Preview
FILED: ONEIDA COUNTY CLERK 01/08/2024 04:59 PM INDEX NO. EFCA2023-003208
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONEIDA
YISSET SALAZAR, Individually, and as Administratrix of
the Estate of J.S.R., Deceased,
VERIFIED ANSWER
Plaintiffs,
-vs- Index No.: EFCA2023-003208
KWAKU AMANKWAH, M.D., FAXTON ST. LUKE’S
HOSPITAL, FAXTON ST. LUKE’S HEALTHCARE, and
SLOCUM DICKSON MEDICAL GROUP, PLLC,
Defendants.
The Defendant, KWAKU AMANKWAH, M.D., by his attorneys, Gale Gale & Hunt,
LLC, answers the Verified Complaint of the Plaintiffs herein as follows:
1. ADMITS the allegations contained in Paragraphs 4 and 5 of the Plaintiffs’
Verified Complaint.
2. DENIES any knowledge or information sufficient to form a belief as to the truth
of the allegations contained in Paragraphs 1, 2, 3, 8, 9, 10, 11, 12, 13, 14, 15, and 16 of the
Plaintiffs’ Verified Complaint.
3. DENIES in form stated, the allegations contained in Paragraphs 6, 17, 19, and 21
of the Plaintiffs’ Verified Complaint.
4. The allegations contained in Paragraphs 7, 18, 20, and 22 of the Plaintiffs’
Verified Complaint call for legal conclusion and all questions of law are referred to the Court.
AS TO THE FACTS:
5. Answers the allegations contained in Paragraphs designated 1 through 22 of the
Plaintiffs’ Verified Complaint, as realleged by Plaintiffs in Paragraph 23 in the same manner as
the said allegations are heretofore treated in this Answer.
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6. DENIES any knowledge or information sufficient to form a belief as to the truth
of the allegations contained in Paragraphs 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 38, 39, 41,
42, 43, 44, and 46 of the Plaintiffs’ Verified Complaint.
7. DENIES the allegations contained in Paragraphs 31, 32, 37, 40, 47, and 48 of the
Plaintiffs’ Verified Complaint.
8. DENIES in form stated, the allegations contained in Paragraph 45 of the
Plaintiffs’ Verified Complaint.
AS TO THE FIRST CAUSE OF ACTION:
9. Answers the allegations contained in Paragraphs designated 1 through 48 of the
Plaintiffs’ Verified Complaint, as realleged by Plaintiffs in Paragraph 49 in the same manner as
the said allegations are heretofore treated in this Answer.
10. DENIES the allegations contained in Paragraphs 50, 51, and 52 of the Plaintiffs’
Verified Complaint.
11. DENIES any knowledge or information sufficient to form a belief as to the truth
of the allegations contained in Paragraph 53 of the Plaintiffs’ Verified Complaint.
AS TO THE SECOND CAUSE OF ACTION:
12. Answers the allegations contained in Paragraphs designated 1 through 53 of the
Plaintiffs’ Verified Complaint, as realleged by Plaintiffs in Paragraph 54 in the same manner as
the said allegations are heretofore treated in this Answer.
13. DENIES the allegations contained in Paragraphs 55, 56, 57, 58, and 59 of the
Plaintiffs’ Verified Complaint.
14. DENIES any knowledge or information sufficient to form a belief as to the truth
of the allegations contained in Paragraph 60 of the Plaintiffs’ Verified Complaint.
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AS TO THE THIRD CAUSE OF ACTION:
15. Answers the allegations contained in Paragraphs designated 1 through 60 of the
Plaintiffs’ Verified Complaint, as realleged by Plaintiffs in Paragraph 61 in the same manner as
the said allegations are heretofore treated in this Answer.
16. DENIES any knowledge or information sufficient to form a belief as to the truth
of the allegations contained in Paragraphs 62 and 65 of the Plaintiffs’ Verified Complaint.
17. DENIES the allegations contained in Paragraphs 63 and 64 of the Plaintiffs’
Verified Complaint.
AS TO THE DAMAGES:
18. Answers the allegations contained in Paragraphs designated 1 through 65 of the
Plaintiffs’ Verified Complaint, as realleged by Plaintiffs in Paragraph 66 in the same manner as
the said allegations are heretofore treated in this Answer.
19. DENIES the allegations contained in Paragraphs 67 and 68 of the Plaintiffs’
Verified Complaint.
20. DENIES any knowledge or information sufficient to form a belief as to the truth
of the allegations contained in Paragraphs 69 and 70 of the Plaintiffs’ Verified Complaint.
21. DENIES each and every other allegation contained in Plaintiffs’ Verified
Complaint not hereinbefore specifically admitted, controverted or denied.
AS AND FOR A FIRST CROSS-CLAIM HEREIN
PURSUANT TO ARTICLE 14 DEFENDANT ALLEGES:
22. That the relative culpability, if any, of each person, entity, or party who is or may
be liable for the damages alleged by Plaintiffs in this action should be determined in accordance
with the decisional and statutory law of the State of New York and the equitable share of each
person, entity, or party liable for contribution should be determined and apportioned in
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accordance with the relative culpability, if any, of each such person, entity, or party pursuant to
the provisions of CPLR Article 14.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE:
23. The injuries and damages, if any, alleged to have been sustained by Plaintiff were
caused, contributed to, and brought about, in whole or in part, by the assumption of risk and/or
culpable conduct of Plaintiffs and the damages otherwise recoverable by Plaintiffs, if any, should
be diminished in proportion to the culpable conduct attributable to the Plaintiffs pursuant to
Article 14-A of the CPLR.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE:
24. That the answering Defendant will claim the benefit of the limited liability
provisions of Article 16 of the New York Civil Practice Laws and Rules.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE:
25. That should the answering Defendant be found liable for Plaintiff’s injuries, the
Defendant shall rely on CPLR §4545 to obtain a set off or reduction of any award, in the total
amount of any and all costs or expenses that were or will be, with reasonable certainty, replaced
or indemnified, in whole or in part, from any and all collateral source(s) as defined by said
statute, including but not limited to, insurance, Social Security, Workers’ Compensation, or
employee benefit programs.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:
26. In the event that the Plaintiffs settles with or provides a release to one or more
persons claimed to be liable for the same injury alleged in the Plaintiffs’ Verified Complaint, this
answering Defendant will seek an offset pursuant to General Obligations Law §15-108.
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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:
27. That the action of Plaintiff herein is barred by the statute of limitations as set forth
in the applicable sections of the Civil Practice Law & Rules of the State of New York, including
CPLR §214-a., the Estates, Powers and Trusts Laws of the State of New York.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:
28. Third persons over whom the answering Defendant had no direction or control
may be liable for Plaintiffs’ claim.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE:
29. That this answering Defendant will rely upon the applicable provisions of Section
2805-d of the Public Health Law, including, but not limited to, Section 2805-d (4).
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE:
30. That Plaintiff [and/or decedent] has failed to take all reasonable and necessary
steps to mitigate their damages.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE:
31. Upon information and belief, the Plaintiff YISSET SALAZAR, lacks the legal
capacity or authorization to sue the causes of action as set forth in the Verified Complaint on
behalf of Decedent J.S.R. under New York law., including but not limited to, the applicable
sections of the Civil Practice Law & Rules of the State of New York, Estates, Powers and Trusts
Law of the State of New York, and New York Judiciary Law.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE:
32. That the Plaintiffs’ Verified Complaint fails to state a cause of action against this
answering defendant upon which relief can be granted.
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WHEREFORE, the answering Defendant KWAKU AMANKWAH, M.D. demands
judgment as follows:
(a) dismissing the Plaintiffs’ Verified Complaint against the answering Defendant;
(b) diminishing the amount of Plaintiff’s recovery, if any, in the proportion which the
culpable conduct attributable to Plaintiffs bear to the culpable conduct which
caused such damages, pursuant to Article 14-A of the New York Civil Practice
Laws and Rules;
(c) determining the relative liability of the parties in accordance with New York Civil
Practice Laws and Rules Article 14 and awarding contribution in such amounts as
shall be determined upon the trial of this action;
(d) for indemnification and judgment over against the co-defendants;
(e) limiting liability for non-economic loss in accordance with New York Civil
Practice Laws and Rules Article 16;
(f) for a set off against the amount of any verdict of any monies collected from a
collateral source of payment pursuant to CPLR § 4545;
(g) for such other and further relief as to the Court may deem just and proper; and
(h) for the costs and disbursements of this action.
Dated: January 8, 2024
Kirsten Lerch Kroft, Esq.
GALE GALE & HUNT, LLC
Attorneys for Defendants Kwaku Amankwah, M.D. and
Slocum Dickson Medical Group, PLLC
P. O. Box 97
Fayetteville, New York 13066
(315) 637-3663
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FILED: ONEIDA COUNTY CLERK 01/08/2024 04:59 PM INDEX NO. EFCA2023-003208
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2024
TO: Anna Badalian, Esq.
DeFrancisco & Falgiatano, LLP
Attorneys for Plaintiffs
6739 Myers Road
East Syracuse, New York 13057
(315) 479-9000
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FILED: ONEIDA COUNTY CLERK 01/08/2024 04:59 PM INDEX NO. EFCA2023-003208
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONEIDA
YISSET SALAZAR, Individually, and as Administratrix of
the Estate of J.S.R., Deceased,
VERIFICATION
Plaintiffs,
-vs- Index No.: EFCA2023-003208
KWAKU AMANKWAH, M.D., FAXTON ST. LUKE’S
HOSPITAL, FAXTON ST. LUKE’S HEALTHCARE, and
SLOCUM DICKSON MEDICAL GROUP, PLLC,
Defendants.
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) ss.:
The undersigned, an attorney admitted to practice in the courts of New York State, shows:
that deponent is the attorney of record for Defendant KWAKU AMANKWAH, M.D. in the
within action; that deponent has read the foregoing Verified Answer and knows the contents
thereof; that the same is true to deponent’s own knowledge, except as to the matters therein stated to
be alleged on information and belief, and that as to those matters deponent believes it to be true.
Deponent further says that the reason this Verification is made by deponent and not by
Defendant KWAKU AMANKWAH, M.D. is because deponent’s office is located in a different
county from Defendant KWAKU AMANKWAH, M.D.
The grounds of deponent’s belief as to all matters not stated upon deponent’s knowledge
are as follows: investigation, file review, and information and belief.
The undersigned affirms that the foregoing statements are true under the penalties of
perjury.
Dated: January 8, 2024
Kirsten Lerch Kroft, Esq.
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Preview
FILED: ONEIDA COUNTY CLERK 01/08/2024 04:59 PM INDEX NO. EFCA2023-003208 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF ONEIDA YISSET SALAZAR, Individually, and as Administratrix of the Estate of J.S.R., Deceased, VERIFIED ANSWER Plaintiffs, -vs- Index No.: EFCA2023-003208 KWAKU AMANKWAH, M.D., FAXTON ST. LUKE’S HOSPITAL, FAXTON ST. LUKE’S HEALTHCARE, and SLOCUM DICKSON MEDICAL GROUP, PLLC, Defendants. The Defendant, KWAKU AMANKWAH, M.D., by his attorneys, Gale Gale & Hunt, LLC, answers the Verified Complaint of the Plaintiffs herein as follows: 1. ADMITS the allegations contained in Paragraphs 4 and 5 of the Plaintiffs’ Verified Complaint. 2. DENIES any knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 1, 2, 3, 8, 9, 10, 11, 12, 13, 14, 15, and 16 of the Plaintiffs’ Verified Complaint. 3. DENIES in form stated, the allegations contained in Paragraphs 6, 17, 19, and 21 of the Plaintiffs’ Verified Complaint. 4. The allegations contained in Paragraphs 7, 18, 20, and 22 of the Plaintiffs’ Verified Complaint call for legal conclusion and all questions of law are referred to the Court. AS TO THE FACTS: 5. Answers the allegations contained in Paragraphs designated 1 through 22 of the Plaintiffs’ Verified Complaint, as realleged by Plaintiffs in Paragraph 23 in the same manner as the said allegations are heretofore treated in this Answer. 1 of 8 FILED: ONEIDA COUNTY CLERK 01/08/2024 04:59 PM INDEX NO. EFCA2023-003208 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2024 6. DENIES any knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 38, 39, 41, 42, 43, 44, and 46 of the Plaintiffs’ Verified Complaint. 7. DENIES the allegations contained in Paragraphs 31, 32, 37, 40, 47, and 48 of the Plaintiffs’ Verified Complaint. 8. DENIES in form stated, the allegations contained in Paragraph 45 of the Plaintiffs’ Verified Complaint. AS TO THE FIRST CAUSE OF ACTION: 9. Answers the allegations contained in Paragraphs designated 1 through 48 of the Plaintiffs’ Verified Complaint, as realleged by Plaintiffs in Paragraph 49 in the same manner as the said allegations are heretofore treated in this Answer. 10. DENIES the allegations contained in Paragraphs 50, 51, and 52 of the Plaintiffs’ Verified Complaint. 11. DENIES any knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 53 of the Plaintiffs’ Verified Complaint. AS TO THE SECOND CAUSE OF ACTION: 12. Answers the allegations contained in Paragraphs designated 1 through 53 of the Plaintiffs’ Verified Complaint, as realleged by Plaintiffs in Paragraph 54 in the same manner as the said allegations are heretofore treated in this Answer. 13. DENIES the allegations contained in Paragraphs 55, 56, 57, 58, and 59 of the Plaintiffs’ Verified Complaint. 14. DENIES any knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 60 of the Plaintiffs’ Verified Complaint. 2 of 8 FILED: ONEIDA COUNTY CLERK 01/08/2024 04:59 PM INDEX NO. EFCA2023-003208 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2024 AS TO THE THIRD CAUSE OF ACTION: 15. Answers the allegations contained in Paragraphs designated 1 through 60 of the Plaintiffs’ Verified Complaint, as realleged by Plaintiffs in Paragraph 61 in the same manner as the said allegations are heretofore treated in this Answer. 16. DENIES any knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 62 and 65 of the Plaintiffs’ Verified Complaint. 17. DENIES the allegations contained in Paragraphs 63 and 64 of the Plaintiffs’ Verified Complaint. AS TO THE DAMAGES: 18. Answers the allegations contained in Paragraphs designated 1 through 65 of the Plaintiffs’ Verified Complaint, as realleged by Plaintiffs in Paragraph 66 in the same manner as the said allegations are heretofore treated in this Answer. 19. DENIES the allegations contained in Paragraphs 67 and 68 of the Plaintiffs’ Verified Complaint. 20. DENIES any knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 69 and 70 of the Plaintiffs’ Verified Complaint. 21. DENIES each and every other allegation contained in Plaintiffs’ Verified Complaint not hereinbefore specifically admitted, controverted or denied. AS AND FOR A FIRST CROSS-CLAIM HEREIN PURSUANT TO ARTICLE 14 DEFENDANT ALLEGES: 22. That the relative culpability, if any, of each person, entity, or party who is or may be liable for the damages alleged by Plaintiffs in this action should be determined in accordance with the decisional and statutory law of the State of New York and the equitable share of each person, entity, or party liable for contribution should be determined and apportioned in 3 of 8 FILED: ONEIDA COUNTY CLERK 01/08/2024 04:59 PM INDEX NO. EFCA2023-003208 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2024 accordance with the relative culpability, if any, of each such person, entity, or party pursuant to the provisions of CPLR Article 14. AS AND FOR A FIRST AFFIRMATIVE DEFENSE: 23. The injuries and damages, if any, alleged to have been sustained by Plaintiff were caused, contributed to, and brought about, in whole or in part, by the assumption of risk and/or culpable conduct of Plaintiffs and the damages otherwise recoverable by Plaintiffs, if any, should be diminished in proportion to the culpable conduct attributable to the Plaintiffs pursuant to Article 14-A of the CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE: 24. That the answering Defendant will claim the benefit of the limited liability provisions of Article 16 of the New York Civil Practice Laws and Rules. AS AND FOR A THIRD AFFIRMATIVE DEFENSE: 25. That should the answering Defendant be found liable for Plaintiff’s injuries, the Defendant shall rely on CPLR §4545 to obtain a set off or reduction of any award, in the total amount of any and all costs or expenses that were or will be, with reasonable certainty, replaced or indemnified, in whole or in part, from any and all collateral source(s) as defined by said statute, including but not limited to, insurance, Social Security, Workers’ Compensation, or employee benefit programs. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE: 26. In the event that the Plaintiffs settles with or provides a release to one or more persons claimed to be liable for the same injury alleged in the Plaintiffs’ Verified Complaint, this answering Defendant will seek an offset pursuant to General Obligations Law §15-108. 4 of 8 FILED: ONEIDA COUNTY CLERK 01/08/2024 04:59 PM INDEX NO. EFCA2023-003208 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2024 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE: 27. That the action of Plaintiff herein is barred by the statute of limitations as set forth in the applicable sections of the Civil Practice Law & Rules of the State of New York, including CPLR §214-a., the Estates, Powers and Trusts Laws of the State of New York. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE: 28. Third persons over whom the answering Defendant had no direction or control may be liable for Plaintiffs’ claim. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE: 29. That this answering Defendant will rely upon the applicable provisions of Section 2805-d of the Public Health Law, including, but not limited to, Section 2805-d (4). AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE: 30. That Plaintiff [and/or decedent] has failed to take all reasonable and necessary steps to mitigate their damages. AS AND FOR A NINTH AFFIRMATIVE DEFENSE: 31. Upon information and belief, the Plaintiff YISSET SALAZAR, lacks the legal capacity or authorization to sue the causes of action as set forth in the Verified Complaint on behalf of Decedent J.S.R. under New York law., including but not limited to, the applicable sections of the Civil Practice Law & Rules of the State of New York, Estates, Powers and Trusts Law of the State of New York, and New York Judiciary Law. AS AND FOR A TENTH AFFIRMATIVE DEFENSE: 32. That the Plaintiffs’ Verified Complaint fails to state a cause of action against this answering defendant upon which relief can be granted. 5 of 8 FILED: ONEIDA COUNTY CLERK 01/08/2024 04:59 PM INDEX NO. EFCA2023-003208 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2024 WHEREFORE, the answering Defendant KWAKU AMANKWAH, M.D. demands judgment as follows: (a) dismissing the Plaintiffs’ Verified Complaint against the answering Defendant; (b) diminishing the amount of Plaintiff’s recovery, if any, in the proportion which the culpable conduct attributable to Plaintiffs bear to the culpable conduct which caused such damages, pursuant to Article 14-A of the New York Civil Practice Laws and Rules; (c) determining the relative liability of the parties in accordance with New York Civil Practice Laws and Rules Article 14 and awarding contribution in such amounts as shall be determined upon the trial of this action; (d) for indemnification and judgment over against the co-defendants; (e) limiting liability for non-economic loss in accordance with New York Civil Practice Laws and Rules Article 16; (f) for a set off against the amount of any verdict of any monies collected from a collateral source of payment pursuant to CPLR § 4545; (g) for such other and further relief as to the Court may deem just and proper; and (h) for the costs and disbursements of this action. Dated: January 8, 2024 Kirsten Lerch Kroft, Esq. GALE GALE & HUNT, LLC Attorneys for Defendants Kwaku Amankwah, M.D. and Slocum Dickson Medical Group, PLLC P. O. Box 97 Fayetteville, New York 13066 (315) 637-3663 6 of 8 FILED: ONEIDA COUNTY CLERK 01/08/2024 04:59 PM INDEX NO. EFCA2023-003208 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2024 TO: Anna Badalian, Esq. DeFrancisco & Falgiatano, LLP Attorneys for Plaintiffs 6739 Myers Road East Syracuse, New York 13057 (315) 479-9000 7 of 8 FILED: ONEIDA COUNTY CLERK 01/08/2024 04:59 PM INDEX NO. EFCA2023-003208 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 01/08/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF ONEIDA YISSET SALAZAR, Individually, and as Administratrix of the Estate of J.S.R., Deceased, VERIFICATION Plaintiffs, -vs- Index No.: EFCA2023-003208 KWAKU AMANKWAH, M.D., FAXTON ST. LUKE’S HOSPITAL, FAXTON ST. LUKE’S HEALTHCARE, and SLOCUM DICKSON MEDICAL GROUP, PLLC, Defendants. STATE OF NEW YORK ) COUNTY OF ONONDAGA ) ss.: The undersigned, an attorney admitted to practice in the courts of New York State, shows: that deponent is the attorney of record for Defendant KWAKU AMANKWAH, M.D. in the within action; that deponent has read the foregoing Verified Answer and knows the contents thereof; that the same is true to deponent’s own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes it to be true. Deponent further says that the reason this Verification is made by deponent and not by Defendant KWAKU AMANKWAH, M.D. is because deponent’s office is located in a different county from Defendant KWAKU AMANKWAH, M.D. The grounds of deponent’s belief as to all matters not stated upon deponent’s knowledge are as follows: investigation, file review, and information and belief. The undersigned affirms that the foregoing statements are true under the penalties of perjury. Dated: January 8, 2024 Kirsten Lerch Kroft, Esq. 8 of 8