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FILED: ERIE COUNTY CLERK 10/06/2023 01:40 PM INDEX NO. 810554/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/06/2023
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
THOMAS GROSS and SUZANNE GROSS,
Plaintiffs, ANSWER
vs. Index No. 810554/2023
BRIAN A. MATA, M.D.;
GREAT LAKES PHYSICIAN PRACTICE, P.C.; and
GREAT LAKES PHYSICIAN PRACTICE, P.C. d/b/a
LAKESHORE ORTHOPEDIC & SPORTS MEDICINE -
GLPP,
Defendants.
Defendants, BRIAN A. MATA, M.D., GREAT LAKES PHYSICIAN PRACTICE,
P.C., and GREAT LAKES PHYSICIAN PRACTICE, P.C. d/b/a LAKESHORE
ORTHOPEDIC & SPORTS MEDICINE-GLLP, by and through their attorneys, RICOTTA
MATTREY CALLOCCHIA MARKEL & CASSERT, for their answer to the complaint herein:
1. DENY KNOWLEDGE AND INFORMATION sufficient to form a belief as to
the allegations contained in paragraphs 1 and 2 of the complaint.
2. ADMIT the allegations contained in paragraphs 3, 4, 5, 6, 7, 8. 9, 10, 11, 12, and 13
of the complaint.
AS AND FOR A RESPONSE TO THE FIRST CAUSE
OF ACTION AGAINST DEFENDANTS
3. Answering paragraph 14 of the complaint, defendants REPEAT AND
REALLEGE each and every answer to the allegations contained in paragraphs 1 through 13 of the
complaint with the same force and effect as if fully set forth herein.
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FILED: ERIE COUNTY CLERK 10/06/2023 01:40 PM INDEX NO. 810554/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/06/2023
4. DENY KNOWLEDGE AND INFORMATION sufficient to form a belief as to
the allegations contained in paragraph 15 of the complaint.
5. Answering paragraphs 16, 17, 18, 19, 20, 21, 22, and 23 of the complaint, defendants
ADMIT care and treatment provided to plaintiff as reflected in the medical records, but otherwise
DENY the remaining allegations and inferences contained in said paragraphs.
6. DENY the allegations contained in paragraphs 24 and 25 of the complaint.
AS AND FOR A RESPONSE TO THE SECOND CAUSE
OF ACTION AGAINST DEFENDANTS
7. Answering paragraph 26 of the complaint, answering defendants REPEAT AND
REALLEGE each and every answer to the allegations contained in paragraphs 1 through 25 of the
complaint with the same force and effect as if fully set forth herein.
8. Answering paragraphs 27 and 28 of the complaint, no response is necessary as the
allegations assert improper statements of law, but insofar as a response may be deemed necessary,
the defendants DENY the allegations and inferences contained in said paragraphs.
9. DENY the allegations contained in paragraph 29 of the complaint.
AS AND FOR A RESPONSE TO THE THIRD CAUSE
OF ACTION AGAINST DEFENDANTS
10. Answering paragraph 30 of the complaint, defendants REPEAT AND
REALLEGE each and every answer to the allegations contained in paragraphs 1 through 29 of
the complaint with the same force and effect as if fully set forth herein.
11. DENY KNOWLEDGE AND INFORMATION sufficient to form a belief as to
the allegations contained in paragraph 31 of the complaint.
12. DENY the allegations contained in paragraph 32 of the complaint.
FURTHER ANSWERING THE COMPLAINT
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13. DENY the remaining allegations, or parts thereof, of the complaint not hereinbefore
specifically admitted or otherwise denied.
FOR A FIRST AFFIRMATIVE DEFENSE, DEFENDANTS
ALLEGE UPON INFORMATION AND BELIEF:
14. That said causes of action were not commenced within the time limit required by the
State of New York, and therefore are barred by the applicable statute of limitations.
FOR A SECOND AFFIRMATIVE DEFENSE, DEFENDANTS
ALLEGE UPON INFORMATION AND BELIEF:
15. In the event defendants are found liable to plaintiff by virtue of the matters alleged
in the complaint, and if any such liability is less than 51% of the total culpability of all persons
liable and/or if the proof demonstrates that the incident complained of was caused or contributed to
by the culpable conduct of a person or entity not a party to the action, then the answering defendants
will claim the benefit of the limited liability provisions of Article 16 of the Civil Practice Law and
Rules.
FOR A THIRD AFFIRMATIVE DEFENSE, DEFENDANTS
ALLEGE UPON INFORMATION AND BELIEF:
16. In the event plaintiff recovers damages in this action which have been paid or are
payable by a collateral source, defendants will seek a collateral source offset pursuant to CPLR §
4545.
FOR A FOURTH AFFIRMATIVE DEFENSE, DEFENDANTS
ALLEGE UPON INFORMATION AND BELIEF:
17. Upon trial, it may appear that some or all of the damages claimed by plaintiff were
brought about or contributed to by reason of plaintiff’s own acts, physical condition, disease or
illness, actions, negligence and/or assumption of risk; if so, plaintiff’s damages, if any, must be
diminished accordingly.
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FILED: ERIE COUNTY CLERK 10/06/2023 01:40 PM INDEX NO. 810554/2023
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/06/2023
WHEREFORE, defendants, BRIAN A. MATA, M.D., GREAT LAKES PHYSICIAN
PRACTICE, P.C., and GREAT LAKES PHYSICIAN PRACTICE, P.C. d/b/a LAKESHORE
ORTHOPEDIC & SPORTS MEDICINE-GLLP, demand (1) judgment dismissing plaintiffs’
complaint; (2) that plaintiffs’ damages, if any, be diminished in the proportion which the culpable
conduct and contributory negligence attributed to plaintiff bears to the culpable conduct and
negligence which caused such damages; (3) an allocation and apportionment of the relative
culpabilities of all parties, and damages, if any; and (4) together with the costs and disbursements
of this action.
DATED: October 6, 2023
Buffalo, New York
Kevin A. Ricotta, Esq.
Katherine V. Markel, Esq.
RICOTTA, MATTREY, CALLOCCHIA,
MARKEL & CASSERT
Attorneys for Defendants
496 Main Street
Buffalo, New York 14202
(716) 854-6424
Email: kvm@ricottalaw.com
TO: Laura C. Doolittle, Esq.
SCHWENDLER DOOLITTLE LAW GROUP, PLLC
Attorneys for Plaintiffs
1207 Delaware Avenue, Suite 222
Buffalo, New York 14209
(716) 320-1672
Email: ldoolittle@sdlglaw.com
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FILED: ERIE COUNTY CLERK 10/06/2023 01:40 PM INDEX NO. 810554/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/06/2023 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE THOMAS GROSS and SUZANNE GROSS, Plaintiffs, ANSWER vs. Index No. 810554/2023 BRIAN A. MATA, M.D.; GREAT LAKES PHYSICIAN PRACTICE, P.C.; and GREAT LAKES PHYSICIAN PRACTICE, P.C. d/b/a LAKESHORE ORTHOPEDIC & SPORTS MEDICINE - GLPP, Defendants. Defendants, BRIAN A. MATA, M.D., GREAT LAKES PHYSICIAN PRACTICE, P.C., and GREAT LAKES PHYSICIAN PRACTICE, P.C. d/b/a LAKESHORE ORTHOPEDIC & SPORTS MEDICINE-GLLP, by and through their attorneys, RICOTTA MATTREY CALLOCCHIA MARKEL & CASSERT, for their answer to the complaint herein: 1. DENY KNOWLEDGE AND INFORMATION sufficient to form a belief as to the allegations contained in paragraphs 1 and 2 of the complaint. 2. ADMIT the allegations contained in paragraphs 3, 4, 5, 6, 7, 8. 9, 10, 11, 12, and 13 of the complaint. AS AND FOR A RESPONSE TO THE FIRST CAUSE OF ACTION AGAINST DEFENDANTS 3. Answering paragraph 14 of the complaint, defendants REPEAT AND REALLEGE each and every answer to the allegations contained in paragraphs 1 through 13 of the complaint with the same force and effect as if fully set forth herein. 1 of 4 FILED: ERIE COUNTY CLERK 10/06/2023 01:40 PM INDEX NO. 810554/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/06/2023 4. DENY KNOWLEDGE AND INFORMATION sufficient to form a belief as to the allegations contained in paragraph 15 of the complaint. 5. Answering paragraphs 16, 17, 18, 19, 20, 21, 22, and 23 of the complaint, defendants ADMIT care and treatment provided to plaintiff as reflected in the medical records, but otherwise DENY the remaining allegations and inferences contained in said paragraphs. 6. DENY the allegations contained in paragraphs 24 and 25 of the complaint. AS AND FOR A RESPONSE TO THE SECOND CAUSE OF ACTION AGAINST DEFENDANTS 7. Answering paragraph 26 of the complaint, answering defendants REPEAT AND REALLEGE each and every answer to the allegations contained in paragraphs 1 through 25 of the complaint with the same force and effect as if fully set forth herein. 8. Answering paragraphs 27 and 28 of the complaint, no response is necessary as the allegations assert improper statements of law, but insofar as a response may be deemed necessary, the defendants DENY the allegations and inferences contained in said paragraphs. 9. DENY the allegations contained in paragraph 29 of the complaint. AS AND FOR A RESPONSE TO THE THIRD CAUSE OF ACTION AGAINST DEFENDANTS 10. Answering paragraph 30 of the complaint, defendants REPEAT AND REALLEGE each and every answer to the allegations contained in paragraphs 1 through 29 of the complaint with the same force and effect as if fully set forth herein. 11. DENY KNOWLEDGE AND INFORMATION sufficient to form a belief as to the allegations contained in paragraph 31 of the complaint. 12. DENY the allegations contained in paragraph 32 of the complaint. FURTHER ANSWERING THE COMPLAINT 2 2 of 4 FILED: ERIE COUNTY CLERK 10/06/2023 01:40 PM INDEX NO. 810554/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/06/2023 13. DENY the remaining allegations, or parts thereof, of the complaint not hereinbefore specifically admitted or otherwise denied. FOR A FIRST AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF: 14. That said causes of action were not commenced within the time limit required by the State of New York, and therefore are barred by the applicable statute of limitations. FOR A SECOND AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF: 15. In the event defendants are found liable to plaintiff by virtue of the matters alleged in the complaint, and if any such liability is less than 51% of the total culpability of all persons liable and/or if the proof demonstrates that the incident complained of was caused or contributed to by the culpable conduct of a person or entity not a party to the action, then the answering defendants will claim the benefit of the limited liability provisions of Article 16 of the Civil Practice Law and Rules. FOR A THIRD AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF: 16. In the event plaintiff recovers damages in this action which have been paid or are payable by a collateral source, defendants will seek a collateral source offset pursuant to CPLR § 4545. FOR A FOURTH AFFIRMATIVE DEFENSE, DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF: 17. Upon trial, it may appear that some or all of the damages claimed by plaintiff were brought about or contributed to by reason of plaintiff’s own acts, physical condition, disease or illness, actions, negligence and/or assumption of risk; if so, plaintiff’s damages, if any, must be diminished accordingly. 3 3 of 4 FILED: ERIE COUNTY CLERK 10/06/2023 01:40 PM INDEX NO. 810554/2023 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 10/06/2023 WHEREFORE, defendants, BRIAN A. MATA, M.D., GREAT LAKES PHYSICIAN PRACTICE, P.C., and GREAT LAKES PHYSICIAN PRACTICE, P.C. d/b/a LAKESHORE ORTHOPEDIC & SPORTS MEDICINE-GLLP, demand (1) judgment dismissing plaintiffs’ complaint; (2) that plaintiffs’ damages, if any, be diminished in the proportion which the culpable conduct and contributory negligence attributed to plaintiff bears to the culpable conduct and negligence which caused such damages; (3) an allocation and apportionment of the relative culpabilities of all parties, and damages, if any; and (4) together with the costs and disbursements of this action. DATED: October 6, 2023 Buffalo, New York Kevin A. Ricotta, Esq. Katherine V. Markel, Esq. RICOTTA, MATTREY, CALLOCCHIA, MARKEL & CASSERT Attorneys for Defendants 496 Main Street Buffalo, New York 14202 (716) 854-6424 Email: kvm@ricottalaw.com TO: Laura C. Doolittle, Esq. SCHWENDLER DOOLITTLE LAW GROUP, PLLC Attorneys for Plaintiffs 1207 Delaware Avenue, Suite 222 Buffalo, New York 14209 (716) 320-1672 Email: ldoolittle@sdlglaw.com 4 4 of 4