Preview
FILED: ERIE COUNTY CLERK 03/14/2022 05:33 PM INDEX NO. 003907/2010
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
_____________-------__________________________________------------------------Ç
DENISE CLAY, Individually and as Administratrix of the Estate
of RANDALL CLAY; THADDEUS C. TOMAKA, Individually
VERIFIED ANSWER
and as Executor of the Estate of LILLIAN TOMAKA; ALBERT
YOUNG, Individually and as Executor of the Estate of LULA
Index No.: 003907/2010
STEVENS; BRENDA BARNES, Individually and as
Administratrix De Bonis Non of the Estate of JOHN ANTHONY
DOBBINS; VELPO JOHNSON III Individually and as Executor
of the Estate of WILLIE LEE STEWART; DIANE
ANTKOWIAK and DAVID and as Co-
JANUSZ, Individually
Executors of the Estate of LEOCADIA FRANUSIAK and on
behalf of all others similarly situated,
Plaintiffs,
-against-
RIDGE VIEW MANOR, LLC; WILLIAMSVILEE SUBURBAN,
LLC; LEGACY HEALTH CARE, LLC; W. RICHARD
ZACHER; GOLDEN LIVING CENTERS, LLC; SAFIRE
REHABILITATION OF AMHERST, LLC; SAFIRE NURSING
AND REHABILITATION CARE OF AMHERST, LLC; SAFIRE
CARE, LLC; SOLOMON ABRAMCZYK; JUDY LANDA;
LAURA ZACHER OTTERBEIN; ARYEH MCHARD
PLATSCHEK; JENNIFER G. FLANNERY, Erie County Public
Administrator of the ESTATE OF WENDY HAMMOND a/k/a
WENDY ZACHER HAMMOND a/k/a WENDY ZACHER-
SCHMIDT; ROBERT SCHUCK; MOSHE STEINBERG, and
JOHN DOES 1-200,
Defendants.
____________________________----..--.....________________________________________Ç
Defendants WILLIAMSVILEE SUBURBAN, LLC; SAFIRE REHABILITATION OF
AMHERST, LLC; SAFIRE NURSING AND REHABILITATION CARE OF AMHERST, LLC;
SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY LANDA; ARYEH RICHARD
PLATSCHEK; ROBERT SCHUCK; and MOSHE STEINBERG, by their attorneys, CAITLIN
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ROBIN & ASSOCIATES, answering the Complaint of the Plaintiffs herein, respectfully allege(s)
as follows:
ANSWERING THE GENERAL ALLEGATIONS
1. DENIES each and every allegation contained in paragraphs "1", "3", "4", "15", "16",
"44"
"17", "18", "19", "20", "21", "22", "23", "24", "25", "26", "27", and leaving conclusions of
law and fact to be determined by the Court.
2. DENIES knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraphs "2", "5", "6", "7", "8", "9", "10", "11", "12", "13", "14",
"32", "33", "36", "37", and "43".
"28"
3. DENIES each and every allegation contained in paragraph "29", "30", "31", "34",
"35", "38", "39", "40", "41", "42", "45", "46", "47", "48", "49", "50", and "51".
AS AND FOR A FIRST CAUSE OF ACTION FOR VIOLATION OF § 2801-D OF THE
NEW YORK PUBLIC HEALTH LAW
4. Defendant repeats and re-alleges every defense to all prior allegations as set forth in
"1" "51"
paragraph through as set forth in paragraph "52".
5. DENIES each and every allegation contained in paragraphs "53", "54", "55", and "56",
leaving conclusions of law and fact to be determined by the Court.
"57"
6. DENIES each and every allegation contained in paragraph and "58".
AS AND FOR A SECOND CAUSE OF ACTION FOR BREACH OF CONTRACT
7. Defendant repeats and re-alleges every defense to all prior allegations as setforth in
"1" "58"
paragraph through as set forth in paragraph "59".
8. DENIES knowledge or information sufficient to form a belief as to each and every
allegation contained in paragraph "60".
"61"
9. DENIES each and every allegation contained in paragraph and "62".
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AS AND FOR A THIRD CAUSE OF ACTION FOR NEGLIGENCE
10. Defendant repeats and re-alleges every defense to allprior allegations as set forth in
"1" "62"
paragraph through as set forth in paragraph "63".
11. DENIES each and every allegation contained in paragraphs "64", leaving conclusions of
law and fact to be determined by the Court.
"69"
12. DENIES each and every allegation contained in paragraph "65", "66", "67", "68",
and "70".
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
13. Whatever injuries plaintiff may have sustained at the time and place alleged in the
Verified Complaint were caused in whole or in part by the culpable conduct and want of care on the
part ofthe Plaintiff and without any negligence or fault or want of care on thepart ofthe Defendant.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
14. Defendant invokes the protection of Public Health Law§ 2805(d)(4) with respect to the
alleged cause of action for informed consent and reserve all rights pursuant thereto.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
15. Upon information and belief that injuries and damages alleged were caused by the
culpable conduct of some third person or persons over whom answering Defendant neither had nor
exercised control.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
16. The plaintiff pursuant to CPLR§ 3211(a)(3) lacks the capacity to sue.
AS AND FOR A FIFTH AFFIRMA TIVE DEFENSE
17. Plaintiff failed to properly serve the Complaint pursuant to CPLR as such this Court lacks
jurisdiction over answering Defendant.
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AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
18. The Complaint is time barred in as much as the suit was not instituted within the
applicable Statute of Limitations and therefore all allegations therein are time barred.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
19. This answering Defendant asserts allrights pursuant to CPLR§ 1600 et seq. The equitable
share of liability, ifany, of the answering Defendant shall be determined pursuant to the provisions
of Article 16 of the CPLR.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
20. Defendant relies on the provision of Article 14 of the CPLR for contribution and
indemnification among all tort feasors.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
21. That the Complaint fails to state a cause of action upon which relief can be granted
against the Defendant.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
22. To the extent Plaintiff is asserting a cause of action in malpractice; Plaintiff's
complaint is defective in that itdoes not contain a Certificate of Merit and other related
requirements of the CPLR.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
23. Defendant invokes the protection of the Public Health Law §2801-d with respect to
and to the extent of any cause of action for deprivation of the resident's rights. Defendant
exercised allcare reasonably necessary to prevent and limit the deprivation and injury to
Plaintiff.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
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24. Upon infonnation and belief, any past or future costs and/or expenses incurred or to
be incurred by the Plaintiff for medical care, dental care, custodial care or rehabilitation 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
CPLR.
25. If any damages are recoverable against the answering party, the amount of such
damages shall be diminished by the amount of the funds which Plaintiff has received or shall
received from such collateral source.
AS AND FOR AN THIRTEENTH AFFIRMATIVE DEFENSE
26. In the event that any person or entity liable or claimed to be liable for the injury
alleged in this action has been given or may hereafter be given a release of covenant no to sue,
Defendant will be entitled to protection under General Obligation Law 15-108 and the
corresponding reduction of any damages, which may be determined to be due against this
answering Defendant.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
27. The Plaintiff entered Defendant's facility with a pre-existing clinical condition or
conditions that rendered the alleged injuries and alleged diminution of activities of daily living
unavoidable.
AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
28. This action is not properly maintainable as a class action, because Plaintiff's claims
are unique to Plaintiff so they are incapable of adequately representing the putative class.
AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
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29. Class or subclass certification would be inappropriate due to conflicts of interest
between Plaintiff and the putative class or subclass members, or between and among putative
class or subclass members.
AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
30. The questions of law and facts common to the members of the class do not
predominate over questions affecting individual members.
AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
31. The claims of the representative parties are not typical to the claims or defenses of the
class.
AS AND FOR A NINTEENTH AFFIRMATIVE DEFENSE
32. The representative parties will not fairly and adequately protect the interests of the
class, as the representative parties are not interested in resolving the claims of the members of
the class, but are interested only in pursuing the punitive damages, which are not available in a
class action under CPLR 901(b) and/or counsel fees, which will deplete the fund available to
distribute to members of the class.
AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
33. A class action is not superior to other available methods for the fair and efficient
adjudication of the controversy.
AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
34. Since the Defendants intent to apply allmoneys received to the purpose of the class,
any fund obtained should be preserved for the benefit of the class. There will be no excess funds,
so this Court should deny any application for counsel fees and/or punitive damages,
WHEREFORE, Defendants WILLIAMSVILEE SUBURBAN, LLC; SAFIRE
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REHABILITATION OF AMHERST, LLC; SAFIRE NURSING AND REHABILITATION
CARE OF AMHERST, LLC; SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY
LANDA; ARYEH RICHARD PLATSCHEK; ROBERT SCHUCK; and MOSHE STEINBERG,
demands judgment dismissing the Complaint of the Plaintiff together with the costs and
disbursements of this action.
Dated: New York, New York
March 14, 2022
Yours, etc.
CaiEin Robin
Caitlin Robin & Associates PLLC
Attorneys for Defendant
WILLIAMSVILEE SUBURBAN, LLC; SAFIRE
REHABILITATION OF AMHERST, LLC; SAFIRE
NURSING AND REHABILITATION CARE OF
AMHERST, LLC; SAFIRE CARE, LLC;
SOLOMON ABRAMCZYK; JUDY LANDA;
ARYEH RICHARD PLATSCHEK; ROBERT
SCHUCK; and MOSHE STEINBERG
30 Broad Street, Suite 702
New York, NY 10004
(646) 524-6026
TO:
Brown Chiari LLP
Attorneys for Plaintiffs
5775 Broadway
Lancaster, New York 14086
Hurwitz & Fine
Attorneys for Defendants
RIDGE VIEW MANOR, LLC
WILLIAMSVILEE SUBURBAN, LLC
1300 Liberty Building
Buffalo, New York 14202
Gibson McAskill & Crosby
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Attorneys for Defendants
LEGACY HEALTH CARE
W. RICHARD ZACHER
69 Delaware Avenue, Suite 900
Buffalo, New York 14202
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ATTORNEY'S VERIFICATION BY AFFIRMATION
Arjeta Albani, an attorney duly admitted to practice before the Courts of the State of New
York, affirms the following to be true under the penalties of perjury:
I am an attorney at CAITLIN ROBIN & ASSOCIATES, attorneys of record for
Defendant(s), WILLIAMSVILEE SUBURBAN, LLC; SAFIRE REHABILITATION OF
AMHERST, LLC; SAFIRE NURSING AND REHABILITATION CARE OF AMHERST,
LLC; SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY LANDA; ARYEH RICHARD
PLATSCHEK; ROBERT SCHUCK; and MOSHE STEINBERG. I have read the annexed
VERIFIED ANSWER and know the contents thereof, and the same are true to my knowledge,
except those matters therein which are stated to be alleged upon information and belief, and as to
those matters I believe them to be true. My belief, as to those matters therein not stated upon
knowledge, is based upon facts, records, and other pertinent information contained in my files.
The reason I make the foregoing affirmation instead of the Defendant(s) is because
Defendant(s) is/are not presently in the county wherein the attorneys for the Defendant(s)
maintain their offices.
Dated: New York, New York
March 14, 2022
Caitlin Robin
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Index No. 003970/2010
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
DENISE CLAY, Individually and as Administratrix of the Estate of RANDALL CLAY;
THADDEUS C. TOMAKA, Individually and as Executor of the Estate of LILLIAN TOMAKA;
ALBERT YOUNG, Individually and as Executor of the Estate of LULA STEVENS; BRENDA
BARNES, Individually and as Administratrix De Bonis Non of the Estate of JOHN ANTHONY
DOBB1NS; VELPO JOHNSON IH Individually and as Executor of the Estate of WILLIE LEE
STEWART; DIANE ANTKOWIAK and DAVID JANUSZ, Individually and as Co-Executors of
the Estate of LEOCADIA FRANUSIAK; and on behalf of all others similarly situated,
Plaintiffs,
-against-
RIDGE VIEW MANOR, LLC; WILLIAMSVILEE SUBURBAN, LLC; LEGACY HEALTH
CARE, LLC; W. RICHARD ZACHER; GOLDEN LIVING CENTERS, LLC; SAFIRE
REHABILITATION OF AMHERST, LLC; SAFIRE NURS1NG AND REHABILITATION
CARE OF AMHERST, LLC; SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY
LANDA; LAURA ZACHER OTTERBEIN; ARYEH RICHARD PLATSCHEK; JENNIFER G.
FLANNERY, Erie County Public Administrator of the ESTATE OF WENDY HAMMOND
a/k/a WENDY ZACHER HAMMOND a/k/a WENDY ZACHER-SCHMIDT; ROBERT
SCHUCK; MOSHE STE1NBERG, and JOHN DOES 1-200,
Defendants.
VERIFIED ANSWER
Caitlin Robin & Associates, PLLC
Attorneys for Defendant
WILLIAMSVILEE SUBURBAN, LLC; SAFIRE REHABILITATION OF AMHERST, LLC;
SAFIRE NURSING AND REHABILITATION CARE OF AMHERST, LLC; SAFIRE CARE,
LLC; SOLOMON ABRAMCZYK; JUDY LANDA; ARYEH RICHARD PLATSCHEK;
ROBERT SCHUCK; and MOSHE STEINBERG
30 Broad Street, Suite 702
New York, NY 10004
(646) 524-6026
10 of 10
Preview
FILED: ERIE COUNTY CLERK 03/14/2022 05:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE _____________-------__________________________________------------------------Ç DENISE CLAY, Individually and as Administratrix of the Estate of RANDALL CLAY; THADDEUS C. TOMAKA, Individually VERIFIED ANSWER and as Executor of the Estate of LILLIAN TOMAKA; ALBERT YOUNG, Individually and as Executor of the Estate of LULA Index No.: 003907/2010 STEVENS; BRENDA BARNES, Individually and as Administratrix De Bonis Non of the Estate of JOHN ANTHONY DOBBINS; VELPO JOHNSON III Individually and as Executor of the Estate of WILLIE LEE STEWART; DIANE ANTKOWIAK and DAVID and as Co- JANUSZ, Individually Executors of the Estate of LEOCADIA FRANUSIAK and on behalf of all others similarly situated, Plaintiffs, -against- RIDGE VIEW MANOR, LLC; WILLIAMSVILEE SUBURBAN, LLC; LEGACY HEALTH CARE, LLC; W. RICHARD ZACHER; GOLDEN LIVING CENTERS, LLC; SAFIRE REHABILITATION OF AMHERST, LLC; SAFIRE NURSING AND REHABILITATION CARE OF AMHERST, LLC; SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY LANDA; LAURA ZACHER OTTERBEIN; ARYEH MCHARD PLATSCHEK; JENNIFER G. FLANNERY, Erie County Public Administrator of the ESTATE OF WENDY HAMMOND a/k/a WENDY ZACHER HAMMOND a/k/a WENDY ZACHER- SCHMIDT; ROBERT SCHUCK; MOSHE STEINBERG, and JOHN DOES 1-200, Defendants. ____________________________----..--.....________________________________________Ç Defendants WILLIAMSVILEE SUBURBAN, LLC; SAFIRE REHABILITATION OF AMHERST, LLC; SAFIRE NURSING AND REHABILITATION CARE OF AMHERST, LLC; SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY LANDA; ARYEH RICHARD PLATSCHEK; ROBERT SCHUCK; and MOSHE STEINBERG, by their attorneys, CAITLIN 1 of 10 FILED: ERIE COUNTY CLERK 03/14/2022 05:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2022 ROBIN & ASSOCIATES, answering the Complaint of the Plaintiffs herein, respectfully allege(s) as follows: ANSWERING THE GENERAL ALLEGATIONS 1. DENIES each and every allegation contained in paragraphs "1", "3", "4", "15", "16", "44" "17", "18", "19", "20", "21", "22", "23", "24", "25", "26", "27", and leaving conclusions of law and fact to be determined by the Court. 2. DENIES knowledge or information sufficient to form a belief as to each and every allegation contained in the paragraphs "2", "5", "6", "7", "8", "9", "10", "11", "12", "13", "14", "32", "33", "36", "37", and "43". "28" 3. DENIES each and every allegation contained in paragraph "29", "30", "31", "34", "35", "38", "39", "40", "41", "42", "45", "46", "47", "48", "49", "50", and "51". AS AND FOR A FIRST CAUSE OF ACTION FOR VIOLATION OF § 2801-D OF THE NEW YORK PUBLIC HEALTH LAW 4. Defendant repeats and re-alleges every defense to all prior allegations as set forth in "1" "51" paragraph through as set forth in paragraph "52". 5. DENIES each and every allegation contained in paragraphs "53", "54", "55", and "56", leaving conclusions of law and fact to be determined by the Court. "57" 6. DENIES each and every allegation contained in paragraph and "58". AS AND FOR A SECOND CAUSE OF ACTION FOR BREACH OF CONTRACT 7. Defendant repeats and re-alleges every defense to all prior allegations as setforth in "1" "58" paragraph through as set forth in paragraph "59". 8. DENIES knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph "60". "61" 9. DENIES each and every allegation contained in paragraph and "62". 2 of 10 FILED: ERIE COUNTY CLERK 03/14/2022 05:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2022 AS AND FOR A THIRD CAUSE OF ACTION FOR NEGLIGENCE 10. Defendant repeats and re-alleges every defense to allprior allegations as set forth in "1" "62" paragraph through as set forth in paragraph "63". 11. DENIES each and every allegation contained in paragraphs "64", leaving conclusions of law and fact to be determined by the Court. "69" 12. DENIES each and every allegation contained in paragraph "65", "66", "67", "68", and "70". AS AND FOR A FIRST AFFIRMATIVE DEFENSE 13. Whatever injuries plaintiff may have sustained at the time and place alleged in the Verified Complaint were caused in whole or in part by the culpable conduct and want of care on the part ofthe Plaintiff and without any negligence or fault or want of care on thepart ofthe Defendant. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 14. Defendant invokes the protection of Public Health Law§ 2805(d)(4) with respect to the alleged cause of action for informed consent and reserve all rights pursuant thereto. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 15. Upon information and belief that injuries and damages alleged were caused by the culpable conduct of some third person or persons over whom answering Defendant neither had nor exercised control. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 16. The plaintiff pursuant to CPLR§ 3211(a)(3) lacks the capacity to sue. AS AND FOR A FIFTH AFFIRMA TIVE DEFENSE 17. Plaintiff failed to properly serve the Complaint pursuant to CPLR as such this Court lacks jurisdiction over answering Defendant. 3 of 10 FILED: ERIE COUNTY CLERK 03/14/2022 05:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2022 AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 18. The Complaint is time barred in as much as the suit was not instituted within the applicable Statute of Limitations and therefore all allegations therein are time barred. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 19. This answering Defendant asserts allrights pursuant to CPLR§ 1600 et seq. The equitable share of liability, ifany, of the answering Defendant shall be determined pursuant to the provisions of Article 16 of the CPLR. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 20. Defendant relies on the provision of Article 14 of the CPLR for contribution and indemnification among all tort feasors. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 21. That the Complaint fails to state a cause of action upon which relief can be granted against the Defendant. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 22. To the extent Plaintiff is asserting a cause of action in malpractice; Plaintiff's complaint is defective in that itdoes not contain a Certificate of Merit and other related requirements of the CPLR. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 23. Defendant invokes the protection of the Public Health Law §2801-d with respect to and to the extent of any cause of action for deprivation of the resident's rights. Defendant exercised allcare reasonably necessary to prevent and limit the deprivation and injury to Plaintiff. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 4 of 10 FILED: ERIE COUNTY CLERK 03/14/2022 05:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2022 24. Upon infonnation and belief, any past or future costs and/or expenses incurred or to be incurred by the Plaintiff for medical care, dental care, custodial care or rehabilitation 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 CPLR. 25. If any damages are recoverable against the answering party, the amount of such damages shall be diminished by the amount of the funds which Plaintiff has received or shall received from such collateral source. AS AND FOR AN THIRTEENTH AFFIRMATIVE DEFENSE 26. In the event that any person or entity liable or claimed to be liable for the injury alleged in this action has been given or may hereafter be given a release of covenant no to sue, Defendant will be entitled to protection under General Obligation Law 15-108 and the corresponding reduction of any damages, which may be determined to be due against this answering Defendant. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 27. The Plaintiff entered Defendant's facility with a pre-existing clinical condition or conditions that rendered the alleged injuries and alleged diminution of activities of daily living unavoidable. AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE 28. This action is not properly maintainable as a class action, because Plaintiff's claims are unique to Plaintiff so they are incapable of adequately representing the putative class. AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE 5 of 10 FILED: ERIE COUNTY CLERK 03/14/2022 05:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2022 29. Class or subclass certification would be inappropriate due to conflicts of interest between Plaintiff and the putative class or subclass members, or between and among putative class or subclass members. AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 30. The questions of law and facts common to the members of the class do not predominate over questions affecting individual members. AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 31. The claims of the representative parties are not typical to the claims or defenses of the class. AS AND FOR A NINTEENTH AFFIRMATIVE DEFENSE 32. The representative parties will not fairly and adequately protect the interests of the class, as the representative parties are not interested in resolving the claims of the members of the class, but are interested only in pursuing the punitive damages, which are not available in a class action under CPLR 901(b) and/or counsel fees, which will deplete the fund available to distribute to members of the class. AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE 33. A class action is not superior to other available methods for the fair and efficient adjudication of the controversy. AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 34. Since the Defendants intent to apply allmoneys received to the purpose of the class, any fund obtained should be preserved for the benefit of the class. There will be no excess funds, so this Court should deny any application for counsel fees and/or punitive damages, WHEREFORE, Defendants WILLIAMSVILEE SUBURBAN, LLC; SAFIRE 6 of 10 FILED: ERIE COUNTY CLERK 03/14/2022 05:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2022 REHABILITATION OF AMHERST, LLC; SAFIRE NURSING AND REHABILITATION CARE OF AMHERST, LLC; SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY LANDA; ARYEH RICHARD PLATSCHEK; ROBERT SCHUCK; and MOSHE STEINBERG, demands judgment dismissing the Complaint of the Plaintiff together with the costs and disbursements of this action. Dated: New York, New York March 14, 2022 Yours, etc. CaiEin Robin Caitlin Robin & Associates PLLC Attorneys for Defendant WILLIAMSVILEE SUBURBAN, LLC; SAFIRE REHABILITATION OF AMHERST, LLC; SAFIRE NURSING AND REHABILITATION CARE OF AMHERST, LLC; SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY LANDA; ARYEH RICHARD PLATSCHEK; ROBERT SCHUCK; and MOSHE STEINBERG 30 Broad Street, Suite 702 New York, NY 10004 (646) 524-6026 TO: Brown Chiari LLP Attorneys for Plaintiffs 5775 Broadway Lancaster, New York 14086 Hurwitz & Fine Attorneys for Defendants RIDGE VIEW MANOR, LLC WILLIAMSVILEE SUBURBAN, LLC 1300 Liberty Building Buffalo, New York 14202 Gibson McAskill & Crosby 7 of 10 FILED: ERIE COUNTY CLERK 03/14/2022 05:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2022 Attorneys for Defendants LEGACY HEALTH CARE W. RICHARD ZACHER 69 Delaware Avenue, Suite 900 Buffalo, New York 14202 8 of 10 FILED: ERIE COUNTY CLERK 03/14/2022 05:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2022 ATTORNEY'S VERIFICATION BY AFFIRMATION Arjeta Albani, an attorney duly admitted to practice before the Courts of the State of New York, affirms the following to be true under the penalties of perjury: I am an attorney at CAITLIN ROBIN & ASSOCIATES, attorneys of record for Defendant(s), WILLIAMSVILEE SUBURBAN, LLC; SAFIRE REHABILITATION OF AMHERST, LLC; SAFIRE NURSING AND REHABILITATION CARE OF AMHERST, LLC; SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY LANDA; ARYEH RICHARD PLATSCHEK; ROBERT SCHUCK; and MOSHE STEINBERG. I have read the annexed VERIFIED ANSWER and know the contents thereof, and the same are true to my knowledge, except those matters therein which are stated to be alleged upon information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon facts, records, and other pertinent information contained in my files. The reason I make the foregoing affirmation instead of the Defendant(s) is because Defendant(s) is/are not presently in the county wherein the attorneys for the Defendant(s) maintain their offices. Dated: New York, New York March 14, 2022 Caitlin Robin 9 of 10 FILED: ERIE COUNTY CLERK 03/14/2022 05:33 PM INDEX NO. 003907/2010 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 03/15/2022 Index No. 003970/2010 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE DENISE CLAY, Individually and as Administratrix of the Estate of RANDALL CLAY; THADDEUS C. TOMAKA, Individually and as Executor of the Estate of LILLIAN TOMAKA; ALBERT YOUNG, Individually and as Executor of the Estate of LULA STEVENS; BRENDA BARNES, Individually and as Administratrix De Bonis Non of the Estate of JOHN ANTHONY DOBB1NS; VELPO JOHNSON IH Individually and as Executor of the Estate of WILLIE LEE STEWART; DIANE ANTKOWIAK and DAVID JANUSZ, Individually and as Co-Executors of the Estate of LEOCADIA FRANUSIAK; and on behalf of all others similarly situated, Plaintiffs, -against- RIDGE VIEW MANOR, LLC; WILLIAMSVILEE SUBURBAN, LLC; LEGACY HEALTH CARE, LLC; W. RICHARD ZACHER; GOLDEN LIVING CENTERS, LLC; SAFIRE REHABILITATION OF AMHERST, LLC; SAFIRE NURS1NG AND REHABILITATION CARE OF AMHERST, LLC; SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY LANDA; LAURA ZACHER OTTERBEIN; ARYEH RICHARD PLATSCHEK; JENNIFER G. FLANNERY, Erie County Public Administrator of the ESTATE OF WENDY HAMMOND a/k/a WENDY ZACHER HAMMOND a/k/a WENDY ZACHER-SCHMIDT; ROBERT SCHUCK; MOSHE STE1NBERG, and JOHN DOES 1-200, Defendants. VERIFIED ANSWER Caitlin Robin & Associates, PLLC Attorneys for Defendant WILLIAMSVILEE SUBURBAN, LLC; SAFIRE REHABILITATION OF AMHERST, LLC; SAFIRE NURSING AND REHABILITATION CARE OF AMHERST, LLC; SAFIRE CARE, LLC; SOLOMON ABRAMCZYK; JUDY LANDA; ARYEH RICHARD PLATSCHEK; ROBERT SCHUCK; and MOSHE STEINBERG 30 Broad Street, Suite 702 New York, NY 10004 (646) 524-6026 10 of 10