Preview
INDEX NO. 152972/2014
FILED: NEW YORK COUNTY CLERK 08/11/2014 03:50 PM
NYSCEF DOC. NO. 10 RECEIVED NYSCEF 08/11/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
JORDY F. RAMIREZ, an infant under the age of 14 years,
by his father and natural guardian, EUGENIO M.
RAMIREZ, Individually and ROSALBA LUNA, Index No.: 152972/14
Individually,
VERIFIED ANSWER
Plaintiffs,
-against-
DANIELLE SIM, D.M.D., and METROPOLITAN
DENTAL ASSOCIATES, D.D.S. - 225 BROADWAY,
P.C.,
Defendants.
Defendant, METROPOLITAN DENTAL ASSOCIATES, D.D.S., P.C., improperly
named in the caption as METROPOLITAN DENTAL ASSOCIATES, D.D.S. — 225
BROADWAY, P.C., by and through its attorneys, GOLDBERG SEGALLA LLP, as and for its
Answer to Plaintiffs Verified Complaint (hereinafter “the Complaint”), allege as follows:
AS AND FOR THE FIRST CAUSE OF ACTION
1 The Answering defendant denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained in paragraphs FIRST and FIFTH of the
Complaint,
2 With respect to paragraph SECOND of the Complaint, deny in the form alleged,
but admit METROPOLITAN DENTAL ASSOCIATES, D.D.S., P.C. is a domestic professional
corporation organized pursuant to the laws of the State of New York, dental facility located at
225 Broadway, New York, New York.
3 Deny the allegations contained in paragraphs THIRD, FOURTH, SIXTH,
SEVENTH, and EIGHTH of the Complaint.
AS AND FOR THE SECOND CAUSE OF ACTION
4 With respect to paragraph NINTH of the Complaint, defendant repeats, reiterates
and realleges paragraphs 1 through 3 of this Verified Answer with the same force and effect as if
they were set forth fully and at length herein.
5 Deny the allegations contained in paragraphs TENTH and ELEVENTH of the
Complaint.
AS AND FOR THE THIRD CAUSE OF ACTION
6 With respect to paragraph TWELFTH of the Complaint, defendant repeats,
reiterates and realleges paragraphs 1 through 5 of this Verified Answer with the same force and
effect as if they were set forth fully and at length herein.
7 The answering defendant denies knowledge or information sufficient to form a
belief as to the truth of the allegations contained in paragraphs THIRTEENTH and
FOURTEENTH of the Complaint.
8 Deny the allegations contained in paragraph FIFTEENTH of the Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
The answering Defendants assert the protections of § 15-108 of the General Obligations
Law.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
In the event that the Plaintiff recovers a verdict or judgment against the answering
Defendant, then said verdict or judgment must be reduced pursuant to CPLR§ 4545 by those
amounts which have been or will with reasonable certainty replace or indemnify the Plaintiff in
whole or in part for any past or future claimed medical expenses, or other such economic loss, as
paid from any collateral source, such as, but not limited to, insurance, social security, worker’s
compensation or employee programs.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
CPLR Article 16 applies to limit any liability of the answering Defendant as to the non-
economic loss alleged by Plaintiff.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
Any award to Plaintiff for loss of earnings or impairment of earning ability should be
reduced in accordance with CPLR §4546.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
The damages allegedly sustained by the Plaintiff were caused by the direct and proximate
negligence or intentional conduct of other parties, their agents or employees, or by others
unknown at this time over whom the answering Defendant had no control at any time relevant
hereto, and in the event the answering Defendant is found liable to Plaintiff, which liability is
expressly denied, Defendant will be entitled to indemnification, contribution or apportionment of
liability pursuant to applicable law.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
The damage allegedly sustained by Plaintiff was not proximately caused by any
negligence or culpable conduct on the part of the answering Defendant.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
Plaintiff's alleged damages were caused and brought about by an intervening and
superseding cause and was not caused by the answering Defendant or by a person or entity for
whom the answering Defendant is responsible.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
Upon information and belief, if the Plaintiff sustained any injuries or damages as alleged in
the complaint, such injuries and damages were caused in whole or in part or were contributed to by
Plaintiff's own culpable conduct, contributory negligence and want of care, without any culpable
conduct, negligence or want of care on the part of the answering Defendant, and the amount of
damages recoverable by Plaintiff, if any, should be diminished in whole or in part in proportion to
Plaintiffs culpable conduct.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
The answering Defendants intend to rely upon any statutory defenses available to said
Defendant pursuant to the Public Health Law, Section 2805(d).
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
Plaintiff's verified complaint fails to state a viable cause of action.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
All causes of action alleged by the plaintiff are barred due to the applicable statute of
limitations.
WHEREFORE, Defendants demand judgment dismissing Plaintiffs Verified
Complaint, together with the costs, attorneys fees and disbursements of the within action, and for
such other, further or different relief which the Court may deem just and proper under the
circumstances.
Dated: White Plains, New York
August 11, 2014
u fy
M. RE ILLIPg /ESQ
GOLDBERG/SEG LLP
Attoryeys for Defen nts
METROPOLITAN DENTAL ASSOCIATES,
D.D.S., P.C.
11 Martine Avenue, Suite 750
White Plains, New York 10606
(914) 798-5400
File No.: 13501.0023
TO STEPHEN 8. LAROCCA, PLLC
11 Broadway, Suite 868
New York, New York 10004
(212) 785-8127
VERIFICATION
The undersigned, M. REGINA PHILLIPS, an attorney admitted to practice in the Courts
of the State of New York, affirms:
I am the attorney of record for the Defendant, METROPOLITAN DENTAL
ASSOCIATES, D.D.S, P.C., in the within action; I have read the foregoing VERIFIED
ANSWER and know the contents thereof; that the same is true to my own knowledge, except as
to the matters therein stated to be alleged upon information and belief, and as to those matters, I
believe them to be true,
The grounds for my belief as to all matters not stated upon my knowledge are
investigations which I have made or have caused to be made concerning the subject matter of
this action, and statements of parties and/or witnesses made herein.
This verification is made by affirmation because defendant resides in a jurisdiction
outside the county where the affirmant maintains his office.
The undersigned affirms that the foregoing statements are true under the penalties of
perjury.
Dated: White Plains, New York
August jf, 2014
M. REGINA P!
/
LIP)
CERTIFICATION
M. REGINA PHILLIPS, an attorney admitted to practice law in the Courts of the State of
New York, affirms under the penalties of perjury, that the following statements are true:
That I am the attorney for the Defendant METROPOLITAN DENTAL ASSOCIATES,
DDS, PC in the above-captioned action.
That I certify to the best of my knowledge, information and belief, formed after an
inquiry reasonable under the circumstances, that presentation of Defendant’s Answer and the
contentions therein are not frivolous as defined in 22 NYCRR 130-1.1-a, et seq.
Dated: White Plains, New York
if
August 11, 2014
iV
INA PHILLIP
AFFIDAVIT OF SERVICE
PATRICIA COCCIARDI, being duly sworn deposes and says that deponent is not a party
to this action, is over 18 years of age and resides in Valley Cottage, New York. That on the 11"
day of August, 2014, deponent served a true copy of the within VERIFIED ANSWER, VIA
ELECTRONIC COURT FILING, upon:
TO: STEPHEN S. LAROCCA, PLLC
11 Broadway, Suite 868 +)
New York, New York 10004
C
a
(212) 785-8127
SN
bc
PATRICIA COCCIARDI
Sworn to before me this
11 day of August, 2014.
Han votinche
3058440V1 LARISSA B VITOLA
NOTARY PUBLIC-STATE
OF NEW YORK
No. 01V; 42.
Qualified inWesten, County
My Commission Expites September 24, 206 S2D!F
Preview
INDEX NO. 152972/2014 FILED: NEW YORK COUNTY CLERK 08/11/2014 03:50 PM NYSCEF DOC. NO. 10 RECEIVED NYSCEF 08/11/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK JORDY F. RAMIREZ, an infant under the age of 14 years, by his father and natural guardian, EUGENIO M. RAMIREZ, Individually and ROSALBA LUNA, Index No.: 152972/14 Individually, VERIFIED ANSWER Plaintiffs, -against- DANIELLE SIM, D.M.D., and METROPOLITAN DENTAL ASSOCIATES, D.D.S. - 225 BROADWAY, P.C., Defendants. Defendant, METROPOLITAN DENTAL ASSOCIATES, D.D.S., P.C., improperly named in the caption as METROPOLITAN DENTAL ASSOCIATES, D.D.S. — 225 BROADWAY, P.C., by and through its attorneys, GOLDBERG SEGALLA LLP, as and for its Answer to Plaintiffs Verified Complaint (hereinafter “the Complaint”), allege as follows: AS AND FOR THE FIRST CAUSE OF ACTION 1 The Answering defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs FIRST and FIFTH of the Complaint, 2 With respect to paragraph SECOND of the Complaint, deny in the form alleged, but admit METROPOLITAN DENTAL ASSOCIATES, D.D.S., P.C. is a domestic professional corporation organized pursuant to the laws of the State of New York, dental facility located at 225 Broadway, New York, New York. 3 Deny the allegations contained in paragraphs THIRD, FOURTH, SIXTH, SEVENTH, and EIGHTH of the Complaint. AS AND FOR THE SECOND CAUSE OF ACTION 4 With respect to paragraph NINTH of the Complaint, defendant repeats, reiterates and realleges paragraphs 1 through 3 of this Verified Answer with the same force and effect as if they were set forth fully and at length herein. 5 Deny the allegations contained in paragraphs TENTH and ELEVENTH of the Complaint. AS AND FOR THE THIRD CAUSE OF ACTION 6 With respect to paragraph TWELFTH of the Complaint, defendant repeats, reiterates and realleges paragraphs 1 through 5 of this Verified Answer with the same force and effect as if they were set forth fully and at length herein. 7 The answering defendant denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs THIRTEENTH and FOURTEENTH of the Complaint. 8 Deny the allegations contained in paragraph FIFTEENTH of the Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE The answering Defendants assert the protections of § 15-108 of the General Obligations Law. AS AND FOR A SECOND AFFIRMATIVE DEFENSE In the event that the Plaintiff recovers a verdict or judgment against the answering Defendant, then said verdict or judgment must be reduced pursuant to CPLR§ 4545 by those amounts which have been or will with reasonable certainty replace or indemnify the Plaintiff in whole or in part for any past or future claimed medical expenses, or other such economic loss, as paid from any collateral source, such as, but not limited to, insurance, social security, worker’s compensation or employee programs. AS AND FOR A THIRD AFFIRMATIVE DEFENSE CPLR Article 16 applies to limit any liability of the answering Defendant as to the non- economic loss alleged by Plaintiff. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE Any award to Plaintiff for loss of earnings or impairment of earning ability should be reduced in accordance with CPLR §4546. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE The damages allegedly sustained by the Plaintiff were caused by the direct and proximate negligence or intentional conduct of other parties, their agents or employees, or by others unknown at this time over whom the answering Defendant had no control at any time relevant hereto, and in the event the answering Defendant is found liable to Plaintiff, which liability is expressly denied, Defendant will be entitled to indemnification, contribution or apportionment of liability pursuant to applicable law. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE The damage allegedly sustained by Plaintiff was not proximately caused by any negligence or culpable conduct on the part of the answering Defendant. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE Plaintiff's alleged damages were caused and brought about by an intervening and superseding cause and was not caused by the answering Defendant or by a person or entity for whom the answering Defendant is responsible. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE Upon information and belief, if the Plaintiff sustained any injuries or damages as alleged in the complaint, such injuries and damages were caused in whole or in part or were contributed to by Plaintiff's own culpable conduct, contributory negligence and want of care, without any culpable conduct, negligence or want of care on the part of the answering Defendant, and the amount of damages recoverable by Plaintiff, if any, should be diminished in whole or in part in proportion to Plaintiffs culpable conduct. AS AND FOR A NINTH AFFIRMATIVE DEFENSE The answering Defendants intend to rely upon any statutory defenses available to said Defendant pursuant to the Public Health Law, Section 2805(d). AS AND FOR A TENTH AFFIRMATIVE DEFENSE Plaintiff's verified complaint fails to state a viable cause of action. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE All causes of action alleged by the plaintiff are barred due to the applicable statute of limitations. WHEREFORE, Defendants demand judgment dismissing Plaintiffs Verified Complaint, together with the costs, attorneys fees and disbursements of the within action, and for such other, further or different relief which the Court may deem just and proper under the circumstances. Dated: White Plains, New York August 11, 2014 u fy M. RE ILLIPg /ESQ GOLDBERG/SEG LLP Attoryeys for Defen nts METROPOLITAN DENTAL ASSOCIATES, D.D.S., P.C. 11 Martine Avenue, Suite 750 White Plains, New York 10606 (914) 798-5400 File No.: 13501.0023 TO STEPHEN 8. LAROCCA, PLLC 11 Broadway, Suite 868 New York, New York 10004 (212) 785-8127 VERIFICATION The undersigned, M. REGINA PHILLIPS, an attorney admitted to practice in the Courts of the State of New York, affirms: I am the attorney of record for the Defendant, METROPOLITAN DENTAL ASSOCIATES, D.D.S, P.C., in the within action; I have read the foregoing VERIFIED ANSWER and know the contents thereof; that the same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true, The grounds for my belief as to all matters not stated upon my knowledge are investigations which I have made or have caused to be made concerning the subject matter of this action, and statements of parties and/or witnesses made herein. This verification is made by affirmation because defendant resides in a jurisdiction outside the county where the affirmant maintains his office. The undersigned affirms that the foregoing statements are true under the penalties of perjury. Dated: White Plains, New York August jf, 2014 M. REGINA P! / LIP) CERTIFICATION M. REGINA PHILLIPS, an attorney admitted to practice law in the Courts of the State of New York, affirms under the penalties of perjury, that the following statements are true: That I am the attorney for the Defendant METROPOLITAN DENTAL ASSOCIATES, DDS, PC in the above-captioned action. That I certify to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that presentation of Defendant’s Answer and the contentions therein are not frivolous as defined in 22 NYCRR 130-1.1-a, et seq. Dated: White Plains, New York if August 11, 2014 iV INA PHILLIP AFFIDAVIT OF SERVICE PATRICIA COCCIARDI, being duly sworn deposes and says that deponent is not a party to this action, is over 18 years of age and resides in Valley Cottage, New York. That on the 11" day of August, 2014, deponent served a true copy of the within VERIFIED ANSWER, VIA ELECTRONIC COURT FILING, upon: TO: STEPHEN S. LAROCCA, PLLC 11 Broadway, Suite 868 +) New York, New York 10004 C a (212) 785-8127 SN bc PATRICIA COCCIARDI Sworn to before me this 11 day of August, 2014. Han votinche 3058440V1 LARISSA B VITOLA NOTARY PUBLIC-STATE OF NEW YORK No. 01V; 42. Qualified inWesten, County My Commission Expites September 24, 206 S2D!F