Preview
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019
EXHIBIT A
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
________, ___ -............
X
Date Purchased:
CHRISTOPHER BAXTER,
Plaintiff
Index No.:
- against -
SUMMONS
MARK KUBALSKl, M.D,, ERNEST ENZlEN JR, M.D.,
M.D., THE VASCULAR GROUP, PLLC, COLUMBIA
MEMORIAL HEALTH COXSACKIE MEDICAL CARE,
and HEALTH QUEST SYSTEMS, INC. d/b/a VASSAR
BROTHERS MEDICAL CENTER
Defendants.
____..------------
-¬-----------··------------X
Plaintiffs designate RICHMOND County as the place of trial. The basis of venue
Plaintiffs'
is residence located at 104 Moffett Street. Staten Island, NY 10312.
To the above named Defendants:
You are hereby summoned to answer the complaint in this action, and to serve
a copy of your answer d/bla , or, if the complaint is not served with this summons, to
Plaintiffs'
serve a notice of appearance on the attomeys within twenty days after the
service of this summons, exclusive of the day of service, where service is made by
delivery upon you personally within the state, or, within 30 days after completion of
service where service is made in any other manner. In case of your failure to appear or
answer, judgment will be taken against you by default for the relief demanded in the
complaint.
Dated: New York, New York
December 28, 2017
MUNAWAR & ANDREWS-SANTILLO, LLP .
Attomeys for Plaintiffs
420 Lexington Avenue, Ste. 2601
New York, NY 10170
212-400-4000
Abt(AN MUbÍAWÃh, ESQ.
1 of 15
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017
TO:
MARK KUBALSKl, M.D
C/O THE VASCULAR GROUP
391 Myrtle Avenue Suite 5
Albany, NY 12208
OR
21 Reade Place, Suite 2200
Poughkeepsie, NY 12601
THE VASCULAR GROUP, PLLC
John P. Sano
391 Myrtle Avenue, Suite 5
Albany, New York 12208
(Domestic Professional Service Limited Liability Company)
ERNEST ENZIEN JR, M.D.
CIO Latham Medical Group
713 Troy-Schenectady Road, Suite 224
Latham, NY 12110
COLUMBIA MEMORIAL HEALTH COXSACKlE MEDICAL CARE
C/O THE COLUMBIA MEMORIAL HOSPITAL
71 Prospect Avenue
Hudson, New York, 12534
HEALTH QUEST SYSTEMS, INC. d/b/a VASSAR BROTHERS MEDICAL CENTER
HEALTH QUEST SYSTEMS, INC.
ATTN: President and CEO
45 Reade Place
Poughkeepsie, New York 12601
2 of 15
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
_____..---------------------------X
Date Purchased:
CHRISTOPHER BAXTER,
Plaintiff,
Index No.:
- against -
VERIFIED COMPLAINT
MARK KUBALSKl, M.D., ERNEST ENZlEN JR, M.D.,
M.D., THE VASCULAR GROUP, PLLC, COLUMBIA
MEMORIAL HEALTH COXSACKIE MEDICAL CARE,
and HEALTH QUEST SYSTEMS, INC. d/b/a VASSAR
BROTHERS MEDICAL CENTER
Defendants.
_________ ---------------------------
X
Plaintiff CHRISTOPHER BAXTER by his attorneys MUNAWAR & ANDREWS-
SANTILLO, LLP complaining of Defendants, respectfully allege, upon information and
belief, as follows:
AS AND FOR A FIRST CAUSE OF ACTION
1. At all times mentioned herein, defendant HEALTH QUEST
SYSTEMS, INC. d/b/a VASSAR BROTHERS MEDICAL CENTER (hereinafter
QUEST"
"HEALTH ) was and still is a domestic not-for profit corporation duly organized
and existing under and by virtue of the laws of the State of New York.
2, At all times pertinent herein, defendant HEALTH QUEST held itself
out to be a provider offering professional health care services to the public in general
and to plaintiff CHRISTOPHER BAXTER (hereinafter "Plaintiff") in particular.
3. At all times pertinent herein, defendant HEALTH QUEST
represented that it was competent to perform and render all the medical and surgical
care, treatment, services, and advice required by Plaintiff.
3 of 15
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017
4. At all times pertinent herein, defendant HEALTH QUEST was, and
still is, the owner of a health-care facility known as VASSAR BROTHERS MEDICAL
CENTER located at 45 Reade Place. Poughkeepsie, New York 12601.
5. At all times pertinent herein, defendant HEALTH QUEST, owned,
operated, controlled, and managed a health care facility pursuant to the laws of the
State of New York for the care of the sick, known as VASSAR BROTHERS MEDICAL
CENTER, which provided personnel, including doctors, nurses, attendants, and others
for the care and treatment of its patients, and which held itself out to the public as
furnishing treatment facilities where patients, including Plaintiff, could be treated for
various ailments.
6. At all times mentioned herein, defendant THE VASCULAR
(hereinafter" VASCULAR"
GROUP, LLC ) was and still is a domestic limited liability
company duly organized and existing under and by virtue of the laws of the State of
New York.
7. At all times pertinent herein, defendant VASCULAR held itself out
to be a provider offering professional health care services to the public in general and to
Plaintiff in particular.
8. At all times pertinent herein, defendant VASCULAR represented
that it was competent to perform and render all the medical and surgical care,
treatment, services, and advice required by Plaintiff.
9. At all times pertinent herein, defendant VASCULAR was, and still
is, the owner of a health-care facility known as THE VASCULAR GROUP, LLC Iocated
at 391 Myrtle Avenue. Ste 5. Albany, NY 12208.
4 of 15
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017
10. At all times pertinent herein, defendant THE VASCULAR, owned,
operated, controlled, and managed a health care facility pursuant to the laws of the
State of New York for the care of the sick, known as THE VASCULAR GROUP. LLC,
which provided personnel, including doctors, nurses, attendants, and others for the care
and treatment of its patients, and which held itself out to the public as furnishing
treatment facilities where patients, including Plaintiff, could be treated for various
ailments.
11. At all times mentioned herein, defendant MARK KUBALSKl, M.D.,
(hereinafter "KUBALSKl") was a physician duly licensed to practice in the State of New
York.
12. At all times pertinent herein, defendant KUBALSKI held himself out
to be a physician professional services to the public in general and to Plaintiff-
offering
in particular.
13. At all times pertinent herein, defendant KUBALSKI represented that
he was competent to perform and render all the medical and surgical care, diagnosis,
treatment, services, and advice required by Plaintiff. .
14. At all times pertinent herein, defendant KUBALSKI was an
employee, agent, and/or independent contractor of defendant HEALTH QUEST.
15. At all times pertinent herein, defendants HEALTH QUEST and
KUBALSKI stood in such a relationship with each other in their care and treatment of
Plaintiff as to make each other liable for the acts and omissions of the other,
16. At all times pertinent herein, defendants HEALTH QUEST and
KUBALSKI stood in such a relationship with each other in their care and treatment of
5 of 15
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017
Plaintiff as to make defendant HEALTH QUEST liable for the acts and omissions of
defendant KUBALSKI.
17. At all times pertinent herein, defendant KUBALSKI was an
employee, agent, and/or independent contractor of defendant THE VASCULAR.
18. At aII times pertinent herein, defendants THE VASCULAR and
KUBALSKI stood in such a relationship with each other in their care and treatment of
Plaintiff as to make each other liable for the acts and omissions of the other.
19. At all times pertinent herein, defendants THE VASCULAR and
KUBALSKI stood in such a relationship with each other in their care and treatment of
Plaintiff as to make defendant THE VASCULAR liable for the acts and omissions of
defendant KUBALSKl.
20. At all times mentioned herein, defendant COLUMBIA MEMORIAL
(hereinafter'
HEALTH COXSACKlE MEDICAL CARE COLUMBIA") was and still is a
domestic not-for profit corporation duly organized and existing under and by virtue of the .
laws of the State of New York.
21. At all times pertinent herein, defendant COLUMBIA held itself out to
be a provider offering professional health care services to the public in general and to
Plaintiff in particular.
22. At all times pertinent herein, defendant COLUMBIA represented
that it was competent to perform and render all the medical and surgical care,
treatment, services, and advice required by Plaintiff.
23. At all times pertinent herein, defendant COLUMBIA was, and still is,
the owner of a health-care facility known as COLUMBIA MEMORIAL HEALTH
6 of 15
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017
COXSACIE MEDICAL CARE located at 71 Prospect Avenue, Hudson, NY 12534,
24. At all times pertinent herein, defendant COLUMBIA, owned,
operated, controlled, and managed a health care facility pursuant to the laws of the
State of New York for the care of the sick, known as COLUMBIA MEMORIAL HEALTH
COXSACIE MEDICAL CARE which provided personnel, including doctors, nurses,
attendants, and others for the care and treatment of its patients, and which held itself
out to the public as furnishing treatment facilities where patients, including Plaintiff,
could be treated for various ailments.
25. At all times mentioned herein, defendant ERNEST ENZIEN JR,
M.D., (hereinafter "ENZIEN") was a physician duly licensed to practice in the State of
New York.
26. At all times pertinent herein, defendant ENZIEN held himself out to
be a physician professional services to the public in general and to Plaintiff- in
offering
particular.
27. At all times pertinent herein, defendant ENZIEN represented that
he was competent to perform and render all the medical and surgical care, diagnosis,
treatment, services, and advice required by Plaintiff.
28. At all times pertinent herein, defendant ENZIEN was an employee,
agent, and/or independent contractor of defendant COLUMBlA.
29. At all times pertinent herein, defêñdants COLUMBIA and ENZIEN
stood in such a relationship with each other in their care and treatment of Plaintiff as to
make each other liable for the acts and omissions of the other.
30, At all times pertinent herein, defendants COLUMBIA and ENZlEN
7 of 15
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017
stood in such a relationship with each other in their care and treatment of Plaintiff as to
make defendant COLUMBIA for the acts and omissions of defendant ENZlEN.
St. From on or about June 25, 2015 through July 16, 2015, and prior
and subsequent thereto, Plaintiff sought the professional care of defendants HEALTH
QUEST, VASSAR, COLUMBIA, KUBALSKI and ENZlEN for certain medical complaints,
including, but not limited, pain, discomfort and a DVT clot resulting in surgery, from
which Plaintiff was suffering, and these Defendants, their agents, servants and
employees rendered medical care, diagnosis, treatment and services to Plaintiff.
32. The above medical and surgical care, diagnosis, treatment and
services rendered to Plaintiff were rendered carelessly, unskillfully, negligently and not
in accordance with accepted standards of medical and surgical care, diagnosis,
treatment and services in the community.
33. By reason of the above, Plaintiff sustained DVT clot, great pain,
injury, suffering, as well as mental anguish and emotional distress.
34. This action falls within one or more of the exceptions set forth in
CPLR 1602, and as such Defendants are jointly and severally liable pursuant to the
exceptions set forth in Article 16 of the CPLR.
35. Pursuant to CPLR 1602(2)(iv), Defendants are jointly and severally
liable for all Plaintiff's damages, including but not limited to, Plaintiff's non-economic
loss, irrespective of the provisions of CPLR 1601, by reason of the fact that Defendants .
owed Plaintiff a non-delegable duty of care.
36. Pursuant to CPLR 1602(2) (iv), Defendants are jointly and severally
liable for all of Plaintiff's damages, including but not limited to, Plaintiff's non-economic
8 of 15
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017
loss, irrespective of the provisions of CPLR 1601, by reason of the fact that Defendants
are vicariously liable for the negligent acts and omissions of their servants, agents,
I
affiliated physicians, surgeons, and/or employees.
37, Pursuant to CPLR 1602(7), Defendants are jointly and severally
liable for all of Plaintiff's damages, including but not ||mited to Plaintiff's non-economic
loss, irrespective of the provisions of CPLR 1601, by reason of the fact that Defendants
acted with reckless disregard for the safety of others.
38. By reason of the above, Plaintiff has sustained damages, both
general and special, in a sum that exceeds the jurisdictional limits of all lower courts
which would otherwise have jurisdiction.
AS AND FOR A SECOND CAUSE OF ACTION
39. Plaintiff repeats and realleges each and every allegation set forth
above with the same force and effect as though set forth herein at length.
40. Defendants were negligent in hiring, retaining, and supervising
medical and nursing personnel, who were careless, unskillful and negligent, and who
did not possess the requisite knowledge and skill of medical and nursing professionals
in the community.
41. By reason of the above, Plaintiff sustained a DVT clot, great pain,
injury, suffering, as well as mental anguish and emotional distress.
42. This action falls within one or more of the exceptions set forth in
CPLR 1602, and as such Defendants are jointly and severally liable pursuant to the
exceptions set forth in Article 16 of the CPLR.
43.
9 of 15
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019
NYSCEF DOC. NO. 1 RECEIVED NYsCEF: 12/28/2017
44, Pursuant to CPLR 1602(2)(iv), Defendants are jointly and severally
liable for all Plaintiff's damages, including but not limited to, Plaintiff's non-economic
loss, irrespective of the provisions of CPLR 1601, by reason of the fact that Defendants
owed Plaintiff-Decedent a non-delegable duty of care.
45. Pursuant to CPLR 1602(2) (iv), Defendants are jointly and severally
liable for all of Plaintiff's damages, including but not limited to, Plaintiff's non-economic
loss, irrespective of the provisions of CPLR 1601, by reason of the fact that Defendants
are vicariously liable for the negligent acts and omissions of their servants,
Preview
FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019 EXHIBIT A FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ________, ___ -............ X Date Purchased: CHRISTOPHER BAXTER, Plaintiff Index No.: - against - SUMMONS MARK KUBALSKl, M.D,, ERNEST ENZlEN JR, M.D., M.D., THE VASCULAR GROUP, PLLC, COLUMBIA MEMORIAL HEALTH COXSACKIE MEDICAL CARE, and HEALTH QUEST SYSTEMS, INC. d/b/a VASSAR BROTHERS MEDICAL CENTER Defendants. ____..------------ -¬-----------··------------X Plaintiffs designate RICHMOND County as the place of trial. The basis of venue Plaintiffs' is residence located at 104 Moffett Street. Staten Island, NY 10312. To the above named Defendants: You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer d/bla , or, if the complaint is not served with this summons, to Plaintiffs' serve a notice of appearance on the attomeys within twenty days after the service of this summons, exclusive of the day of service, where service is made by delivery upon you personally within the state, or, within 30 days after completion of service where service is made in any other manner. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: New York, New York December 28, 2017 MUNAWAR & ANDREWS-SANTILLO, LLP . Attomeys for Plaintiffs 420 Lexington Avenue, Ste. 2601 New York, NY 10170 212-400-4000 Abt(AN MUbÍAWÃh, ESQ. 1 of 15 FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017 TO: MARK KUBALSKl, M.D C/O THE VASCULAR GROUP 391 Myrtle Avenue Suite 5 Albany, NY 12208 OR 21 Reade Place, Suite 2200 Poughkeepsie, NY 12601 THE VASCULAR GROUP, PLLC John P. Sano 391 Myrtle Avenue, Suite 5 Albany, New York 12208 (Domestic Professional Service Limited Liability Company) ERNEST ENZIEN JR, M.D. CIO Latham Medical Group 713 Troy-Schenectady Road, Suite 224 Latham, NY 12110 COLUMBIA MEMORIAL HEALTH COXSACKlE MEDICAL CARE C/O THE COLUMBIA MEMORIAL HOSPITAL 71 Prospect Avenue Hudson, New York, 12534 HEALTH QUEST SYSTEMS, INC. d/b/a VASSAR BROTHERS MEDICAL CENTER HEALTH QUEST SYSTEMS, INC. ATTN: President and CEO 45 Reade Place Poughkeepsie, New York 12601 2 of 15 FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND _____..---------------------------X Date Purchased: CHRISTOPHER BAXTER, Plaintiff, Index No.: - against - VERIFIED COMPLAINT MARK KUBALSKl, M.D., ERNEST ENZlEN JR, M.D., M.D., THE VASCULAR GROUP, PLLC, COLUMBIA MEMORIAL HEALTH COXSACKIE MEDICAL CARE, and HEALTH QUEST SYSTEMS, INC. d/b/a VASSAR BROTHERS MEDICAL CENTER Defendants. _________ --------------------------- X Plaintiff CHRISTOPHER BAXTER by his attorneys MUNAWAR & ANDREWS- SANTILLO, LLP complaining of Defendants, respectfully allege, upon information and belief, as follows: AS AND FOR A FIRST CAUSE OF ACTION 1. At all times mentioned herein, defendant HEALTH QUEST SYSTEMS, INC. d/b/a VASSAR BROTHERS MEDICAL CENTER (hereinafter QUEST" "HEALTH ) was and still is a domestic not-for profit corporation duly organized and existing under and by virtue of the laws of the State of New York. 2, At all times pertinent herein, defendant HEALTH QUEST held itself out to be a provider offering professional health care services to the public in general and to plaintiff CHRISTOPHER BAXTER (hereinafter "Plaintiff") in particular. 3. At all times pertinent herein, defendant HEALTH QUEST represented that it was competent to perform and render all the medical and surgical care, treatment, services, and advice required by Plaintiff. 3 of 15 FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017 4. At all times pertinent herein, defendant HEALTH QUEST was, and still is, the owner of a health-care facility known as VASSAR BROTHERS MEDICAL CENTER located at 45 Reade Place. Poughkeepsie, New York 12601. 5. At all times pertinent herein, defendant HEALTH QUEST, owned, operated, controlled, and managed a health care facility pursuant to the laws of the State of New York for the care of the sick, known as VASSAR BROTHERS MEDICAL CENTER, which provided personnel, including doctors, nurses, attendants, and others for the care and treatment of its patients, and which held itself out to the public as furnishing treatment facilities where patients, including Plaintiff, could be treated for various ailments. 6. At all times mentioned herein, defendant THE VASCULAR (hereinafter" VASCULAR" GROUP, LLC ) was and still is a domestic limited liability company duly organized and existing under and by virtue of the laws of the State of New York. 7. At all times pertinent herein, defendant VASCULAR held itself out to be a provider offering professional health care services to the public in general and to Plaintiff in particular. 8. At all times pertinent herein, defendant VASCULAR represented that it was competent to perform and render all the medical and surgical care, treatment, services, and advice required by Plaintiff. 9. At all times pertinent herein, defendant VASCULAR was, and still is, the owner of a health-care facility known as THE VASCULAR GROUP, LLC Iocated at 391 Myrtle Avenue. Ste 5. Albany, NY 12208. 4 of 15 FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017 10. At all times pertinent herein, defendant THE VASCULAR, owned, operated, controlled, and managed a health care facility pursuant to the laws of the State of New York for the care of the sick, known as THE VASCULAR GROUP. LLC, which provided personnel, including doctors, nurses, attendants, and others for the care and treatment of its patients, and which held itself out to the public as furnishing treatment facilities where patients, including Plaintiff, could be treated for various ailments. 11. At all times mentioned herein, defendant MARK KUBALSKl, M.D., (hereinafter "KUBALSKl") was a physician duly licensed to practice in the State of New York. 12. At all times pertinent herein, defendant KUBALSKI held himself out to be a physician professional services to the public in general and to Plaintiff- offering in particular. 13. At all times pertinent herein, defendant KUBALSKI represented that he was competent to perform and render all the medical and surgical care, diagnosis, treatment, services, and advice required by Plaintiff. . 14. At all times pertinent herein, defendant KUBALSKI was an employee, agent, and/or independent contractor of defendant HEALTH QUEST. 15. At all times pertinent herein, defendants HEALTH QUEST and KUBALSKI stood in such a relationship with each other in their care and treatment of Plaintiff as to make each other liable for the acts and omissions of the other, 16. At all times pertinent herein, defendants HEALTH QUEST and KUBALSKI stood in such a relationship with each other in their care and treatment of 5 of 15 FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017 Plaintiff as to make defendant HEALTH QUEST liable for the acts and omissions of defendant KUBALSKI. 17. At all times pertinent herein, defendant KUBALSKI was an employee, agent, and/or independent contractor of defendant THE VASCULAR. 18. At aII times pertinent herein, defendants THE VASCULAR and KUBALSKI stood in such a relationship with each other in their care and treatment of Plaintiff as to make each other liable for the acts and omissions of the other. 19. At all times pertinent herein, defendants THE VASCULAR and KUBALSKI stood in such a relationship with each other in their care and treatment of Plaintiff as to make defendant THE VASCULAR liable for the acts and omissions of defendant KUBALSKl. 20. At all times mentioned herein, defendant COLUMBIA MEMORIAL (hereinafter' HEALTH COXSACKlE MEDICAL CARE COLUMBIA") was and still is a domestic not-for profit corporation duly organized and existing under and by virtue of the . laws of the State of New York. 21. At all times pertinent herein, defendant COLUMBIA held itself out to be a provider offering professional health care services to the public in general and to Plaintiff in particular. 22. At all times pertinent herein, defendant COLUMBIA represented that it was competent to perform and render all the medical and surgical care, treatment, services, and advice required by Plaintiff. 23. At all times pertinent herein, defendant COLUMBIA was, and still is, the owner of a health-care facility known as COLUMBIA MEMORIAL HEALTH 6 of 15 FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017 COXSACIE MEDICAL CARE located at 71 Prospect Avenue, Hudson, NY 12534, 24. At all times pertinent herein, defendant COLUMBIA, owned, operated, controlled, and managed a health care facility pursuant to the laws of the State of New York for the care of the sick, known as COLUMBIA MEMORIAL HEALTH COXSACIE MEDICAL CARE which provided personnel, including doctors, nurses, attendants, and others for the care and treatment of its patients, and which held itself out to the public as furnishing treatment facilities where patients, including Plaintiff, could be treated for various ailments. 25. At all times mentioned herein, defendant ERNEST ENZIEN JR, M.D., (hereinafter "ENZIEN") was a physician duly licensed to practice in the State of New York. 26. At all times pertinent herein, defendant ENZIEN held himself out to be a physician professional services to the public in general and to Plaintiff- in offering particular. 27. At all times pertinent herein, defendant ENZIEN represented that he was competent to perform and render all the medical and surgical care, diagnosis, treatment, services, and advice required by Plaintiff. 28. At all times pertinent herein, defendant ENZIEN was an employee, agent, and/or independent contractor of defendant COLUMBlA. 29. At all times pertinent herein, defêñdants COLUMBIA and ENZIEN stood in such a relationship with each other in their care and treatment of Plaintiff as to make each other liable for the acts and omissions of the other. 30, At all times pertinent herein, defendants COLUMBIA and ENZlEN 7 of 15 FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017 stood in such a relationship with each other in their care and treatment of Plaintiff as to make defendant COLUMBIA for the acts and omissions of defendant ENZlEN. St. From on or about June 25, 2015 through July 16, 2015, and prior and subsequent thereto, Plaintiff sought the professional care of defendants HEALTH QUEST, VASSAR, COLUMBIA, KUBALSKI and ENZlEN for certain medical complaints, including, but not limited, pain, discomfort and a DVT clot resulting in surgery, from which Plaintiff was suffering, and these Defendants, their agents, servants and employees rendered medical care, diagnosis, treatment and services to Plaintiff. 32. The above medical and surgical care, diagnosis, treatment and services rendered to Plaintiff were rendered carelessly, unskillfully, negligently and not in accordance with accepted standards of medical and surgical care, diagnosis, treatment and services in the community. 33. By reason of the above, Plaintiff sustained DVT clot, great pain, injury, suffering, as well as mental anguish and emotional distress. 34. This action falls within one or more of the exceptions set forth in CPLR 1602, and as such Defendants are jointly and severally liable pursuant to the exceptions set forth in Article 16 of the CPLR. 35. Pursuant to CPLR 1602(2)(iv), Defendants are jointly and severally liable for all Plaintiff's damages, including but not limited to, Plaintiff's non-economic loss, irrespective of the provisions of CPLR 1601, by reason of the fact that Defendants . owed Plaintiff a non-delegable duty of care. 36. Pursuant to CPLR 1602(2) (iv), Defendants are jointly and severally liable for all of Plaintiff's damages, including but not limited to, Plaintiff's non-economic 8 of 15 FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 12/28/2017 loss, irrespective of the provisions of CPLR 1601, by reason of the fact that Defendants are vicariously liable for the negligent acts and omissions of their servants, agents, I affiliated physicians, surgeons, and/or employees. 37, Pursuant to CPLR 1602(7), Defendants are jointly and severally liable for all of Plaintiff's damages, including but not ||mited to Plaintiff's non-economic loss, irrespective of the provisions of CPLR 1601, by reason of the fact that Defendants acted with reckless disregard for the safety of others. 38. By reason of the above, Plaintiff has sustained damages, both general and special, in a sum that exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction. AS AND FOR A SECOND CAUSE OF ACTION 39. Plaintiff repeats and realleges each and every allegation set forth above with the same force and effect as though set forth herein at length. 40. Defendants were negligent in hiring, retaining, and supervising medical and nursing personnel, who were careless, unskillful and negligent, and who did not possess the requisite knowledge and skill of medical and nursing professionals in the community. 41. By reason of the above, Plaintiff sustained a DVT clot, great pain, injury, suffering, as well as mental anguish and emotional distress. 42. This action falls within one or more of the exceptions set forth in CPLR 1602, and as such Defendants are jointly and severally liable pursuant to the exceptions set forth in Article 16 of the CPLR. 43. 9 of 15 FILED: RICHMOND COUNTY CLERK 10/30/2019 01:43 PM INDEX NO. 152782/2017 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 10/30/2019 NYSCEF DOC. NO. 1 RECEIVED NYsCEF: 12/28/2017 44, Pursuant to CPLR 1602(2)(iv), Defendants are jointly and severally liable for all Plaintiff's damages, including but not limited to, Plaintiff's non-economic loss, irrespective of the provisions of CPLR 1601, by reason of the fact that Defendants owed Plaintiff-Decedent a non-delegable duty of care. 45. Pursuant to CPLR 1602(2) (iv), Defendants are jointly and severally liable for all of Plaintiff's damages, including but not limited to, Plaintiff's non-economic loss, irrespective of the provisions of CPLR 1601, by reason of the fact that Defendants are vicariously liable for the negligent acts and omissions of their servants,