Preview
FILED: QUEENS COUNTY CLERK 04/12/2019
06/15/2021
06/16/2021 04:14
06:03
01:34 PM
AM INDEX NO. 717964/2018
NYSCEF DOC. NO. 17
110
128 RECEIVED NYSCEF: 04/12/2019
06/15/2021
06/16/2021
SUPREME COURT OF THE STATE OF NEW YORK NYSCEF: 717964/2018
COUNTY OF QUEENS
-----------------------------------------X
THERESA ROBINSON and DEREK ROBINSON,
Plaintiff,
-against- ANSWER
NORTHWELL HEALTH, INC., LONG ISLAND
JEWISH MEDICAL CENTER, DEEPAK NANDA,
MD, PC, DEEPAK NANDA, MD, and EMMANUEL
M. PAFOS, M.D.,
Defendants,
-----------------------------------------X
Defendant, EMMANUEL M. PAFOS, M.D., by his attorneys, GALVANO
& XANTHAKIS, P.C., answering the complaint of plaintiff
respectfully states and alleges as follows:
1. Defendant denies knowledge or information sufficient
to form a belief as to the allegations contained in the
paragraph of the complaint numbered “1,” “2,” “3,” “4,” “5,”
“6,” “7,” “8,” “9,” “10,” “11,” “12,” “15,” “17,” “20,” “20a,”
“21,” “25,” “26,” “27,” “28,’ “29,” “30,” “31,” “32,” “33,” 34,”
“36,” “40,” “41,” and “44.”
2. Defendant denies each and every allegation contained
in the paragraphs of the complaint numbered “13,” “14,” “16,”
“22,” “24,” “35,” “37,” “38,” “39,” “40,” “41,” “42,” “44,”
“45,” “46,” “47,” “48,” “49,” “31,” “32,” “33,” “34,” “35,”
“36,” “37,” “38,” “42,” “43,” “45,” and “46.”
3. Defendant admits each and every allegation contained
in the paragraphs of the complaint numbered “18,” and “23.”
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FILED: QUEENS COUNTY CLERK 04/12/2019
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AM INDEX NO. 717964/2018
NYSCEF DOC. NO. 17
110
128 RECEIVED NYSCEF: 04/12/2019
06/15/2021
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4. Responding to the paragraphs numbered “43,” “50,” and
“39,” the above defendant repeats and reiterates each and every
admission, denial and other response heretofore made to the
preceding paragraphs, with the same force and effect as if set
forth at length herein.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
5. That all risks and dangers connected with the situation
at the time and place mentioned in the complaint were open,
obvious and apparent and were known to and assumed by the
plaintiff(s) herein.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
6. Any injuries and/or damages sustained by plaintiff(s) as
alleged in the complaint herein were caused in whole or in part by
the negligence and/or culpable conduct of the plaintiff(s) and not
as a result of any negligence and/or culpable conduct on the part
of this (these) answering defendant(s).
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
7. Plaintiff(s) are barred from recovering from this
(these) defendant(s) in that any negligence which may have
occurred, which is specifically denied, was as the result of
actions of third parties over whom this (these) defendant(s) had
no control.
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FILED: QUEENS COUNTY CLERK 04/12/2019
06/15/2021
06/16/2021 04:14
06:03
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AM INDEX NO. 717964/2018
NYSCEF DOC. NO. 17
110
128 RECEIVED NYSCEF: 04/12/2019
06/15/2021
06/16/2021
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
8. This action falls within the limited liability
provisions of Article 16 of the Civil Practice Law and Rules, and
the defendant(s) liability, if any, shall be limited to its
equitable share as provided for in that Article.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
9. It is hereby alleged that the plaintiff(s) received
renumeration and/or compensation for some or all of his/her
claimed economic loss and that the defendant(s) is (are)
entitled to have plaintiff's(s') award, if any, reduced by the
amount of that renumeration and/or compensation, pursuant to
Section 4545(c) of the Civil Practice Law and Rules.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
10. Plaintiff’s claims are barred by the Doctrine of Res
Judicata.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
11. Plaintiff’s claims are barred by the Doctrine of
Collateral Estoppel.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
12. The plaintiff’s complaint must be dismissed because
plaintiff has executed a prior release of all claims.
AS AND FOR AN NINTH AFFIRMATIVE DEFENSE
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FILED: QUEENS COUNTY CLERK 04/12/2019
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AM INDEX NO. 717964/2018
NYSCEF DOC. NO. 17
110
128 RECEIVED NYSCEF: 04/12/2019
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13. The complaint fails to state a cause of action against
this(these) defendant(s).
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
14. Plaintiff(s) damages are reduced for failure to
mitigate damages.
AS AND FOR AN NINTH AFFIRMATIVE DEFENSE
15. Defendant hereby sets forth each and every defense
available under Public Health Law 2805(d) and defendant hereby
asserts those defenses.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
16. The alleged causes of action set forth in the
complaint did not accrue within the applicable statutory period
preceding the commencement of this action, and said causes of
action barred by the statute of limitations.
WHEREFORE, defendants demand that the complaint be dismissed
and that defendants be awarded costs and disbursements of the
action.
Dated: Staten Island, New York
April 12, 2019
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FILED: QUEENS COUNTY CLERK 04/12/2019
06/15/2021
06/16/2021 04:14
06:03
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AM INDEX NO. 717964/2018
NYSCEF DOC. NO. 17
110
128 RECEIVED NYSCEF: 04/12/2019
06/15/2021
06/16/2021
Yours, etc.,
GALVANO & XANTHAKIS, P.C.
Attorneys for Defendant
EMMANUEL M. PAFOS, M.D.
358 St. Marks Place–Suite 202
Staten Island, New York 10301
(212) 349-5150
Anthony Xathakis
By: ANTHONY XANTHAKIS
TO: MUNAWAR & ANDREWS-SANTILLO, LLP
Marisa L. Axelrad, Esq.
Counsel for Plaintiff
THERESA ROBINSON and
DEREK ROBINSON
420 Lexington Avenue – Suite 2601
New York, New York 10170
(212) 400-4000
LAW OFFICES OF BENVENUTO & SLATTERY
NORTHWELL HEALTH, INC.
LONG ISLAND JEWISH MEDICAL CENTER
DEEPAK NANDA, M.D., P.C.
1800 Northern Boulevard
Roslyn, New York 11576
(516) 775-2236
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FILED: QUEENS COUNTY CLERK 04/12/2019
06/15/2021
06/16/2021 04:14
06:03
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AM INDEX NO. 717964/2018
NYSCEF DOC. NO. 17
110
128 RECEIVED NYSCEF: 04/12/2019
06/15/2021
06/16/2021
ATTORNEY'S VERIFICATION
The undersigned, an attorney, duly admitted to practice law
before the Courts of the State of New York, says:
That deponent is the attorney of record for the defendants in
the within action; that deponent has read the foregoing and knows
the contents thereof; that the same is true to deponent's own
knowledge, except as to those matters therein stated to be alleged
upon information and belief, and as to those matters, deponent
believes them to be true. Deponent further says that the reason
this verification is made by deponent and not by the defendants is
that defendants reside and maintain their offices in a county
other than that in which deponent maintains his offices.
The grounds for deponent's belief as to all matters not
stated upon his knowledge are investigations which he has made
or has caused to be made concerning the subject matter of this
action, and statements of parties and/or witnesses made herein.
The undersigned affirms that the foregoing statements are
true.
Dated: Staten Island, New York
April 12, 2019
Anthony Xathakis
By: ANTHONY XANTHAKIS
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Preview
FILED: QUEENS COUNTY CLERK 04/12/2019 06/15/2021 06/16/2021 04:14 06:03 01:34 PM AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 17 110 128 RECEIVED NYSCEF: 04/12/2019 06/15/2021 06/16/2021 SUPREME COURT OF THE STATE OF NEW YORK NYSCEF: 717964/2018 COUNTY OF QUEENS -----------------------------------------X THERESA ROBINSON and DEREK ROBINSON, Plaintiff, -against- ANSWER NORTHWELL HEALTH, INC., LONG ISLAND JEWISH MEDICAL CENTER, DEEPAK NANDA, MD, PC, DEEPAK NANDA, MD, and EMMANUEL M. PAFOS, M.D., Defendants, -----------------------------------------X Defendant, EMMANUEL M. PAFOS, M.D., by his attorneys, GALVANO & XANTHAKIS, P.C., answering the complaint of plaintiff respectfully states and alleges as follows: 1. Defendant denies knowledge or information sufficient to form a belief as to the allegations contained in the paragraph of the complaint numbered “1,” “2,” “3,” “4,” “5,” “6,” “7,” “8,” “9,” “10,” “11,” “12,” “15,” “17,” “20,” “20a,” “21,” “25,” “26,” “27,” “28,’ “29,” “30,” “31,” “32,” “33,” 34,” “36,” “40,” “41,” and “44.” 2. Defendant denies each and every allegation contained in the paragraphs of the complaint numbered “13,” “14,” “16,” “22,” “24,” “35,” “37,” “38,” “39,” “40,” “41,” “42,” “44,” “45,” “46,” “47,” “48,” “49,” “31,” “32,” “33,” “34,” “35,” “36,” “37,” “38,” “42,” “43,” “45,” and “46.” 3. Defendant admits each and every allegation contained in the paragraphs of the complaint numbered “18,” and “23.” 1 of 6 FILED: QUEENS COUNTY CLERK 04/12/2019 06/15/2021 06/16/2021 04:14 06:03 01:34 PM AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 17 110 128 RECEIVED NYSCEF: 04/12/2019 06/15/2021 06/16/2021 4. Responding to the paragraphs numbered “43,” “50,” and “39,” the above defendant repeats and reiterates each and every admission, denial and other response heretofore made to the preceding paragraphs, with the same force and effect as if set forth at length herein. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 5. That all risks and dangers connected with the situation at the time and place mentioned in the complaint were open, obvious and apparent and were known to and assumed by the plaintiff(s) herein. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 6. Any injuries and/or damages sustained by plaintiff(s) as alleged in the complaint herein were caused in whole or in part by the negligence and/or culpable conduct of the plaintiff(s) and not as a result of any negligence and/or culpable conduct on the part of this (these) answering defendant(s). AS AND FOR A THIRD AFFIRMATIVE DEFENSE 7. Plaintiff(s) are barred from recovering from this (these) defendant(s) in that any negligence which may have occurred, which is specifically denied, was as the result of actions of third parties over whom this (these) defendant(s) had no control. 2 of 6 FILED: QUEENS COUNTY CLERK 04/12/2019 06/15/2021 06/16/2021 04:14 06:03 01:34 PM AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 17 110 128 RECEIVED NYSCEF: 04/12/2019 06/15/2021 06/16/2021 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 8. This action falls within the limited liability provisions of Article 16 of the Civil Practice Law and Rules, and the defendant(s) liability, if any, shall be limited to its equitable share as provided for in that Article. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 9. It is hereby alleged that the plaintiff(s) received renumeration and/or compensation for some or all of his/her claimed economic loss and that the defendant(s) is (are) entitled to have plaintiff's(s') award, if any, reduced by the amount of that renumeration and/or compensation, pursuant to Section 4545(c) of the Civil Practice Law and Rules. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 10. Plaintiff’s claims are barred by the Doctrine of Res Judicata. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 11. Plaintiff’s claims are barred by the Doctrine of Collateral Estoppel. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 12. The plaintiff’s complaint must be dismissed because plaintiff has executed a prior release of all claims. AS AND FOR AN NINTH AFFIRMATIVE DEFENSE 3 of 6 FILED: QUEENS COUNTY CLERK 04/12/2019 06/15/2021 06/16/2021 04:14 06:03 01:34 PM AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 17 110 128 RECEIVED NYSCEF: 04/12/2019 06/15/2021 06/16/2021 13. The complaint fails to state a cause of action against this(these) defendant(s). AS AND FOR A TENTH AFFIRMATIVE DEFENSE 14. Plaintiff(s) damages are reduced for failure to mitigate damages. AS AND FOR AN NINTH AFFIRMATIVE DEFENSE 15. Defendant hereby sets forth each and every defense available under Public Health Law 2805(d) and defendant hereby asserts those defenses. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 16. The alleged causes of action set forth in the complaint did not accrue within the applicable statutory period preceding the commencement of this action, and said causes of action barred by the statute of limitations. WHEREFORE, defendants demand that the complaint be dismissed and that defendants be awarded costs and disbursements of the action. Dated: Staten Island, New York April 12, 2019 4 of 6 FILED: QUEENS COUNTY CLERK 04/12/2019 06/15/2021 06/16/2021 04:14 06:03 01:34 PM AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 17 110 128 RECEIVED NYSCEF: 04/12/2019 06/15/2021 06/16/2021 Yours, etc., GALVANO & XANTHAKIS, P.C. Attorneys for Defendant EMMANUEL M. PAFOS, M.D. 358 St. Marks Place–Suite 202 Staten Island, New York 10301 (212) 349-5150 Anthony Xathakis By: ANTHONY XANTHAKIS TO: MUNAWAR & ANDREWS-SANTILLO, LLP Marisa L. Axelrad, Esq. Counsel for Plaintiff THERESA ROBINSON and DEREK ROBINSON 420 Lexington Avenue – Suite 2601 New York, New York 10170 (212) 400-4000 LAW OFFICES OF BENVENUTO & SLATTERY NORTHWELL HEALTH, INC. LONG ISLAND JEWISH MEDICAL CENTER DEEPAK NANDA, M.D., P.C. 1800 Northern Boulevard Roslyn, New York 11576 (516) 775-2236 5 of 6 FILED: QUEENS COUNTY CLERK 04/12/2019 06/15/2021 06/16/2021 04:14 06:03 01:34 PM AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 17 110 128 RECEIVED NYSCEF: 04/12/2019 06/15/2021 06/16/2021 ATTORNEY'S VERIFICATION The undersigned, an attorney, duly admitted to practice law before the Courts of the State of New York, says: That deponent is the attorney of record for the defendants in the within action; that deponent has read the foregoing and knows the contents thereof; that the same is true to deponent's own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters, deponent believes them to be true. Deponent further says that the reason this verification is made by deponent and not by the defendants is that defendants reside and maintain their offices in a county other than that in which deponent maintains his offices. The grounds for deponent's belief as to all matters not stated upon his knowledge are investigations which he has made or has caused to be made concerning the subject matter of this action, and statements of parties and/or witnesses made herein. The undersigned affirms that the foregoing statements are true. Dated: Staten Island, New York April 12, 2019 Anthony Xathakis By: ANTHONY XANTHAKIS 6 of 6