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FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022
NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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xxxxxxxxxxxxxxxx, Index No.: 800003/2022
Plaintiff, AFFIRMATION IN SUPPORT
- against -
DR. STEPHAN T. GREENBERG c/o
GREENBERG COSMETIC SURGERY AND
DERMATOLOGY, DR. ALAN MATARASSO,
LENOX HILL HOSPITAL, 119 SOUTH STREET
MANAGEMENT c/o LUCIA BARLETTA, PINO
MANICA, FRANCESCO MANICA AND
CHRISTINA MANICA and NEW YORK
COUNTY DISTRICT ATTORNEY,
Defendants.
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DOMINIQUE E. CHIN, ESQ., an attorney admitted to practice in the courts of New
York and authorized by law to practice in the State of New York, affirms the following to be true
under penalties of perjury:
1. I am an associate with the law firm of SHAUB, AHMUTY, CITRIN & SPRATT,
LLP, attorneys for Defendant, LENOX HILL HOSPITAL (hereinafter “Defendant”), and as
such, I am familiar with the facts and circumstances of this matter by virtue of my review of the
case file maintained by this office and regular handling of this matter.
2. This affirmation is submitted in support of the within motion seeking an Order:
a) Pursuant to CPLR §3211(a)(5), dismissing the Complaint and Amended
Complaint as a result of Plaintiff’s failure to timely commence this action
pursuant to CPLR §§ 214 (2) and (5), 214-a, and 215(3);
b) Pursuant to CPLR §3211(a)(7), dismissing Plaintiff’s Complaint and
Amended Complaint for failure to state a cause of action;
c) Pursuant to CPLR §3211(a)(5), dismissing Plaintiff’s Complaint and
Amended Complaint as Plaintiff’s claims are barred by the doctrine of res
judicata/collateral estoppel; and,
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d) For such other, further, and different relief as this Honorable Court may
deem just and proper.
3. No previous application for the relief requested herein has been made by this
Defendant.
PRELIMINARY STATEMENT
4. Pro se Plaintiff, xxxxxxxxxxxxxxxx (hereinafter “Plaintiff”), commenced this
action in May of 2022 arising from the respective Defendants’ involvement in an alleged
conspiracy related to a health care proxy. Plaintiff asserts that her claims against Defendant and
Co-Defendants, STEPHEN T. GREENBERG c/o GREENBERG COSMETIC SURGERY AND
DERMATOLOGY and DR. ALAN MATARASSO (hereinafter “Defendant Doctors”), involve
violations of the Health Insurance Portability and Accountability Act (“HIPAA”), medical
malpractice, and negligence. This Court has dismissed Plaintiff’s claims against Defendant
Doctors and the asserted allegations as to Defendant are alleged to have occurred in 2016 or
earlier. 1
5. As demonstrated below, Defendant is entitled to dismissal of Plaintiff’s Amended
Complaint, as Plaintiff commenced the instant action following the expiration of the applicable
statute of limitations, Plaintiff failed to state any cause of action, and her claims are barred by the
doctrine of res judicata/collateral estoppel.
6. In further support of the Defendant’s motion, the following exhibits are annexed
hereto:
Exhibit A – Summons and Complaint dated May 6, 2022
Exhibit B – Plaintiff’s Affidavit in Support dated May 9, 2022, Amended Complaint, and
Amended List of Plaintiffs and Defendants
1
The Court has similarly dismissed this action against 119 South Street Management c/o Lucia Barletta, Pino
Manica, Francesco Manica, Christina Mancia, and the New York County District Attorney. See Exhibit “D,” infra.
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Exhibit C – Defendant’s Verified Answer dated June 6, 2022
Exhibit D – The Decision and Order by the Honorable Kathy J. King, J.S.C. dated March 28,
2023
Exhibit E – Defendant’s Certified Billing Records
Exhibit F – Prior Orders Issued by the Southern District of New York
PROCEDURAL HISTORY
7. Plaintiff commenced this action via service of a Summons and Complaint on or
about May 6, 2022. (Annexed hereto as Exhibit “A”).
8. On or about May 9, 2022, Plaintiff filed an Affidavit in Support stating she
needed to correct misspellings of some of the defendants’ names in her Summons and
Complaint. In doing so, plaintiff also provided an Amended Complaint which, other than
changes to the caption, did not include any allegations and also included an Amended List of
Plaintiffs and Defendants (Collectively annexed hereto as Exhibit “B”).
9. On June 6, 2022, Defendant LENOX HILL HOSPITAL joined issued via service
of a Verified Answer (Annexed hereto as Exhibit “C”). 2
10. By a Decision and Order dated March 28, 2023, the Honorable Kathy J. King,
J.S.C. granted the separate motions to dismiss brought by Co-Defendants, STEPHEN T.
GREENBERG c/o GREENBERG COSMETIC SURGERY AND DERMATOLOGY, 119
SOUTH STREET MANAGEMENT c/o LUCIA BARLETTA, PINO MANICA, FRANCESCO
MANICA, and CHRISTINA MANICA, and DR. ALAN MATARASSO (Annexed hereto as
Exhibit “D”).
2
Note NYSCEF incorrectly lists “Lenox Hill Radiology” as a defendant rather than Lenox Hill Hospital. As
reflected in Defendant’s Verified Answer and the caption for this action, this office represents Lenox Hill Hospital.
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11. In granting the Co-Defendants’ respective motions to dismiss, this Court found
that Plaintiff’s Complaint failed to assert any factual allegations necessary to plead any cause of
action and failed to comply with the requirements of CPLR § 3014 (See Exhibit “D” at p.4)
(emphasis added). The Court also held that dismissal of Plaintiff’s claims as to Co-Defendant,
DR. ALAN MATARASSO, was also required because the statute of limitations of Plaintiff’s
claims against him expired prior to her commencement of the instant action. Id.
12. Pursuant to CPLR 3211(e), a motion pursuant to CPLR 3211(a)(7) may be made
at any subsequent time after service of the responsive pleading. As such, the instant motion is
timely.
PLAINTIFF’S FACTUAL ALLEGATIONS
13. As a result of the Decision and Order dated March 28, 2023, Plaintiff’s remaining
factual allegations as to the instant Defendant are effectively limited to allegations that occurred
in 2016 or earlier and relate to two alleged incidents where Plaintiff claims her care and
treatment were negatively affected by the involvement of individuals named in a now revoked
health care proxy. (See Exhibit “A” at ¶¶ 4-6). First, Plaintiff claims that, as a result of these
individuals, Defendant’s staff treated her like she initiated a crime while being treated for
injuries allegedly related to an attempt to kill her due to the presence of an individual associated
with the persons named in a now revoked health care proxy. Id. at ¶¶ 4-5. Second, in 2016,
Plaintiff claims that accusations made by the persons named in a now revoked health care proxy
resulted in Defendant’s staff allegedly stabbing her many times in her arms with intravenous
needles when she treated at the facility for an infection in 2016. Id. at ¶ 6.
ARGUMENT
I. PLAINTIFF’S COMPLAINT FAILS TO STATE ANY CAUSE OF ACTION
AGAINST THE MOVING DEFENDANT
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14. CPLR 3211(a)(7) provides that a defendant may move to dismiss a complaint on
the ground that “the pleading fails to state a cause of action.” When deciding a motion to dismiss
pursuant to CPLR 3211(a)(7), “the facts alleged in the complaint are accepted as true, the
plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is
to determine only whether the facts as alleged fit within any cognizable legal theory.” 4777 Food
Servs. Corp. v. Anthony P. Gallo, P.C., 150 A.D.3d 1054, 1055 (2d Dept. 2017), quoting Biro v.
Roth, 121 A.D.3d 733,735 (2d Dept. 2014). The complaint must be dismissed, however, “where,
even viewing the allegations as true, the plaintiff still cannot establish a cause of action.” See,
Parsippany Const. Co. v. Clark Patterson Associates, P.C., 41 A.D.3d 805, 806 (2d Dept. 2007).
Formalistic recitals of the elements of a cause of action are insufficient and “bare legal
conclusions and factual claims which are flatly contradicted by the evidence are not presumed to
be true on a motion to dismiss for failure to state a cause of action.” Id.; see also, Cruciata v.
O’Donnell & Mclaughlin, Esqs., 149 A.D.3d 1034 (2d Dept. 2017).
15. A complaint must also meet the requirements of CPLR 3014, which provides, in
pertinent part:
Every pleading shall consist of plain and concise statements in
consecutively numbered paragraphs. Each paragraph shall contain,
as far as practicable, a single allegation… Separate causes of
action or defenses shall be separately stated and numbered and
may be stated regardless of consistency.
16. A complaint must also meet the requirements of CPLR § 3013, which provides:
Statements in a pleading shall be sufficiently particular to give the
court and parties notice of the transactions, occurrences, or series
of transactions or occurrences, intended to be proved and the
material elements of each cause of action or defense.
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17. The First Department has long held that dismissal of a complaint is required
where plaintiff’s failure to comply with the requirements of CPLR §§ 3013 and/or 3014 results
in the plaintiff’s causes of action being unascertainable and/or provides the court and the parties
with insufficient notice of what claims are being asserted. See Panagoulopoulos v. Ortiz, 143
A.D.3d 791 (1st Dept. 2016); see also Sibersky v. New York City, 270 A.D.2d 209 (1st Dept.
2000); see also Travelers Ins. Co. v. Ferco, Inc., 122 A.D.2d 718 (1st Dept. 1986); see also
Barsella v. City of New York, 82 A.D.2d 747 (1st Dept. 1981); see also Joffe v. Rubenstein, 24
A.D.2d 752 (1st Dept. 1965).
18. In the instant matter, Pro Se Plaintiff’s Complaint and Amended Complaint
clearly fails to comply with the requirements of CPLR §§ 3013 and 3014. As a result, it is
unknown exactly what Plaintiff’s claims against the moving Defendant are. Plaintiff’s Complaint
and Amended Complaint fail to include plain and concise statements and separate causes of
action that in any way provides notice to this Court and the instant Defendant about what
transaction or occurrences are at issue, and instead provides a narrative that is rather vague and
disjointed. Additionally, Plaintiff’s Complaint and Amended Complaint fails to state the material
elements of each cause of action being asserted against Defendant. Instead, notice of the nature
of Plaintiff’s claims against the instant Defendant is included only in her Summons, and her
pleadings improperly compels this Court and this Defendant to effectively wade through
Plaintiff’s “mass of verbiage and superfluous mater” to discover exactly what allegations and
claims she is asserting against Defendant. Barsella, 82 A.D.2d at 747 (quoting Isaacs v.
Washougal Clothing Co., 233 A.D.568, 572 [4th Dept. 1931]); see also Scholastic Inc. v. Pace
Plumbing Corp., 129 A.D.3d 75, 79 (1st Dept. 2015).
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19. Notwithstanding Plaintiff’s failure to comply with CPLR §§ 3013 and 3014, a
review of Plaintiff’s Complaint further reveals that she fails to state any cause of action against
the instant Defendant.
20. Courts have “long held that a claim sounds in medical malpractice when the
gravamen of the complaint is negligence in furnishing medical treatment.” Scalisi v. New York
Univ. Med. Ctr., 24 AD3d 145, 146-47 (1st Dept. 2005). Therefore, a complaint “sounds in
medical malpractice rather than ordinary negligence where the challenged conduct constitutes
medical treatment or bears a substantial relationship to the rendition of medical treatment by a
licensed physician to a particular patient.” Davis v. S. Nassau Communities Hosp., 26 NY3d
563, 580 (2015).
21. Further, it is well-settled that in order to maintain an action to recover damages
arising from negligence, it must be established that the defendants owed a duty of care to the
plaintiff. In other words, a finding of negligence must be based on the breach of a duty. Thus,
the threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the
injured party. See Darby v. Compagnie Natl. Air France, 96 NY2d 343 (2001); Pulka v.
Edelman,40 NY2d 781 (1976). Generally, the existence and scope of a duty of care is a question
for the Court. See Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, (2001); Stiver v. Good &
Fair Carting, 32 A.D.3d 1209 (4th Dept. 2006). “The essential elements of medical malpractice
are (1) a deviation or departure from accepted medical practice, and (2) evidence that such
departure was a proximate cause of injury.” Ahmed v. Pannone, 116 A.D.3d 802, 805 (2d Dept.
2014).
22. In the instant matter, Plaintiff’s Complaint and Amended Complaint fail to plead
any of the elements of a medical malpractice cause of action against Defendant and are
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completely devoid of any language or allegations that would substantiate a negligence cause of
action. Thus, while Plaintiff’s Complaint and Amended Complaint briefly refers to treatment
rendered to her at Defendant’s facility, it is impossible to ascertain based on the rather
insufficient allegations whether the gravamen of same relates to negligence in furnishing medical
treatment that would warrant a medical malpractice cause of action. Moreover, Plaintiff’s
Complaint and Amended Complaint fail to assert any allegations that would indicate, inter alia,
that Defendant owed Plaintiff a duty of care, that a there was a departure by Defendant from
accepted medical practice, and/or that Plaintiff sustained injuries that were proximately caused
by any alleged departure of Defendant. Rather, Plaintiff’s Complaint and Amended are
comprised of baseless allegations rooted in conspiracies that appear to be primarily asserted
against the Co-Defendants.
23. Moreover, this Honorable Court has already determined that Plaintiff failed to
state any cause of action against the now dismissed defendants. Similarly, Plaintiff’s asserted
allegations fail to set forth any cognizable claim against the instant moving Defendant for which
relief can be granted (see Exhibit “D”).
24. Furthermore, there is no private cause of action for a HIPAA violation. See
Romanello v. Intesa Sanpaolo Spa, 97 A.D.3d 449 (1st Dept. 2012). Nevertheless, Plaintiff’s
Complaint and Amended Complaint are completely devoid of any allegations that Defendant
violated HIPAA.
25. Accordingly, it is respectfully submitted that the instant moving Defendant is
entitled to dismissal of Plaintiff’s Complaint and Amended Complaint as a result of Plaintiff’s
failure to state any cause of action against Defendant.
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II. DISMISSAL OF PLAINTIFF’S CLAIMS AGAINST DEFENDANT IS
`WARRANTED, AS SAME ARE TIME-BARRED BY THE APPLICABLE
STATUTE OF LIMITATIONS
26. The defendant moving for dismissal pursuant to CPLR 3211(a)(5) on the ground
that plaintiff’s claims are barred by the statute of limitations must make a prima facie showing
that the plaintiff’s time to sue has expired. See Horowitz v. Foster, 180 A.D.3d 783 (2d Dept.
2020). “If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question
of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether
the plaintiff actually commenced the action within the applicable limitations period.” Barry v.
Cadman Towers, Inc., 136 A.D.3d 951 (2d Dept. 2016).
27. An action for medical malpractice “must be commenced within two years and six
months of the act, mission or failure complained of or last treatment where there is continuous
treatment for the same illness, injury or condition which gave rise to the said act, omission or
failure. CPLR § 214-a; see also Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120 (1986).
28. An action for negligence must be brought within three years of the time of injury.
CPLR § 214(5); see also Barrell v. Glen Oaks Village Owners, Inc, 29 A.D.3d 612 (2d Dept.
2006). However, an action for an intentional tort must be brought within one year of the date that
the alleged intentional tort was committed. CPLR § 215(3); see also Wilkerson v. 134 Kitty’s
Corp., 49 A.D.3d 718 (2d Dept. 2008).
29. The statute of limitations for an action for liability imposed and or created by
statute, except a statute codifying common law is three years. CPLR 214(2); see also Aetna Life
and Cas. Co. v. Nelson, 67 N.Y.2d 169 (1986).
30. As noted above, Plaintiff’s Summons states the nature of her claims against
Defendant appear to lie in violations of HIPAA, medical malpractice, and negligence (See
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Exhibit “A”). Notably, Plaintiff’s Complaint and Amended Complaint is devoid of absolutely
any allegations against Defendant that occurred after 2016 (See Exhibit “B”). Notwithstanding
Plaintiff’s allegations, Defendant’s certified billing records reveal that Plaintiff last treated at
Lenox Hill Hospital on March 6, 2017 (Annexed hereto as Exhibit “E”).
31. Accordingly, assuming arguendo that Plaintiff properly pled Causes of Action to
substantiate her asserted claims in the Summons and Complaint, Plaintiff’s deadlines to timely
file suit have long expired pursuant to the applicable statutes of limitations. Specifically,
Plaintiff’s claims sounding in medical malpractice expired between 2018 and September 6, 2019.
Further, Plaintiff’s claims involving any intentional tort expired between 2017 to March 6, 2018.
Finally, Plaintiff’s claims of negligence and violations of HIPAA (to the extent such claim
exists) expired between 2019 and March 6, 2020. Therefore, all of Plaintiff’s claims are time-
barred by the applicable statutes of limitations.
32. For the reasons set forth above, Plaintiff’s Complaint and Amended Complaint
must be dismissed as the statute of limitations of any potential claim applicable to the moving
Defendant expired at least 2 years before Plaintiff filed her Complaint on or about May 6, 2022.
III. DISMISSAL OF PLAINTIFF’S COMPLAINT AND AMENDED COMPLAINT IS
APPROPRIATE, AS PLAINTIFF’S CLAIMS ARE ESTOPPED UNDER THE
DOCTRINE OF RES JUDICATA
33. It is well settled that the equitable doctrine of “collateral estoppel” and res
judicata precludes a party from relitigating in a subsequent action an issue raised in a prior action
and decided against that part or those in privity. Ryan v. New York Tel. Co., 62 N.Y.2d 494
(1984). The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive
issue was necessarily decided in the prior action against a party or one in privity. Buechel v.
Bain, 97 N.Y.2d 295 (2001).
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34. In the instant matter, Plaintiff’s claims arise from the same alleged conspiracy that
were at issue in her multiple lawsuits previously commenced in Federal Court. Specifically,
these prior actions alleged similar facts to the instant matter, including, but not limited, the
alleged conspiracy involving “fixers, the health care proxy, and a woman named Shelly Crespo.”
Plaintiff attempts to re-litigate these allegations that have been repeatedly dismissed by the
Southern District of New York. See xxxxxx v. NYPD, 11-CV-03225 (DAB) (S.D.N.Y., June 2,
2011); xxxxxx v. xxxxxx, 13-CV-1828 (LAP) (S.D.N.Y., Apr. 10, 2013); xxxxxx v. New York
County District Attorney, 13-CV-1670 (LAP) (S.D.N.Y., May 20, 2013); xxxxxx v.
Schiattarella Family, 15-CV-3685 (LAP) (S.D.N.Y., May 14, 2015); xxxxxx v. Best Buy, 15-
CV-2198 (LAP) (S.D.N.Y., June 29, 2015); xxxxxx v. Levy, 15-CV-3107 (LAP) (S.D.N.Y. Jul.
1, 2015); xxxxxx v. Crespo, 15-CV-3899 (LAP) (S.D.N.Y., Jul. 17, 2015); xxxxxx v. Real
Estate Board of New York, 21-CV-8397 (RA) (S.D.N.Y., May 6, 2022). (Annexed hereto as
Exhibit “F”).
35. As a result of her extensive frivolous attempts to litigate the alleged conspiracy,
the Southern District of New York issued a Bar Order Under 28 U.S.C. § 1651 on June 29, 2015,
barring Plaintiff from filing any future civil actions in the Southern District of New York without
first obtaining leave of the Court to do so. See xxxxxx v. Best Buy, 15-CV-2198 (LAP)
(S.D.N.Y., June 29, 2015). Id.
36. Plaintiff’s efforts to litigate the same exact frivolous allegations in Federal Court
culminated in the Southern District of New York issuance of an Order dated May 6, 2022,
denying her motion for reconsideration of dismissal. xxxxxx v. Real Estate Board of New York,
21-CV-8397 (RA) (S.D.N.Y., May 6, 2022). Id. Now, it appears that Plaintiff is attempting to
pursue the same frivolous claims in State Court. In this regard, it should be noted that Plaintiff’s
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Complaint is dated May 6, 2022, the same date as the aforementioned Order by the South
District of New York denying Plaintiff’s relief for reconsideration of dismissal. Id.
37. Plaintiff’s extensive litigation history in the Southern District of New York reveal
that not only are most of Plaintiff’s asserted allegations in this action previously determined by
the Southern District of New York to be frivolous, but her repeated attempts to commence
lawsuits with no legal or factual basis resulted in her being barred from pursuing any civil
litigation in the Southern District of New York without first obtaining leave of the Court to do
so. As such, it is respectfully submitted that the principle of res judicata applies, and that this
case must be dismissed for being baseless and frivolous.
WHEREFORE, Defendant, LENOX HILL HOSPITAL respectfully requests that the
motion to dismiss pro se Plaintiff’s Complaint and Amended Complaint in its entirety and that
the Court issue an Order: a) Pursuant to CPLR §3211(a)(5), dismissing the Complaint and
Amended Complaint as a result of Plaintiff’s failure to timely commence this action pursuant to
CPLR §§ 214 (2) and (5), 214-a, and 215(3); b) Pursuant to CPLR §3211(a)(7), dismissing
Plaintiff's Complaint and Amended Complaint for failure to state a cause of action; c) Pursuant
to CPLR §3211(a)(5), dismissing Plaintiff’s Complaint and Amended Complaint as Plaintiff’s
claims are barred by the doctrine of res judicata/collateral estoppel; and, d) For such other,
further, and different relief as this Honorable Court may deem just and proper.
Dated: Lake Success, New York
May 3, 2023
SHAUB, AHMUTY, CITRIN & SPRATT, LLP
By: ___________________________
DOMINIQUE E. CHIN
Attorneys for Defendant
LENOX HILL HOSPITAL
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1983 Marcus Avenue
Lake Success, New York 11042-1056
(516) 488-3300
Our File No.: 913-00107
WORD COUNT CERTIFICATION STATEMENT
I hereby certify pursuant to the Uniform Civil Rules for the Supreme Court and County
Court § 202.8-b(c) that the foregoing Attorney Affirmation complies with the word count limit.
Type. A proportionally spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point size: 12
Line spacing: Double
Word Count. The total number of words in the Attorney Affirmation inclusive of point headings
and footnotes and exclusive of the caption, signature block, and this Statement is 3,326.
Dated: Lake Success, NY
May 3, 2023
SHAUB, AHMUTY, CITRIN & SPRATT, LLP
By: ___________________________
DOMINIQUE E. CHIN
Attorneys for Defendant
LENOX HILL HOSPITAL
1983 Marcus Avenue
Lake Success, New York 11042-1056
(516) 488-3300
Our File No.: 913-00107
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Preview
FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------x xxxxxxxxxxxxxxxx, Index No.: 800003/2022 Plaintiff, AFFIRMATION IN SUPPORT - against - DR. STEPHAN T. GREENBERG c/o GREENBERG COSMETIC SURGERY AND DERMATOLOGY, DR. ALAN MATARASSO, LENOX HILL HOSPITAL, 119 SOUTH STREET MANAGEMENT c/o LUCIA BARLETTA, PINO MANICA, FRANCESCO MANICA AND CHRISTINA MANICA and NEW YORK COUNTY DISTRICT ATTORNEY, Defendants. ---------------------------------------------------------x DOMINIQUE E. CHIN, ESQ., an attorney admitted to practice in the courts of New York and authorized by law to practice in the State of New York, affirms the following to be true under penalties of perjury: 1. I am an associate with the law firm of SHAUB, AHMUTY, CITRIN & SPRATT, LLP, attorneys for Defendant, LENOX HILL HOSPITAL (hereinafter “Defendant”), and as such, I am familiar with the facts and circumstances of this matter by virtue of my review of the case file maintained by this office and regular handling of this matter. 2. This affirmation is submitted in support of the within motion seeking an Order: a) Pursuant to CPLR §3211(a)(5), dismissing the Complaint and Amended Complaint as a result of Plaintiff’s failure to timely commence this action pursuant to CPLR §§ 214 (2) and (5), 214-a, and 215(3); b) Pursuant to CPLR §3211(a)(7), dismissing Plaintiff’s Complaint and Amended Complaint for failure to state a cause of action; c) Pursuant to CPLR §3211(a)(5), dismissing Plaintiff’s Complaint and Amended Complaint as Plaintiff’s claims are barred by the doctrine of res judicata/collateral estoppel; and, 1 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 d) For such other, further, and different relief as this Honorable Court may deem just and proper. 3. No previous application for the relief requested herein has been made by this Defendant. PRELIMINARY STATEMENT 4. Pro se Plaintiff, xxxxxxxxxxxxxxxx (hereinafter “Plaintiff”), commenced this action in May of 2022 arising from the respective Defendants’ involvement in an alleged conspiracy related to a health care proxy. Plaintiff asserts that her claims against Defendant and Co-Defendants, STEPHEN T. GREENBERG c/o GREENBERG COSMETIC SURGERY AND DERMATOLOGY and DR. ALAN MATARASSO (hereinafter “Defendant Doctors”), involve violations of the Health Insurance Portability and Accountability Act (“HIPAA”), medical malpractice, and negligence. This Court has dismissed Plaintiff’s claims against Defendant Doctors and the asserted allegations as to Defendant are alleged to have occurred in 2016 or earlier. 1 5. As demonstrated below, Defendant is entitled to dismissal of Plaintiff’s Amended Complaint, as Plaintiff commenced the instant action following the expiration of the applicable statute of limitations, Plaintiff failed to state any cause of action, and her claims are barred by the doctrine of res judicata/collateral estoppel. 6. In further support of the Defendant’s motion, the following exhibits are annexed hereto: Exhibit A – Summons and Complaint dated May 6, 2022 Exhibit B – Plaintiff’s Affidavit in Support dated May 9, 2022, Amended Complaint, and Amended List of Plaintiffs and Defendants 1 The Court has similarly dismissed this action against 119 South Street Management c/o Lucia Barletta, Pino Manica, Francesco Manica, Christina Mancia, and the New York County District Attorney. See Exhibit “D,” infra. 2 4888-2776-0975, v. 1 2 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 Exhibit C – Defendant’s Verified Answer dated June 6, 2022 Exhibit D – The Decision and Order by the Honorable Kathy J. King, J.S.C. dated March 28, 2023 Exhibit E – Defendant’s Certified Billing Records Exhibit F – Prior Orders Issued by the Southern District of New York PROCEDURAL HISTORY 7. Plaintiff commenced this action via service of a Summons and Complaint on or about May 6, 2022. (Annexed hereto as Exhibit “A”). 8. On or about May 9, 2022, Plaintiff filed an Affidavit in Support stating she needed to correct misspellings of some of the defendants’ names in her Summons and Complaint. In doing so, plaintiff also provided an Amended Complaint which, other than changes to the caption, did not include any allegations and also included an Amended List of Plaintiffs and Defendants (Collectively annexed hereto as Exhibit “B”). 9. On June 6, 2022, Defendant LENOX HILL HOSPITAL joined issued via service of a Verified Answer (Annexed hereto as Exhibit “C”). 2 10. By a Decision and Order dated March 28, 2023, the Honorable Kathy J. King, J.S.C. granted the separate motions to dismiss brought by Co-Defendants, STEPHEN T. GREENBERG c/o GREENBERG COSMETIC SURGERY AND DERMATOLOGY, 119 SOUTH STREET MANAGEMENT c/o LUCIA BARLETTA, PINO MANICA, FRANCESCO MANICA, and CHRISTINA MANICA, and DR. ALAN MATARASSO (Annexed hereto as Exhibit “D”). 2 Note NYSCEF incorrectly lists “Lenox Hill Radiology” as a defendant rather than Lenox Hill Hospital. As reflected in Defendant’s Verified Answer and the caption for this action, this office represents Lenox Hill Hospital. 3 4888-2776-0975, v. 1 3 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 11. In granting the Co-Defendants’ respective motions to dismiss, this Court found that Plaintiff’s Complaint failed to assert any factual allegations necessary to plead any cause of action and failed to comply with the requirements of CPLR § 3014 (See Exhibit “D” at p.4) (emphasis added). The Court also held that dismissal of Plaintiff’s claims as to Co-Defendant, DR. ALAN MATARASSO, was also required because the statute of limitations of Plaintiff’s claims against him expired prior to her commencement of the instant action. Id. 12. Pursuant to CPLR 3211(e), a motion pursuant to CPLR 3211(a)(7) may be made at any subsequent time after service of the responsive pleading. As such, the instant motion is timely. PLAINTIFF’S FACTUAL ALLEGATIONS 13. As a result of the Decision and Order dated March 28, 2023, Plaintiff’s remaining factual allegations as to the instant Defendant are effectively limited to allegations that occurred in 2016 or earlier and relate to two alleged incidents where Plaintiff claims her care and treatment were negatively affected by the involvement of individuals named in a now revoked health care proxy. (See Exhibit “A” at ¶¶ 4-6). First, Plaintiff claims that, as a result of these individuals, Defendant’s staff treated her like she initiated a crime while being treated for injuries allegedly related to an attempt to kill her due to the presence of an individual associated with the persons named in a now revoked health care proxy. Id. at ¶¶ 4-5. Second, in 2016, Plaintiff claims that accusations made by the persons named in a now revoked health care proxy resulted in Defendant’s staff allegedly stabbing her many times in her arms with intravenous needles when she treated at the facility for an infection in 2016. Id. at ¶ 6. ARGUMENT I. PLAINTIFF’S COMPLAINT FAILS TO STATE ANY CAUSE OF ACTION AGAINST THE MOVING DEFENDANT 4 4888-2776-0975, v. 1 4 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 14. CPLR 3211(a)(7) provides that a defendant may move to dismiss a complaint on the ground that “the pleading fails to state a cause of action.” When deciding a motion to dismiss pursuant to CPLR 3211(a)(7), “the facts alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory.” 4777 Food Servs. Corp. v. Anthony P. Gallo, P.C., 150 A.D.3d 1054, 1055 (2d Dept. 2017), quoting Biro v. Roth, 121 A.D.3d 733,735 (2d Dept. 2014). The complaint must be dismissed, however, “where, even viewing the allegations as true, the plaintiff still cannot establish a cause of action.” See, Parsippany Const. Co. v. Clark Patterson Associates, P.C., 41 A.D.3d 805, 806 (2d Dept. 2007). Formalistic recitals of the elements of a cause of action are insufficient and “bare legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on a motion to dismiss for failure to state a cause of action.” Id.; see also, Cruciata v. O’Donnell & Mclaughlin, Esqs., 149 A.D.3d 1034 (2d Dept. 2017). 15. A complaint must also meet the requirements of CPLR 3014, which provides, in pertinent part: Every pleading shall consist of plain and concise statements in consecutively numbered paragraphs. Each paragraph shall contain, as far as practicable, a single allegation… Separate causes of action or defenses shall be separately stated and numbered and may be stated regardless of consistency. 16. A complaint must also meet the requirements of CPLR § 3013, which provides: Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. 5 4888-2776-0975, v. 1 5 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 17. The First Department has long held that dismissal of a complaint is required where plaintiff’s failure to comply with the requirements of CPLR §§ 3013 and/or 3014 results in the plaintiff’s causes of action being unascertainable and/or provides the court and the parties with insufficient notice of what claims are being asserted. See Panagoulopoulos v. Ortiz, 143 A.D.3d 791 (1st Dept. 2016); see also Sibersky v. New York City, 270 A.D.2d 209 (1st Dept. 2000); see also Travelers Ins. Co. v. Ferco, Inc., 122 A.D.2d 718 (1st Dept. 1986); see also Barsella v. City of New York, 82 A.D.2d 747 (1st Dept. 1981); see also Joffe v. Rubenstein, 24 A.D.2d 752 (1st Dept. 1965). 18. In the instant matter, Pro Se Plaintiff’s Complaint and Amended Complaint clearly fails to comply with the requirements of CPLR §§ 3013 and 3014. As a result, it is unknown exactly what Plaintiff’s claims against the moving Defendant are. Plaintiff’s Complaint and Amended Complaint fail to include plain and concise statements and separate causes of action that in any way provides notice to this Court and the instant Defendant about what transaction or occurrences are at issue, and instead provides a narrative that is rather vague and disjointed. Additionally, Plaintiff’s Complaint and Amended Complaint fails to state the material elements of each cause of action being asserted against Defendant. Instead, notice of the nature of Plaintiff’s claims against the instant Defendant is included only in her Summons, and her pleadings improperly compels this Court and this Defendant to effectively wade through Plaintiff’s “mass of verbiage and superfluous mater” to discover exactly what allegations and claims she is asserting against Defendant. Barsella, 82 A.D.2d at 747 (quoting Isaacs v. Washougal Clothing Co., 233 A.D.568, 572 [4th Dept. 1931]); see also Scholastic Inc. v. Pace Plumbing Corp., 129 A.D.3d 75, 79 (1st Dept. 2015). 6 4888-2776-0975, v. 1 6 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 19. Notwithstanding Plaintiff’s failure to comply with CPLR §§ 3013 and 3014, a review of Plaintiff’s Complaint further reveals that she fails to state any cause of action against the instant Defendant. 20. Courts have “long held that a claim sounds in medical malpractice when the gravamen of the complaint is negligence in furnishing medical treatment.” Scalisi v. New York Univ. Med. Ctr., 24 AD3d 145, 146-47 (1st Dept. 2005). Therefore, a complaint “sounds in medical malpractice rather than ordinary negligence where the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient.” Davis v. S. Nassau Communities Hosp., 26 NY3d 563, 580 (2015). 21. Further, it is well-settled that in order to maintain an action to recover damages arising from negligence, it must be established that the defendants owed a duty of care to the plaintiff. In other words, a finding of negligence must be based on the breach of a duty. Thus, the threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party. See Darby v. Compagnie Natl. Air France, 96 NY2d 343 (2001); Pulka v. Edelman,40 NY2d 781 (1976). Generally, the existence and scope of a duty of care is a question for the Court. See Hamilton v. Beretta U.S.A. Corp., 96 NY2d 222, (2001); Stiver v. Good & Fair Carting, 32 A.D.3d 1209 (4th Dept. 2006). “The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury.” Ahmed v. Pannone, 116 A.D.3d 802, 805 (2d Dept. 2014). 22. In the instant matter, Plaintiff’s Complaint and Amended Complaint fail to plead any of the elements of a medical malpractice cause of action against Defendant and are 7 4888-2776-0975, v. 1 7 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 completely devoid of any language or allegations that would substantiate a negligence cause of action. Thus, while Plaintiff’s Complaint and Amended Complaint briefly refers to treatment rendered to her at Defendant’s facility, it is impossible to ascertain based on the rather insufficient allegations whether the gravamen of same relates to negligence in furnishing medical treatment that would warrant a medical malpractice cause of action. Moreover, Plaintiff’s Complaint and Amended Complaint fail to assert any allegations that would indicate, inter alia, that Defendant owed Plaintiff a duty of care, that a there was a departure by Defendant from accepted medical practice, and/or that Plaintiff sustained injuries that were proximately caused by any alleged departure of Defendant. Rather, Plaintiff’s Complaint and Amended are comprised of baseless allegations rooted in conspiracies that appear to be primarily asserted against the Co-Defendants. 23. Moreover, this Honorable Court has already determined that Plaintiff failed to state any cause of action against the now dismissed defendants. Similarly, Plaintiff’s asserted allegations fail to set forth any cognizable claim against the instant moving Defendant for which relief can be granted (see Exhibit “D”). 24. Furthermore, there is no private cause of action for a HIPAA violation. See Romanello v. Intesa Sanpaolo Spa, 97 A.D.3d 449 (1st Dept. 2012). Nevertheless, Plaintiff’s Complaint and Amended Complaint are completely devoid of any allegations that Defendant violated HIPAA. 25. Accordingly, it is respectfully submitted that the instant moving Defendant is entitled to dismissal of Plaintiff’s Complaint and Amended Complaint as a result of Plaintiff’s failure to state any cause of action against Defendant. 8 4888-2776-0975, v. 1 8 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 II. DISMISSAL OF PLAINTIFF’S CLAIMS AGAINST DEFENDANT IS `WARRANTED, AS SAME ARE TIME-BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS 26. The defendant moving for dismissal pursuant to CPLR 3211(a)(5) on the ground that plaintiff’s claims are barred by the statute of limitations must make a prima facie showing that the plaintiff’s time to sue has expired. See Horowitz v. Foster, 180 A.D.3d 783 (2d Dept. 2020). “If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period.” Barry v. Cadman Towers, Inc., 136 A.D.3d 951 (2d Dept. 2016). 27. An action for medical malpractice “must be commenced within two years and six months of the act, mission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure. CPLR § 214-a; see also Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120 (1986). 28. An action for negligence must be brought within three years of the time of injury. CPLR § 214(5); see also Barrell v. Glen Oaks Village Owners, Inc, 29 A.D.3d 612 (2d Dept. 2006). However, an action for an intentional tort must be brought within one year of the date that the alleged intentional tort was committed. CPLR § 215(3); see also Wilkerson v. 134 Kitty’s Corp., 49 A.D.3d 718 (2d Dept. 2008). 29. The statute of limitations for an action for liability imposed and or created by statute, except a statute codifying common law is three years. CPLR 214(2); see also Aetna Life and Cas. Co. v. Nelson, 67 N.Y.2d 169 (1986). 30. As noted above, Plaintiff’s Summons states the nature of her claims against Defendant appear to lie in violations of HIPAA, medical malpractice, and negligence (See 9 4888-2776-0975, v. 1 9 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 Exhibit “A”). Notably, Plaintiff’s Complaint and Amended Complaint is devoid of absolutely any allegations against Defendant that occurred after 2016 (See Exhibit “B”). Notwithstanding Plaintiff’s allegations, Defendant’s certified billing records reveal that Plaintiff last treated at Lenox Hill Hospital on March 6, 2017 (Annexed hereto as Exhibit “E”). 31. Accordingly, assuming arguendo that Plaintiff properly pled Causes of Action to substantiate her asserted claims in the Summons and Complaint, Plaintiff’s deadlines to timely file suit have long expired pursuant to the applicable statutes of limitations. Specifically, Plaintiff’s claims sounding in medical malpractice expired between 2018 and September 6, 2019. Further, Plaintiff’s claims involving any intentional tort expired between 2017 to March 6, 2018. Finally, Plaintiff’s claims of negligence and violations of HIPAA (to the extent such claim exists) expired between 2019 and March 6, 2020. Therefore, all of Plaintiff’s claims are time- barred by the applicable statutes of limitations. 32. For the reasons set forth above, Plaintiff’s Complaint and Amended Complaint must be dismissed as the statute of limitations of any potential claim applicable to the moving Defendant expired at least 2 years before Plaintiff filed her Complaint on or about May 6, 2022. III. DISMISSAL OF PLAINTIFF’S COMPLAINT AND AMENDED COMPLAINT IS APPROPRIATE, AS PLAINTIFF’S CLAIMS ARE ESTOPPED UNDER THE DOCTRINE OF RES JUDICATA 33. It is well settled that the equitable doctrine of “collateral estoppel” and res judicata precludes a party from relitigating in a subsequent action an issue raised in a prior action and decided against that part or those in privity. Ryan v. New York Tel. Co., 62 N.Y.2d 494 (1984). The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party or one in privity. Buechel v. Bain, 97 N.Y.2d 295 (2001). 10 4888-2776-0975, v. 1 10 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 34. In the instant matter, Plaintiff’s claims arise from the same alleged conspiracy that were at issue in her multiple lawsuits previously commenced in Federal Court. Specifically, these prior actions alleged similar facts to the instant matter, including, but not limited, the alleged conspiracy involving “fixers, the health care proxy, and a woman named Shelly Crespo.” Plaintiff attempts to re-litigate these allegations that have been repeatedly dismissed by the Southern District of New York. See xxxxxx v. NYPD, 11-CV-03225 (DAB) (S.D.N.Y., June 2, 2011); xxxxxx v. xxxxxx, 13-CV-1828 (LAP) (S.D.N.Y., Apr. 10, 2013); xxxxxx v. New York County District Attorney, 13-CV-1670 (LAP) (S.D.N.Y., May 20, 2013); xxxxxx v. Schiattarella Family, 15-CV-3685 (LAP) (S.D.N.Y., May 14, 2015); xxxxxx v. Best Buy, 15- CV-2198 (LAP) (S.D.N.Y., June 29, 2015); xxxxxx v. Levy, 15-CV-3107 (LAP) (S.D.N.Y. Jul. 1, 2015); xxxxxx v. Crespo, 15-CV-3899 (LAP) (S.D.N.Y., Jul. 17, 2015); xxxxxx v. Real Estate Board of New York, 21-CV-8397 (RA) (S.D.N.Y., May 6, 2022). (Annexed hereto as Exhibit “F”). 35. As a result of her extensive frivolous attempts to litigate the alleged conspiracy, the Southern District of New York issued a Bar Order Under 28 U.S.C. § 1651 on June 29, 2015, barring Plaintiff from filing any future civil actions in the Southern District of New York without first obtaining leave of the Court to do so. See xxxxxx v. Best Buy, 15-CV-2198 (LAP) (S.D.N.Y., June 29, 2015). Id. 36. Plaintiff’s efforts to litigate the same exact frivolous allegations in Federal Court culminated in the Southern District of New York issuance of an Order dated May 6, 2022, denying her motion for reconsideration of dismissal. xxxxxx v. Real Estate Board of New York, 21-CV-8397 (RA) (S.D.N.Y., May 6, 2022). Id. Now, it appears that Plaintiff is attempting to pursue the same frivolous claims in State Court. In this regard, it should be noted that Plaintiff’s 11 4888-2776-0975, v. 1 11 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 Complaint is dated May 6, 2022, the same date as the aforementioned Order by the South District of New York denying Plaintiff’s relief for reconsideration of dismissal. Id. 37. Plaintiff’s extensive litigation history in the Southern District of New York reveal that not only are most of Plaintiff’s asserted allegations in this action previously determined by the Southern District of New York to be frivolous, but her repeated attempts to commence lawsuits with no legal or factual basis resulted in her being barred from pursuing any civil litigation in the Southern District of New York without first obtaining leave of the Court to do so. As such, it is respectfully submitted that the principle of res judicata applies, and that this case must be dismissed for being baseless and frivolous. WHEREFORE, Defendant, LENOX HILL HOSPITAL respectfully requests that the motion to dismiss pro se Plaintiff’s Complaint and Amended Complaint in its entirety and that the Court issue an Order: a) Pursuant to CPLR §3211(a)(5), dismissing the Complaint and Amended Complaint as a result of Plaintiff’s failure to timely commence this action pursuant to CPLR §§ 214 (2) and (5), 214-a, and 215(3); b) Pursuant to CPLR §3211(a)(7), dismissing Plaintiff's Complaint and Amended Complaint for failure to state a cause of action; c) Pursuant to CPLR §3211(a)(5), dismissing Plaintiff’s Complaint and Amended Complaint as Plaintiff’s claims are barred by the doctrine of res judicata/collateral estoppel; and, d) For such other, further, and different relief as this Honorable Court may deem just and proper. Dated: Lake Success, New York May 3, 2023 SHAUB, AHMUTY, CITRIN & SPRATT, LLP By: ___________________________ DOMINIQUE E. CHIN Attorneys for Defendant LENOX HILL HOSPITAL 12 4888-2776-0975, v. 1 12 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 1983 Marcus Avenue Lake Success, New York 11042-1056 (516) 488-3300 Our File No.: 913-00107 WORD COUNT CERTIFICATION STATEMENT I hereby certify pursuant to the Uniform Civil Rules for the Supreme Court and County Court § 202.8-b(c) that the foregoing Attorney Affirmation complies with the word count limit. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 12 Line spacing: Double Word Count. The total number of words in the Attorney Affirmation inclusive of point headings and footnotes and exclusive of the caption, signature block, and this Statement is 3,326. Dated: Lake Success, NY May 3, 2023 SHAUB, AHMUTY, CITRIN & SPRATT, LLP By: ___________________________ DOMINIQUE E. CHIN Attorneys for Defendant LENOX HILL HOSPITAL 1983 Marcus Avenue Lake Success, New York 11042-1056 (516) 488-3300 Our File No.: 913-00107 13 4888-2776-0975, v. 1 13 of 14 FILED: NEW YORK COUNTY CLERK 05/03/2023 12:02 PM INDEX NO. 800003/2022 NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 05/03/2023 14 4888-2776-0975, v. 1 14 of 14