56”, “57”, “58”, “59” “60”, “61” and “62” of the plaintiff’s Verified Complaint. AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION AS AGAINST ALL DEFENDANTS 12. With respect to that paragraph of the plaintiff’s Verified Complaint designated as “63”, answering defendants repeat, reiterate and reallege each and every admission or denial heretofore made in the response to paragraphs “1” through “62” of the plaintiff’s Verified Complaint. 13. Answering defendants deny each and every allegation contained in those paragraphs designated as “64”, “65”, “66” and “67” of the plaintiff’s Verified Complaint. AFFIRMATIVE DEFENSES AS AND FOR A FIRST AFFIRMATIVE DEFENSE 14. That the complaint fails to state a cause or causes of action upon which relief can be granted against the answering defendants. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 15. That pursuant to CPLR §1600 et seq., ifit is determined by verdict or decision that two or more tortfeasors are jointly liable to the plaintiffs, and if the liability of the answering defendants are found to be 50% or less of the total liability assigned to all persons liable, the 3 6753447 3 of 6 FILED: KINGS COUNTY CLERK 09/25/2020 11/10/2022 12:45 10:21 PM AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 16 76 RECEIVED NYSCEF: 09/25/2020 11/10/2022 liability of such defendants to the plaintiff for non-economic loss shall not exceed the defendants equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 16. Upon information and belief, any past or future costs or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitative services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in Section 4545 (c) of the New York Civil Practice Law and Rules. 17. If any damages are recoverable against these answering defendants, the amount of such damages shall be diminished by the amount of the funds which plaintiff has or shall receive from such collateral source. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 18. Any damages awarded to plaintiff is subject to a set off pursuant to CPLR 4546, to the extent plaintiff received any reimbursement of his damages through any collateral source provider but not limited to insurer, Workers’ Compensation or social security/disability. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 19. Although these defendants deny the allegations of the plaintiff as to injuries and damages alleged, these injuries and damages, if any, were caused by the intervening acts or superseding negligence of persons, parties or corporate entities over whom these defendants had no control or right to exercise such control. 4 6753447 4 of 6 FILED: KINGS COUNTY CLERK 09/25/2020 11/10/2022 12:45 10:21 PM AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 16 76 RECEIVED NYSCEF: 09/25/2020 11/10/2022 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 20. If upon trial, itmay appear that some or all of the damages claimed by plaintiff herein were brought about or contributed to by reason of plaintiff’s own acts, actions or negligence; and if so, plaintiff’s damages, if any must be diminished accordingly. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 21. 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 A EIGHTH AFFIRMATIVE DEFENSE 22. Pursuant to Section 15-108 of the General Obligations Law, any recovery by the plaintiff must be reduced by such amounts and/or such percentages of negligence as may result from settlements or trial with any tortfeasor or others. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 23. Plaintiff’s claim for lack of informed consent is barred by reason of the applicable provisions of Section 2805(d) of the Public Health Law. WHEREFORE, defendants, IGOR AMIGUD, M.D., and IGOR AMIGUD PHYSICIAN P.C. MD LLC demand judgment dismissing the Complaint of the plaintiff 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. 5 6753447 5 of 6 FILED: KINGS COUNTY CLERK 09/25/2020 11/10/2022 12:45 10:21 PM AM INDEX NO. 514577/2020 NYSCEF DOC. NO. 16 76 RECEIVED NYSCEF: 09/25/2020 11/10/2022 Dated: New York, New York September 25, 2020 Yours, etc., KAUFMAN BORGEEST & RYAN LLP Rocco P. Matra By:________________________________ Rocco P. Matra, Esq. Attorneys for Defendants IGOR AMIGUD, M.D., and IGOR AMIGUD PHYSICIAN P.C. 120 Broadway – 14th Floor New York, New York 10271 Tel. No.: (212) 980–9600 Fax No.: (212) 980-9291 KBR File No.: 703.911 TO: THE SLEVIN LAW FIRM, PLLC Attorneys for Plaintiff 3956 Merrick Road Seaford, New York 11783 (516) 992-0805 MARTIN CLEARWATER & BELL LLP Attorneys for Defendant JANDE WEEKS, CRNA 220 East 42nd Street New York, New York 10017 (212) 697-3122 6 6753447 6 of 6