Preview
FILED: ERIE COUNTY CLERK 11/07/2018 12:53 PM INDEX NO. 808140/2015
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 11/07/2018
Q
FILED: ERIE COUNTY CLERK 11/07/2018 12:53 PM INDEX NO. 808140/2015
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 11/07/2018
INDEX NO. 810664/2017
Ï FILED : ERIE COUNTY CLERK 01/09/2018 02 : 42 PM)
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/09/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
___ .------ ________________-----------..-
TIMOTHY WOJDAN,
ANSWER
Plaintiff,
Index No.: 810664/2017
-against-
ORCHARD MANORALP, LLC d/b/a
ORCHARD MANOR REHABILITATION
AND NURSING CENTER and
WILLIAMSVILLE SUBURBAN, LLC,
Defendants.
__. . . .--__________________________________
Defendant, WILLIMASVILLE SIJBURBAN, LLC, by its attorneys, CAITLIN ROBIN
& ASSOCIATES PLLC, answering the Complaint of the Plaintiffherein, respectfully allege(s)
as follows:
ANSWERING THE GENERAL ALLEGATIONS
1. DENY knowledge or infonnation sufficient to form a belief as to each and every
allegation contained in paragraphs 1, 2, 3, 4, 5, 15, 17, 18, 19 and 21.
2. ADMIT the allegations contained in paragraph 6.
3. ADMIT that portion of the allegation contained in paragraph 7 that Williamsville
Suburban LLC is doing business as Williamsville Suburban Nursing Home at 163 S. Union Road,
Williamsville, New York 14221 and DENY each and every remaining allegation leaving
conclusions of law and fact to be detennined by the court.
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4. DENY knowledge or information sufficient to form a belief as to each and every
allegation contained in paragraphs 8, 10, 11, 12, 13, 14 and 16, leaving conclusions of the law and
fact to be determined by the court.
5. DENY each and every allegation contained in paragraph 9, leaving conclusions of the
law and fact to be detennined by the court.
6. ADMIT that portion of the allegations contained in paragraph 20 that on or about June
22, 2015, Plaintiff was admitted as a patient and/or resident at Williamsville Suburban and DENY
knowledge or information sufficient to form a belief as to the
remaining allegations contained in
that paragraph.
7. DENY each and every allegation contained in paragraphs 22 and 23.
AS AND FOR A FIRST CAUSE OF ACTION
8. This Defendant repeats and re-alleges defense to all prior allegations as set forth
every
in paragraphs 1 through 23, above.
9. DENY knowledge or information sufficient to form a belief as to each and every
allegation contained in paragraphs 25, 26, 27, 28, 29 and 30.
10. DENY knowledge or infonnation sufficient to form a belief as to each and every
allegation contained in paragraph 31 leaving conclusions of the law and fact to be determined by
the court.
AS AND FOR A SECOND CAUSE OF ACTION
11. This Defendant repeats and re-alleges every defense to all prior allegations as set forth
in paragraphs 1 through 31, above.
12. DENY each and every allegation contained in paragraphs 33, 34, 35 36, 37 and 38.
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13. DENY each and every allegation contained in paragraph 39 leaving
conclusions of the
law and fact to be determined by the court
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
14. That this defendant has no present lmowledge of culpable conduct and want of care on
the part of the plaintiff which may have caused or contributed to the injuries and damages alleged
in the complaint, but in order to preserve their defense in the event that it may obtain such
knowledge, defendants hereby allege that culpable conduct and want of care on the part of the
plaintiff caused or contributed to said injuries and damages without any culpable conduct or want
of care on the part of the answering defendant. Any damages otherwise recoverable
by plaintiff in
this action shall be diminished in proportion to the culpable conduct that caused such damages.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
15. That this defendant exercised all care reasonably necessary to prevent and/or limit the
injury for which liability is asserted, including liability alleged pursuant to Public Health Law
§2801-d.
AS AND FOR A THIRD AFFIMATIVE DEFENSE
16. That defendanthas no present knowledge of the injuries and damages to plaintiff caused
by the culpable conduct, fault, neglect and want of care of some unnamed or third person or persons
over whom this defendant neither had nor exercised control, but in order to preserve its defense in
the event that
may obtain such knowledge, defendant alleges that the culpable
they hereby conduct,
fault, neglect and want of care of some unnamed and/or third person or persons over whom this
answering defendant neither had nor exercised control caused or contributed to the injuries and
damages of the plaintiff.
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AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
17, That plaintiff lacks the capacity to sue pursuant to CPLR§ 3211(a)(3),
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
18. That plaintiff failed to
properly
serve the complaint upon this answering defendant and,
therefore, the court lacks jurisdiction over this defendant.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
19. That plaintiff failed to comm.ence the causes of action asserted within the time limit
required by the State of New York, and therefore, such causes of action are barred by the applicable
statute of limitations.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
20. That the complaint fails, in whole or part, to state a viable claim against this
answering
defendant upon which relief can be granted, and therefore, should be dismissed as a matter of law.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
21. That pursuant to section 4545 of the CPLR, defendant is entitled to a set-off against the
amount of any verdict of any moneys collected from a collateral source of payment or payment that
with reasonable
certainty will be replaced or indemnified in the future from such collateral source
as set forth in said law. If damages are recoverable against this the
any answering defendant,
amount of such damages shall be diminished by the amount of the funds which plaintiff has received
or shall receive from such collateral source.
AS AND FOR AN NINTH AFFIRMATIVE DEFENSE
22. That in the event there has been a settlement between plaintiff and any prior, subsequent,
joint or then this defendant pleads and seeks the full benefit of §15-
co-tortfeasor, answering hereby
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108 ofthe General Obligations Law that plaintiff's claim and damages against defendant be reduced
to the fullest extent permitted by §15-108 of the General Obligations Law.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
23. That in the event it is found through the course of discovery
or at trial the injuries
claimed by plaintiff in this matter were brought about or contributed to by reason of pre-existing
conditions, illnesses or diseases, without any negligence of defendant, any damages must be
diminished accordingly.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
24. That in the event it is found through the course of discovery or at trial that plaintiff failed
to mitigate his damages, damages must be diminished to the extent that plaintiff
any accordingly
failed to mitigate such damages.
AS AND FOR A TWELTH AFFIRMATIVE DEFENSE
25. That to the extent plaintiff is
asserting a cause of action in medical malpractice,
Plaintiff s complaint is defective in that it does not contain a Certificate of Merit and other related
requirements of the CPLR.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
26. That this defendant denies any negligence on its part which was the proximate cause of
the injuries alleged in the complaint, but if defendant is found liable to plaintiff, then such liability
will have been brought about by reason of the active and negligence on the part of a named,
primary
unnamed and/or third-party defendant, and if defendant is found liable to any degree in this action
to plaintiff, then this
answering defendant will be entitled to indemnification by and judgment over
and against the named, unnamed and/or
third-party defendant for the full amount of said liability
or for such proportionate share as represents the full amount, degree or kind of negligence
5
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FILED : ERIE COUNTY CLERK 01/0972018 02 : 42 P
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/09/2018
attributable to the named, unnamed and/or
third-party
defendant pursuant to Article 14 and Article
16 of the CPLR.
WHEREFORE, Defendant, WILLIAMSVILLE SUBURBAN, LLC, demands judgment
dismissing the plaintiff's complaint and granting defendant judgment on its affinnative defenses,
and for such other, further and different relief as may seem just, equitable and proper, together
with the costs and disbursements of this action.
Dated: Buffalo, New York
January 9, 2018
CAITLIN ROBIN & ASS , . . S PLLC
By:
Jessica Del el, Esq.
Attorneys for Defendant
WILLIAM¶VILLE SUBURBAN LLC
737 Main Street, Suite 201
Buffalo, New York 14203
Phone: (716) 771-3082
Fax: (929) 210-7549
Email: Jessica@robinandassociates.com
TO: HOGAN WILLIG, PLLC
Scott Michael Duquin, Esq.
Attorneys for Plaintiff
2410 North Forest Road, Suite 301
Amherst, New York 14068
Phone: (716)
636-7600
Fax: (716) 636-7606
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[F_ILED : ERIE COUNTY CLERK 01/09/2018 02 : 42 P1
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/09/2018
CC: ORCHARD MANOR ALP, LLC d/b/a
ORCHARD MANOR REHABILITATION
AND NURSING CENTER
AS THEY MAY APPEAR
. .
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Preview
FILED: ERIE COUNTY CLERK 11/07/2018 12:53 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 11/07/2018 Q FILED: ERIE COUNTY CLERK 11/07/2018 12:53 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 11/07/2018 INDEX NO. 810664/2017 Ï FILED : ERIE COUNTY CLERK 01/09/2018 02 : 42 PM) NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/09/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE ___ .------ ________________-----------..- TIMOTHY WOJDAN, ANSWER Plaintiff, Index No.: 810664/2017 -against- ORCHARD MANORALP, LLC d/b/a ORCHARD MANOR REHABILITATION AND NURSING CENTER and WILLIAMSVILLE SUBURBAN, LLC, Defendants. __. . . .--__________________________________ Defendant, WILLIMASVILLE SIJBURBAN, LLC, by its attorneys, CAITLIN ROBIN & ASSOCIATES PLLC, answering the Complaint of the Plaintiffherein, respectfully allege(s) as follows: ANSWERING THE GENERAL ALLEGATIONS 1. DENY knowledge or infonnation sufficient to form a belief as to each and every allegation contained in paragraphs 1, 2, 3, 4, 5, 15, 17, 18, 19 and 21. 2. ADMIT the allegations contained in paragraph 6. 3. ADMIT that portion of the allegation contained in paragraph 7 that Williamsville Suburban LLC is doing business as Williamsville Suburban Nursing Home at 163 S. Union Road, Williamsville, New York 14221 and DENY each and every remaining allegation leaving conclusions of law and fact to be detennined by the court. 1 of 7 FILED: ERIE COUNTY CLERK 11/07/2018 12:53 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 11/07/2018 INDEX NO. 810664/2017 FILED : ERIE COUNTY CLERK 01/09/2018 02 : 42 Pli NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/09/2018 4. DENY knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs 8, 10, 11, 12, 13, 14 and 16, leaving conclusions of the law and fact to be determined by the court. 5. DENY each and every allegation contained in paragraph 9, leaving conclusions of the law and fact to be detennined by the court. 6. ADMIT that portion of the allegations contained in paragraph 20 that on or about June 22, 2015, Plaintiff was admitted as a patient and/or resident at Williamsville Suburban and DENY knowledge or information sufficient to form a belief as to the remaining allegations contained in that paragraph. 7. DENY each and every allegation contained in paragraphs 22 and 23. AS AND FOR A FIRST CAUSE OF ACTION 8. This Defendant repeats and re-alleges defense to all prior allegations as set forth every in paragraphs 1 through 23, above. 9. DENY knowledge or information sufficient to form a belief as to each and every allegation contained in paragraphs 25, 26, 27, 28, 29 and 30. 10. DENY knowledge or infonnation sufficient to form a belief as to each and every allegation contained in paragraph 31 leaving conclusions of the law and fact to be determined by the court. AS AND FOR A SECOND CAUSE OF ACTION 11. This Defendant repeats and re-alleges every defense to all prior allegations as set forth in paragraphs 1 through 31, above. 12. DENY each and every allegation contained in paragraphs 33, 34, 35 36, 37 and 38. 2 2 of 7 FILED: ERIE COUNTY CLERK 11/07/2018 12:53 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 11/07/2018 INDEX NO. 810664/2017 FILED : ERIE COUNTY CLERK 01/09/2018 02 : 42 Pli NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/09/2018 13. DENY each and every allegation contained in paragraph 39 leaving conclusions of the law and fact to be determined by the court AS AND FOR A FIRST AFFIRMATIVE DEFENSE 14. That this defendant has no present lmowledge of culpable conduct and want of care on the part of the plaintiff which may have caused or contributed to the injuries and damages alleged in the complaint, but in order to preserve their defense in the event that it may obtain such knowledge, defendants hereby allege that culpable conduct and want of care on the part of the plaintiff caused or contributed to said injuries and damages without any culpable conduct or want of care on the part of the answering defendant. Any damages otherwise recoverable by plaintiff in this action shall be diminished in proportion to the culpable conduct that caused such damages. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 15. That this defendant exercised all care reasonably necessary to prevent and/or limit the injury for which liability is asserted, including liability alleged pursuant to Public Health Law §2801-d. AS AND FOR A THIRD AFFIMATIVE DEFENSE 16. That defendanthas no present knowledge of the injuries and damages to plaintiff caused by the culpable conduct, fault, neglect and want of care of some unnamed or third person or persons over whom this defendant neither had nor exercised control, but in order to preserve its defense in the event that may obtain such knowledge, defendant alleges that the culpable they hereby conduct, fault, neglect and want of care of some unnamed and/or third person or persons over whom this answering defendant neither had nor exercised control caused or contributed to the injuries and damages of the plaintiff. 3 3 of 7 FILED: ERIE COUNTY CLERK 11/07/2018 12:53 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 11/07/2018 INDEX NO. 810664/2017 FILED : ERIE COUNTY CLERK 01/0972018 02 : 42 PM NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/09/2018 AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 17, That plaintiff lacks the capacity to sue pursuant to CPLR§ 3211(a)(3), AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 18. That plaintiff failed to properly serve the complaint upon this answering defendant and, therefore, the court lacks jurisdiction over this defendant. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 19. That plaintiff failed to comm.ence the causes of action asserted within the time limit required by the State of New York, and therefore, such causes of action are barred by the applicable statute of limitations. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 20. That the complaint fails, in whole or part, to state a viable claim against this answering defendant upon which relief can be granted, and therefore, should be dismissed as a matter of law. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 21. That pursuant to section 4545 of the CPLR, defendant is entitled to a set-off against the amount of any verdict of any moneys collected from a collateral source of payment or payment that with reasonable certainty will be replaced or indemnified in the future from such collateral source as set forth in said law. If damages are recoverable against this the any answering defendant, amount of such damages shall be diminished by the amount of the funds which plaintiff has received or shall receive from such collateral source. AS AND FOR AN NINTH AFFIRMATIVE DEFENSE 22. That in the event there has been a settlement between plaintiff and any prior, subsequent, joint or then this defendant pleads and seeks the full benefit of §15- co-tortfeasor, answering hereby 4 4 of 7 FILED: ERIE COUNTY CLERK 11/07/2018 12:53 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 11/07/2018 INDEX NO. 810664/2017 FILED : ERIE COUNTY CLERK 01/ 0 9/2 018 02 : 4 2 Pli NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/09/2018 108 ofthe General Obligations Law that plaintiff's claim and damages against defendant be reduced to the fullest extent permitted by §15-108 of the General Obligations Law. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 23. That in the event it is found through the course of discovery or at trial the injuries claimed by plaintiff in this matter were brought about or contributed to by reason of pre-existing conditions, illnesses or diseases, without any negligence of defendant, any damages must be diminished accordingly. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 24. That in the event it is found through the course of discovery or at trial that plaintiff failed to mitigate his damages, damages must be diminished to the extent that plaintiff any accordingly failed to mitigate such damages. AS AND FOR A TWELTH AFFIRMATIVE DEFENSE 25. That to the extent plaintiff is asserting a cause of action in medical malpractice, Plaintiff s complaint is defective in that it does not contain a Certificate of Merit and other related requirements of the CPLR. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 26. That this defendant denies any negligence on its part which was the proximate cause of the injuries alleged in the complaint, but if defendant is found liable to plaintiff, then such liability will have been brought about by reason of the active and negligence on the part of a named, primary unnamed and/or third-party defendant, and if defendant is found liable to any degree in this action to plaintiff, then this answering defendant will be entitled to indemnification by and judgment over and against the named, unnamed and/or third-party defendant for the full amount of said liability or for such proportionate share as represents the full amount, degree or kind of negligence 5 5 of 7 FILED: ERIE COUNTY CLERK 11/07/2018 12:53 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 11/07/2018 INDEX NO. 810664/2017 FILED : ERIE COUNTY CLERK 01/0972018 02 : 42 P NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/09/2018 attributable to the named, unnamed and/or third-party defendant pursuant to Article 14 and Article 16 of the CPLR. WHEREFORE, Defendant, WILLIAMSVILLE SUBURBAN, LLC, demands judgment dismissing the plaintiff's complaint and granting defendant judgment on its affinnative defenses, and for such other, further and different relief as may seem just, equitable and proper, together with the costs and disbursements of this action. Dated: Buffalo, New York January 9, 2018 CAITLIN ROBIN & ASS , . . S PLLC By: Jessica Del el, Esq. Attorneys for Defendant WILLIAM¶VILLE SUBURBAN LLC 737 Main Street, Suite 201 Buffalo, New York 14203 Phone: (716) 771-3082 Fax: (929) 210-7549 Email: Jessica@robinandassociates.com TO: HOGAN WILLIG, PLLC Scott Michael Duquin, Esq. Attorneys for Plaintiff 2410 North Forest Road, Suite 301 Amherst, New York 14068 Phone: (716) 636-7600 Fax: (716) 636-7606 6 6 of 7 FILED: ERIE COUNTY CLERK 11/07/2018 12:53 PM INDEX NO. 808140/2015 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 11/07/2018 INDEX NO. 810664/2017 [F_ILED : ERIE COUNTY CLERK 01/09/2018 02 : 42 P1 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 01/09/2018 CC: ORCHARD MANOR ALP, LLC d/b/a ORCHARD MANOR REHABILITATION AND NURSING CENTER AS THEY MAY APPEAR . . 7 7 of 7