Preview
FILED: NASSAU COUNTY CLERK 11/01/2023 04:26 PM INDEX NO. 614075/2023
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/01/2023
SSUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
x
NICHOLAS JAMES RYAN,
Plaintiff, VERIFIED ANSWER
- against - Index No. 614075/2023
ELIZABETH S. LUSTRIN, M.D., CHRISTOPHER
R. WILKINS, M.D., BHUMIKA BALGOBIN,
M.D., MARLON SELIGER, M.D., AJAY K.
MISRA, M.D., SUCHISMITA DATTA, M.D.,
NYU LANGONE RADIOLOGY ASSOCIATES,
NYU LANGONE AMBULATORY CARE EAST
MEADOW, ADVANCED NEUROLOGICAL
SERVICES OF LONG ISLAND, P.C., NYU
EMERGENCY MEDICINE, NYU LANGONE
HOSPITAL-LONG ISLAND F/K/A NYU
WINTHROP HOSPITAL AND NYU LANGONE
HEALTH SYSTEM,
Defendants.
x
Counselors:
Defendant, ELIZABETH S. LUSTRIN, M.D., by her attorneys, AARONSON
RAPPAPORT FEINSTEIN & DEUTSCH, LLP, as and for her Answer to Plaintiff’s Summons &
Complaint, respectfully shows to this Court and alleges upon information and belief:
AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
1. Denies the allegations contained in paragraphs “1”, “2” and “3” in the form alleged,
except admits that defendant, ELIZABETH S. LUSTRIN, M.D., is a physician duly licensed to
practice medicine in the State of New York specializing in radiology, who at all times acted in
accordance with good and accepted medical practice, and respectfully refers all questions of law
to this Honorable Court.
2. Denies the allegations contained in paragraphs “4”, “5”, “6’, “7”, “8”, “9” and “10”
in the form alleged, and respectfully refers all questions of law to this Honorable Court.
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3. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraphs “11” “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”,
“21”, “22”, “23”, “24”, 25”, :26”, ”27”, “28”, “29”, “30”, “31”, “32”, “33”, “34”, “35”, “36”, “37”,
“38”, “39”, “40”, “41”, “42”, “43”, “44”, “45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”, “53”,
“54”, “55”, “56”, “57”, “58”, “59”, “60”, “61”, “62”, “63”, “64”, “65”, “66”, “67”, “68”, “69”,
“70”, “71”, “72”, “73”, “74”, “76”, “77”, “78”, “79”, “80”, “81”, “82”, “83”, “84”, “85”, “86”,
“87”, ”88”, “89”, “90”, “91”, “92”, “93”, “94”, “95”, “96”, “97”, “98”, “99”, “100”, “101”, “102”,
“103”, “104”, “105”, “106”, “107”, “108”, “109”, “110”, “111”, “112”, “113”, “114”, “115”,
“116”, “117”, “118”, “119”, “120”, “121”, “122”, “123”, “124”, “125”, “126”, “127”, “128”,
“129”, “130”, “131”, “132”, “133”, “134”, “135”, “137”, “138”, “139”, “140”, “141”, “142”,
“143”, “144”, “145”, “146”, “147”, “148”, “149”, “150”, “151”, “152”, “153”, “154”, “156”,
“157”, “158”, “159” and “160”.
4. Denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in paragraphs “75”, “136” and “155”, except admits defendant ELIZABETH
S. LUSTRIN, M.D., at all times acted in accordance with good and accepted medical practice, and
respectfully refers all questions of law to this Honorable Court.
5. Denies the allegations contained in paragraphs “161”, “162”, “163”, “164”, “165”,
“166”, “167”, “168”, “169”, “170”, “171”, “172”, “173”, “174”, “175”, “176”, “177”, “178”,
“179”, “180”, “181”, “182”, “183”, “184”, “185”, “186”, “187”, “188”, “189”, “190”, “191”,
“192”, “193”, “194”, “195”, “196”, “197”, “198”, “199” “200”, “201”, “202”, “203”, “204”,
“205”, “206”, “207”, “208” and “209” in the form alleged and respectfully refers to the hospital
records for the dates and specifics of treatment, and respectfully refers all questions of law to this
Honorable Court.
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6. Denies the allegations contained in paragraphs “210”, “211”, “212”, “213”, “214”,
“215”, “216” and “217”.
AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
7. In response to paragraph “218”, repeats those admissions and denials contained in
paragraphs “1” through “217” herein as though fully set forth hereat.
8. Denies the allegations contained in paragraphs “219”, “220”, “221”, “222”, “223”,
“224”, “225”, “226”, “227”, “228” and “229”.
AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
9. In response to paragraph “230”, repeats those admissions and denials contained in
paragraphs “1” through “129” herein as though fully set forth hereat.
10. Denies the allegations contained in paragraphs “231”, “232”, “233” and “234”, in
the form alleged, except admits that at all times defendants acted in accordance with good and
accepted medical practice, and respectfully refers all questions of law to this Honorable Court.
11. Denies the allegations contained in paragraphs “235”, “236”, “237”, “238” and
“239”.
AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION
12. In response to paragraph “240”, repeats those admissions and denials contained in
paragraphs “1” through “239” herein as though fully set forth hereat.
13. Denies the allegations contained in paragraphs “241”, “242”, “243”, “244”, “245”,
“246”, “247”, “248” and “249”, in the form alleged, and respectfully refers all questions of law to
this Honorable Court.
14. Denies the allegations contained in paragraph “250”.
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FIRST AFFIRMATIVE DEFENSE
15. The answering defendant(s) assert those applicable defenses for which provision is
made at Public Health Law §2805-d.
SECOND AFFIRMATIVE DEFENSE
16. The liability of the answering defendant(s), if any, is limited pursuant to CPLR
Article 16.
THIRD AFFIRMATIVE DEFENSE
17. That the plaintiff has been or will be compensated in whole or in part for the
damages claimed in the complaint by a collateral source of payment as set forth in CPLR §4545.
FOURTH AFFIRMATIVE DEEFENSE
18. Plaintiff’s right to recover damages, if any, are barred in whole or in part pursuant
to the Patient Protection and Affordable Care Act, 26 USCS Section 5000A.
FIFTH AFFIRMATIVE DEFENSE
19. Plaintiff’s Fourth Cause of Action fails to state a cognizable claim.
COVID AFFIRMATIVE DEFENSES
SIXTH AFFIRMATIVE DEFENSE
20. Upon information and belief, Answering Defendants were not negligent, as their
acts and/or alleged omissions were reasonable and prudent pursuant to the emergency doctrine and
did not create the emergency that formed the context for said acts and/or alleged omissions.
SEVENTH AFFIRMATIVE DEFENSE
21. These Answering Defendants object to all punitive language, as Answering
Defendants were not negligent, careless, or reckless. Answering Defendants reserve their right to
strike any and all punitive language from the Complaint and all future pleadings.
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EIGHTH AFFIRMATIVE DEFENSE
22. Upon information and belief, plaintiff lacks legal capacity to bring the within
lawsuit.
NINTH AFFIRMATIVE DEFENSE
23. These Answering Defendants are immune from liability for the acts, omissions, and
injuries alleged in the Complaint, pursuant to Executive Orders (A. Cuomo) 202 et seq. (N.Y.
Comp. Codes R. & Regs. tit. 9, § 8.202 et seq.), including but not limited to Executive Order (A.
Cuomo) 202.10 (N.Y. Comp. Codes R. & Regs. tit. 9, § 8.202.10 et seq.), and/or the Emergency
or Disaster Treatment Protection Act ("EDTPA") (Public Health Law Article 30-D).
TENTH AFFIRMATIVE DEFENSE
24. These Answering Defendants are immune from liability for the acts, omissions, and
injuries alleged in the Complaint, pursuant to the United States Public Readiness and Emergency
Preparedness ("PREP") Act (42 U.S.C.A. §247d-6d et seq.) and/or the Coronavirus Aid, Relief,
and Economic Security ("CARES") Act of 2020, §4113c (42 U.S.C.A. §247d-6d[i][1], as added
by Pub. L. 116-136, 116 U.S. Stat. 3548).
ELEVENTH AFFIRMATIVE DEFENSE
25. Plaintiff's state law claims must be dismissed, as they are preempted by the United
States Public Readiness and Emergency Preparedness ("PREP") Act (42 U.S.C.A. §247d-6d et
seq.) and/or the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of 2020, §4113c
(42 U.S.C.A. §247d-6d[i][1], as added by Pub. L. 116-136, 116 U.S. Stat. 3548).
TWELFTH AFFIRMATIVE DEFENSE
26. This Court lacks jurisdiction over the subject matter of plaintiff's claims, pursuant
to the United States Public Readiness and Emergency Preparedness ("PREP") Act (42 U.S.C.A.
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§247d-6d et seq.) and/or the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of
2020, §4113c (42 U.S.C.A. §247d-6d[i][1], as added by Pub. L. 116-136, 116 U.S. Stat. 3548).
WHEREFORE, ELIZABETH S. LUSTRIN, M.D., demands judgment dismissing the
Complaint, together with the costs and disbursements of the within action.
Dated: New York, New York
October 26, 2023
Yours, etc.
A ndrew I . K aplan
BY: Andrew I. Kaplan, Esq.
Aaronson Rappaport Feinstein & Deutsch, LLP
Attorneys for Defendants
ELIZABETH S. LUSTRIN, M.D.,
CHRISTOPHER WILKINS, M.D., BHUMIKA
BALGOBIN, M.D., MARLON SELIGER, M.D.,
AJAY K. MISRA, M.D., SUCHISMITA DATTA,
M.D., and NYU LANGONE HOSPITALS s/h/a
NYU LANGONE HOSPITAL LONG ISLAND
f/k/a NYU WINTHROP HOSPITAL
Office & P.O. Address
600 Third Avenue
New York, NY 10016
(212) 593-6798
aikaplan@arfdlaw.com
To: Siegel & Coonerty, LLP
Attorneys for Plaintiff
419 Park Avenue South, Suite 700
New York, NY 10016
(212) 532-0532
Attn: Andrew W. Siegel, Esq.
andy@mytrialguys.com
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FILED: NASSAU COUNTY CLERK 11/01/2023 04:26 PM INDEX NO. 614075/2023
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/01/2023
Our File No.: 107.016 (Ryan)
ATTORNEY’S VERIFICATION
STATE OF NEW YORK )
ss:
COUNTY OF NEW YORK )
ANDREW I. KAPLAN, being duly sworn, deposes and says:
That I am a partner of the firm of attorneys, Aaronson Rappaport Feinstein &
Deutsch, LLP representing the defendant, ELIZABETH S. LUSTRIN, M.D.
That I have read the attached VERIFIED ANSWER and the same is true to my
own belief, except as to matters alleged on information and belief, and as to those matters, I believe
them to be true to the best of my knowledge.
My sources of information are claims filed containing statements, reports and
records of investigation, investigators, parties and witnesses, with which I am fully familiar.
That this verification is made by me because my client does not reside within the
county where I maintain my office.
Dated: New York, New York
October 27, 2023
A ndrew I . K aplan
Andrew I. Kaplan
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Preview
FILED: NASSAU COUNTY CLERK 11/01/2023 04:26 PM INDEX NO. 614075/2023 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/01/2023 SSUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU x NICHOLAS JAMES RYAN, Plaintiff, VERIFIED ANSWER - against - Index No. 614075/2023 ELIZABETH S. LUSTRIN, M.D., CHRISTOPHER R. WILKINS, M.D., BHUMIKA BALGOBIN, M.D., MARLON SELIGER, M.D., AJAY K. MISRA, M.D., SUCHISMITA DATTA, M.D., NYU LANGONE RADIOLOGY ASSOCIATES, NYU LANGONE AMBULATORY CARE EAST MEADOW, ADVANCED NEUROLOGICAL SERVICES OF LONG ISLAND, P.C., NYU EMERGENCY MEDICINE, NYU LANGONE HOSPITAL-LONG ISLAND F/K/A NYU WINTHROP HOSPITAL AND NYU LANGONE HEALTH SYSTEM, Defendants. x Counselors: Defendant, ELIZABETH S. LUSTRIN, M.D., by her attorneys, AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP, as and for her Answer to Plaintiff’s Summons & Complaint, respectfully shows to this Court and alleges upon information and belief: AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION 1. Denies the allegations contained in paragraphs “1”, “2” and “3” in the form alleged, except admits that defendant, ELIZABETH S. LUSTRIN, M.D., is a physician duly licensed to practice medicine in the State of New York specializing in radiology, who at all times acted in accordance with good and accepted medical practice, and respectfully refers all questions of law to this Honorable Court. 2. Denies the allegations contained in paragraphs “4”, “5”, “6’, “7”, “8”, “9” and “10” in the form alleged, and respectfully refers all questions of law to this Honorable Court. 1 of 7 FILED: NASSAU COUNTY CLERK 11/01/2023 04:26 PM INDEX NO. 614075/2023 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/01/2023 3. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs “11” “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, 25”, :26”, ”27”, “28”, “29”, “30”, “31”, “32”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40”, “41”, “42”, “43”, “44”, “45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”, “53”, “54”, “55”, “56”, “57”, “58”, “59”, “60”, “61”, “62”, “63”, “64”, “65”, “66”, “67”, “68”, “69”, “70”, “71”, “72”, “73”, “74”, “76”, “77”, “78”, “79”, “80”, “81”, “82”, “83”, “84”, “85”, “86”, “87”, ”88”, “89”, “90”, “91”, “92”, “93”, “94”, “95”, “96”, “97”, “98”, “99”, “100”, “101”, “102”, “103”, “104”, “105”, “106”, “107”, “108”, “109”, “110”, “111”, “112”, “113”, “114”, “115”, “116”, “117”, “118”, “119”, “120”, “121”, “122”, “123”, “124”, “125”, “126”, “127”, “128”, “129”, “130”, “131”, “132”, “133”, “134”, “135”, “137”, “138”, “139”, “140”, “141”, “142”, “143”, “144”, “145”, “146”, “147”, “148”, “149”, “150”, “151”, “152”, “153”, “154”, “156”, “157”, “158”, “159” and “160”. 4. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs “75”, “136” and “155”, except admits defendant ELIZABETH S. LUSTRIN, M.D., at all times acted in accordance with good and accepted medical practice, and respectfully refers all questions of law to this Honorable Court. 5. Denies the allegations contained in paragraphs “161”, “162”, “163”, “164”, “165”, “166”, “167”, “168”, “169”, “170”, “171”, “172”, “173”, “174”, “175”, “176”, “177”, “178”, “179”, “180”, “181”, “182”, “183”, “184”, “185”, “186”, “187”, “188”, “189”, “190”, “191”, “192”, “193”, “194”, “195”, “196”, “197”, “198”, “199” “200”, “201”, “202”, “203”, “204”, “205”, “206”, “207”, “208” and “209” in the form alleged and respectfully refers to the hospital records for the dates and specifics of treatment, and respectfully refers all questions of law to this Honorable Court. 2 2 of 7 FILED: NASSAU COUNTY CLERK 11/01/2023 04:26 PM INDEX NO. 614075/2023 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/01/2023 6. Denies the allegations contained in paragraphs “210”, “211”, “212”, “213”, “214”, “215”, “216” and “217”. AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION 7. In response to paragraph “218”, repeats those admissions and denials contained in paragraphs “1” through “217” herein as though fully set forth hereat. 8. Denies the allegations contained in paragraphs “219”, “220”, “221”, “222”, “223”, “224”, “225”, “226”, “227”, “228” and “229”. AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION 9. In response to paragraph “230”, repeats those admissions and denials contained in paragraphs “1” through “129” herein as though fully set forth hereat. 10. Denies the allegations contained in paragraphs “231”, “232”, “233” and “234”, in the form alleged, except admits that at all times defendants acted in accordance with good and accepted medical practice, and respectfully refers all questions of law to this Honorable Court. 11. Denies the allegations contained in paragraphs “235”, “236”, “237”, “238” and “239”. AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION 12. In response to paragraph “240”, repeats those admissions and denials contained in paragraphs “1” through “239” herein as though fully set forth hereat. 13. Denies the allegations contained in paragraphs “241”, “242”, “243”, “244”, “245”, “246”, “247”, “248” and “249”, in the form alleged, and respectfully refers all questions of law to this Honorable Court. 14. Denies the allegations contained in paragraph “250”. 3 3 of 7 FILED: NASSAU COUNTY CLERK 11/01/2023 04:26 PM INDEX NO. 614075/2023 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/01/2023 FIRST AFFIRMATIVE DEFENSE 15. The answering defendant(s) assert those applicable defenses for which provision is made at Public Health Law §2805-d. SECOND AFFIRMATIVE DEFENSE 16. The liability of the answering defendant(s), if any, is limited pursuant to CPLR Article 16. THIRD AFFIRMATIVE DEFENSE 17. That the plaintiff has been or will be compensated in whole or in part for the damages claimed in the complaint by a collateral source of payment as set forth in CPLR §4545. FOURTH AFFIRMATIVE DEEFENSE 18. Plaintiff’s right to recover damages, if any, are barred in whole or in part pursuant to the Patient Protection and Affordable Care Act, 26 USCS Section 5000A. FIFTH AFFIRMATIVE DEFENSE 19. Plaintiff’s Fourth Cause of Action fails to state a cognizable claim. COVID AFFIRMATIVE DEFENSES SIXTH AFFIRMATIVE DEFENSE 20. Upon information and belief, Answering Defendants were not negligent, as their acts and/or alleged omissions were reasonable and prudent pursuant to the emergency doctrine and did not create the emergency that formed the context for said acts and/or alleged omissions. SEVENTH AFFIRMATIVE DEFENSE 21. These Answering Defendants object to all punitive language, as Answering Defendants were not negligent, careless, or reckless. Answering Defendants reserve their right to strike any and all punitive language from the Complaint and all future pleadings. 4 4 of 7 FILED: NASSAU COUNTY CLERK 11/01/2023 04:26 PM INDEX NO. 614075/2023 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/01/2023 EIGHTH AFFIRMATIVE DEFENSE 22. Upon information and belief, plaintiff lacks legal capacity to bring the within lawsuit. NINTH AFFIRMATIVE DEFENSE 23. These Answering Defendants are immune from liability for the acts, omissions, and injuries alleged in the Complaint, pursuant to Executive Orders (A. Cuomo) 202 et seq. (N.Y. Comp. Codes R. & Regs. tit. 9, § 8.202 et seq.), including but not limited to Executive Order (A. Cuomo) 202.10 (N.Y. Comp. Codes R. & Regs. tit. 9, § 8.202.10 et seq.), and/or the Emergency or Disaster Treatment Protection Act ("EDTPA") (Public Health Law Article 30-D). TENTH AFFIRMATIVE DEFENSE 24. These Answering Defendants are immune from liability for the acts, omissions, and injuries alleged in the Complaint, pursuant to the United States Public Readiness and Emergency Preparedness ("PREP") Act (42 U.S.C.A. §247d-6d et seq.) and/or the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of 2020, §4113c (42 U.S.C.A. §247d-6d[i][1], as added by Pub. L. 116-136, 116 U.S. Stat. 3548). ELEVENTH AFFIRMATIVE DEFENSE 25. Plaintiff's state law claims must be dismissed, as they are preempted by the United States Public Readiness and Emergency Preparedness ("PREP") Act (42 U.S.C.A. §247d-6d et seq.) and/or the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of 2020, §4113c (42 U.S.C.A. §247d-6d[i][1], as added by Pub. L. 116-136, 116 U.S. Stat. 3548). TWELFTH AFFIRMATIVE DEFENSE 26. This Court lacks jurisdiction over the subject matter of plaintiff's claims, pursuant to the United States Public Readiness and Emergency Preparedness ("PREP") Act (42 U.S.C.A. 5 5 of 7 FILED: NASSAU COUNTY CLERK 11/01/2023 04:26 PM INDEX NO. 614075/2023 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/01/2023 §247d-6d et seq.) and/or the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of 2020, §4113c (42 U.S.C.A. §247d-6d[i][1], as added by Pub. L. 116-136, 116 U.S. Stat. 3548). WHEREFORE, ELIZABETH S. LUSTRIN, M.D., demands judgment dismissing the Complaint, together with the costs and disbursements of the within action. Dated: New York, New York October 26, 2023 Yours, etc. A ndrew I . K aplan BY: Andrew I. Kaplan, Esq. Aaronson Rappaport Feinstein & Deutsch, LLP Attorneys for Defendants ELIZABETH S. LUSTRIN, M.D., CHRISTOPHER WILKINS, M.D., BHUMIKA BALGOBIN, M.D., MARLON SELIGER, M.D., AJAY K. MISRA, M.D., SUCHISMITA DATTA, M.D., and NYU LANGONE HOSPITALS s/h/a NYU LANGONE HOSPITAL LONG ISLAND f/k/a NYU WINTHROP HOSPITAL Office & P.O. Address 600 Third Avenue New York, NY 10016 (212) 593-6798 aikaplan@arfdlaw.com To: Siegel & Coonerty, LLP Attorneys for Plaintiff 419 Park Avenue South, Suite 700 New York, NY 10016 (212) 532-0532 Attn: Andrew W. Siegel, Esq. andy@mytrialguys.com 6 6 of 7 FILED: NASSAU COUNTY CLERK 11/01/2023 04:26 PM INDEX NO. 614075/2023 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/01/2023 Our File No.: 107.016 (Ryan) ATTORNEY’S VERIFICATION STATE OF NEW YORK ) ss: COUNTY OF NEW YORK ) ANDREW I. KAPLAN, being duly sworn, deposes and says: That I am a partner of the firm of attorneys, Aaronson Rappaport Feinstein & Deutsch, LLP representing the defendant, ELIZABETH S. LUSTRIN, M.D. That I have read the attached VERIFIED ANSWER and the same is true to my own belief, except as to matters alleged on information and belief, and as to those matters, I believe them to be true to the best of my knowledge. My sources of information are claims filed containing statements, reports and records of investigation, investigators, parties and witnesses, with which I am fully familiar. That this verification is made by me because my client does not reside within the county where I maintain my office. Dated: New York, New York October 27, 2023 A ndrew I . K aplan Andrew I. Kaplan 7 of 7