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FILED: NIAGARA COUNTY CLERK 06/22/2017 01:44 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/22/2017
STATE OF NEW YORK
SUPREME COURT : NIAGARA COUNTY
THOMAS and CHERYL KAUSNER, Individually
and as Husband and Wife
Amended Complaint
Plaintiffs
v.
Index No. E 159518/2016
BUFFALO SPINE SURGERY, PLLC,
ANDREW CAPPUCCINO, M.D.,
ERIC DEAN, RPA-C,
HARNATH B. CLERK, M.D., P.C.,
HARNATH B. CLERK, M.D.,
EASTERN NIAGARA HOSPITAL, INC.,
ROBERT E. LUTNICK, M.D., and
EASTERN NIAGARA RADIOLOGY AND
NUCLEAR MEDICINE ASSOCIATES, P.C.
Defendants
The plaintiffs, Thomas and Cheryl Kausner, Individually and as Husband and Wife,
by their attorneys, Brian P. Fitzgerald, P.C., for their causes of action against the
defendants, allege the following:
1. At all times hereinafter mentioned, the plaintiffs, Thomas and Cheryl
Kausner, resided together as husband and wife as residents of the County of Allegany and
State of New York.
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2. Upon information and belief, at all times herein mentioned, the defendant,
Buffalo Spine Surgery, PLLC, was a domestic professional service limited liability
company organized and existing under and by virtue of the laws of the State ofNew York.
3. Upon information and belief, at all times herein mentioned, the defendant,
Buffalo Spine Surgery, PLLC, was a medical office operating in the County ofNiagara and
State of New York providing medical care and treatment to the general public and held
itself out as duly licensed, qualified and capable of rendering adequate and proper medical
care and treatment to the general public and for such purposes employed doctors, physician
assistants, and other personnel including the defendants, Andrew Cappuccino, M.D., and
Eric Dean. RPA-C.
4. Upon information and belief, at all times herein mentioned, the defendant,
Andrew Cappuccino, M.D., was a physician duly licensed to practice medicine in the State
ofNew York and was a principal, partner, officer, director, agent, servant and/or employee
of the defendant, Buffalo Spine Surgery, PLLC, and at all times was acting within the
scope of his authority on behalf of and for its benefit.
5. Upon information and belief, at all times herein mentioned, the defendant,
Eric Dean, RPA-C, was a registered physician ass istant - certified, duly registered as a
physician assistant in the State of N ew York and was an agent, servant and/or employee of
the defendant, Buffalo Spine Surgery, PLLC, and at all times was acting within the scope
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of his authority on behalf of and for its benefit.
6. Upon information and belief, at all times herein mentioned, the defendant,
Harnath B. Clerk, M.D., P.C., was a domestic professional corporation organized and
existing under and by virtue of the laws of the State ofNew York.
7. Upon information and belief, at all times herein mentioned, the defendant,
Harnath B. Clerk, M.D., P.C., was a medical office operating in the County ofNiagara and
State of New York providing medical care and treatment to the general public and held
itself out as duly licensed, qualified and capable of rendering adequate and proper medical
care and treatment to the general public and for such purposes employed doctors and other
personnel, including the defendant, Harnath B. Clerk, M.D.
8. Upon information and belief, at all times herein mentioned, the defendant,
Harnath B. Clerk, M.D., was a physician duly licensed to practice medicine in the State of
New York and was a principal, partner, officer, director, agent, servant and/or employee of
the defendant, Harnath B. Clerk, M.D., P.C., and at all times was acting within the scope of
his authority on behalf of and for its benefit.
9. Upon information and belief, at all times herein mentioned, the defendant,
Eastern Niagara Hospital, Inc., was a domestic not-for-profit corporation organized and
existing under and by virtue of the laws of the State of New York.
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10. Upon information and belief, at all times herein mentioned, the defendant,
Eastern Niagara Hospital, Inc., was a hospital operating in the County of Niagara and State
of New York providing medical care and treatment to the general public and held itself out
as duly licensed, qualified and capable of rendering adequate and proper medical care and
treatment to the general public and for such purposes employed doctors, physician
assistants, and other personnel.
11. Upon information and belief, at all times herein mentioned, the defendant,
Robert E. Lutnick, M.D., was a physician duly licensed to practice medicine in the State of
New York and was a principal, partner, officer, director, agent, servant and/or employee
and/or member of Eastern Niagara Radiology and Nuclear Medicine Associates, P.C.
11 (a). Upon information and belief, at all times herein mentioned, the defendant,
Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., was a domestic
professional service limited liability company organized and existing under and by virtue
of the laws of the State of New York.
11 (b). Upon information and belief, at all times herein mentioned, the defendant,
Eastern Niagara Radiology and Nuclear Medicine Associates, P .C., was a medical office
operating in the County ofNiagara and State ofNew York providing medical care and
treatment to the general public and held itself out as duly licensed, qualified and capable of
rendering adequate and proper medical care and treatment to the general public and for
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such purposes employed doctors, physician assistants, and other personnel including the
defendant, Robert E. Lutnick, M.D.
FIRST CAUSE OF ACTION
12. Plaintiffs repeat and re-allege each and every allegation contained in
paragraphs 1- 11 of this Complaint with the same force and effect as if fully set forth herein.
13. On or about September 1, 2015, and continuing through and including
September 3, 20 15, plaintiff Thomas Kausner came under the care and treatment of the
defendants, their agents, servants and employees, who rendered medical and surgical care,
treatment and services to him.
14. The care, treatment and services rendered to plaintiffThomas Kausner by the
defendants and their agents, servants and employees was rendered in a negligent manner
constituting deviations from accepted standards of medical care and treatment.
15. By reason of this negligence and deviations from the accepted standards of
medical care and treatment by defendants , their agents, servants and employees, plaintiff
Thomas Kausner was caused to sustain personal injuries, pain and suffering, and monetary
loss, all to hi s damages in such an amount as shall be determined by the trier of fact herein
and which exceeds the jurisdictional limits of all lower courts.
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SECOND CAUSE OF ACTION
16. Plaintiffs repeat and re-allege each and every allegation contained in
paragraphs 1-15 ofthis Complaint with the same force and effect as if fully set forth herein.
17. At all times herein mentioned, the plaintiff Cheryl Kausner was the lawful
wife of Thomas Kausner and resided with him and depended upon him for his support,
services, society, companionship, consortium and economic support.
18. By reason ofthe negligence ofthe defendants as set forth above, plaintiff
Cheryl Kausner has lost and been deprived ofThomas Kausner' s services, society, support,
companionship, consortium and economic support and has suffered pecuniary loss all to
her damage in such an amount as shall be determined by the trier of fact herein and which
exceeds the jurisdictional limits of all lower courts.
WHEREFORE, plaintiffs demand judgment against the defendants, their agents,
servants and employees, on the above causes of action, for a sum as the trier of fact
determines which is in excess of the jurisdictional limits of all lower courts, together with
the costs and disbursements of this action.
Dated: Buffalo, New York
June 20, 2017
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Brian P. Fitzgerald, P.C.
Brian . Fitzgera d, E
Attorneys for Plaint" ·
509 Liberty Building
424 Main Street
Buffalo, New York 14202
Tel. (716) 852-2000
To: Brian J. Weidner, Esq.
The Tarantino Law Firm, LLP
Attorneys for Defendants
Buffalo Spine Surgery, PLLC
Andrew Cappuccino, M.D.
Eric Dean, RPA-C
1500 Rand Building
14 Lafayette Square
Buffalo, New York 14203
Tel. (716) 849-6500
bweidner@tarantinolaw .com
Joseph V. McCarthy, Esq.
Roach Brown McCarthy & Gruber PC
Attorneys for Defendants
Eastern Niagara Hospital, Inc.
Robert E. Lutnick, M.D.
1920 Liberty Building
424 Main Street
Buffalo, New York 14202
Tel. (7 16) 852-0400
jvmccarthy@roachbrown.com
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Michael J. Roach, Esq.
Connors, LLP
Attorneys for Defendants
Harnath B. Clerk, M.D., P.C.
Harnath B. Clerk, M.D.
I 000 Liberty Building
Buffalo, New York 14202
Tel. (716) 852-5533
mjr@connorsllp.com
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FILED: NIAGARA COUNTY CLERK 06/22/2017 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/22/2017 STATE OF NEW YORK SUPREME COURT : NIAGARA COUNTY THOMAS and CHERYL KAUSNER, Individually and as Husband and Wife Amended Complaint Plaintiffs v. Index No. E 159518/2016 BUFFALO SPINE SURGERY, PLLC, ANDREW CAPPUCCINO, M.D., ERIC DEAN, RPA-C, HARNATH B. CLERK, M.D., P.C., HARNATH B. CLERK, M.D., EASTERN NIAGARA HOSPITAL, INC., ROBERT E. LUTNICK, M.D., and EASTERN NIAGARA RADIOLOGY AND NUCLEAR MEDICINE ASSOCIATES, P.C. Defendants The plaintiffs, Thomas and Cheryl Kausner, Individually and as Husband and Wife, by their attorneys, Brian P. Fitzgerald, P.C., for their causes of action against the defendants, allege the following: 1. At all times hereinafter mentioned, the plaintiffs, Thomas and Cheryl Kausner, resided together as husband and wife as residents of the County of Allegany and State of New York. 1 of 8 FILED: NIAGARA COUNTY CLERK 06/22/2017 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/22/2017 2. Upon information and belief, at all times herein mentioned, the defendant, Buffalo Spine Surgery, PLLC, was a domestic professional service limited liability company organized and existing under and by virtue of the laws of the State ofNew York. 3. Upon information and belief, at all times herein mentioned, the defendant, Buffalo Spine Surgery, PLLC, was a medical office operating in the County ofNiagara and State of New York providing medical care and treatment to the general public and held itself out as duly licensed, qualified and capable of rendering adequate and proper medical care and treatment to the general public and for such purposes employed doctors, physician assistants, and other personnel including the defendants, Andrew Cappuccino, M.D., and Eric Dean. RPA-C. 4. Upon information and belief, at all times herein mentioned, the defendant, Andrew Cappuccino, M.D., was a physician duly licensed to practice medicine in the State ofNew York and was a principal, partner, officer, director, agent, servant and/or employee of the defendant, Buffalo Spine Surgery, PLLC, and at all times was acting within the scope of his authority on behalf of and for its benefit. 5. Upon information and belief, at all times herein mentioned, the defendant, Eric Dean, RPA-C, was a registered physician ass istant - certified, duly registered as a physician assistant in the State of N ew York and was an agent, servant and/or employee of the defendant, Buffalo Spine Surgery, PLLC, and at all times was acting within the scope 2 2 of 8 FILED: NIAGARA COUNTY CLERK 06/22/2017 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/22/2017 of his authority on behalf of and for its benefit. 6. Upon information and belief, at all times herein mentioned, the defendant, Harnath B. Clerk, M.D., P.C., was a domestic professional corporation organized and existing under and by virtue of the laws of the State ofNew York. 7. Upon information and belief, at all times herein mentioned, the defendant, Harnath B. Clerk, M.D., P.C., was a medical office operating in the County ofNiagara and State of New York providing medical care and treatment to the general public and held itself out as duly licensed, qualified and capable of rendering adequate and proper medical care and treatment to the general public and for such purposes employed doctors and other personnel, including the defendant, Harnath B. Clerk, M.D. 8. Upon information and belief, at all times herein mentioned, the defendant, Harnath B. Clerk, M.D., was a physician duly licensed to practice medicine in the State of New York and was a principal, partner, officer, director, agent, servant and/or employee of the defendant, Harnath B. Clerk, M.D., P.C., and at all times was acting within the scope of his authority on behalf of and for its benefit. 9. Upon information and belief, at all times herein mentioned, the defendant, Eastern Niagara Hospital, Inc., was a domestic not-for-profit corporation organized and existing under and by virtue of the laws of the State of New York. 3 3 of 8 FILED: NIAGARA COUNTY CLERK 06/22/2017 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/22/2017 10. Upon information and belief, at all times herein mentioned, the defendant, Eastern Niagara Hospital, Inc., was a hospital operating in the County of Niagara and State of New York providing medical care and treatment to the general public and held itself out as duly licensed, qualified and capable of rendering adequate and proper medical care and treatment to the general public and for such purposes employed doctors, physician assistants, and other personnel. 11. Upon information and belief, at all times herein mentioned, the defendant, Robert E. Lutnick, M.D., was a physician duly licensed to practice medicine in the State of New York and was a principal, partner, officer, director, agent, servant and/or employee and/or member of Eastern Niagara Radiology and Nuclear Medicine Associates, P.C. 11 (a). Upon information and belief, at all times herein mentioned, the defendant, Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., was a domestic professional service limited liability company organized and existing under and by virtue of the laws of the State of New York. 11 (b). Upon information and belief, at all times herein mentioned, the defendant, Eastern Niagara Radiology and Nuclear Medicine Associates, P .C., was a medical office operating in the County ofNiagara and State ofNew York providing medical care and treatment to the general public and held itself out as duly licensed, qualified and capable of rendering adequate and proper medical care and treatment to the general public and for 4 4 of 8 FILED: NIAGARA COUNTY CLERK 06/22/2017 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/22/2017 such purposes employed doctors, physician assistants, and other personnel including the defendant, Robert E. Lutnick, M.D. FIRST CAUSE OF ACTION 12. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1- 11 of this Complaint with the same force and effect as if fully set forth herein. 13. On or about September 1, 2015, and continuing through and including September 3, 20 15, plaintiff Thomas Kausner came under the care and treatment of the defendants, their agents, servants and employees, who rendered medical and surgical care, treatment and services to him. 14. The care, treatment and services rendered to plaintiffThomas Kausner by the defendants and their agents, servants and employees was rendered in a negligent manner constituting deviations from accepted standards of medical care and treatment. 15. By reason of this negligence and deviations from the accepted standards of medical care and treatment by defendants , their agents, servants and employees, plaintiff Thomas Kausner was caused to sustain personal injuries, pain and suffering, and monetary loss, all to hi s damages in such an amount as shall be determined by the trier of fact herein and which exceeds the jurisdictional limits of all lower courts. 5 5 of 8 FILED: NIAGARA COUNTY CLERK 06/22/2017 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/22/2017 SECOND CAUSE OF ACTION 16. Plaintiffs repeat and re-allege each and every allegation contained in paragraphs 1-15 ofthis Complaint with the same force and effect as if fully set forth herein. 17. At all times herein mentioned, the plaintiff Cheryl Kausner was the lawful wife of Thomas Kausner and resided with him and depended upon him for his support, services, society, companionship, consortium and economic support. 18. By reason ofthe negligence ofthe defendants as set forth above, plaintiff Cheryl Kausner has lost and been deprived ofThomas Kausner' s services, society, support, companionship, consortium and economic support and has suffered pecuniary loss all to her damage in such an amount as shall be determined by the trier of fact herein and which exceeds the jurisdictional limits of all lower courts. WHEREFORE, plaintiffs demand judgment against the defendants, their agents, servants and employees, on the above causes of action, for a sum as the trier of fact determines which is in excess of the jurisdictional limits of all lower courts, together with the costs and disbursements of this action. Dated: Buffalo, New York June 20, 2017 6 6 of 8 FILED: NIAGARA COUNTY CLERK 06/22/2017 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/22/2017 Brian P. Fitzgerald, P.C. Brian . Fitzgera d, E Attorneys for Plaint" · 509 Liberty Building 424 Main Street Buffalo, New York 14202 Tel. (716) 852-2000 To: Brian J. Weidner, Esq. The Tarantino Law Firm, LLP Attorneys for Defendants Buffalo Spine Surgery, PLLC Andrew Cappuccino, M.D. Eric Dean, RPA-C 1500 Rand Building 14 Lafayette Square Buffalo, New York 14203 Tel. (716) 849-6500 bweidner@tarantinolaw .com Joseph V. McCarthy, Esq. Roach Brown McCarthy & Gruber PC Attorneys for Defendants Eastern Niagara Hospital, Inc. Robert E. Lutnick, M.D. 1920 Liberty Building 424 Main Street Buffalo, New York 14202 Tel. (7 16) 852-0400 jvmccarthy@roachbrown.com 7 7 of 8 FILED: NIAGARA COUNTY CLERK 06/22/2017 01:44 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/22/2017 Michael J. Roach, Esq. Connors, LLP Attorneys for Defendants Harnath B. Clerk, M.D., P.C. Harnath B. Clerk, M.D. I 000 Liberty Building Buffalo, New York 14202 Tel. (716) 852-5533 mjr@connorsllp.com 8 8 of 8