Preview
INDEX NO. 808140/2015
(FILED: ERIE COUNTY CLERK 10/27/2015 03:50 PM
NYSCEF DOC. NO. 9 RECEIVED NYSCEF 10/27/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
Index No.: 808140/2015
TIMOTHY WOJDAN,
Plaintiff, VERIFIED ANSWER
-against-
ERIE COUNTY MEDICAL CENTER CORPORATION,
WILLIAM DICE, M.D., ANDREW J. ECKERT, M.D.,
TATIANA V. BOYKO, M.D., and CHARLES
WILES, M.D.,
Defendants.
psec cmc merece ane cement etertree rr eer
Defendants, WILLIAM DICE, M.D. and CHARLES WILLES, M.D., by and through
its attorneys, RUSSO & TONER, LLP, as and for its Verified Answer to the plaintiff's
Summons and Complaint dated July 6, 2015, sets forth the following upon information and
belief:
1 Denies knowledge or information sufficient to form a belief as to each and every
allegation set forth in the paragraphs of the Summons and Complaint designated “1,” “5,” “6,”
77 6B HQ 19 1.4.” 15,7 17.7 “18, 20,” “21,” 22,” “23,” “25,” “26,” #31,” 32,” “34,”
and “35.”
2 Answering defendant, WILLIAM DICE, M.D., denies the allegations set forth in
the paragraph of ‘the Summons and Verified Complaint designated as “2” and admits that
WILLIAM DICE, M.D., was and is a physician duly licensed to practice medicine by the State
of New York.
3 Denies each and every allegation set forth in the paragraphs of the Summons and
Complaint designated “3,” “4,” “12,” 13,” “16,” “19,” “24,” “27,” “33,” and “36, and refers all
questions of law and fact to the trial court for determination.
4. Answering defendant, CHARLES WILES, M.D., admits the allegations set forth
in the paragraph of the Summons and Verified Complaint designated as “11” and admits that
CHARLES WILES, M.D., was and is a physician duly licensed to practice medicine by the
State of New York.
5 Denies each and every allegation set forth in the paragraphs of the Summons and
Verified Complaint designated “28,” “29,” “30,” and “37.”
AS AND _ FOR A FIRST CAUSE OF ACTION
6 In response to paragraph “38” of the Summons and Verified Complaint the
answering defendant repeats, reiterates and realleges each and every response to the allegations
set forth in the paragraphs of the Summons and Verified Complaint designated “1” through “37,”
as if more fully set forth at length herein.
7
Denies each and every allegation set forth in the paragraphs of the Summons and
Verified Complaint designated “39,” “40,” “41,” “42,” “43,” “44.” “45,” “46,” and “47,”
AS AND FOR SECOND CAUSE OF ACTION
8 In response to paragraph “48” of the Summons and Verified Complaint the
answering defendant repeats, reiterates and realleges each and every response to the allegations
set forth in the paragraphs of the Summons and Verified Complaint designated “1” through “47,”
as if more fully set forth at length herein.
9 Denies knowledge or information sufficient to form a belief as to each and every
allegation set forth in the paragraphs of the Summons and Complaint designated “49,” “50,”
51," “52” and “53.”
AS AND FOR THIRD CAUSE OF ACTION
10. In response to paragraph “54” of the Summons and Verified Complaint the
answering defendant repeats, reiterates and realleges each and every response to the allegations
set forth in the paragraphs of the Summons and Verified Complaint designated “1” through “53,”
as if more fully set forth at length herein.
li. Denies knowledge or information sufficient to form a belief as to each and every
allegation set forth in the paragraphs of the Summons and Verified Complaint designated “55,”
56," “57,” “58.” and “59.”
AS AND FOR FOURTH CAUSE OF ACTION
12. In response to paragraph “60” of the Summons and Verified Complaint the
answering defendant repeats, reiterates and realleges each and every response to the allegations
set forth in the paragraphs of the Summons and Verified Complaint designated “1” through “59,”
as if more fully set forth at length herein.
13. Denies each and every allegation set forth in the paragraphs of the Summons and
Verified Complaint designated “61,” “62,” “63,” “64,” and “65.”
AS AND FOR FIFTH CAUSE OF ACTION
14. In response to paragraph “66” of the Summons and Verified Complaint the
answering defendant, repeats, reiterates and realleges each and every response to the allegations
set forth in the paragraphs of the Summons and Verified Complaint designated “1” through “65,”
as if more fully set forth at length herein.
15. Denies knowledge or information sufficient to form a belief as to each and every
Allegation set forth in the paragraphs of the Summons and Verified Complaint designated “67,”
“68, “70,” and “71.”
16. Denies each and every allegation set forth in the paragraphs of the Summons and
Verified Complaint designated “69,” and “72”, and refers all questions of law and fact to the trial
court for determination.
17. Denies each and every allegation set forth in the paragraphs of the Summons and
Verified Complaint designated “73,” and “74.”
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
18. That any damages otherwise recoverable by the plaintiff shall be diminished in
the proportion which the culpable conduct attributable to the plaintiff bears to the culpable
conduct which caused the damages and/or injuries alleged.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
19. That any damages otherwise recoverable by the plaintiff shall be diminished in
the proportion which the culpable conduct attributable to the third persons bears to the culpable
conduct which caused the damages and/or injuries alleged.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
20. The defendant herein claims the application of Article 16 of the Civil Practice
Law and Rules and asserts limited liability thereunder for any non-economic loss.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
21. Answering defendant claims the benefit of each and every provision of CPLR
Section 4545 including but not limited to any credit off-set by reason of any replacement or
indemnification of costs or expenses from any collateral source.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
22. That the Cause of Action seeking to recover for “lack of informed consent” is
barred by the Statute of Limitations.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
23, That the plaintiff has failed to state a cause of action to recover for “lack of
informed consent.”
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
24. The answering defendant alleges the provisions of Public Health Law Section
2805-d with respect to plaintiff's Complaint.
AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE
25. That the defendant herein claims the benefit of each and every provision of
General Obligation Law Section §15-108 including, but not limited to, the reduction of the claim
of plaintiff herein against the defendant herein to the extent of any amounts stipulated by a
release or covenant not to sue entered into by the plaintiff herein, or in the amount of
consideration paid for same, or in the amount of the released tortfeasor’s equitable share of the
damages under Article 14 of the Civil Practice Law and Rules, whichever is the greatest, or
whichever the defendant herein elects to apply.
WHEREFORE, Defendant, WILLIAM DICE, M.D. and CHARLES WILES, M.D.,
by and through its attorneys, RUSSO & TONER, LLP, demands judgment dismissing the
complaint of the plaintiff together with the costs and disbursements of this action.
Dated: New York, New York
October 27, 2015
Yours ete.,
RUSSO & TONER, LLP
Attorneys for Defendant
WILLIAM DICE, M.D. and
CHARLES WILES, M.D.
33 Whitehall Street, 16th Floor
New York, New York 10004
(212) 482-0001
R&T File No.: 230.092
TO: Randy C. Mallaber, Esq.
HOGAN WILLIG, PLLC
Attorneys for Plaintiff
2410 North Forest Road — Ste. 301
Amherst, New York 10468
(716) 636-7600
John P. Danieu, Esq.
ROACH, BROWN, McCARTHY, GRUBER, P.C.
Attorneys for defendant
ERIE COUNTY MEDICAL CENTER CORPORATION
424 Main Street - #1920
Buffalo, New York 14202
(716) 852-0400
ANDREW J. ECKERT, M.D.
462 Grider Street
Buffalo, New York 14215
TATIANA V. BOYKO, M.D.
462 Grider Street
Buffalo, New York 14215
ATTORNEY’S VERIFICATION
Stephen B. Toner, an attorney duly admitted to the practice of law before the Courts of
the State of New York, hereby affirms the following under the penalties of perjury:
I am a principal of the law firm of RUSSO & TONER, LLP, attorneys for the
Defendants, WILLIAM DICE, M.D. and CHARLES WILES, M.D., I have read the foregoing
Verified Answer to The Summons and Complaint and know the contents thereof and that same
are true to the best of my own knowledge.
Affirmant further states that the source of his information and the grounds of belief, as to
all matters therein not stated upon his knowledge are a review of the file maintained in this
matter and communications with the client.
Affirmant further states that the reason why this verification is made by your affirmant
and not by said defendants is that said defendant do not reside within the County of New York,
the county wherein your affirmant has his office.
Dated: New York, New York
October 27, 2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
pacers cca ec anne Index No.: 808140/2015
TIMOTHY WOJDAN,
AFFIDAVIT OF
Plaintiffs, SERVICE
-against-
ERIE COUNTY MEDICAL CENTER CORPORATION,
WILLIAM DICE, M.D., ANDREW J. ECKERT, M.D.,
TATIANA V. BOYKO, M.D., and CHARLES WILES,
MD.,
Defendants.
Sp ESATA I OI OC
State of New York, County of New York:
Paola de Ja Brena, being duly sworn, deposes and says:
That deponent is not a party of this action, is over 18 years of age and resides in the
County of Hudson, State of New Jersey.
That on the 27" day of October 2015, served the within VERIFIED ANSWER upon:
To HOGAN WILLIG, PLLC
2410 North Forest Road — Ste. 301
Amherst, New York 10468
ROACH, BROWN, McCARTHY, GRUBER, P.C.
424 Main Street - #1920
Buffalo, New York 14202
ANDREW J. ECKERT, M.D.
462 Grider street
Buffalo, New York 14215
TATIANA V. BOYKO, M.D.
462 Grider street
Buffalo, New York 14215
the address designated by said attorney(s) for that purpose, by depositing a true copy of
same enclosed in a postpaid properly addressed wrapper in an official depository under the
exclusive care and custody of the United States Post Office pecariienl within the ee of New
York.
eete db
Paola de la Brena
Al Qwre
Sworn to before me on
the 27" day of October 2015.
Nofar Public
LYNM. ELL ‘OLA
NOTARY Pl Stat ORK
No. 93
uc
Commiss Dee 2, 2016
INDEX NO: 808140 YEAR: 2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
setae erencewas caneranennuunprosnnenasann sone nmnnntinnh sonpaeeniniessnsusacsesadauUs casacuserunuwawesannenenancuenwnmirentn!
TIMOTHY WOJDAN,
Plaintiff,
- against -
ERIE COUNTY MEDICAL CENTER CORPORATION, WILLIAM
DICE, M.D., ANDREW J. ECKERT, M.D., TATIANA V. BOYKO,
M.D., and CHARLES WILES, M.D.,
Defendants.
pee cntee ence nn tewemen ne nnennnnennenennnnecnannanannnanemennenennmnnesnenanennsnnnnanaennnannannnanannwantinesstiaseessan!
VERIFIED ANSWER
RUSSO & TONER, LLP
Attorneys for Defendant
33 Whitehall 16" Floor
New York, New York 10004
(212) 482-0001
Preview
INDEX NO. 808140/2015 (FILED: ERIE COUNTY CLERK 10/27/2015 03:50 PM NYSCEF DOC. NO. 9 RECEIVED NYSCEF 10/27/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE Index No.: 808140/2015 TIMOTHY WOJDAN, Plaintiff, VERIFIED ANSWER -against- ERIE COUNTY MEDICAL CENTER CORPORATION, WILLIAM DICE, M.D., ANDREW J. ECKERT, M.D., TATIANA V. BOYKO, M.D., and CHARLES WILES, M.D., Defendants. psec cmc merece ane cement etertree rr eer Defendants, WILLIAM DICE, M.D. and CHARLES WILLES, M.D., by and through its attorneys, RUSSO & TONER, LLP, as and for its Verified Answer to the plaintiff's Summons and Complaint dated July 6, 2015, sets forth the following upon information and belief: 1 Denies knowledge or information sufficient to form a belief as to each and every allegation set forth in the paragraphs of the Summons and Complaint designated “1,” “5,” “6,” 77 6B HQ 19 1.4.” 15,7 17.7 “18, 20,” “21,” 22,” “23,” “25,” “26,” #31,” 32,” “34,” and “35.” 2 Answering defendant, WILLIAM DICE, M.D., denies the allegations set forth in the paragraph of ‘the Summons and Verified Complaint designated as “2” and admits that WILLIAM DICE, M.D., was and is a physician duly licensed to practice medicine by the State of New York. 3 Denies each and every allegation set forth in the paragraphs of the Summons and Complaint designated “3,” “4,” “12,” 13,” “16,” “19,” “24,” “27,” “33,” and “36, and refers all questions of law and fact to the trial court for determination. 4. Answering defendant, CHARLES WILES, M.D., admits the allegations set forth in the paragraph of the Summons and Verified Complaint designated as “11” and admits that CHARLES WILES, M.D., was and is a physician duly licensed to practice medicine by the State of New York. 5 Denies each and every allegation set forth in the paragraphs of the Summons and Verified Complaint designated “28,” “29,” “30,” and “37.” AS AND _ FOR A FIRST CAUSE OF ACTION 6 In response to paragraph “38” of the Summons and Verified Complaint the answering defendant repeats, reiterates and realleges each and every response to the allegations set forth in the paragraphs of the Summons and Verified Complaint designated “1” through “37,” as if more fully set forth at length herein. 7 Denies each and every allegation set forth in the paragraphs of the Summons and Verified Complaint designated “39,” “40,” “41,” “42,” “43,” “44.” “45,” “46,” and “47,” AS AND FOR SECOND CAUSE OF ACTION 8 In response to paragraph “48” of the Summons and Verified Complaint the answering defendant repeats, reiterates and realleges each and every response to the allegations set forth in the paragraphs of the Summons and Verified Complaint designated “1” through “47,” as if more fully set forth at length herein. 9 Denies knowledge or information sufficient to form a belief as to each and every allegation set forth in the paragraphs of the Summons and Complaint designated “49,” “50,” 51," “52” and “53.” AS AND FOR THIRD CAUSE OF ACTION 10. In response to paragraph “54” of the Summons and Verified Complaint the answering defendant repeats, reiterates and realleges each and every response to the allegations set forth in the paragraphs of the Summons and Verified Complaint designated “1” through “53,” as if more fully set forth at length herein. li. Denies knowledge or information sufficient to form a belief as to each and every allegation set forth in the paragraphs of the Summons and Verified Complaint designated “55,” 56," “57,” “58.” and “59.” AS AND FOR FOURTH CAUSE OF ACTION 12. In response to paragraph “60” of the Summons and Verified Complaint the answering defendant repeats, reiterates and realleges each and every response to the allegations set forth in the paragraphs of the Summons and Verified Complaint designated “1” through “59,” as if more fully set forth at length herein. 13. Denies each and every allegation set forth in the paragraphs of the Summons and Verified Complaint designated “61,” “62,” “63,” “64,” and “65.” AS AND FOR FIFTH CAUSE OF ACTION 14. In response to paragraph “66” of the Summons and Verified Complaint the answering defendant, repeats, reiterates and realleges each and every response to the allegations set forth in the paragraphs of the Summons and Verified Complaint designated “1” through “65,” as if more fully set forth at length herein. 15. Denies knowledge or information sufficient to form a belief as to each and every Allegation set forth in the paragraphs of the Summons and Verified Complaint designated “67,” “68, “70,” and “71.” 16. Denies each and every allegation set forth in the paragraphs of the Summons and Verified Complaint designated “69,” and “72”, and refers all questions of law and fact to the trial court for determination. 17. Denies each and every allegation set forth in the paragraphs of the Summons and Verified Complaint designated “73,” and “74.” AS AND FOR A FIRST AFFIRMATIVE DEFENSE 18. That any damages otherwise recoverable by the plaintiff shall be diminished in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the damages and/or injuries alleged. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 19. That any damages otherwise recoverable by the plaintiff shall be diminished in the proportion which the culpable conduct attributable to the third persons bears to the culpable conduct which caused the damages and/or injuries alleged. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 20. The defendant herein claims the application of Article 16 of the Civil Practice Law and Rules and asserts limited liability thereunder for any non-economic loss. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 21. Answering defendant claims the benefit of each and every provision of CPLR Section 4545 including but not limited to any credit off-set by reason of any replacement or indemnification of costs or expenses from any collateral source. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 22. That the Cause of Action seeking to recover for “lack of informed consent” is barred by the Statute of Limitations. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 23, That the plaintiff has failed to state a cause of action to recover for “lack of informed consent.” AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 24. The answering defendant alleges the provisions of Public Health Law Section 2805-d with respect to plaintiff's Complaint. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE 25. That the defendant herein claims the benefit of each and every provision of General Obligation Law Section §15-108 including, but not limited to, the reduction of the claim of plaintiff herein against the defendant herein to the extent of any amounts stipulated by a release or covenant not to sue entered into by the plaintiff herein, or in the amount of consideration paid for same, or in the amount of the released tortfeasor’s equitable share of the damages under Article 14 of the Civil Practice Law and Rules, whichever is the greatest, or whichever the defendant herein elects to apply. WHEREFORE, Defendant, WILLIAM DICE, M.D. and CHARLES WILES, M.D., by and through its attorneys, RUSSO & TONER, LLP, demands judgment dismissing the complaint of the plaintiff together with the costs and disbursements of this action. Dated: New York, New York October 27, 2015 Yours ete., RUSSO & TONER, LLP Attorneys for Defendant WILLIAM DICE, M.D. and CHARLES WILES, M.D. 33 Whitehall Street, 16th Floor New York, New York 10004 (212) 482-0001 R&T File No.: 230.092 TO: Randy C. Mallaber, Esq. HOGAN WILLIG, PLLC Attorneys for Plaintiff 2410 North Forest Road — Ste. 301 Amherst, New York 10468 (716) 636-7600 John P. Danieu, Esq. ROACH, BROWN, McCARTHY, GRUBER, P.C. Attorneys for defendant ERIE COUNTY MEDICAL CENTER CORPORATION 424 Main Street - #1920 Buffalo, New York 14202 (716) 852-0400 ANDREW J. ECKERT, M.D. 462 Grider Street Buffalo, New York 14215 TATIANA V. BOYKO, M.D. 462 Grider Street Buffalo, New York 14215 ATTORNEY’S VERIFICATION Stephen B. Toner, an attorney duly admitted to the practice of law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: I am a principal of the law firm of RUSSO & TONER, LLP, attorneys for the Defendants, WILLIAM DICE, M.D. and CHARLES WILES, M.D., I have read the foregoing Verified Answer to The Summons and Complaint and know the contents thereof and that same are true to the best of my own knowledge. Affirmant further states that the source of his information and the grounds of belief, as to all matters therein not stated upon his knowledge are a review of the file maintained in this matter and communications with the client. Affirmant further states that the reason why this verification is made by your affirmant and not by said defendants is that said defendant do not reside within the County of New York, the county wherein your affirmant has his office. Dated: New York, New York October 27, 2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE pacers cca ec anne Index No.: 808140/2015 TIMOTHY WOJDAN, AFFIDAVIT OF Plaintiffs, SERVICE -against- ERIE COUNTY MEDICAL CENTER CORPORATION, WILLIAM DICE, M.D., ANDREW J. ECKERT, M.D., TATIANA V. BOYKO, M.D., and CHARLES WILES, MD., Defendants. Sp ESATA I OI OC State of New York, County of New York: Paola de Ja Brena, being duly sworn, deposes and says: That deponent is not a party of this action, is over 18 years of age and resides in the County of Hudson, State of New Jersey. That on the 27" day of October 2015, served the within VERIFIED ANSWER upon: To HOGAN WILLIG, PLLC 2410 North Forest Road — Ste. 301 Amherst, New York 10468 ROACH, BROWN, McCARTHY, GRUBER, P.C. 424 Main Street - #1920 Buffalo, New York 14202 ANDREW J. ECKERT, M.D. 462 Grider street Buffalo, New York 14215 TATIANA V. BOYKO, M.D. 462 Grider street Buffalo, New York 14215 the address designated by said attorney(s) for that purpose, by depositing a true copy of same enclosed in a postpaid properly addressed wrapper in an official depository under the exclusive care and custody of the United States Post Office pecariienl within the ee of New York. eete db Paola de la Brena Al Qwre Sworn to before me on the 27" day of October 2015. Nofar Public LYNM. ELL ‘OLA NOTARY Pl Stat ORK No. 93 uc Commiss Dee 2, 2016 INDEX NO: 808140 YEAR: 2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ERIE setae erencewas caneranennuunprosnnenasann sone nmnnntinnh sonpaeeniniessnsusacsesadauUs casacuserunuwawesannenenancuenwnmirentn! TIMOTHY WOJDAN, Plaintiff, - against - ERIE COUNTY MEDICAL CENTER CORPORATION, WILLIAM DICE, M.D., ANDREW J. ECKERT, M.D., TATIANA V. BOYKO, M.D., and CHARLES WILES, M.D., Defendants. pee cntee ence nn tewemen ne nnennnnennenennnnecnannanannnanemennenennmnnesnenanennsnnnnanaennnannannnanannwantinesstiaseessan! VERIFIED ANSWER RUSSO & TONER, LLP Attorneys for Defendant 33 Whitehall 16" Floor New York, New York 10004 (212) 482-0001