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INDEX NO. 24553/2013E
(FILED: BRONX COUNTY CLERK 0172772014)
NYSCEF DOC. NO. 47 RECEIVED NYSCEF 01/27/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
aoe none nee
SHERRY Pl HIONI as Administratrix of the ate of
RODERICK PICCHIONI, deceased, and SHERRY
PICCHIONI, Individually,
Plaintiff, Index No.: 24553/2013E
- against - VERIFIED ANSWER
ANTONIO FOJAS, RUMANA SABUR, RICHARD
LUCARIELLO, MAHIRE OZCAN, NOAH
KORNBLUM, VINDHYA KATPALLY, TYLIS
CHANG, RONALD LIS, NEJAT KIYICI, NANDITA
SINHA, PRAKASHCHANDRA RAO, JUDAH
FIERSTEIN, MICHAEL ADER, RASHAM MITTAL,
STEFA MADAJEWICZ, SHARON LEUNG, TAREK
ELRAFEL, MANOJ KARWA, MONTEFIORE
MEDICAL CENTE R, MONTEFIORE WAKEFIELD
CAMPUS and JACK D. WEILER HOSPITAL,
Defendants.
neta ene
eee ene nen enneennnnneneeneneemnneee,
Defendant ANTONIO FOJAS, M.D. s/h/a “ANTONIO FOJAS ”*, by his attorneys,
HEIDELL, PITTONI, MURPHY & BACH, LLP, upon information and belief, answers the
Verified Complaint herein as follows:
AS AND TO THE FIRST CAUSE OF ACTION
FIRST: Denies knowledge or information sufficient to form a belief as to the
allegations contained in the paragraph of the complaint designated “1” and otherwise begs leave
to refer all questions of law to the court and all questions of fact to the trier thereof,
SECOND: Denies knowledge or information sufficient to form a belief as to the
allegations contained in the paragraphs of the complaint designated “2” through “86”, except
admits that at certain times not specifically set forth in the complaint, the answering defendant
161097.1
was associated with MONTEFIORE MEDICAL CENTER and otherwise begs leave to refer all
questions of law to the court and all questions of fact to the trier thereof.
THIRD: Denies the allegations contained in the paragraphs of the complaint
designated “87” through “90” insofar as the allegations pertain to the answering defendant and
otherwise denies knowledge or information sufficient to form a belief as to these allegations and
begs leave to refer all questions of law to the court and all questions of fact to the trier thereof.
AS AND TO THE SECOND CAUSE OF ACTION
FOURTH: Answering the paragraph of the complaint designated “91,” defendant
repeats and realleges each and every denial and admission in answer to the paragraphs of the
complaint designated “i” through “90” with the same force and effect as if herein set forth at
length.
FIFTH: Denies the allegations contained in the paragraphs of the complaint
designated “92” and “93” insofar as the allegations pertain to the answering defendant and
otherwise denies knowledge or information sufficient to form a belief as to these allegations and
begs leave to refer all questions of law to the court and all questions of fact to the trier thereof,
AS AND TO THE THIRD CAUSE OF ACTION
SIXTH: Answering the paragraph of the complaint designated “9: ” defendant
repeats and realleges each and every denial and admission in answer to the paragraphs of the
complaint designated “1” through “93” with the same force and effect as if herein set forth at
length.
SEVENTH: Denies the allegations contained in the paragraphs of the complaint
designated “95” and “97” through “99” insofar as the allegations pertain to the answering
defendant and otherwise denies knowledge or information sufficient to form a belief as to these
1161097,
allegations and begs leave to refer all questions of law to the court and all questions of fact to the
trier thereof.
EIGHTH: Denies knowledge or information sufficient to form a belief as to the
allegations contained in the paragraph of the complaint designated “96” and otherwise begs leave
to refer all questions of law to the court and all questions of fact to the trier thereof.
AS AND TO THE FOURTH CAUSE OF ACTION
NINTH: Answering the paragraph of the complaint designated “100,” defendant
repeats and realleges each and every denial and admission in answer to the paragraphs of the
complaint designated “1” through “99” with the same force and effect as if herein set forth at
length.
TENTH: Denies knowledge or information sufficient to form a belief as to the
allegations contained in the paragraph of the complaint designated “101” and otherwise begs
leave to refer all questions of law to the court and all questions of fact to the trier thereof.
ELEVENTH: Denies the allegations contained in the paragraphs of the complaint
designated “102” through “104” insofar as the allegations pertain to the answering defendant and
otherwise denies knowledge or information sufficient to form a belief as to these allegations and
begs leave to refer all questions of law to the court and all questions of fact to the trier thereof.
FOR A FIRST DEFENSE
TWELFTH: Plaintiff is not a proper party plaintiff and this action is therefore a
nullity.
FOR A SECOND DEFENSE
THIRTEENTH: The party asserting the cause of action has no legal capacity to
sue and therefore the action is a nullity.
11610971
FOR A THIRD DEFENSE
FOURTEENTH: That this action was not commenced against defendant until
after the expiration of the time period specified in the applicable statute of limitations and any
recovery based on the alleged causes of action herein is barred.
FOR A FOURTH DEFENSE
FIFTEENTH: That whatever damages may have been sustained at the time and
place alleged in the complaint by plaintiff, plaintiff's decedent and/or decedent’s distributees
were caused, in whole or in part, by the culpable conduct of plaintiff, plaintiff’s decedent and/or
decedent’s distributes and without any negligence on the part of defendant. Damages, if any,
are to be diminished proportionally to the culpable conduct of the plaintiff, plaintiff's decedent
and/or decedent’s distributes.
FOR A FIFTH DEFEN
SIXTEENTH: The court does not have jurisdiction of the person of the defendant
because defendant was not properly served with a copy of the summons and complaint.
FOR A SIXTH DEFENSE
SEVENTEENTH: That as to the cause of action set forth in the complaint based
upon alleged failure to obtain an informed consent, defendant pleads the defenses in Public
Health Law, Section 2805-d.
FORAS EVENTH DEFENSE
EIGHTEENTH: That the equitable share of liability, if any, of defendant
ANTONIO FOJAS, M.D. s/h/a “ANTONIO FOJAS”, shall be determined pursuant to the
provisions of Article 16 of the CPLR.
1161097.1
FOR A EIGHTH DEFENSE
NINETEENTH: That one or more of the causes of action in the complaint fail to
state a cause of action upon which relief may be granted.
FOR A NINTH DEFENSE
TWENTIETH: This action is barred or defendant is entitled to a set-off against
any award herein as plaintiffs have previously recovered sums for all or part of the damages
claimed herein.
FOR A TENTH DEFENSE
TWENTY-FIRST: Plaintiff has failed to mitigate her alleged damages claimed
herein.
FOR A ELEVENTH DEFENSE
TWENTY-SECOND: The amount of alleged damages claimed by plaintiff
should be reduced pursuant to CPLR § 4545 to the extent of any collateral source benefits,
remuneration or compensation received.
WHEREFORE, defendant ANTONIO FOJAS, M.D. s/h/a “ANTONIO FOJAS”
demands judgment dismissing the complaint herein, together with the costs and disbursements of
this action.
Dated: New York, New York
January 21, 2014
Yours, ete,
HEIDELL, PITTONL MURPHY & BACH, LLP
Attorneys for Defendant
ANTONIO FOJAS, M.D. s/h/a “ANTONIO FOJAS’
Office & P.O. Address
99 Park Avenue
New York, New York 10016
(212) 286-8585
1161097.1
TO Joseph C. Muzio, Esq.
Silberstein, Awad & Miklos, P.C
Attorneys for Plaintiff
600 Old Country Road
Garden City, New York 11530
(516) 832-7777
1161097.1
VERIFICATION
I, the undersigned, an attorney admitted to practice law in the Courts of New York
State, state that lam JAMES NAVARRO, an Associate of the firm of HEIDELL, PITTONI .
MURPHY & BACH, LLP, the attorneys of record for defendant ANTONIO FOJAS, M.D. s/h/a
“ANTONIO FOJAS”; that I have read the foregoing ANSWER and know the contents thereof:
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 reason this verification is made by me and not by defendant, is because
defendant ANTONIO FOJAS, M.D. s/h/a “ANTONIO FOJAS”, is not present within the County
of New York which is where this attorney maintains her office.
‘The grounds of my belief as to all matters not stated upon my own knowledge are
as follows:
Papers and records of said defendant.
| affirm that the foregoing statements are true, under the penalties of perjury.
Dated: New York, New York
January 21, 2014
oo —
MES NAVARRO
1 61097,1
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INDEX NO. 24553/2013E (FILED: BRONX COUNTY CLERK 0172772014) NYSCEF DOC. NO. 47 RECEIVED NYSCEF 01/27/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX aoe none nee SHERRY Pl HIONI as Administratrix of the ate of RODERICK PICCHIONI, deceased, and SHERRY PICCHIONI, Individually, Plaintiff, Index No.: 24553/2013E - against - VERIFIED ANSWER ANTONIO FOJAS, RUMANA SABUR, RICHARD LUCARIELLO, MAHIRE OZCAN, NOAH KORNBLUM, VINDHYA KATPALLY, TYLIS CHANG, RONALD LIS, NEJAT KIYICI, NANDITA SINHA, PRAKASHCHANDRA RAO, JUDAH FIERSTEIN, MICHAEL ADER, RASHAM MITTAL, STEFA MADAJEWICZ, SHARON LEUNG, TAREK ELRAFEL, MANOJ KARWA, MONTEFIORE MEDICAL CENTE R, MONTEFIORE WAKEFIELD CAMPUS and JACK D. WEILER HOSPITAL, Defendants. neta ene eee ene nen enneennnnneneeneneemnneee, Defendant ANTONIO FOJAS, M.D. s/h/a “ANTONIO FOJAS ”*, by his attorneys, HEIDELL, PITTONI, MURPHY & BACH, LLP, upon information and belief, answers the Verified Complaint herein as follows: AS AND TO THE FIRST CAUSE OF ACTION FIRST: Denies knowledge or information sufficient to form a belief as to the allegations contained in the paragraph of the complaint designated “1” and otherwise begs leave to refer all questions of law to the court and all questions of fact to the trier thereof, SECOND: Denies knowledge or information sufficient to form a belief as to the allegations contained in the paragraphs of the complaint designated “2” through “86”, except admits that at certain times not specifically set forth in the complaint, the answering defendant 161097.1 was associated with MONTEFIORE MEDICAL CENTER and otherwise begs leave to refer all questions of law to the court and all questions of fact to the trier thereof. THIRD: Denies the allegations contained in the paragraphs of the complaint designated “87” through “90” insofar as the allegations pertain to the answering defendant and otherwise denies knowledge or information sufficient to form a belief as to these allegations and begs leave to refer all questions of law to the court and all questions of fact to the trier thereof. AS AND TO THE SECOND CAUSE OF ACTION FOURTH: Answering the paragraph of the complaint designated “91,” defendant repeats and realleges each and every denial and admission in answer to the paragraphs of the complaint designated “i” through “90” with the same force and effect as if herein set forth at length. FIFTH: Denies the allegations contained in the paragraphs of the complaint designated “92” and “93” insofar as the allegations pertain to the answering defendant and otherwise denies knowledge or information sufficient to form a belief as to these allegations and begs leave to refer all questions of law to the court and all questions of fact to the trier thereof, AS AND TO THE THIRD CAUSE OF ACTION SIXTH: Answering the paragraph of the complaint designated “9: ” defendant repeats and realleges each and every denial and admission in answer to the paragraphs of the complaint designated “1” through “93” with the same force and effect as if herein set forth at length. SEVENTH: Denies the allegations contained in the paragraphs of the complaint designated “95” and “97” through “99” insofar as the allegations pertain to the answering defendant and otherwise denies knowledge or information sufficient to form a belief as to these 1161097, allegations and begs leave to refer all questions of law to the court and all questions of fact to the trier thereof. EIGHTH: Denies knowledge or information sufficient to form a belief as to the allegations contained in the paragraph of the complaint designated “96” and otherwise begs leave to refer all questions of law to the court and all questions of fact to the trier thereof. AS AND TO THE FOURTH CAUSE OF ACTION NINTH: Answering the paragraph of the complaint designated “100,” defendant repeats and realleges each and every denial and admission in answer to the paragraphs of the complaint designated “1” through “99” with the same force and effect as if herein set forth at length. TENTH: Denies knowledge or information sufficient to form a belief as to the allegations contained in the paragraph of the complaint designated “101” and otherwise begs leave to refer all questions of law to the court and all questions of fact to the trier thereof. ELEVENTH: Denies the allegations contained in the paragraphs of the complaint designated “102” through “104” insofar as the allegations pertain to the answering defendant and otherwise denies knowledge or information sufficient to form a belief as to these allegations and begs leave to refer all questions of law to the court and all questions of fact to the trier thereof. FOR A FIRST DEFENSE TWELFTH: Plaintiff is not a proper party plaintiff and this action is therefore a nullity. FOR A SECOND DEFENSE THIRTEENTH: The party asserting the cause of action has no legal capacity to sue and therefore the action is a nullity. 11610971 FOR A THIRD DEFENSE FOURTEENTH: That this action was not commenced against defendant until after the expiration of the time period specified in the applicable statute of limitations and any recovery based on the alleged causes of action herein is barred. FOR A FOURTH DEFENSE FIFTEENTH: That whatever damages may have been sustained at the time and place alleged in the complaint by plaintiff, plaintiff's decedent and/or decedent’s distributees were caused, in whole or in part, by the culpable conduct of plaintiff, plaintiff’s decedent and/or decedent’s distributes and without any negligence on the part of defendant. Damages, if any, are to be diminished proportionally to the culpable conduct of the plaintiff, plaintiff's decedent and/or decedent’s distributes. FOR A FIFTH DEFEN SIXTEENTH: The court does not have jurisdiction of the person of the defendant because defendant was not properly served with a copy of the summons and complaint. FOR A SIXTH DEFENSE SEVENTEENTH: That as to the cause of action set forth in the complaint based upon alleged failure to obtain an informed consent, defendant pleads the defenses in Public Health Law, Section 2805-d. FORAS EVENTH DEFENSE EIGHTEENTH: That the equitable share of liability, if any, of defendant ANTONIO FOJAS, M.D. s/h/a “ANTONIO FOJAS”, shall be determined pursuant to the provisions of Article 16 of the CPLR. 1161097.1 FOR A EIGHTH DEFENSE NINETEENTH: That one or more of the causes of action in the complaint fail to state a cause of action upon which relief may be granted. FOR A NINTH DEFENSE TWENTIETH: This action is barred or defendant is entitled to a set-off against any award herein as plaintiffs have previously recovered sums for all or part of the damages claimed herein. FOR A TENTH DEFENSE TWENTY-FIRST: Plaintiff has failed to mitigate her alleged damages claimed herein. FOR A ELEVENTH DEFENSE TWENTY-SECOND: The amount of alleged damages claimed by plaintiff should be reduced pursuant to CPLR § 4545 to the extent of any collateral source benefits, remuneration or compensation received. WHEREFORE, defendant ANTONIO FOJAS, M.D. s/h/a “ANTONIO FOJAS” demands judgment dismissing the complaint herein, together with the costs and disbursements of this action. Dated: New York, New York January 21, 2014 Yours, ete, HEIDELL, PITTONL MURPHY & BACH, LLP Attorneys for Defendant ANTONIO FOJAS, M.D. s/h/a “ANTONIO FOJAS’ Office & P.O. Address 99 Park Avenue New York, New York 10016 (212) 286-8585 1161097.1 TO Joseph C. Muzio, Esq. Silberstein, Awad & Miklos, P.C Attorneys for Plaintiff 600 Old Country Road Garden City, New York 11530 (516) 832-7777 1161097.1 VERIFICATION I, the undersigned, an attorney admitted to practice law in the Courts of New York State, state that lam JAMES NAVARRO, an Associate of the firm of HEIDELL, PITTONI . MURPHY & BACH, LLP, the attorneys of record for defendant ANTONIO FOJAS, M.D. s/h/a “ANTONIO FOJAS”; that I have read the foregoing ANSWER and know the contents thereof: 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 reason this verification is made by me and not by defendant, is because defendant ANTONIO FOJAS, M.D. s/h/a “ANTONIO FOJAS”, is not present within the County of New York which is where this attorney maintains her office. ‘The grounds of my belief as to all matters not stated upon my own knowledge are as follows: Papers and records of said defendant. | affirm that the foregoing statements are true, under the penalties of perjury. Dated: New York, New York January 21, 2014 oo — MES NAVARRO 1 61097,1