Preview
INDEX NO. 812847/2015
(FILED: ERIE COUNTY CLERK 11/05/2015 I1:26 AM
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/05/2015
STATE OF NEW YORK
SUPREME COURT:COUNTY OF ERIE
CINDY T. HICKEY & KEVIN HICKEY
4158 Wildwood Drive
Buffalo, New York 14221
SUMMONS Served with
Plaintiffs, Verified Complaint
against Index No.
JOHN P. HURLEY, DPM
3925 Sheridan Drive
Amherst, New York 14226
and
BUFFALO SURGERY CENTER
3925 Sheridan Drive
Amherst, New York 14226
Defendants.
To the above named Defendant(s)
YOU ARE HEREBY SUMMONED AND REQUIRED to serve upon the Plaintiffs’ attorney,
at the address stated below, a written Answer to the attached Complaint.
If this Summons is served upon you within the State of New York by personal service you must
respond within TWENTY (20) days after service, not counting the day of service. If this Summons is not
personally delivered to you within the State of New York you must respond within THIRTY (30) days after
service is completed, as provided by law.
If you do not respond to the attached Complaint within the applicable time limitation stated above,
a Judgment will be entered against you, by default, for the relief demanded in the Complaint, without
further notice to you.
This action is brought in the County of Erie because of:
[X] Plaintiffs’ residence, or place of business;
[ ] Defendant's residence;
[ ] Designation made by Plaintiff. oye
DATED: November. 3 > 2015 By:
Bradley J. Stamm,
STAMM LAW FIRM
Attorneys for Plaintiff
1127 Wehrle Drive, Suite 100
Williamsville, New York 14221
Phone: (716) 631-5767
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
CINDY T. HICKEY & KEVIN HICKEY
4158 Wildwood Drive
Buffalo, New York 14221
Plaintiffs, VERIFIED COMPLAINT
VS. Index No.
JOHN P. HURLEY, DPM
3925 Sheridan Drive
Amherst, New York 14226
and
BUFFALO SURGERY CENTER
3925 Sheridan Drive
Amherst, New York 14226
Defendants.
Plaintiffs, CINDY T. HICKEY and KEVIN HICKEY, by their attorneys, STAMM LAW
FIRM for their Verified Complaint against the Defendants herein alleges:
1 That at all times hereinafter mentioned, the Plaintiffs, CINDY T. HICKEY and
KEVIN HICKEY, were and still are residents of the Town of Amherst, County of Erie and State
of New York.
2 Upon information and belief, at all times hereinafter mentioned, the Defendant,
JOHN P. HURLEY, DPM, was and still remains a physician duly licensed to practice medicine
under the laws of the State of New York with offices located at 3925 Sheridan Drive, Amherst,
New York 14226, and was employed by, or was an independent contractor having a working
relationship with, the Defendant, BUFFALO SURGERY CENTER.
3 Upon information and belief, at all times hereinafter mentioned, the Defendant,
BUFFALO SURGERY CENTER, was and remains a domestic corporation duly organized and
existing under and by virtue of the State of New York with offices located at York 3925 Sheridan
Drive in the Town of Amherst, County of Erie and State of New York.
4 Upon information and belief, at all times hereinafter mentioned, the Defendant,
JOHN R. HURLEY, DPM, represented to the public and the Plaintiff that he was a qualified
physician with the competence, knowledge, training and experience to render proper evaluation
and treatment of the medical condition of his patients, and invited the public including the
Plaintiff, to utilize his services. It then became, and was the duty of the Defendant, JOHN R.
HURLEY, DPM, to exercise reasonable care to see that the Plaintiff obtained proper medical
treatment and attention.
5 At all times hereinafter mentioned, the Defendant, BUFFALO SURGERY
CENTER represented itself to the public and the Plaintiff, CINDY T. HICKEY, as capable of
rendering proper diagnosis and treatment of any and all physical disabilities and infirmities
arising from any cause and invited the public, including the Plaintiff, to utilize its services at a
remuneration to be charged by the Defendant, BUFFALO SURGERY CENTER.
6 The Defendant, JOHN P. HURLEY, DPM, acting through its agents and
employees, then and there acting within the scope of their employment, undertook to render
medical care and assistance to the Plaintiff, CINDY T. HICKEY, and it then and there became,
and was the duty of the Defendant, JOHN P. HURLEY, DPM, to exercise reasonable care to see
that the Plaintiff, CINDY T. HICKEY, obtained proper medical treatment and attention.
7. The Defendant, BUFFALO SURGERY CENTER, acting through its agents
and employees, then and there acting within the scope of their employment, undertook to render
medical care and assistance to the Plaintiff, CINDY T. HICKEY, and it then and there became,
and was the duty of the Defendant, BUFFALO SURGERY CENTER, to exercise reasonable care
to see that the Plaintiff, CINDY T. HICKEY, obtained proper medical treatment and attention.
8 At the various times hereinafter mentioned, the relationship of patient and
physician existed between Plaintiff and the named Defendants herein, and that relationship was
one of trust and confidence on the part of the Plaintiff towards each of the Defendants.
9 That on or about December 16, 2013, the Plaintiff, CINDY T. HICKEY, came
under the care and treatment of the Defendants, JOHN P. HURLEY, DPM and BUFFALO
SURGERY CENTER, and said treatment continued until March 25, 2014.
10. On or about October 28, 2013 the Plaintiff, CINDY T. HICKEY, presented to the
Defendants, JOHN P. HURLEY, DPM, for painful bunions bilaterally. On or about December
16, 2013, the Plaintiff presented to the Defendant BUFFALO SURGERY CENTER for a
bunionectomy surgical procedure with fixation. During that procedure a guidewire had broken
off and remained in the Plaintiff's right foot.
11. Defendants, JOHN P. HURLEY, DPM, and BUFFALO SUGERY CENTER,
breached their duty of care owed to the Plaintiff, and the Defendants’ negligence, carelessness
and recklessness caused the Plaintiff to suffer serious injuries.
12. The negligence, carelessness and recklessness of the Defendants lies in medical
malpractice and negligence.
13. As to Defendants, JOHN P. HURLEY, DPM, and BUFFALO SURGERY
CENTER, both individually and under a theory of vicarious liability through the acts of their
agents, representatives, employees, servants and/or subcontractors, allegations of negligence,
carelessness and recklessness which constitute negligence and medical malpractice include, but
are not limited to, the following: failure to properly supervise and train their staff; failure to
properly staff their facility with appropriately trained, properly credentialed, competent and
qualified medical personnel; failures in allowing their employees, agents, representatives and
subcontractors to perform medical treatments and/or procedures that were beyond their
competence and skill level; failure to remove said wire from Plaintiff's right foot during and/or
following surgery; failure to establish a proper plan of care; failure of their agents, employees,
representatives, servants and/or subcontractors that can be imputed to their facility; failure to
properly and adequately diagnose the true condition of the Plaintiff; failure to properly and
adequately care and treat for the Plaintiff; and otherwise acting negligently, carelessly and
recklessly.
14, As a result of the negligence, carelessness, recklessness and medical malpractice
of the Defendants, JOHN P. HURLEY, DPM and BUFFALO SURGERY CENTER, the
Plaintiff, CINDY T. HICKEY, was caused unnecessary physical and continuing physical and
mental pain and suffering, including, but not limited to, the following: severe right foot swelling;
severe pain in right foot; severe right ankle pain; retained guidewire in right foot; swelling;
numbness; tingling; limp; possible future surgery to remove wire in right foot; mental anguish,
and severe physical pain and suffering.
15. The injuries suffered by the Plaintiff, CINDY T. HICKEY, were caused solely and
wholly as a result of the negligence, carelessness and recklessness of the Defendants as stated
herein, and without fault, negligence or contribution thereto by the Plaintiff.
16. The amount of damages sought in this cause of action exceeds the jurisdictional
limits of all lower Courts which would otherwise have jurisdiction.
AS AND FOR A SECOND, SEPARATE AND DISTINCT CAUSE OF ACTION,
THE PLAINTIFFS, CINDY T. HICKEY and KEVIN HICKEY, HEREIN ALLEGE:
17 Plaintiffs repeat and reallege paragraphs "1" through "16" as if fully set forth herein.
18. Plaintiff, KEVIN HICKEY, was married at all times herein to the Plaintiff, CINDY
T. HICKEY, and together they lived as husband and wife.
19. As a result of the negligence and carelessness of the Defendants and the resulting
injuries sustained by the Plaintiff, CINDY T. HICKEY, the Plaintiff, KEVIN HICKEY has been
unable to assist Plaintiff, CINDY T. HICKEY, in her normal household and companionship duties.
20. Plaintiff, KEVIN HICKEY, alleges loss of services and loss of consortium from his
wife, and other losses provable in this, his derivative cause of action, all to his damage in a sum to
be determined.
21. The judgment demanded for in this cause of action exceeds the jurisdictional limits
of any other court that would otherwise have jurisdiction.
WHEREFORE, Plaintiffs demand judgment against the Defendants on their first Cause of
Action in an amount sufficient to compensate them for all injuries and damages suffered by
reason of the Defendants’ acts and/or omissions and on their second Cause of Action in amount
sufficient to compensate them for all injuries and damages suffered by reason of the Defendants’
act and/or omissions, plus interest together with the costs and disbursements of this action.
DATED:
November 7 ye > 2015
Williamsville, New York
Yours, etc.
By
Bradley J. Stamm,
STAMM LAW FIRM
Attorneys for Plaintiff
1127 Wehrle Drive, Suite 100
Williamsville, New York 14221
(716) 631-5767
STATE OF NEW YORK } INDIVIDUAL VERIFICATION
COUNTY OF ERIE } ss
TOWN OF AMHERST
CINDY T. HICKEY and KEVIN HICKEY being duly sworn, deposes and says:
that deponent is Plaintiff in the within action; that deponent has read the
foregoing Complaint 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.
Chey theka)
Cindy T. /Hickey
Aan
Kevin Hickey
Sworn to before me this Cpl
day of November , 2015.
ple pDrct AQ/L0'°
Notary Public State“Of New York
My commission expires
Originally qualified in ——_ County
BARBARA BATTAGLIA
No, 01BA6115025
Notary Public, State of New York
Qualified in Erie County Dy (h
My
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
CINDY T. HICKEY & KEVIN HICKEY
4158Wildwood Drive
Buffalo, New York 14085
Plaintiffs,
CERTIFICATE OF
VS. MERIT
JOHN P. HURLEY, DPM Index No.:
3925 Sheridan Drive
Amherst, New York 14226
and
BUFFALO SURGERY CENTER
3925 Sheridan Drive
Amherst, New York 14226
Defendants.
I, BRADLEY J. STAMM, ESQ., attorney for the Plaintiffs, CINDY T. HICKEY and KEVIN
HICKEY, do hereby certify that I have reviewed the facts of this case and have consulted with at
least one physician who is licensed to practice in the State of New York and who I reasonably
believe is knowledgeable in the relevant issues involved in this particular action and that I have
concluded on the basis of that review and consultation that there is a reasonable basis for the
commencement of this action.
DATED: Williamsvi
November Bye York
> 2015
By
Bradley J. Stami
STAMM LAW FIRM
Attorneys for Plaintiff
1127 Wehrle Drive, Suite 100
Williamsville, NY 14221
(716) 631-5767
Preview
INDEX NO. 812847/2015 (FILED: ERIE COUNTY CLERK 11/05/2015 I1:26 AM NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/05/2015 STATE OF NEW YORK SUPREME COURT:COUNTY OF ERIE CINDY T. HICKEY & KEVIN HICKEY 4158 Wildwood Drive Buffalo, New York 14221 SUMMONS Served with Plaintiffs, Verified Complaint against Index No. JOHN P. HURLEY, DPM 3925 Sheridan Drive Amherst, New York 14226 and BUFFALO SURGERY CENTER 3925 Sheridan Drive Amherst, New York 14226 Defendants. To the above named Defendant(s) YOU ARE HEREBY SUMMONED AND REQUIRED to serve upon the Plaintiffs’ attorney, at the address stated below, a written Answer to the attached Complaint. If this Summons is served upon you within the State of New York by personal service you must respond within TWENTY (20) days after service, not counting the day of service. If this Summons is not personally delivered to you within the State of New York you must respond within THIRTY (30) days after service is completed, as provided by law. If you do not respond to the attached Complaint within the applicable time limitation stated above, a Judgment will be entered against you, by default, for the relief demanded in the Complaint, without further notice to you. This action is brought in the County of Erie because of: [X] Plaintiffs’ residence, or place of business; [ ] Defendant's residence; [ ] Designation made by Plaintiff. oye DATED: November. 3 > 2015 By: Bradley J. Stamm, STAMM LAW FIRM Attorneys for Plaintiff 1127 Wehrle Drive, Suite 100 Williamsville, New York 14221 Phone: (716) 631-5767 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE CINDY T. HICKEY & KEVIN HICKEY 4158 Wildwood Drive Buffalo, New York 14221 Plaintiffs, VERIFIED COMPLAINT VS. Index No. JOHN P. HURLEY, DPM 3925 Sheridan Drive Amherst, New York 14226 and BUFFALO SURGERY CENTER 3925 Sheridan Drive Amherst, New York 14226 Defendants. Plaintiffs, CINDY T. HICKEY and KEVIN HICKEY, by their attorneys, STAMM LAW FIRM for their Verified Complaint against the Defendants herein alleges: 1 That at all times hereinafter mentioned, the Plaintiffs, CINDY T. HICKEY and KEVIN HICKEY, were and still are residents of the Town of Amherst, County of Erie and State of New York. 2 Upon information and belief, at all times hereinafter mentioned, the Defendant, JOHN P. HURLEY, DPM, was and still remains a physician duly licensed to practice medicine under the laws of the State of New York with offices located at 3925 Sheridan Drive, Amherst, New York 14226, and was employed by, or was an independent contractor having a working relationship with, the Defendant, BUFFALO SURGERY CENTER. 3 Upon information and belief, at all times hereinafter mentioned, the Defendant, BUFFALO SURGERY CENTER, was and remains a domestic corporation duly organized and existing under and by virtue of the State of New York with offices located at York 3925 Sheridan Drive in the Town of Amherst, County of Erie and State of New York. 4 Upon information and belief, at all times hereinafter mentioned, the Defendant, JOHN R. HURLEY, DPM, represented to the public and the Plaintiff that he was a qualified physician with the competence, knowledge, training and experience to render proper evaluation and treatment of the medical condition of his patients, and invited the public including the Plaintiff, to utilize his services. It then became, and was the duty of the Defendant, JOHN R. HURLEY, DPM, to exercise reasonable care to see that the Plaintiff obtained proper medical treatment and attention. 5 At all times hereinafter mentioned, the Defendant, BUFFALO SURGERY CENTER represented itself to the public and the Plaintiff, CINDY T. HICKEY, as capable of rendering proper diagnosis and treatment of any and all physical disabilities and infirmities arising from any cause and invited the public, including the Plaintiff, to utilize its services at a remuneration to be charged by the Defendant, BUFFALO SURGERY CENTER. 6 The Defendant, JOHN P. HURLEY, DPM, acting through its agents and employees, then and there acting within the scope of their employment, undertook to render medical care and assistance to the Plaintiff, CINDY T. HICKEY, and it then and there became, and was the duty of the Defendant, JOHN P. HURLEY, DPM, to exercise reasonable care to see that the Plaintiff, CINDY T. HICKEY, obtained proper medical treatment and attention. 7. The Defendant, BUFFALO SURGERY CENTER, acting through its agents and employees, then and there acting within the scope of their employment, undertook to render medical care and assistance to the Plaintiff, CINDY T. HICKEY, and it then and there became, and was the duty of the Defendant, BUFFALO SURGERY CENTER, to exercise reasonable care to see that the Plaintiff, CINDY T. HICKEY, obtained proper medical treatment and attention. 8 At the various times hereinafter mentioned, the relationship of patient and physician existed between Plaintiff and the named Defendants herein, and that relationship was one of trust and confidence on the part of the Plaintiff towards each of the Defendants. 9 That on or about December 16, 2013, the Plaintiff, CINDY T. HICKEY, came under the care and treatment of the Defendants, JOHN P. HURLEY, DPM and BUFFALO SURGERY CENTER, and said treatment continued until March 25, 2014. 10. On or about October 28, 2013 the Plaintiff, CINDY T. HICKEY, presented to the Defendants, JOHN P. HURLEY, DPM, for painful bunions bilaterally. On or about December 16, 2013, the Plaintiff presented to the Defendant BUFFALO SURGERY CENTER for a bunionectomy surgical procedure with fixation. During that procedure a guidewire had broken off and remained in the Plaintiff's right foot. 11. Defendants, JOHN P. HURLEY, DPM, and BUFFALO SUGERY CENTER, breached their duty of care owed to the Plaintiff, and the Defendants’ negligence, carelessness and recklessness caused the Plaintiff to suffer serious injuries. 12. The negligence, carelessness and recklessness of the Defendants lies in medical malpractice and negligence. 13. As to Defendants, JOHN P. HURLEY, DPM, and BUFFALO SURGERY CENTER, both individually and under a theory of vicarious liability through the acts of their agents, representatives, employees, servants and/or subcontractors, allegations of negligence, carelessness and recklessness which constitute negligence and medical malpractice include, but are not limited to, the following: failure to properly supervise and train their staff; failure to properly staff their facility with appropriately trained, properly credentialed, competent and qualified medical personnel; failures in allowing their employees, agents, representatives and subcontractors to perform medical treatments and/or procedures that were beyond their competence and skill level; failure to remove said wire from Plaintiff's right foot during and/or following surgery; failure to establish a proper plan of care; failure of their agents, employees, representatives, servants and/or subcontractors that can be imputed to their facility; failure to properly and adequately diagnose the true condition of the Plaintiff; failure to properly and adequately care and treat for the Plaintiff; and otherwise acting negligently, carelessly and recklessly. 14, As a result of the negligence, carelessness, recklessness and medical malpractice of the Defendants, JOHN P. HURLEY, DPM and BUFFALO SURGERY CENTER, the Plaintiff, CINDY T. HICKEY, was caused unnecessary physical and continuing physical and mental pain and suffering, including, but not limited to, the following: severe right foot swelling; severe pain in right foot; severe right ankle pain; retained guidewire in right foot; swelling; numbness; tingling; limp; possible future surgery to remove wire in right foot; mental anguish, and severe physical pain and suffering. 15. The injuries suffered by the Plaintiff, CINDY T. HICKEY, were caused solely and wholly as a result of the negligence, carelessness and recklessness of the Defendants as stated herein, and without fault, negligence or contribution thereto by the Plaintiff. 16. The amount of damages sought in this cause of action exceeds the jurisdictional limits of all lower Courts which would otherwise have jurisdiction. AS AND FOR A SECOND, SEPARATE AND DISTINCT CAUSE OF ACTION, THE PLAINTIFFS, CINDY T. HICKEY and KEVIN HICKEY, HEREIN ALLEGE: 17 Plaintiffs repeat and reallege paragraphs "1" through "16" as if fully set forth herein. 18. Plaintiff, KEVIN HICKEY, was married at all times herein to the Plaintiff, CINDY T. HICKEY, and together they lived as husband and wife. 19. As a result of the negligence and carelessness of the Defendants and the resulting injuries sustained by the Plaintiff, CINDY T. HICKEY, the Plaintiff, KEVIN HICKEY has been unable to assist Plaintiff, CINDY T. HICKEY, in her normal household and companionship duties. 20. Plaintiff, KEVIN HICKEY, alleges loss of services and loss of consortium from his wife, and other losses provable in this, his derivative cause of action, all to his damage in a sum to be determined. 21. The judgment demanded for in this cause of action exceeds the jurisdictional limits of any other court that would otherwise have jurisdiction. WHEREFORE, Plaintiffs demand judgment against the Defendants on their first Cause of Action in an amount sufficient to compensate them for all injuries and damages suffered by reason of the Defendants’ acts and/or omissions and on their second Cause of Action in amount sufficient to compensate them for all injuries and damages suffered by reason of the Defendants’ act and/or omissions, plus interest together with the costs and disbursements of this action. DATED: November 7 ye > 2015 Williamsville, New York Yours, etc. By Bradley J. Stamm, STAMM LAW FIRM Attorneys for Plaintiff 1127 Wehrle Drive, Suite 100 Williamsville, New York 14221 (716) 631-5767 STATE OF NEW YORK } INDIVIDUAL VERIFICATION COUNTY OF ERIE } ss TOWN OF AMHERST CINDY T. HICKEY and KEVIN HICKEY being duly sworn, deposes and says: that deponent is Plaintiff in the within action; that deponent has read the foregoing Complaint 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. Chey theka) Cindy T. /Hickey Aan Kevin Hickey Sworn to before me this Cpl day of November , 2015. ple pDrct AQ/L0'° Notary Public State“Of New York My commission expires Originally qualified in ——_ County BARBARA BATTAGLIA No, 01BA6115025 Notary Public, State of New York Qualified in Erie County Dy (h My STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE CINDY T. HICKEY & KEVIN HICKEY 4158Wildwood Drive Buffalo, New York 14085 Plaintiffs, CERTIFICATE OF VS. MERIT JOHN P. HURLEY, DPM Index No.: 3925 Sheridan Drive Amherst, New York 14226 and BUFFALO SURGERY CENTER 3925 Sheridan Drive Amherst, New York 14226 Defendants. I, BRADLEY J. STAMM, ESQ., attorney for the Plaintiffs, CINDY T. HICKEY and KEVIN HICKEY, do hereby certify that I have reviewed the facts of this case and have consulted with at least one physician who is licensed to practice in the State of New York and who I reasonably believe is knowledgeable in the relevant issues involved in this particular action and that I have concluded on the basis of that review and consultation that there is a reasonable basis for the commencement of this action. DATED: Williamsvi November Bye York > 2015 By Bradley J. Stami STAMM LAW FIRM Attorneys for Plaintiff 1127 Wehrle Drive, Suite 100 Williamsville, NY 14221 (716) 631-5767