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(FILED: COUNTY CLERK 0171272017 05:21 PM pee teeid economia
NYSCEF DOC. NO
9 RECEIVED NYSCEF: 01/12/20
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
MINEL JOHNSON and ANSEL JOHNSON,
Plaintiffs,
VERIFIED ANSWER
-against- \
Index No. 523101/16
BERNARD RIMPEL, UMESH MISHRA, JOSEPH
DERGAN, SARNIA CRANAGE, STACEY MARTINDALE,
AMER HOMSI, DAVID SCHANER and THE BROOKLYN
HOSPITAL CENTER,
Defendants.
Defendant THE BROOKLYN HOSPITAL CENTER by its attorneys,
DOPF, P.C., answers the plaintiffs’ Complaint as follows, upon
information and belief:
AS AND FOR A FIRST CAUSE OF ACTION
a Denies knowledge or information sufficient to form a
belief as to each and every allegation contained in the paragraphs of
the Complaint designated "1".
2. Denies each and every allegation contained in the
paragraphs of the Complaint designated "2" and "3", except states that
said defendant was consulted with regard to a certain condition from
which plaintiff was suffering, and that said defendant rendered certain
professional services to and for said plaintiff in connection with said
plaintiffs’ aforesaid condition.
a5 Denies each and every allegation contained in the
paragraphs of the Complaint designated "4", "6", "7", "8" and "9",
4825-1709-6242 1
Ot, 6
i4. Denies each and every allegation contained in the
"
paragraph of the Complaint designated , except states that said
defendant was consulted with regard to a certain condition from which
plaintiff was suffering, and that said defendant rendered certain
professional services to and for said plaintiff in connection with said
plaintiffs’ aforesaid condition.
AS AND FOR A SECOND CAUSE OF ACTION
Se Defendant repeats and reiterates each denial and every
denial of knowledge or information sufficient to form a belief as to
each of the allegations of the Complaint reiterated and realleged by the
plaintiff in the paragraph of the Complaint designated "10".
6. Denies knowledge or information sufficient to form a
belief as to each and every allegation contained in the paragraphs of
the Complaint designated "11", except begs leave to refer all questions
of law to the court and all questions of fact to the trier of fact.
ae Denies each and every allegation contained in the
paragraphs of the Complaint designated "12" and “13”.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE,
DEFENDANT THE BROOKLYN HOSPITAL CENTER
ALLEGES UPON INFORMATION AND BELIEF:
8. Upon information and belief, that the alleged cause or
causes of action, if any, on behalf of the plaintiffs stated in the
Complaint are barred by the applicable Statute of Limitations.
4825-1709-6242 2
2) Ol (0)AS AND FOR A SECOND AFFIRMATIVE DEFENSE,
DEFENDANT THE BROOKLYN HOSPITAL CENTER
ALLEGES UPON INFORMATION AND BELIEF:
9. Whatever injuries plaintiffs may have sustained at the
time and place alleged in the Complaint were caused in whole or in part
or were contributed to by the culpable conduct and want of care on the
part of the plaintiffs and without any negligence or fault or want of
care on the part of the defendant and that any award will thereby be
proportionately diminished or barred.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE,
DEFENDANT THE BROOKLYN HOSPITAL CENTER
ALLEGES UPON INFORMATION AND BELIEF:
10. Defendant invokes the protection of Public Health Law
2805-d(4) with respect to the alleged cause of action for informed
consent, and reserves all its rights pursuant thereto.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE,
DEFENDANT THE BROOKLYN HOSPITAL CENTER
ALLEGES UPON INFORMATION AND BELIEF:
11. Whatever non-economic injuries plaintiffs may have
sustained as a result of the wrongdoing alleged in the Complaint will be
limited as to the answering defendant by Article 16 of the New York
State Civil Practice Law and Rules.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE,
DEFENDANT THE BROOKLYN HOSPITAL CENTER
ALLEGES UPON INFORMATION AND BELIEF:
12. Plaintiffs failed to take reasonable steps in an effort
to mitigate their damages.
4825-1709-6242 3
3 of 6AS AND FOR A SIXTH AFFIRMATIVE DEFENSE,
DEFENDANT THE BROOKLYN HOSPITAL CENTER
ALLEGES UPON INFORMATION AND BELIEF:
13. Any damages awarded to plaintiffs are subject to a set-
off pursuant to CPLR 4545, to the extent plaintiffs received any
reimbursement of their damages through any collateral source provider
including but not limited to insurer, Workers’ Compensation or Social
Security/Disability.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE,
DEFENDANT THE BROOKLYN HOSPITAL CENTER
ALLEGES UPON INFORMATION AND BELIEF:
14. This action is barred or the defendant is entitled to a
set-off against any award herein, including but not limited to a set-off
pursuant to GOL § 15-108, to the extent that plaintiffs have previously
recovered a sum for all or part of the damages claimed herein.
WHEREFORE, defendant THE BROOKLYN HOSPITAL CENTER demands
judgment dismissing the Complaint herein, together with the costs and
disbursements of this action.
Dated: New York, New York
January 10, 2017
Yours, etc.,
DOPF, P.C.
By:
Denise
Attorneys for Defendants
JOSEPH DERGAN, M.D., AMER HOMSI,
M.D. and THE BROOKLYN HOSPITAL
CENTER
440 Ninth Avenue, 16th Floor
New York, New York 10001
(212) 244-9090
4825-1709-6242 4
4 of 6TO: GURFEIN DOUGLAS, LLP
Attorney for Plaintiffs
11 Park Place, Suite 1100
New York, New York 10007
(212) 406-1600
BERNARD RIMPEL, M.D.
Defendant
c/o The Brooklyn Hospital Center
121 DeKalb Avenue
Brooklyn, New York 11201
UMESH MISHRA, M.D.
Defendant
c/o The Brooklyn Hospital Center
121 DeKalb Avenue
Brooklyn, New York 11201
SARINA CRANAGE, M.D.
Defendant
c/o The Brooklyn Hospital Center
121 DeKalb Avenue
Brooklyn, New York 11201
STACEY MARTINDALE, M.D.
Defendant
c/o The Brooklyn Hospital Center
121 DeKalb Avenue
Brooklyn, New York 11201
DAVID SCHANDER, M.D.
Defendant
c/o The Brooklyn Hospital Center
121 DeKalb Avenue
Brooklyn, New York 11201
4825-1709-6242 5
5 of 6ATTORNEY'S VERIFICATION
STATE OF NEW YORK )
) $3.3
COUNTY OF NEW YORK )
Denise Sapanara, being duly sworn, deposes and says:
That she is the attorney representing the defendant THE
BROOKLYN HOSPITAL CENTER.
That she has read the attached Answer and the same is true
to her own belief, and as to those matters, she believes them to be
true to the best of her knowledge.
That deponent's sources of information are medical records
and correspondence with which deponent is fully familiar.
That this verification is made by deponent because her
client is not located in the county where deponent maintains her
office.
Si yr to before m s
\ 1 / 2017.
x
NOTARY PUBINIC
STEVEN SILVERMAN
Notary Public, State Of New York
No. 02S!
Qualified in Nassau
Commission
08/11/20'
4825-1709-6242 6
6 of 6
Preview
(FILED: COUNTY CLERK 0171272017 05:21 PM pee teeid economia NYSCEF DOC. NO 9 RECEIVED NYSCEF: 01/12/20 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS MINEL JOHNSON and ANSEL JOHNSON, Plaintiffs, VERIFIED ANSWER -against- \ Index No. 523101/16 BERNARD RIMPEL, UMESH MISHRA, JOSEPH DERGAN, SARNIA CRANAGE, STACEY MARTINDALE, AMER HOMSI, DAVID SCHANER and THE BROOKLYN HOSPITAL CENTER, Defendants. Defendant THE BROOKLYN HOSPITAL CENTER by its attorneys, DOPF, P.C., answers the plaintiffs’ Complaint as follows, upon information and belief: AS AND FOR A FIRST CAUSE OF ACTION a Denies knowledge or information sufficient to form a belief as to each and every allegation contained in the paragraphs of the Complaint designated "1". 2. Denies each and every allegation contained in the paragraphs of the Complaint designated "2" and "3", except states that said defendant was consulted with regard to a certain condition from which plaintiff was suffering, and that said defendant rendered certain professional services to and for said plaintiff in connection with said plaintiffs’ aforesaid condition. a5 Denies each and every allegation contained in the paragraphs of the Complaint designated "4", "6", "7", "8" and "9", 4825-1709-6242 1 Ot, 6 i4. Denies each and every allegation contained in the " paragraph of the Complaint designated , except states that said defendant was consulted with regard to a certain condition from which plaintiff was suffering, and that said defendant rendered certain professional services to and for said plaintiff in connection with said plaintiffs’ aforesaid condition. AS AND FOR A SECOND CAUSE OF ACTION Se Defendant repeats and reiterates each denial and every denial of knowledge or information sufficient to form a belief as to each of the allegations of the Complaint reiterated and realleged by the plaintiff in the paragraph of the Complaint designated "10". 6. Denies knowledge or information sufficient to form a belief as to each and every allegation contained in the paragraphs of the Complaint designated "11", except begs leave to refer all questions of law to the court and all questions of fact to the trier of fact. ae Denies each and every allegation contained in the paragraphs of the Complaint designated "12" and “13”. AS AND FOR A FIRST AFFIRMATIVE DEFENSE, DEFENDANT THE BROOKLYN HOSPITAL CENTER ALLEGES UPON INFORMATION AND BELIEF: 8. Upon information and belief, that the alleged cause or causes of action, if any, on behalf of the plaintiffs stated in the Complaint are barred by the applicable Statute of Limitations. 4825-1709-6242 2 2) Ol (0)AS AND FOR A SECOND AFFIRMATIVE DEFENSE, DEFENDANT THE BROOKLYN HOSPITAL CENTER ALLEGES UPON INFORMATION AND BELIEF: 9. Whatever injuries plaintiffs may have sustained at the time and place alleged in the Complaint were caused in whole or in part or were contributed to by the culpable conduct and want of care on the part of the plaintiffs and without any negligence or fault or want of care on the part of the defendant and that any award will thereby be proportionately diminished or barred. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, DEFENDANT THE BROOKLYN HOSPITAL CENTER ALLEGES UPON INFORMATION AND BELIEF: 10. Defendant invokes the protection of Public Health Law 2805-d(4) with respect to the alleged cause of action for informed consent, and reserves all its rights pursuant thereto. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, DEFENDANT THE BROOKLYN HOSPITAL CENTER ALLEGES UPON INFORMATION AND BELIEF: 11. Whatever non-economic injuries plaintiffs may have sustained as a result of the wrongdoing alleged in the Complaint will be limited as to the answering defendant by Article 16 of the New York State Civil Practice Law and Rules. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, DEFENDANT THE BROOKLYN HOSPITAL CENTER ALLEGES UPON INFORMATION AND BELIEF: 12. Plaintiffs failed to take reasonable steps in an effort to mitigate their damages. 4825-1709-6242 3 3 of 6AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, DEFENDANT THE BROOKLYN HOSPITAL CENTER ALLEGES UPON INFORMATION AND BELIEF: 13. Any damages awarded to plaintiffs are subject to a set- off pursuant to CPLR 4545, to the extent plaintiffs received any reimbursement of their damages through any collateral source provider including but not limited to insurer, Workers’ Compensation or Social Security/Disability. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, DEFENDANT THE BROOKLYN HOSPITAL CENTER ALLEGES UPON INFORMATION AND BELIEF: 14. This action is barred or the defendant is entitled to a set-off against any award herein, including but not limited to a set-off pursuant to GOL § 15-108, to the extent that plaintiffs have previously recovered a sum for all or part of the damages claimed herein. WHEREFORE, defendant THE BROOKLYN HOSPITAL CENTER demands judgment dismissing the Complaint herein, together with the costs and disbursements of this action. Dated: New York, New York January 10, 2017 Yours, etc., DOPF, P.C. By: Denise Attorneys for Defendants JOSEPH DERGAN, M.D., AMER HOMSI, M.D. and THE BROOKLYN HOSPITAL CENTER 440 Ninth Avenue, 16th Floor New York, New York 10001 (212) 244-9090 4825-1709-6242 4 4 of 6TO: GURFEIN DOUGLAS, LLP Attorney for Plaintiffs 11 Park Place, Suite 1100 New York, New York 10007 (212) 406-1600 BERNARD RIMPEL, M.D. Defendant c/o The Brooklyn Hospital Center 121 DeKalb Avenue Brooklyn, New York 11201 UMESH MISHRA, M.D. Defendant c/o The Brooklyn Hospital Center 121 DeKalb Avenue Brooklyn, New York 11201 SARINA CRANAGE, M.D. Defendant c/o The Brooklyn Hospital Center 121 DeKalb Avenue Brooklyn, New York 11201 STACEY MARTINDALE, M.D. Defendant c/o The Brooklyn Hospital Center 121 DeKalb Avenue Brooklyn, New York 11201 DAVID SCHANDER, M.D. Defendant c/o The Brooklyn Hospital Center 121 DeKalb Avenue Brooklyn, New York 11201 4825-1709-6242 5 5 of 6ATTORNEY'S VERIFICATION STATE OF NEW YORK ) ) $3.3 COUNTY OF NEW YORK ) Denise Sapanara, being duly sworn, deposes and says: That she is the attorney representing the defendant THE BROOKLYN HOSPITAL CENTER. That she has read the attached Answer and the same is true to her own belief, and as to those matters, she believes them to be true to the best of her knowledge. That deponent's sources of information are medical records and correspondence with which deponent is fully familiar. That this verification is made by deponent because her client is not located in the county where deponent maintains her office. Si yr to before m s \ 1 / 2017. x NOTARY PUBINIC STEVEN SILVERMAN Notary Public, State Of New York No. 02S! Qualified in Nassau Commission 08/11/20' 4825-1709-6242 6 6 of 6