Answer: Carla Perez v. New York City Health And Hospitals Corporation

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                                FILED: BRONX COUNTY CLERK 06/09/2015 03:40 PM                       INDEX NO. 20559/2013E
NYSCEF DOC. NO. 25                                            RECEIVED NYSCEF: 06/09/2015




          OB-1131-Y
          JBK-tc

          SUPREME COURT OF THE STATE OF NEW YORK
          COUNTY OF BRONX
          -------------------------------------X
          CARLA PEREZ, as Administrator of the      Index No.: 20559/2013E
          Last Goods, Chattels and Credits
          which were the Estate of Maria T.         ANSWER TO THIRD PARTY
          Ramos, Deceased,                          SUMMONS AND COMPLAINT

                                Plaintiff,

                -against-

          NEW YORK CITY HEALTH AND HOSPITALS
          CORPORATION,

                              Defendant.
          -------------------------------------X
          NEW YORK CITY HEALTH AND HOSPITALS        Index No.: 43102/2015E
          CORPORATION,

                                Third Party Plaintiff,

                -against-

          URBAN HEALTH PLAN, INC.,

                                Third Party Defendant.

          -------------------------------------X


                      Defendant, URBAN HEALTH PLAN, INC., by their attorneys,

          FUMUSO, KELLY, DeVERNA, SNYDER, SWART & FARRELL, LLP as and for

          their Verified Answer to the Third Party Summons and Verified

          Complaint of the plaintiff herein, respectfully alleges upon

          information and belief as follows:

                      FIRST:    Denies knowledge or information sufficient to

          form a belief as to each and every allegation contained in

          paragraphs numbered and designated “1”, “2", “3" and “4" of the
plaintiff’s Third Party Summons and Verified Complaint and

respectfully submits all questions of fact and law to this

Honorable Court.

              ANSWERING THE FIRST CAUSE OF ACTION:

          SECOND:   With respect to paragraph “5” of the

plaintiff’s Third Party Summons and Verified Complaint, the

defendant repeats and realleges paragraphs numbered and

designated “FIRST” through “FIRST” inclusive of this Answer.

          THIRD:    Denies knowledge or information sufficient to

form a belief as to each and every allegation contained in

paragraphs numbered and designated “6” and “7" of the plaintiff’s

Third Party Summons and Verified Complaint excepts admits URBAN

HEALTH PLAN, INC., was and is a federally deemed healthcare

center existing under the applicable law of the United States as

well as the State of New York and respectfully submits all

questions of fact and law to this Honorable Court.

          FOURTH:   Denies knowledge or information sufficient to

form a belief as to each and every allegation contained in

paragraph numbered and designated “8” of the plaintiff’s Third

Party Summons and Verified Complaint.

          FIFTH:    Denies each and every allegation contained in

paragraphs numbered and designated “9” and “10" of the

plaintiff’s Third Party Summons and Verified Complaint.
               ANSWERING THE SECOND CAUSE OF ACTION:

          SIXTH:      With respect to paragraph “11” of the

plaintiff’s Third Party Summons and Verified Complaint, the

defendant repeats and realleges paragraphs numbered and

designated “FIRST” through “FIFTH” inclusive of this Answer.

          SEVENTH:    Denies each and every allegation contained in

paragraphs numbered and designated “12” and “13" of the

plaintiff’s Third Party Summons and Verified Complaint.

             AS AND FOR A FIRST AFFIRMATIVE DEFENSE:

          EIGHTH:    That the injuries of the plaintiff was caused

in whole or in part by her own contributory negligence and/or

culpable conduct and/or by persons and/or events over which this

defendant had no control and her claims are therefore barred or

the amount of same is diminished accordingly.

            AS AND FOR A SECOND AFFIRMATIVE DEFENSE:

          NINTH:    Upon information and belief, plaintiff has

received remuneration and/or compensation for some or all of her

claimed economic loss and answering defendant is entitled to have

any verdict or judgment reduced by the amount of that

remuneration or compensation pursuant to CPLR 4545.

             AS AND FOR A THIRD AFFIRMATIVE DEFENSE:

          TENTH:    That the plaintiff’s Third Party Summons and

Verified Complaint and/or the cause of action fails to state a

cause of action against the answering defendant.
            AS AND FOR A FOURTH AFFIRMATIVE DEFENSE:

          ELEVENTH:   That if any liability is found as against

this answering defendant, then said liability will constitute 50%

or less of the total liability assigned to all persons liable

and, as such, the liability of this answering defendant to

plaintiff for non-economic loss shall be limited and shall not

exceed this answering defendant’s equitable share, as provided in

Article 16 of the CPLR.

             AS AND FOR A FIFTH AFFIRMATIVE DEFENSE:

         TWELFTH:   Plaintiff lacks capacity to assert the claims

made within the Third Party Summons and Verified Complaint.

               AS AND FOR A SIXTH AFFIRMATIVE DEFENSE:

          THIRTEENTH:     That in the event of any judgment or

verdict on behalf of the plaintiff, this answering defendant is

entitled to a setoff with respect to the amount of any payments

made to the plaintiff prior thereto.

               AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE:

          FOURTEENTH:   That the defendant shall be entitled to a

set off pursuant to the General Obligations Law §15-108 for

reduction in the claim of the Releasor against them to the extent

of any amount stipulated by a prior release or covenant, or the

amount of consideration paid for it, or the amount of the

released tortfeasor’s equitable share of the damages under

Article 14 of the CPLR, whichever is the greatest.
             AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE

          FIFTEENTH: Urban Health Plan Inc., is protected under

the Federally deemed Health Centers Assistance Act and thus, this

Court lacks jurisdiction over them.   They can only be sued in the

appropriate Federal Court under the Federal Torts Claims Act.

          AS AND FOR A CROSS COMPLAINT OVER AND AGAINST
THE CO-DEFENDANT, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION

          SIXTEENTH:   Upon information and belief, that if the

plaintiff, was caused to sustain the injuries and damages at the

time and manner alleged in the Third Party Summons and Complaint

and if such injuries and damages were not sustained by reason of

plaintiff’s negligence in whole or in part, then such injuries

and damages were sustained as a result of the primary, active and

affirmative negligence of the co-defendant jointly and severally

and this answering defendant does claim contribution over and

against the co-defendant.

          SEVENTEENTH: Upon information and belief, that if the

plaintiff, recover a verdict or judgment against the answering

defendants, that by reason of the aforesaid, said defendants will

be entitled by law, contract or equity to be indemnified in whole

or in party the co-defendant by reason of their primary, active

and affirmative negligence.
           WHEREFORE, this defendant demands judgment dismissing

the Complaint together with the costs and disbursements, and

further demand that the relative responsibilities of the said

defendants be apportioned and that this answering defendant

herein have contribution, indemnification and judgment against

the co-defendant for any verdict or judgment that may be

recovered against said answering defendant herein, by the

plaintiffs in this action together with all the costs of

investigation, disbursements, expenses and attorney’s fees

incurred in the defense of this action and in the conduct of the

Cross Complaint.

Dated:     Hauppauge, New York
           June 8, 2015

                                 Yours, etc.

                                 FUMUSO, KELLY, DeVERNA, SNYDER,
                                 SWART & FARRELL, LLP
                                 Attorneys for Third Party Defendant
                                 Urban Health Plan, Inc.
                                 110 Marcus Boulevard, Suite 500
                                 Hauppauge, New York 11788
                                 (631) 232-0200

To:   SCHIAVETTI, CORGAN, DIEDWARDS,
      WEINBERG & NICHOLSON, LLP
      Attorneys for defendant/third
      party plaintiff
      New York City Hospital and
      Hospitals Corporation
      575 Eighth Avenue 14, Fl.
      New York, NY 10018
      (212) 541-9100