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INDEX NO. 035393/2913
(FILED: ROCKLAND COUNTY CLERK 1170872013)
NYSCEF DOC. NO} 4 RECEIVED NYSCEF: 11/08/2913
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
non wo
AMRIT ETWAROO,
Plaintiff, Index No. 035393/13
-against- VERIFIED ANSWER
ARASH AKHAVAN, M.D. AND DERMATOLOGY
CENTER OF ROCKLAND,
Defendants.
nn crea een een an omncenermnmman meena
Defendant, DERMATOLOGY CENTER OF ROCKLAND, P.C. s/h/a
DERMATOLOGY CENTER OF ROCKLAND, by their attorney, VOUTE, LOHRFINK,
MAGRO & McANDREW, LLP, answering the plaintiff's complaint:
1 Denies each and every allegation contained in paragraph “1.” of the
complaint in the form alleged except admits that upon information and belief that all
times hereinafter mentioned, the defendant, DERMATOLOGY CENTER OF
ROCKLAND was and is a domestic corporation duly organized under the laws of the
State of New York.
2. Denies each and every allegation contained in paragraph “2.” of the
complaint in the form alleged except admits that upon information and belief that all
times hereinafter mentioned, the defendant, DERMATOLOGY CENTER OF
ROCKLAND was and is a professional corporation duly organized under the laws of the
State of New York.
3 Denies each and every allegation contained in paragraph “3.” of the
complaint in the form alleged except admits that upon information and belief that all
times hereinafter mentioned, the defendant, DERMATOLOGY CENTER OF
ROCKLAND is located in the town of Orangeburg, County of Rockland, State of New
York.
4 Denies each and every allegation contained in paragraphs “4,” and “11.” of
the complaint in the form alleged.
5 Denies each and every allegation contained in paragraph “5.” of the
complaint in the form alleged except admits that defendant, DERMATOLOGY CENTER
OF ROCKLAND through their agents, servants and/or employees was and is duly
competent and qualified to render medical care, attention and treatment to the general
public.
6. Denies any knowledge or information sufficient to form a belief as to each
and every allegation contained in paragraph “7.” of the complaint.
7 Denies each and every allegation contained in paragraphs “8.”, “9.” and
“12.” through “16.”, “18.” and “19.” of the complaint.
8 Denies any knowledge or information sufficient to form a belief as to each
and every allegation contained in paragraph “10.” of the complaint and respectfully refers
to the relevant medical and hospital records concerning the timing, extent and nature of
the services rendered to Amrit Etwaroo.
9 This answering defendant repeats and reiterates each and every admission
and denial heretofore made herein with respect to paragraph “17.” of the complaint with
the same force and effect as though fully set forth at length herein.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
10. The provisions of Public Health Law §2805-d(4) constitute an absolute
defense to the cause of action for lack of informed consent.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
11. The physical condition of plaintiff was not brought about by any negligence
on the part of defendant, but rather due to the physical condition, illness, contributory
negligence, assumption of risk, contributory fault and/or culpable conduct attributable to
plaintiff to the extent of total and/or partial diminution of the damages alleged in the
complaint.
AS AND FOR.A THIRD AFFIRMATIVE DEFENSE
12. CPLR Article 16 applies to limit any liability of any of these answering
defendants as to the non-economic loss of each of the plaintiffs.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
43. Any settlement, discontinuance or agreement not to sue, made with
responsible or potentially responsible persons and/or entities, shall constitute a set off and
reduction of any recovery against the answering defendants pursuant to the provisions of
General Obligations Law § 15-108, CPLR Article 14 and/or CPLR Article 16.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
14, At the time of trial this answering defendant will request that the Court
charge the jury on the issues of indemnification and/or apportionment among all
responsible tort feasors including non-parties subject to the jurisdiction of this court.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
15. Any award to plaintiffs for the cost of medical care, custodial care or
rehabilitation services, loss of earnings or other economic loss should be reduced by the
amount such expense has been or will be replaced or indemnified in whole or in part from
any collateral source in accordance with the provisions and limitations set forth in CPLR.
4545.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
16. Any award to plaintiffs in this action for loss of earnings or impairment of
earning ability should be reduced in accordance with the provisions and limitations of
CPLR 4546.
WHEREFORE, the defendant DERMATOLOGY CENTER OF ROCKLAND,
P.C. s/hfa DERMATOLOGY CENTER OF ROCKLAND demands judgment:
a) dismissing the plaintiffs’ complaint, together with the costs and
disbursements of this action;
b) in the alternative, and in the event the plaintiffs prevail, the answering
defendants demand judgment determining the respective percentages of fault on the part
of the answering defendants, the plaintiffs and all non-parties subject to in personam
jurisdiction and thereby reducing the amount of damages as against the answering
defendants by the respective percentage of fault of the plaintiffs.
c) determining the respective percentages of fault of each responsible tort feasor,
including any plaintiff against whom a counterclaim may have been interposed, and
determining the amount of indemnity owing respectively, if any, among the responsible
tort feasors, whether they be parties or non-parties subject to in personam jurisdiction
each to the other, either in whole or in part as the case may be, whether or not by
indemnification agreement, together with the costs, disbursements and attorneys' fees.
Dated: White Plains, New York
November 8, 2013
Yours, etc.
VOUTE, LOHRFINK, MAGRO & McANDREW, LLP
Attorneys for Defendant DERMATOLOGY CENTER OF
ROCKLAND, P.C. s/h/a DERMATOLOGY CENTER OF
ROCKLAND
170 Hamilton Avenue
White Plains, New York 10601-1789
Tel.: (914) 946-1400
TO: ROSENBERG, MINC, FALKOFF & WOLFF, LLP
Attorneys for Plaintiff
122 East 42™ Street, Suite 3800
New York, New York 10168
(212) 697-9280
101-31-21276/maf
Attorney's Verification by Affirmation
Gail A. Rueckel an attorney admitted to practice in the courts of the State of New York,
hereby affirms the truth of the following under penalty of perjury:
Your affirmant’s office is the attorney of record for defendant DERMATOLOGY CENTER
OF ROCKLAND, P.C.
Your affirmant has read the annexed Answer knows the contents thereof and the same are
true to his/her knowledge, except those matters therein which are stated to be alleged on
information and belief, and as to those matters your affirmant believes them to be true. Your
affirmant’s belief, as to those matters therein not stated upon knowledge, is based upon the
materials, information and reports contained in the file, which is maintained in your
affirmant’s office.
The reason that your affirmant makes this affirmation instead of defendant
is because said defendant is not in the county in which your affirmant’s law office is located.
Dated: White Plains, New York
November 8, 2013
Chel
Gail A. Rueckel
Preview
INDEX NO. 035393/2913 (FILED: ROCKLAND COUNTY CLERK 1170872013) NYSCEF DOC. NO} 4 RECEIVED NYSCEF: 11/08/2913 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND non wo AMRIT ETWAROO, Plaintiff, Index No. 035393/13 -against- VERIFIED ANSWER ARASH AKHAVAN, M.D. AND DERMATOLOGY CENTER OF ROCKLAND, Defendants. nn crea een een an omncenermnmman meena Defendant, DERMATOLOGY CENTER OF ROCKLAND, P.C. s/h/a DERMATOLOGY CENTER OF ROCKLAND, by their attorney, VOUTE, LOHRFINK, MAGRO & McANDREW, LLP, answering the plaintiff's complaint: 1 Denies each and every allegation contained in paragraph “1.” of the complaint in the form alleged except admits that upon information and belief that all times hereinafter mentioned, the defendant, DERMATOLOGY CENTER OF ROCKLAND was and is a domestic corporation duly organized under the laws of the State of New York. 2. Denies each and every allegation contained in paragraph “2.” of the complaint in the form alleged except admits that upon information and belief that all times hereinafter mentioned, the defendant, DERMATOLOGY CENTER OF ROCKLAND was and is a professional corporation duly organized under the laws of the State of New York. 3 Denies each and every allegation contained in paragraph “3.” of the complaint in the form alleged except admits that upon information and belief that all times hereinafter mentioned, the defendant, DERMATOLOGY CENTER OF ROCKLAND is located in the town of Orangeburg, County of Rockland, State of New York. 4 Denies each and every allegation contained in paragraphs “4,” and “11.” of the complaint in the form alleged. 5 Denies each and every allegation contained in paragraph “5.” of the complaint in the form alleged except admits that defendant, DERMATOLOGY CENTER OF ROCKLAND through their agents, servants and/or employees was and is duly competent and qualified to render medical care, attention and treatment to the general public. 6. Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph “7.” of the complaint. 7 Denies each and every allegation contained in paragraphs “8.”, “9.” and “12.” through “16.”, “18.” and “19.” of the complaint. 8 Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in paragraph “10.” of the complaint and respectfully refers to the relevant medical and hospital records concerning the timing, extent and nature of the services rendered to Amrit Etwaroo. 9 This answering defendant repeats and reiterates each and every admission and denial heretofore made herein with respect to paragraph “17.” of the complaint with the same force and effect as though fully set forth at length herein. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 10. The provisions of Public Health Law §2805-d(4) constitute an absolute defense to the cause of action for lack of informed consent. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 11. The physical condition of plaintiff was not brought about by any negligence on the part of defendant, but rather due to the physical condition, illness, contributory negligence, assumption of risk, contributory fault and/or culpable conduct attributable to plaintiff to the extent of total and/or partial diminution of the damages alleged in the complaint. AS AND FOR.A THIRD AFFIRMATIVE DEFENSE 12. CPLR Article 16 applies to limit any liability of any of these answering defendants as to the non-economic loss of each of the plaintiffs. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 43. Any settlement, discontinuance or agreement not to sue, made with responsible or potentially responsible persons and/or entities, shall constitute a set off and reduction of any recovery against the answering defendants pursuant to the provisions of General Obligations Law § 15-108, CPLR Article 14 and/or CPLR Article 16. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 14, At the time of trial this answering defendant will request that the Court charge the jury on the issues of indemnification and/or apportionment among all responsible tort feasors including non-parties subject to the jurisdiction of this court. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 15. Any award to plaintiffs for the cost of medical care, custodial care or rehabilitation services, loss of earnings or other economic loss should be reduced by the amount such expense has been or will be replaced or indemnified in whole or in part from any collateral source in accordance with the provisions and limitations set forth in CPLR. 4545. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 16. Any award to plaintiffs in this action for loss of earnings or impairment of earning ability should be reduced in accordance with the provisions and limitations of CPLR 4546. WHEREFORE, the defendant DERMATOLOGY CENTER OF ROCKLAND, P.C. s/hfa DERMATOLOGY CENTER OF ROCKLAND demands judgment: a) dismissing the plaintiffs’ complaint, together with the costs and disbursements of this action; b) in the alternative, and in the event the plaintiffs prevail, the answering defendants demand judgment determining the respective percentages of fault on the part of the answering defendants, the plaintiffs and all non-parties subject to in personam jurisdiction and thereby reducing the amount of damages as against the answering defendants by the respective percentage of fault of the plaintiffs. c) determining the respective percentages of fault of each responsible tort feasor, including any plaintiff against whom a counterclaim may have been interposed, and determining the amount of indemnity owing respectively, if any, among the responsible tort feasors, whether they be parties or non-parties subject to in personam jurisdiction each to the other, either in whole or in part as the case may be, whether or not by indemnification agreement, together with the costs, disbursements and attorneys' fees. Dated: White Plains, New York November 8, 2013 Yours, etc. VOUTE, LOHRFINK, MAGRO & McANDREW, LLP Attorneys for Defendant DERMATOLOGY CENTER OF ROCKLAND, P.C. s/h/a DERMATOLOGY CENTER OF ROCKLAND 170 Hamilton Avenue White Plains, New York 10601-1789 Tel.: (914) 946-1400 TO: ROSENBERG, MINC, FALKOFF & WOLFF, LLP Attorneys for Plaintiff 122 East 42™ Street, Suite 3800 New York, New York 10168 (212) 697-9280 101-31-21276/maf Attorney's Verification by Affirmation Gail A. Rueckel an attorney admitted to practice in the courts of the State of New York, hereby affirms the truth of the following under penalty of perjury: Your affirmant’s office is the attorney of record for defendant DERMATOLOGY CENTER OF ROCKLAND, P.C. Your affirmant has read the annexed Answer knows the contents thereof and the same are true to his/her knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters your affirmant believes them to be true. Your affirmant’s belief, as to those matters therein not stated upon knowledge, is based upon the materials, information and reports contained in the file, which is maintained in your affirmant’s office. The reason that your affirmant makes this affirmation instead of defendant is because said defendant is not in the county in which your affirmant’s law office is located. Dated: White Plains, New York November 8, 2013 Chel Gail A. Rueckel