Document for Kathleen Kammer, Patrick Lawrence Individually and as Resident Representative of Kathleen Kammer v. 185 Old Military Road Operating Company, Llc, 185 Old Military Road, Llc d/b/a ELDERWOOD OF UIHLEIN AT LAKE PLACID
On October 11, 2023 a
MEMORANDUM OF LAW
was filed
involving a dispute between
Kathleen Kammer,
Patrick Lawrence
Individually And As Resident Representative Of Kathleen Kammer,
and
185 Old Military Road, Llc
D B A Elderwood Of Uihlein At Lake Placid,
185 Old Military Road Operating Company, Llc,
for Torts - Other Negligence (Personal Injury)
in the District Court of Essex County.
Preview
FILED: ESSEX COUNTY CLERK 01/22/2024 12:53 PM INDEX NO. CV23-0490
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/22/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ESSEX
KATHLEEN KAMMER and PATRICK LAWRENCE,
individually and as Resident Representative of
Kathleen Kammer CORRECTIVE
MEMORANDUM OF LAW
Plaintiff,
-against-
185 OLD MILITARY ROAD OPERATING Index No.: CV23-0490
COMPANY, LLC and 185 OLD MILITARY ROAD, LLC,
d/b/a ELDERWOOD OF UIHLEIN AT LAKE PLACID.
Defendants.
This Memorandum of Law is submitted to correct a misidentification of relief requested
by the Plaintiffs as contained in the previously submitted Memorandum of Law dated January 19,
2024.
Instead and in place of the similarly identified paragraphs, Plaintiffs submit the following:
POINT II
THE COURT CAN DECIDE SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF
In submitting their motion to dismiss pursuant to CPLR 3211, the defendants aver that all
of the facts contained in plaintiff’s complaint are true. Respectfully, in deciding the motion, the
Court can treat the motion as a summary judgment motion pursuant to CPLR 3212, (see Four
Seasons Hotel v. Vinnik, et. al. 127 A.D.2d 310; 515 N.Y.S. 2d 1, (1st Dept 1987).
1
FLINK MASWICK LAW PLLC
2577 MAIN STREET
LAKE PLACID, NY 12946
1 of 3
FILED: ESSEX COUNTY CLERK 01/22/2024 12:53 PM INDEX NO. CV23-0490
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/22/2024
Plaintiffs seek a ruling from the Court, based upon the undisputed facts now before it, that
the complaint has been timely filed in light of the continuous care doctrine. Defendants do not
dispute the fact that plaintiff suffered a broken right ankle while under their care and underwent
two surgeries as a result of the fall. They likewise admit the plaintiffs admission and discharge
dates. Despite attempting many avenues to relieve themselves from liability, defendants have not
convincingly set forth any theories of law which would prevent the application of the continuous
care doctrine in determining the appropriate statute of limitations in this case. Plaintiffs submit
that the court must find that the continuous care doctrine should be applied in determining the
appliable statute of limitations and both the negligence claims and the medical malpractice claims
have been timely filed.
CONCLUSION
Based upon the foregoing, plaintiffs respectfully request that the Court make and enter an
Order denying defendants’ motion to dismiss pursuant to CPLR 3211 in its entirety, direct that the
defendants file an Answer to the Complaint; award summary judgment in favor of the Plaintiffs
pursuant to CPLR 3212 on the issue of the statute of limitations declaring the complaint to be
timely filed; and for such other, further or alternative relief as the Court deems just and proper.
Dated: January 22, 2024
FLINK MASWICK LAW PLLC
/s/ Sheila Goss Duerr
Sheila Goss Duerr, Esq.
Flink Maswick Law PLLC
Attorneys for Plaintiffs
2577 Main Street
Lake Placid, New York 12946
2
FLINK MASWICK LAW PLLC
2577 MAIN STREET
LAKE PLACID, NY 12946
2 of 3
FILED: ESSEX COUNTY CLERK 01/22/2024 12:53 PM INDEX NO. CV23-0490
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/22/2024
To: Christina M. Verone Juliano, Esq.
GOLDBERG SEGALLA
Attorneys for Defendants
5786 Widewaters Parkway
Syracuse, NY 13214
3
FLINK MASWICK LAW PLLC
2577 MAIN STREET
LAKE PLACID, NY 12946
3 of 3
Preview
FILED: ESSEX COUNTY CLERK 01/22/2024 12:53 PM INDEX NO. CV23-0490 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/22/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ESSEX KATHLEEN KAMMER and PATRICK LAWRENCE, individually and as Resident Representative of Kathleen Kammer CORRECTIVE MEMORANDUM OF LAW Plaintiff, -against- 185 OLD MILITARY ROAD OPERATING Index No.: CV23-0490 COMPANY, LLC and 185 OLD MILITARY ROAD, LLC, d/b/a ELDERWOOD OF UIHLEIN AT LAKE PLACID. Defendants. This Memorandum of Law is submitted to correct a misidentification of relief requested by the Plaintiffs as contained in the previously submitted Memorandum of Law dated January 19, 2024. Instead and in place of the similarly identified paragraphs, Plaintiffs submit the following: POINT II THE COURT CAN DECIDE SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF In submitting their motion to dismiss pursuant to CPLR 3211, the defendants aver that all of the facts contained in plaintiff’s complaint are true. Respectfully, in deciding the motion, the Court can treat the motion as a summary judgment motion pursuant to CPLR 3212, (see Four Seasons Hotel v. Vinnik, et. al. 127 A.D.2d 310; 515 N.Y.S. 2d 1, (1st Dept 1987). 1 FLINK MASWICK LAW PLLC 2577 MAIN STREET LAKE PLACID, NY 12946 1 of 3 FILED: ESSEX COUNTY CLERK 01/22/2024 12:53 PM INDEX NO. CV23-0490 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/22/2024 Plaintiffs seek a ruling from the Court, based upon the undisputed facts now before it, that the complaint has been timely filed in light of the continuous care doctrine. Defendants do not dispute the fact that plaintiff suffered a broken right ankle while under their care and underwent two surgeries as a result of the fall. They likewise admit the plaintiffs admission and discharge dates. Despite attempting many avenues to relieve themselves from liability, defendants have not convincingly set forth any theories of law which would prevent the application of the continuous care doctrine in determining the appropriate statute of limitations in this case. Plaintiffs submit that the court must find that the continuous care doctrine should be applied in determining the appliable statute of limitations and both the negligence claims and the medical malpractice claims have been timely filed. CONCLUSION Based upon the foregoing, plaintiffs respectfully request that the Court make and enter an Order denying defendants’ motion to dismiss pursuant to CPLR 3211 in its entirety, direct that the defendants file an Answer to the Complaint; award summary judgment in favor of the Plaintiffs pursuant to CPLR 3212 on the issue of the statute of limitations declaring the complaint to be timely filed; and for such other, further or alternative relief as the Court deems just and proper. Dated: January 22, 2024 FLINK MASWICK LAW PLLC /s/ Sheila Goss Duerr Sheila Goss Duerr, Esq. Flink Maswick Law PLLC Attorneys for Plaintiffs 2577 Main Street Lake Placid, New York 12946 2 FLINK MASWICK LAW PLLC 2577 MAIN STREET LAKE PLACID, NY 12946 2 of 3 FILED: ESSEX COUNTY CLERK 01/22/2024 12:53 PM INDEX NO. CV23-0490 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 01/22/2024 To: Christina M. Verone Juliano, Esq. GOLDBERG SEGALLA Attorneys for Defendants 5786 Widewaters Parkway Syracuse, NY 13214 3 FLINK MASWICK LAW PLLC 2577 MAIN STREET LAKE PLACID, NY 12946 3 of 3