Preview
INDEX NO. 601537/2012
RECEIVED NYSCEF: 06/11/2013
INDEX NO. 602537/2012
MYSCEF BOC. NO. 7 RECEIVED NYSCEF: 12/03/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
RYAN JONES by his f/n/a DARELL JONES,
Index No.: 601537/12 i
Plaintiffs,
-against- VERIFIED ANSWER
ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP, i
METROPOLITAN DIAGNOSTIC IMACING, P.C.,
BRADLEY DEAN GERBER, M.D., STEVE SHARON, M.D.,
MARK J, DECKER, M.D., and LOWELL B. BAREK, M.D.,
Defendants
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The defendant, STEPHEN SHARON, M.D., i/s/hfa STEVE SHARON, MLD., by his
attorneys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Verified Complaint of the
plaintiff herein, upon information and belief, alleges as follows:
1, Defendant denies having any knowledge or information sufficient to form a belicf
as to the truth of each and every allegation containcd in paragraphs numbered “1,” “2,” “3, “4”
and “5” of the plaintiff's Verified Complaint. ‘ :
2. Defendant admits the trath of those allegations contained in paragraph number “6"
of plaintiff's Verified Complaint.
3. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each. and every allegation contained in paragraphs numbered “7,” “8,” “9,”
“15” and “16” of the plaintiff's Verified Complaint.
PLEASE NOTE: COMPLAINT MISSING PARAGRAPHS #10-14,4, Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of cach and every allegation contained in paragraph number “17” of the plaintiff's
Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of
fact and all questions of law to this Honorable Court.
, 5. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “18,” “19” and
“20” of the plaintiff's Verified Complaint.
6. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “21” of the plaintiff's
Verified Complaint, in the form alleged, except admits that defendant STEPHEN SHARON,
MD., i/s/h/a STEVE SHARON, M.D., was and is a physician licensed to practice medicine in
the State of New York and respectfully refers all questions of fact to the trier of fact and all
questions of law to this Honorable Court.
7. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “22,” “23” and
“24” “of the plaintiff's Verified Complaint.
8. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “25” of the plaintiff's
Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of
fact and all questions of law to this Honorable Court.
9. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and. every allegation contained in paragraphs numbered “26,” “27,” “28”
and “29” of the plaintiff's Verified Complaint.10. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “30” of the plaintiff's
Verified Complaint, in the form alleged, except admits that defendant STEPHEN SHARON,
M.D., i/s/h/a STEVE SHARON, M_D., rendered certain professional services to the plaintiff and
respectfully refers all questions of fact fo the trier of fact and all questions of law to this
Honorable Court.
11. Defendant denies having any knowledge or information sufficient to form a belief
as fo the truth of each and every allegation contained in paragraphs numbered “31,” “32” and
“33” of the plaintiff's Verified Complaint.
12. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “34” and “35” of
the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of
fact to the trier of fact and all questions of law to this Honorable Court.
13. Defendant denies the truth of each and every allegation contained in paragraphs
numbered “36,” 37,” “38” and “39” of the plaintiffs Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
14, ‘This answering defendant alleges, upon information and belief, that whatever
injuries and/or damages were sustained by the plaintiff_at the time and place alleged in the
Verified Complaint were in whole or in part the result of the culpable conduct of the plaintiff.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
15. The answering defendant herein denies liability, however, if a measure of damage
of fifty percent or less is found against this answering defendant, then this answering defendant
is entitled to the limitations of liability in CPLR Article 16.AS AND FOR A THIRD AFFIRMATIVE DEFENSE
16. If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit
arising out of the same incident to which the within action pertains, and/or does so in the future
as against one ot more of the defendants herein and/or any other alleged tortfeasor, this
answering defendant asserts its right to any and all set-offs in accordance with General
Obligations Law Section 15-108.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
17. Upon information and belief, any part or future costs and/or expenses incurred or
to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation
services, loss of earnings or other economic loss, has been or will with reasonable certainty be
replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a)
of the CPLR.
If any damages are recoverable against the answering defendant, the amount of such
damages shall be diminished by the amount of the funds which plaintiff has received or shall
receive from such collateral source.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
18. That the rights of action and/or the causes of action as set forth in the plaintiff's
Complaint as against this answering defendant are barred by the applicable statutes of
limitations.WHEREFORE, defendant, STEPHEN SHARON, M.D., i/s/h/a STEVE SHARON,
M.D,, demands judgment dismissing the plaintiffs Verified Complaint, together with the costs
and disbursements of this action.
Dated: Islandia, New York
TO:
November 26, 2012
Yours, etc.,
LEWIS JOHS AVALLONE AVILES, LLP
Attorneys for Defendant STEPHEN SHARON, M.D.,
Us/h/a STEVE SHARON, M.D.
One CA Plaza — Suite 225
Islandia, New York 11749
(631) 755-0101
By
CHRISTINE B. HICKEY
LJAA File No.: 0001-1577-0000
Rosenbaum & Rosenbaum, P.C.
Attorneys for Plaintiffs
110 Wall Street ~ 21 Floor
New York, NY 10005
(212) 514-5007Attorney Verification
CHRISTINE B. HICKEY, an attorney admitted to practice in the Courts of the State of
New York, affirms that the following statements are true under penalties of perjury:
Affirmant is a member of the law firm of LEWIS JOHS AVALLONE AVILES, LLP
attorneys of record for the defendant, STEPHEN SHARON, M.D., i/s/h/a STEVE SHARON,
M_D. in the within action. Affirmant has read the foregoing Answer, knows the contents thereof,
and that the same is true to deponent's own knowledge, except as to the matters therein stated to
be alleged upon information and belief, and that those matters affirmant believes to be true.
This verification is made by affirmant and not by the defendant because defendant does
not reside in the County wherein your affirmant maintains an office.
The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge
are as follows: Verbal information ftom defendants, office records, and affirmant’s general
investigation into the facts of this case.
Dated: Islandia, New York
November 26, 2012
Wee
CHRISTINE B. HICKEY(FILED: WASSAU_COUNTY CLERK 12/03/2012 — INDEX NO. °601537/2012
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/03/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
penneeccenceneensnuunnenueenanennseeceoeecnnscesenwanunauennenenenmenens
RYAN JONES by his f/n/fa DARELL JONES,
Index No.: 601537/12
Plaintiffs,
-against- VERIFIED ANSWER
ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP,
METROPOLITAN DIAGNOSTIC IMACING, P.C.,
BRADLEY DEAN GERBER, M.D., STEVE SHARON, M.D.,
MARK J. DECKER, M.D., and LOWELL B. BAREK, M.D.,
Defendants
x
} |
The defendant, BRADLEY DEAN GERBER, M.D., by his attomeys, LEWIS JOHS
AVALLONE AVILES, LLP, answering the Verified Complaint of the plaintiff herein, upon Oo
information and belief, alleges as follows:
1, Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of cach and every allegation contained in paragraphs numbered “1,” “2,” “3” and
“4” of the plaintiff's Verified Complaint.
2. Defendant admits the truth of those allegations contained in paragraph number “5"
of plaintiff's Verified Complaint.
3. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “6,” “7,” “8,” “9” Do
and “15” of the plaintiff's Verified Complaint. |
PLEASE NOTE: COMPLAINT MISSING PARAGRAPHS #10-14.4, Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “16” of the plaintiff's
Verified Complaint, in the form alleged, and respectfully refers all questions of fact to ihe tier of
fact and all questions of law to this Honorable Court.
5, Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “17,” “18,” “19,”
«24> 29,” 23,” 25,” 26,” “27” and “28” of the plaintiff's Verified Complaint,
6. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “20” of the plaintiff's
Verified Complaint, in the form alleged, except admits that defendant BRADLEY DEAN
GERBER, M.D., was and is a physician licensed to practice medicine in the State of New York
and respectfully refers all questions of fact to the trier of fact and all questions of law to this
Honorable Court.
1 Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “24” of the plaintiff's
Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the tier of
fact and all questions of law to this Honorable Court.
8. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “29” of the plaintiff's
Verified Complaint, in the form alleged, except admits that defendant BRADLEY DEAN
GERBER, M.LD., rendered certain professional services to the plaintiff and respectfully refers all
questions of fact to the trier of fact and all questions of law to this Honorable Court.9. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “30,” “31,” “32”
and “33” of the plaintiff's Verified Complaint,
10, Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered 3y and “35” of
the plaintiff's Verified Complaint, in the form alleged and respectfully refers all questions of fact
to the trier of fact and all questions of law to this Honorable Court.
11, ~ Defendant denies the truth of each and every allegation contained in paragraphs
numbered “36,” “37,” “38” and “39” of the plaintiff's Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
12. This answering defendant alleges, upon information and belief, that whatever
injuries and/or damages were sustained by the plaintiff at the lime and place alleged in the
Verified Complaint were in whole or in part the result of the culpable conduct of the plaintiff,
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
13. The answering defendant herein denies liability; however, if a measure of damage
of fifty percent or less is found against this answering defendant, then this answering defendant
is entitled to the Limitations of liability in CPLR Article 16.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
14. If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit
arising out of the same incident to which the within action pertains, and/or does so in the future
as against one or more of the defendants herein and/or any other alleged tortfeasor, this
answering defendant asserts its right to any and all set-offs in accordance with General
Obligations Law Section 15-168.AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
15. Upon information and belief, any part or future costs and/or expenses incurred or
to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation
services, loss of earnings or other economic loss, has been or will with reasonable certainty be
replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a}
of the CPLR.
Hf any damages are recoverable against the answering defendant, the amount of such
damages shall be diminished by the amount of the funds which plaintiff has received or shall
receive from such collateral source.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
16. That the rights of action and/or the causes of action as set forth in the plaintiff's
Complaint as against this answering defendant are barred by the applicable statutes of
limitations.
WHEREFORE, defendant, BRADLEY DEAN GERBER, M.D., demands judgment
dismissing the plaintiff's Verified Complaint, together with the costs and disbursements of this
action,
Dated: Islandia, New York
November 28, 2012
Yours, ete.,
LEWIS JOHS AVALLONE AVILES, LLP
Attorneys for Defendant
BRADLEY DEAN GERBER, M.D.
One CA Plaza ~ Suite 225
Islandia, New York 11749
(631) 755-0101 -
By:
CHRISTINE B. HICKEY
LIJAA File No.: 0001-1577-0000TO:
Rosenbaum & Rosenbaum, P.C.
Attorneys for Plaintiffs
110 Wall Street —21* Floor
New York, NY 10005
(212) $14-5007Attorney Verification
CHRISTINE B. HICKEY, an attorney admitted to practice in the Courts of the State of
New York, affirms that the following statements are true under penalties of perjury:
Affirmant. is a member of the law firm of LEWIS JOHS AVALLONE AVILES, LLP
attorneys of record for the defendant, BRADLEY ‘DEAN GERBER, M.D. in the within action.
Affirmant has read the foregoing Answer, knows the contents thereof, and that the same is true to '
deponent's own knowledge, except as to the matters therein stated to be alleged upon information |
and belief, and that those matters affirmant believes to be rue. i
This verification is made by affirmant and not by the defendant because defendant does |
not reside in the County wherein your affirmant maintains an office.
.
The grounds of affirmant's belief as to all matters not stated upon affirmant’s knowledge
are as follows: Verbal information from defendants, office records, and affirmant's general
Q investigation into the facts of this case.
Dated: Islandia, New York
November 28, 2012
>
CHRISTINE B. HICKEY(PILED: NASSAU COUNTY CLERK 10/23/2012) INDEX NO, 601537/201g
NYSCEF DOC. NO. RECEIVED NYSCEF: 10/23/2012
YAN‘eto
07819-081098
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
ane, X
RYAN JONES, by his t/n/g DARELL JONES
VERIFIED ANSWER
Plaintiffs,
Index No.: 601537/12
-against-
ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP,
METROPOLITAN DIAGNOSTIC IMAGING, P.C., |
BRADLEY DEAN GERBER, M.D., STEVE SHARON,
M.D., MARK J. DECKER, M.D. and LOWELL B.
BAREK, M.D.,
Defendant MARK J. DECKER, M.D., by his attorneys, MARTIN CLEARWATER &
BELL ue, answers the plaintiffs’ complaint as follows, upon information and belief:
L. Of note, paragraphs 10, 11, 12, 13 and 14 were omitted from the complaint.
2. Denies knowledge or information sufficient to form a belief as to each and every
allegation contained in the paragraphs of the complaint designated “1", “2”, “3, “4”, “5”, “6”,
SBP BON MES") S16", S17", MES, S20", S21", #23", “24”, #25", 827", 828", $29", 830", S31",
“33, “34? and “35°.
3. Denies each and every allegation contained in the paragraphs of the complaint
designated “36”, “37”, “38” and “39”,
4, Denies each and every allegation contained in the paragraph of the complaint
designated “22,” except admits that MARK J. DECKER, M.D. was/is a specialist in diagnostic
radiology.
5. Denies cach and every allegation contained in the paragraph of the complaint
designated “26,” except admits that MARK J. DECKER, M.D. acted in his capacity as an
employee of METROPOLITAN on February 15, 2010.
6. Denies each and every allegation contained in the paragraph of the complaint
designated “32,” except admits that MARK J. DECKER, M.D. provided professional services to
the infant-plaintiff on February 15, 2010.
$938365_1.DOCAS A FIRST AFFIRM
TIVE DEFENSE
7. Defendant MARK J. DECKER, M.D. denies liability, but if liability is found
against this defendant and the liability is found to be 50% or less of the total liability assigned to
all persons liable, then this defendant invokes the limits on liability for noncconomic loss set
forth in CPLR §1601,
AS A SECOND AFFIRMATIVE DEFENSE
8. That defendant asseris the terms, provisions, limitations and rights contained in
§4545 of the CPLR.
AS A THIRD AFFIRMATIVE DEFENSE
9. ‘That as to the Causes of Action, the complaint fails to state a cause or causes of
action upon which relief can be granted against defendant MARK J. DECKER, M.D.
WHEREFORE, defendant MARK J. DECKER, M.D, demands judgment dismissing the
complaint herein, together with the costs and disbursements of this action.
Dated: New York, New York
October 23, 2012
Yours, ete.
MARTIN CLEARWATER & BELLus
By: 4 qq
Yuko Ann Nakahara
Attorneys for Defendant
MARK J, DECKER, M.D.
220 East 42nd Street
New York, NY 10017
(212) 697-3122
1938365 _LDOC 2TO:
ROSENBAUM & ROSENBAUM, P.C.
Attorneys for Plaintiff
110 Wall Street, 21° Floor
New York, New York 1005
(212) 514-5007
ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP
ico GARKUNKEL, WILD & TRAVIS
1t Great Neck Road
Great Neck, New York 11021
NO APPEARANCE TO DATE
METROPOLITAN DIAGNOSTIC IMAGING, P.C.
224 7" Street, 3 Floor
Garden City, New York 11530
NO APPEARANCE TO DATE
BRADLEY DEAN GERBER, M.D.
c/o GARKUNKEL, WILD & TRAVIS
11 Great Neck Road
Great Neck, New York 11021
NO APPEARANCE TO DATE
STEVE SHARON, M.D.
c/o GARKUNKEL, WILD & TRAVIS
11 Great Neck Road
Great Neck, New York 11021
NO APPEARANCE TO DATE
LOWELL B, BAREK, M.D.
clo METROPOLITAN DIAGNOSTIC IMAGING, P.C.
224 7” Street, 3 Floor
Garden City, New York 11530
NO APPEARANCE TO DATE
1938363_1.DOC 3SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
wi ee x
RYAN JONES by his f/n/g DARELL JONES,
Index No:
Plaintiffs, 601537/2012
-against- VERIFIED ANSWER
ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP,
METROPOLITAN DIAGNOSTIC IMAGING, P.C.,
BRADLEY DEAN GERBER, M.D., STEVE SHARON,
M.D., MARK J. DECKER, M.D., and LOWELL B.
BAREK, M.D.,
Defendants.
Defendant, METROPOLITAN DIAGNOSTIC IMAGING, P.C., by its
attorneys, GABRIELE & MARANO, LLP, answers the plaintiffs’
Complaint, upon information and belief as follows:
1. Denies any knowledge or information thereof sufficient
to form a belief as to the allegations set forth in paragraphs
designated “1”, "2", "3", “5”, “6”, “9”, “16", “17", "20", “21”,
“24", “25”, “28” and “30” of the Complaint.
2. Admits each and every allegation set forth in
paragraphs designated “4”, 7”, “8”, “18" and “19” of the
Complaint.
3. Denies in the form alleged each and every allegation set
forth in paragraph designated “15” of the Complaint, except admits
that at all times relevant, METROPOLITAN DIAGNOSTIC IMAGING, P.C.was a domestic professional corporation existing under the laws of
the State of New York.
4, Denies in the form alleged each and every allegation set
forth in paragraph designated "22” of the Complaint, except admits
that at all times relevant, defendant DECKER was licensed to
practice medicine in the State of New York, and was board
certified in the field of diagnostic radiology.
5. Denies in the form alleged each and every allegation set
forth in paragraph designated “23” of the Complaint, except admits
that at all times relevant, defendant BAREK was licensed to
practice medicine in the State of New York, and was board
certified in the field of diagnostic radiology.
6. Denies each and every allegation set forth -in
paragraphs designated “26”, “27”, “29”, “31", “32%, “33", “34”,
“36" and “38” of the Complaint, and begs leave to refer all
issues of law to this Honorable Court and all questions of fact
to a trial therein.
7. Denies in the form alleged each and every allegation get
forth in paragraph designated “35” of the Complaint, except admits
that at all times relevant, the defendants, DECKER and BAREK, were
licensed to practice medicine in the State of New York.
8, Denies each and every allegation set forth in paragraphs
designated "37" and “39” of the Complaint.AS AND FOR A FIRST, SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OR CAUSES OF ACTION IN THE
COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES:
9. That the alleged causes of action of the plaintiff,
as stated in the Complaint, are time-barred in that this action
was not commenced within the period of the applicable Statute of
Limitations.
AS AND FOR A SECOND, SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OR CAUSES OF ACTION IN THE
COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES:
10. That the plaintiff lacks the legal capacity to
7
commence this lawsuit.
AS AND FOR A THIRD, SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OR CAUSES OF ACTION IN THE
COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES:
11. The answering defendant reserves the right to claim
the limitations of liability pursuant to Article 16 of the CPLR,
for any recovery herein by the plaintiff for non-economic loss. 6."
AS AND FOR A FOURTH, SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OR CAUSES OF ACTION IN THE
COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES:
“12. That the answering defendant claims the benefit
of each and every provision of CPLR 4545(a), including but not
limited to any credit or offset by reason of any replacement or
indemnification of costs or expenses from any collateral source.WHEREFORE,
Complaint of the plaintiffs herein,
disbursements of this action.
Yours, etc.
the defendant demands judgment dismissing the
together with the costs and
GABRIELE & MARANO, LLP
oy. &) ear: v
Jeffrey P. DeGeor
Attorneys for Defendant
METROPOLITAN DIAGNOSTIC IMAGING, P.C.
Office and P.O. Address
100 Quentin Roosevelt Blvd.
P.O. Box 8022
Garden City, New York
11530
(516) 542-1000SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
RYAN JONES by his f£/n/g DARELL JONES,
Index No:
Plaintiffs, 601537/2012
-~against- VERIFIED ANSWER
ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP,
METROFOLITAN DIAGNOSTIC IMAGING, P.C.,
BRADLEY DEAN GERBER, M.D., STEVE SHARON,
M.D., MARK J. DECKER, M.D., and LOWELL B,.
BAREK, M.D.,
Defendants.
Defendant, LOWELL B. BAREK, M.D., by his attorneys, GABRIELE
& MARANO, LLP, answers the plaintiffs’ Complaint, upon
information and belief as follows:
1. Denies any knowledge or information thereof sufficient
to form a belief as to the allegations set forth in paragraphs
designated “1", "2", "3", "5", “6”, "9", “16”, “17", 20", “21,
"24", “25", "28" and “30” of the Complaint.
2. Admits each and every allegation set forth in
paragraphs designated “4”, "7", “g”, “18” and “19” of the
Complaint.
3. Denies in the form alleged each and every allegation set
forth in paragraph designated “15” of the Complaint, except admits
that at all times relevant, METROPOLITAN DIAGNOSTIC IMAGING, P.C.was a domestic professional corporation existing under the laws of
the State of New York.
4. Denies in the form alleged each and every allegation set
forth in paragraph designated “22” of the Complaint, except admits
that at all times relevant, defendant DECKER was licensed to
practice medicine in the State of New York, and was board
certified in the field of diagnostic radiology.
5. Denies in the form alleged each and every allegation set
forth in paragraph designated “23” of the Complaint, except admits
that at all times relevant, defendant BAREK was licensed to
practice medicine in the State of New York, and was board
certified in the field of diagnostic radiology.
6. Denies each and every allegation set forth in
paragraphs designated “26”, “27”, “29%, “31”, “32”, %33", “34”,
“36” and “38” of the Complaint, and begs leave to refer all
issues of law to this Honorable Court and all questions of fact
to a trial therein.
7. Denies in the form alleged each and every allegation set
forth in paragraph designated “35” of the Complaint, except admits
that at all times relevant, the defendants, DECKER and BAREK, were
licensed to practice medicine in the State of New York.
8. Denies each and every allegation set forth in paragraphs
designated “37" and “39” of the Complaint.AS AND FOR A FIRST, SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OR CAUSES OF ACTION IN THE
COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES:
9. That the alleged causes of action of the plaintiff,
as stated in the Complaint, are time-barred in that this action
was not commenced within the period of the applicable Statute of
Limitations.
AS AND FOR A SECOND, SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OR CAUSES OF ACTION IN THE
COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES:
10. That the plaintiff lacks the legal capacity to
commence this lawsuit.
AS AND FOR A THIRD, SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE TO EACH AND
EVERY CAUSE OR CAUSES OF ACTION IN THE
COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES:
il. The answering defendant reserves the right to claim
the limitations of liability pursuant to Article 16 of the CPLR
for any recovery herein by the plaintiff for non-economic Loss.
AS AND FOR A FOURTH, SEPARATE AND
COMPLETE AFFIRMATIVE DEFENSE TO EACH AND
‘EVERY CAUSE OR CAUSES OF ACTION IN THE
COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES:
12. That the answering defendant claims the benefit of
each and every provision of CPLR 4545{a), including but not
limited to any credit or offset by reason of any replacement or
indemnification of costs or expenses from any collateral source.WHEREFORE, the defendant demands judgment dismissing the
Complaint of the plaintiffs herein, together with the costs and
disbursements of this action.
Yours, etc.
GABRIELE & MARANO, LLP
PIN
t. .
wn Aes ves.
Jeffrey P, DeGeor
Attorneys for Defendant
LOWELL B. BAREK, M.D.
Office and P.O. Address
100 Quentin Roosevelt Blvd.
P.O. Box 8022
Garden City, New York 11530
(516) 542-1000fe | a BIBs
SUPREME COURT OF THE STATE OF NEW YORK.
COUNTY OF NASSAU.
RYAN JONES by his fina DARELLJONES, *
Index No.: 601537/12
Plaintiffs,
-against- VERIFIED ANSWER
ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP,
METROPOLITAN DIAGNOSTIC IMACING, P.C.,
BRADLEY DEAN GERBER, M.D., STEVE SHARON, M.D., ho
MARK J. DECKER, M.D., and LOWELL B. BAREK, M.D., i
Defendants
The defendant, ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP., by its
attomeys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Verified Complaint of the
plaintiff herein, upon information and belief, alleges as follows:
1. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “1,” “2,” “4,” “7,”
“8” and “15” of the plaintiff's Verified Complaint.
2. Defendant admits the truth of those allegations contained in paragraphs numbered
"3." “5” and “6” of plaintiff's Amended Complaint.
3. Defendant denies having any knowledge or information sufficient to form a belicf
as to the truth of each and every allegation contained in paragraphs numbered “9,” “16” and “17”
of the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of
fact to the trier of fact and all questions of law to this Honorable Court.
PLEASE NOTE: COMPLAINT MISSING PARAGRAPHS #10-14.4. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “18,” “19,” “20,”
“21,7 “22,” $23,” “24,” “25,” “26” and “27” of the plaintiff's Verified Complaint.
5. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “28” of the plaintiff's
Verified Complaint, in the form alleged, except admits certain professional services were
rendered to and by defendant, ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LIP, and
respectfully refers all questions of fact to the trier of fact and all questions of law to this
Honorable Court.
6. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “29,” “30,” “31,”
39,” “33” and “35” of the plaintiff's Verified Complaint.
7. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of cach and every allegation contained in paragraph number “34” of the plaintiff's
Verified Complaint, in the form alleged and respectfully refers all questions of fact to the trier of
fact and all questions of law to this Honorable Court.
8. Defendant denies the truth of each and every allegation contained in paragraphs
numbered “36,” “37,” “38” and “39” of the plaintiff's Verified Complaint. °
AS AND FOR A FIRST AFFIRMATIVE perensh
9. This answering defendant alleges, upon information and belief, that whatever
injuries and/or damages were sustained by the plaintiff at the time and place alleged in the
Verified Complaint were in whole or in part the result of the culpable conduct of the plaintiff.. AS AND FOR A SECOND AFFIRMATIVE DEFENSE
ac The answering defendant herein denies liability; however, if a measure of damage
of fifty percent or less is found against this answering defendant, then this answering defendant
is entitled to the limitations of liability in CPLR Article 16.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
ll. — That this answering defendant alleges thas provisions of Public Health Law
§2805-d apply to the plaintiff's Verified Complaint.
~ AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
i12. If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit
arising out of the same incident to which the within action pertains, and/or does so in the future
as against one or more of the defendants herein and/or any other alleged tortfeasor, this
answering defendant asserts its right to any and all set-offs in accordance with General
Obligations Law Section 15-108.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
13. Upon information and belief, any part or future costs and/or expenses incurred or
to be ivicurred by the plaintiff for medical care, dental care, custodial care or rehabilitation
services, loss of earnings or other economic loss, has been or will with reasonable certainty be
replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a)
of the CPLR.
If any damages are recoverable against the answering defendant, the amount of such
damages shall be diminished by the amount of the funds which plaintiff has received or shall
receive from such collateral source.AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
i 4 That the rights of action and/or the causes of action as set forth in the plaintiff's
Complaint as against this answering defendant are barred by the applicable statutes of
limitations.
WHEREFORE, defendant, ORLIN & COHEN ORTHOPEDIC ASSOCIATES,
LLP., demands judgment dismissing the plaintiff's Verified Complaint, together with the costs
and disbursements of this action.
Dated: Islandia, New York
October 15, 2012
‘Yours, etc.,
LEWIS JOHS AVALLONE AVILES, LLP
Attorneys for Defendant
ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP.
One CA Plaza — Suite 225
Islandia, New York 11749
(631) 755-0101
Bye
CHRISTINE B. HICKEY
LJAA File No.: 0001-1577-0000
TO: Rosenbaum & Rosenbaum, P.C.
Attorneys for Plaintiffs
110 Wall Street - 21 Floor
New York, NY 10005
(212) 514-5007Attorney Verification
CHRISTINE B. HICKEY, an attorney admitted to practice in the Courts of the State of
New York, affirms that the following statements are true under penalties of perjury:
Affirmant is a member of the law firm of LEWIS JOHS AVALLONE AVILES, LLP
attorneys of record for the defendant, ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP
in the within action. Affirmant has read the foregoing Answer, knows the contents thereof, and
that the same is true to deponent's own knowledge, except as to the matters therein stated to be
alleged upon information and belief, and that those matters affirmant believes to be true.
This verification is made by affirmant and not by the defendants because defendants do
not reside in the County wherein your affirmant maintains an office.
The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge
are as follows: Verbal information from defendants, office records, and affirmant's general /
investigation into the facts of this case.
Dated: Islandia, New York
October 15, 2012 |
CHRISTINE B. HICKEYSUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
RYAN JONES by his f/n/a DARELL JONES,
Index No.: 601537/12
Plaintiffs,
-against- VERIFIED ANSWER
ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP,
METROPOLITAN DIAGNOSTIC IMACING, P.C.,
BRADLEY DEAN GERBER, M.D., STEVE SHARON, M_D.,
MARK J. DECKER, M.D., and LOWELL B. BAREK, M.D.,
Defendants
The defendant, BRADLEY DEAN GERBER, M.D., by his attorneys, LEWIS JOHS
AVALLONE AVILES, LLP, answering the Verified Complaint of the plaintiff herein, upon
information and belief, alleges as follows:
1. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “1,” “2,” “3” and
“4” of the plaintiff's Verified Complaint.
2. Defendant admits the truth of those allegations contained in paragraph number "5"
of plaintiffs Verified Complaint.
3, Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “6,” “7,” “8,” “9”
and “15” of the plaintiff's Verified Complaint.
PLEASE NOTE: COMPLAINT MISSING PARAGRAPHS #10-14.4, Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “16” of the plaintiff's
Verified Complaint, in the form alleged, and respectfully refers ail questions of fact to the trier of
fact and all questions of law to this Honorable Court.
5. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “17,” “18,” “19,”
“21,” $22,” “23,” “25,” “26,” “27” and “28” of the plaintiff's Verified Complaint.
6. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “20” of the plaintiff's
Verified Complaint, in the form alleged, except admits that defendant BRADLEY DEAN
GERBER, M.D., was and is a physician licensed to practice medicine in the State of New York
and respectfully refers all questions of fact 10 the trier of fact and all questions of law to this
Honorable Court.
7 Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “24” of the plaintiff's
Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of
fact and all questions of law to this Honorable Court.
8. ~~~ Defendant denies having any knowledge or information sufficient to form-a belief
as to the truth of each and every allegation contained in paragraph number “29” of the plaintiff's
“Verified Complaint, in the form alleged, except admits that defendant BRADLEY DEAN
GERBER, M.D., rendered certain professional services to the plaintiff and respectfully refers all
questions of fact to the trier of fact and all questions of law to this Honorable Court.9. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “30,” “31,” “32”
and “33” of the plaintiff's Verified Complaint.
10. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “34” and “35” of
the plaintiff's Verified Complaint, in the form alleged and respectfully refers all questions of fact
to the trier of fact and all questions of law to this Honorable Court.
il. Defendant denies the truth of each and every allegation contained in paragraphs
numbered “36,” “37,” “38” and “39” of the plaintiff's Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE 4
12. This answering defendant alleges, upon information and belief, that whatever
injuries and/or damages were sustained by the plaintiff at the time and place alleged in the
Verified Complaint were in whole or in part the result of the culpable conduct of the plaintiff.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
“ 1B. The answering defendant herein denies liability; however, if a measure of damage
of fifty percent or less is found against this answering defendant, then this answering defendant
is entitled to the limitations of liability in CPLR Article 16.
a ° AS AND-FOR A THIRD AFFIRMATIVE DEFENSE —
14, If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit
arising out of the same incident to which the within action pertains, and/or does so in the future
as against one or more of the defendants herein and/or any other alleged tortfeasor, this
answering defendant asserts its right to any and all set-offs in accordance with General
Obligations Law Section 15-108.AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
150° , Upon information and belief, any part or future costs and/or expenses incurred or
to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation
services, loss of earnings or other economic Joss, has been or will with reasonable certainty be
replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a)
of the CPLR.
If any damages are recoverable against the answering defendant, the amount of such
damages shall be diminished by ihe amount of the funds which plaintiff has received or shall
receive from such collateral source.
‘AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
16: ‘That the rights of action and/or the causes of action as set forth in the plaintiff's
Complaint as against this answering defendant are barred by the applicable statutes of
limitations.
WHEREFORE, defendant, BRADLEY DEAN GERBER, M.D., demands judgment
dismissing the plaintiff's Verified Complaint, together with the costs and disbursements of this
action.
Dated: Islandia, New York
November 28, 2012
~ Yours, etc.,
LEWIS JOHS AVALLONE AVILES, LLP
Attorneys for Defendant
BRADLEY DEAN GERBER, M.D.
One CA Plaza — Suite 225
Islandia, New York 11749
(631) 755-0101 ~
By:
CHRISTINE B. HICKEY
LJAA File No,: 0001-1577-0000TO:
Rosenbaum & Rosenbaum, P.C.
Attorneys for Plaintiffs
110 Wall Street - 21" Floor
New York, NY 10005
(212) 514-5007Attorney Verification
CHRISTINE B. HICKEY, an attorney admitted to practice in the Courts of the State of
New York, affirms that the following statements are true under penalties of perjury:
Affirmant is a member of the law firm of LEWIS JOHS AVALLONE AVILES, LLP
attorneys of record for the defendant, BRADLEY DEAN GERBER, M.D. in the within action.
Affirmant has read the foregoing Answer, knows the contents thereof, and that the same is true to
deponent's own knowledge, except as to the matters therein stated to be alleged upon information
and belief, and that those matters affirmant believes to be true.
This verification is made by affirmant and not by the defendant because defendant does
not reside in the County wherein your affirmant maintains an office.
The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge
are as follows: Verbal information from defendants, office records, and affirmant's general
investigation into the facts of this case.
Dated: Islandia, New York
November 28, 2012
CHRISTINE B. HICKEYmo NY |
1 2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
RYAN JONES by his f/n/a DARELL JONES,
Index No.: 601537/12
Plaintiffs,
-against- VERIFIED ANSWER
ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP,
METROPOLITAN DIAGNOSTIC IMACING, P.C.,
BRADLEY DEAN GERBER, M.D., STEVE SHARON, M_D.,
MARK J. DECKER, M.D., and LOWELL B. BAREK, M.D.,
Defendants
The defendant, STEPHEN SHARON, M.D., i/s/h/a STEVE SHARON, M.D., by his
attorneys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Verified Complaint of the
plaintiff herein, upon information and belief, alleges as follows:
1. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “1,” 2,” “3, “4?
and “5S” of the plaintiff's Verified Complaint.
2. Defendant admits the truth of those allegations contained in paragraph number “6"
of plaintiff's V‘ Verified Complaint,
3. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “7,” “8,” “9,” _
15” and “16” of the plaintiff's Verified Complaint.
PLEASE NOTE: COMPLAINT MISSING PARAGRAPHS #10-14.4, Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of cach and every allegation contained in paragraph number “17” of the plaintiff's
Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of
fact and all questions of law to this Honorable Court.
5. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered 18, "19" and
“99” of the plaintiff's Verified Complaint.
6. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “21” of the plaintiff's
Verified Complaint, in the form alleged, except admits that defendant STEPHEN SHARON,
MD., i/s/h/a STEVE SHARON, M.D., was and is a physician licensed to practice medicine in
the State of New York and respectfully refers all questions of fact to the trier of fact and all
questions of law to this Honorable Court.
7. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered 22,” “23” and
“94” “of the plaintiff's Verified Complaint.
8. Defendant denies having any knowledge or information sufficient to form a belief
_—--— ——~asto the truth of eachr and every allegationcontained in paragraph: number “25” of the-plaintiff's
Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of
~ fact and all questions of law to this Honorable Court.
9 Defendant denies having any knowledge or information sufficient to fori a belief
as to the truth of each and every allegation contained in paragraphs numbered $26,” “27,” “28”
and “29” of the plaintiff's Verified Complaint.10. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraph number “30”of the plaintiff's
Verified Complaint, in the form alleged, except admits that defendant STEPHEN SHARON,
M_LD., i/s/hfa STEVE SHARON, M.D., rendered certain professional services to the plaintiff and
respectfully refers all questions of fact to the trier of fact and all questions of law to this
Honorable Court.
11. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “31,” “32” and
“33” of the plaintiff's Verified Complaint.
12. Defendant denies having any knowledge or information sufficient to form a belief
as to the truth of each and every allegation contained in paragraphs numbered “34” and “35” of
the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of
fact to the trier of fact and all questions of law to this Honorable Court.
13. Defendant denies the truth of each and every allegation contained in paragraphs
numbered “36,” “37,” “38” and “39” of the plaintiff's Verified Complaint.
“a AS AND FOR A FIRST AFFIRMATIVE DEFENSE
Y
ZY
/“ 14, This answering defendant alleges, upon information and belief, that whatever
injuries: and/or damages~were- sustained by the: plaintiff at the time and place alleged-in the
Verified Complaint were in whole or in part the result of the culpable conduct of the plaintiff.
~” AS AND FOR A SECOND AFFIRMATIVE DEFENSE
J5. ‘The answering defendant herein denies liability; however, if a measure of damage
of fifty percent or less is found against this answering defendant, then this answering defendant
is entitled to the limitations of liability in CPLR Article 16.AS AND FOR A THIRD AFFIRMATIVE DEFENSE
16. If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit
arising out of the same incident to which the within action pertains, and/or does so in the future
as against one or more of the defendants herein and/or any other alleged tortfeasor, this
answering defendant asserts its right to any and all set-offs in accordance with General
Obligations Law Section 15-108.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
17. Upon information and belief, any part or future costs and/or expenses incurred or
to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation
services, loss of earnings or other economic loss, has been or will with reasonable certainty be
replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a)
of the CPLR.
If any damages are recoverable against the answering defendant, the amount of such
damages shall be diminished by the amount of the funds which plaintiff has received or shall
receive from such collateral source.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
_ Complaint as against this answering defendant are barred by the applicable statutes of
limitations.
That the rights of action and/or the causes of action as set forth in the plaintiff's
|WHEREFORE, defendant, STEPHEN SHARON, M.D., i/s/h/a STEVE SHARON,
M.D., demands judgment dismissing the plaintiffs Verified Complaint, together with the costs
and disbursements of this action.
Dated: Islandia, New York
TO:
November 26, 2012
Yours, etc.,
LEWIS JOHS AVALLONE AVILES, LLP
Attorneys for Defendant STEPHEN SHARON, M.D.,
Vs/b/a STEVE SHARON, M.D.
One CA Plaza - Suite 225
Islandia, New York 11749
(631) 755-0101 __
2
By:
CHRISTINE B. HICKEY
LIAA File No.: 0001-1577-0000
Rosenbaum & Rosenbaum, P.C.
Attorneys for Plaintiffs
110 Wall Street ~ 21" Floor
New York, NY 10005
(212) 514-5007Attorney Verification
CHRISTINE B. HICKEY, an attorney admitted to practice in the Courts of the State of
New York, affirms that the following statements are true under penalties of perjury:
Affirmant is a member of the law firm of LEWIS JOHS AVALLONE AVILES, LLP
attorneys of record for the defendant, STEPHEN SHARON, M.D., i/s/h/a STEVE SHARON,
M.D. in the within action. Affirmant has read the foregoing Answer, knows the contents thereof,
and that the same is true to deponent's own knowledge, except as to the matters therein stated to
be alleged upon information and belief, and that those matters affirmant believes to be true.
This verification is made by affirmant and not by the defendant because defendant does
not reside in the County wherein your affirmant maintains an office.
The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge
are as follows: Verbal information from defendants, office records, and affirmant's general
investigation into the facts of this case.
Dated: Islandia, New York
November 26, 2012
WP
CHRISTINE B. HICKEY
Preview
INDEX NO. 601537/2012 RECEIVED NYSCEF: 06/11/2013 INDEX NO. 602537/2012 MYSCEF BOC. NO. 7 RECEIVED NYSCEF: 12/03/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU RYAN JONES by his f/n/a DARELL JONES, Index No.: 601537/12 i Plaintiffs, -against- VERIFIED ANSWER ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP, i METROPOLITAN DIAGNOSTIC IMACING, P.C., BRADLEY DEAN GERBER, M.D., STEVE SHARON, M.D., MARK J, DECKER, M.D., and LOWELL B. BAREK, M.D., Defendants ce eeennenee canes cnntnunne nee nennnntanuunnecnnnnnenencnnnnncnnnncnennnnannnnnnn) xX The defendant, STEPHEN SHARON, M.D., i/s/hfa STEVE SHARON, MLD., by his attorneys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Verified Complaint of the plaintiff herein, upon information and belief, alleges as follows: 1, Defendant denies having any knowledge or information sufficient to form a belicf as to the truth of each and every allegation containcd in paragraphs numbered “1,” “2,” “3, “4” and “5” of the plaintiff's Verified Complaint. ‘ : 2. Defendant admits the trath of those allegations contained in paragraph number “6" of plaintiff's Verified Complaint. 3. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each. and every allegation contained in paragraphs numbered “7,” “8,” “9,” “15” and “16” of the plaintiff's Verified Complaint. PLEASE NOTE: COMPLAINT MISSING PARAGRAPHS #10-14,4, Defendant denies having any knowledge or information sufficient to form a belief as to the truth of cach and every allegation contained in paragraph number “17” of the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. , 5. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “18,” “19” and “20” of the plaintiff's Verified Complaint. 6. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “21” of the plaintiff's Verified Complaint, in the form alleged, except admits that defendant STEPHEN SHARON, MD., i/s/h/a STEVE SHARON, M.D., was and is a physician licensed to practice medicine in the State of New York and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 7. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “22,” “23” and “24” “of the plaintiff's Verified Complaint. 8. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “25” of the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 9. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and. every allegation contained in paragraphs numbered “26,” “27,” “28” and “29” of the plaintiff's Verified Complaint.10. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “30” of the plaintiff's Verified Complaint, in the form alleged, except admits that defendant STEPHEN SHARON, M.D., i/s/h/a STEVE SHARON, M_D., rendered certain professional services to the plaintiff and respectfully refers all questions of fact fo the trier of fact and all questions of law to this Honorable Court. 11. Defendant denies having any knowledge or information sufficient to form a belief as fo the truth of each and every allegation contained in paragraphs numbered “31,” “32” and “33” of the plaintiff's Verified Complaint. 12. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “34” and “35” of the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 13. Defendant denies the truth of each and every allegation contained in paragraphs numbered “36,” 37,” “38” and “39” of the plaintiffs Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 14, ‘This answering defendant alleges, upon information and belief, that whatever injuries and/or damages were sustained by the plaintiff_at the time and place alleged in the Verified Complaint were in whole or in part the result of the culpable conduct of the plaintiff. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 15. The answering defendant herein denies liability, however, if a measure of damage of fifty percent or less is found against this answering defendant, then this answering defendant is entitled to the limitations of liability in CPLR Article 16.AS AND FOR A THIRD AFFIRMATIVE DEFENSE 16. If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit arising out of the same incident to which the within action pertains, and/or does so in the future as against one ot more of the defendants herein and/or any other alleged tortfeasor, this answering defendant asserts its right to any and all set-offs in accordance with General Obligations Law Section 15-108. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 17. Upon information and belief, any part or future costs and/or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a) of the CPLR. If any damages are recoverable against the answering defendant, the amount of such damages shall be diminished by the amount of the funds which plaintiff has received or shall receive from such collateral source. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 18. That the rights of action and/or the causes of action as set forth in the plaintiff's Complaint as against this answering defendant are barred by the applicable statutes of limitations.WHEREFORE, defendant, STEPHEN SHARON, M.D., i/s/h/a STEVE SHARON, M.D,, demands judgment dismissing the plaintiffs Verified Complaint, together with the costs and disbursements of this action. Dated: Islandia, New York TO: November 26, 2012 Yours, etc., LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendant STEPHEN SHARON, M.D., Us/h/a STEVE SHARON, M.D. One CA Plaza — Suite 225 Islandia, New York 11749 (631) 755-0101 By CHRISTINE B. HICKEY LJAA File No.: 0001-1577-0000 Rosenbaum & Rosenbaum, P.C. Attorneys for Plaintiffs 110 Wall Street ~ 21 Floor New York, NY 10005 (212) 514-5007Attorney Verification CHRISTINE B. HICKEY, an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury: Affirmant is a member of the law firm of LEWIS JOHS AVALLONE AVILES, LLP attorneys of record for the defendant, STEPHEN SHARON, M.D., i/s/h/a STEVE SHARON, M_D. in the within action. Affirmant has read the foregoing Answer, knows the contents thereof, and that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that those matters affirmant believes to be true. This verification is made by affirmant and not by the defendant because defendant does not reside in the County wherein your affirmant maintains an office. The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are as follows: Verbal information ftom defendants, office records, and affirmant’s general investigation into the facts of this case. Dated: Islandia, New York November 26, 2012 Wee CHRISTINE B. HICKEY(FILED: WASSAU_COUNTY CLERK 12/03/2012 — INDEX NO. °601537/2012 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 12/03/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU penneeccenceneensnuunnenueenanennseeceoeecnnscesenwanunauennenenenmenens RYAN JONES by his f/n/fa DARELL JONES, Index No.: 601537/12 Plaintiffs, -against- VERIFIED ANSWER ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP, METROPOLITAN DIAGNOSTIC IMACING, P.C., BRADLEY DEAN GERBER, M.D., STEVE SHARON, M.D., MARK J. DECKER, M.D., and LOWELL B. BAREK, M.D., Defendants x } | The defendant, BRADLEY DEAN GERBER, M.D., by his attomeys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Verified Complaint of the plaintiff herein, upon Oo information and belief, alleges as follows: 1, Defendant denies having any knowledge or information sufficient to form a belief as to the truth of cach and every allegation contained in paragraphs numbered “1,” “2,” “3” and “4” of the plaintiff's Verified Complaint. 2. Defendant admits the truth of those allegations contained in paragraph number “5" of plaintiff's Verified Complaint. 3. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “6,” “7,” “8,” “9” Do and “15” of the plaintiff's Verified Complaint. | PLEASE NOTE: COMPLAINT MISSING PARAGRAPHS #10-14.4, Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “16” of the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of fact to ihe tier of fact and all questions of law to this Honorable Court. 5, Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “17,” “18,” “19,” «24> 29,” 23,” 25,” 26,” “27” and “28” of the plaintiff's Verified Complaint, 6. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “20” of the plaintiff's Verified Complaint, in the form alleged, except admits that defendant BRADLEY DEAN GERBER, M.D., was and is a physician licensed to practice medicine in the State of New York and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 1 Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “24” of the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the tier of fact and all questions of law to this Honorable Court. 8. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “29” of the plaintiff's Verified Complaint, in the form alleged, except admits that defendant BRADLEY DEAN GERBER, M.LD., rendered certain professional services to the plaintiff and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court.9. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “30,” “31,” “32” and “33” of the plaintiff's Verified Complaint, 10, Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered 3y and “35” of the plaintiff's Verified Complaint, in the form alleged and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 11, ~ Defendant denies the truth of each and every allegation contained in paragraphs numbered “36,” “37,” “38” and “39” of the plaintiff's Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 12. This answering defendant alleges, upon information and belief, that whatever injuries and/or damages were sustained by the plaintiff at the lime and place alleged in the Verified Complaint were in whole or in part the result of the culpable conduct of the plaintiff, AS AND FOR A SECOND AFFIRMATIVE DEFENSE 13. The answering defendant herein denies liability; however, if a measure of damage of fifty percent or less is found against this answering defendant, then this answering defendant is entitled to the Limitations of liability in CPLR Article 16. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 14. If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit arising out of the same incident to which the within action pertains, and/or does so in the future as against one or more of the defendants herein and/or any other alleged tortfeasor, this answering defendant asserts its right to any and all set-offs in accordance with General Obligations Law Section 15-168.AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 15. Upon information and belief, any part or future costs and/or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a} of the CPLR. Hf any damages are recoverable against the answering defendant, the amount of such damages shall be diminished by the amount of the funds which plaintiff has received or shall receive from such collateral source. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 16. That the rights of action and/or the causes of action as set forth in the plaintiff's Complaint as against this answering defendant are barred by the applicable statutes of limitations. WHEREFORE, defendant, BRADLEY DEAN GERBER, M.D., demands judgment dismissing the plaintiff's Verified Complaint, together with the costs and disbursements of this action, Dated: Islandia, New York November 28, 2012 Yours, ete., LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendant BRADLEY DEAN GERBER, M.D. One CA Plaza ~ Suite 225 Islandia, New York 11749 (631) 755-0101 - By: CHRISTINE B. HICKEY LIJAA File No.: 0001-1577-0000TO: Rosenbaum & Rosenbaum, P.C. Attorneys for Plaintiffs 110 Wall Street —21* Floor New York, NY 10005 (212) $14-5007Attorney Verification CHRISTINE B. HICKEY, an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury: Affirmant. is a member of the law firm of LEWIS JOHS AVALLONE AVILES, LLP attorneys of record for the defendant, BRADLEY ‘DEAN GERBER, M.D. in the within action. Affirmant has read the foregoing Answer, knows the contents thereof, and that the same is true to ' deponent's own knowledge, except as to the matters therein stated to be alleged upon information | and belief, and that those matters affirmant believes to be rue. i This verification is made by affirmant and not by the defendant because defendant does | not reside in the County wherein your affirmant maintains an office. . The grounds of affirmant's belief as to all matters not stated upon affirmant’s knowledge are as follows: Verbal information from defendants, office records, and affirmant's general Q investigation into the facts of this case. Dated: Islandia, New York November 28, 2012 > CHRISTINE B. HICKEY(PILED: NASSAU COUNTY CLERK 10/23/2012) INDEX NO, 601537/201g NYSCEF DOC. NO. RECEIVED NYSCEF: 10/23/2012 YAN‘eto 07819-081098 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ane, X RYAN JONES, by his t/n/g DARELL JONES VERIFIED ANSWER Plaintiffs, Index No.: 601537/12 -against- ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP, METROPOLITAN DIAGNOSTIC IMAGING, P.C., | BRADLEY DEAN GERBER, M.D., STEVE SHARON, M.D., MARK J. DECKER, M.D. and LOWELL B. BAREK, M.D., Defendant MARK J. DECKER, M.D., by his attorneys, MARTIN CLEARWATER & BELL ue, answers the plaintiffs’ complaint as follows, upon information and belief: L. Of note, paragraphs 10, 11, 12, 13 and 14 were omitted from the complaint. 2. Denies knowledge or information sufficient to form a belief as to each and every allegation contained in the paragraphs of the complaint designated “1", “2”, “3, “4”, “5”, “6”, SBP BON MES") S16", S17", MES, S20", S21", #23", “24”, #25", 827", 828", $29", 830", S31", “33, “34? and “35°. 3. Denies each and every allegation contained in the paragraphs of the complaint designated “36”, “37”, “38” and “39”, 4, Denies each and every allegation contained in the paragraph of the complaint designated “22,” except admits that MARK J. DECKER, M.D. was/is a specialist in diagnostic radiology. 5. Denies cach and every allegation contained in the paragraph of the complaint designated “26,” except admits that MARK J. DECKER, M.D. acted in his capacity as an employee of METROPOLITAN on February 15, 2010. 6. Denies each and every allegation contained in the paragraph of the complaint designated “32,” except admits that MARK J. DECKER, M.D. provided professional services to the infant-plaintiff on February 15, 2010. $938365_1.DOCAS A FIRST AFFIRM TIVE DEFENSE 7. Defendant MARK J. DECKER, M.D. denies liability, but if liability is found against this defendant and the liability is found to be 50% or less of the total liability assigned to all persons liable, then this defendant invokes the limits on liability for noncconomic loss set forth in CPLR §1601, AS A SECOND AFFIRMATIVE DEFENSE 8. That defendant asseris the terms, provisions, limitations and rights contained in §4545 of the CPLR. AS A THIRD AFFIRMATIVE DEFENSE 9. ‘That as to the Causes of Action, the complaint fails to state a cause or causes of action upon which relief can be granted against defendant MARK J. DECKER, M.D. WHEREFORE, defendant MARK J. DECKER, M.D, demands judgment dismissing the complaint herein, together with the costs and disbursements of this action. Dated: New York, New York October 23, 2012 Yours, ete. MARTIN CLEARWATER & BELLus By: 4 qq Yuko Ann Nakahara Attorneys for Defendant MARK J, DECKER, M.D. 220 East 42nd Street New York, NY 10017 (212) 697-3122 1938365 _LDOC 2TO: ROSENBAUM & ROSENBAUM, P.C. Attorneys for Plaintiff 110 Wall Street, 21° Floor New York, New York 1005 (212) 514-5007 ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP ico GARKUNKEL, WILD & TRAVIS 1t Great Neck Road Great Neck, New York 11021 NO APPEARANCE TO DATE METROPOLITAN DIAGNOSTIC IMAGING, P.C. 224 7" Street, 3 Floor Garden City, New York 11530 NO APPEARANCE TO DATE BRADLEY DEAN GERBER, M.D. c/o GARKUNKEL, WILD & TRAVIS 11 Great Neck Road Great Neck, New York 11021 NO APPEARANCE TO DATE STEVE SHARON, M.D. c/o GARKUNKEL, WILD & TRAVIS 11 Great Neck Road Great Neck, New York 11021 NO APPEARANCE TO DATE LOWELL B, BAREK, M.D. clo METROPOLITAN DIAGNOSTIC IMAGING, P.C. 224 7” Street, 3 Floor Garden City, New York 11530 NO APPEARANCE TO DATE 1938363_1.DOC 3SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU wi ee x RYAN JONES by his f/n/g DARELL JONES, Index No: Plaintiffs, 601537/2012 -against- VERIFIED ANSWER ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP, METROPOLITAN DIAGNOSTIC IMAGING, P.C., BRADLEY DEAN GERBER, M.D., STEVE SHARON, M.D., MARK J. DECKER, M.D., and LOWELL B. BAREK, M.D., Defendants. Defendant, METROPOLITAN DIAGNOSTIC IMAGING, P.C., by its attorneys, GABRIELE & MARANO, LLP, answers the plaintiffs’ Complaint, upon information and belief as follows: 1. Denies any knowledge or information thereof sufficient to form a belief as to the allegations set forth in paragraphs designated “1”, "2", "3", “5”, “6”, “9”, “16", “17", "20", “21”, “24", “25”, “28” and “30” of the Complaint. 2. Admits each and every allegation set forth in paragraphs designated “4”, 7”, “8”, “18" and “19” of the Complaint. 3. Denies in the form alleged each and every allegation set forth in paragraph designated “15” of the Complaint, except admits that at all times relevant, METROPOLITAN DIAGNOSTIC IMAGING, P.C.was a domestic professional corporation existing under the laws of the State of New York. 4, Denies in the form alleged each and every allegation set forth in paragraph designated "22” of the Complaint, except admits that at all times relevant, defendant DECKER was licensed to practice medicine in the State of New York, and was board certified in the field of diagnostic radiology. 5. Denies in the form alleged each and every allegation set forth in paragraph designated “23” of the Complaint, except admits that at all times relevant, defendant BAREK was licensed to practice medicine in the State of New York, and was board certified in the field of diagnostic radiology. 6. Denies each and every allegation set forth -in paragraphs designated “26”, “27”, “29”, “31", “32%, “33", “34”, “36" and “38” of the Complaint, and begs leave to refer all issues of law to this Honorable Court and all questions of fact to a trial therein. 7. Denies in the form alleged each and every allegation get forth in paragraph designated “35” of the Complaint, except admits that at all times relevant, the defendants, DECKER and BAREK, were licensed to practice medicine in the State of New York. 8, Denies each and every allegation set forth in paragraphs designated "37" and “39” of the Complaint.AS AND FOR A FIRST, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OR CAUSES OF ACTION IN THE COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES: 9. That the alleged causes of action of the plaintiff, as stated in the Complaint, are time-barred in that this action was not commenced within the period of the applicable Statute of Limitations. AS AND FOR A SECOND, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OR CAUSES OF ACTION IN THE COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES: 10. That the plaintiff lacks the legal capacity to 7 commence this lawsuit. AS AND FOR A THIRD, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OR CAUSES OF ACTION IN THE COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES: 11. The answering defendant reserves the right to claim the limitations of liability pursuant to Article 16 of the CPLR, for any recovery herein by the plaintiff for non-economic loss. 6." AS AND FOR A FOURTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OR CAUSES OF ACTION IN THE COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES: “12. That the answering defendant claims the benefit of each and every provision of CPLR 4545(a), including but not limited to any credit or offset by reason of any replacement or indemnification of costs or expenses from any collateral source.WHEREFORE, Complaint of the plaintiffs herein, disbursements of this action. Yours, etc. the defendant demands judgment dismissing the together with the costs and GABRIELE & MARANO, LLP oy. &) ear: v Jeffrey P. DeGeor Attorneys for Defendant METROPOLITAN DIAGNOSTIC IMAGING, P.C. Office and P.O. Address 100 Quentin Roosevelt Blvd. P.O. Box 8022 Garden City, New York 11530 (516) 542-1000SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU RYAN JONES by his f£/n/g DARELL JONES, Index No: Plaintiffs, 601537/2012 -~against- VERIFIED ANSWER ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP, METROFOLITAN DIAGNOSTIC IMAGING, P.C., BRADLEY DEAN GERBER, M.D., STEVE SHARON, M.D., MARK J. DECKER, M.D., and LOWELL B,. BAREK, M.D., Defendants. Defendant, LOWELL B. BAREK, M.D., by his attorneys, GABRIELE & MARANO, LLP, answers the plaintiffs’ Complaint, upon information and belief as follows: 1. Denies any knowledge or information thereof sufficient to form a belief as to the allegations set forth in paragraphs designated “1", "2", "3", "5", “6”, "9", “16”, “17", 20", “21, "24", “25", "28" and “30” of the Complaint. 2. Admits each and every allegation set forth in paragraphs designated “4”, "7", “g”, “18” and “19” of the Complaint. 3. Denies in the form alleged each and every allegation set forth in paragraph designated “15” of the Complaint, except admits that at all times relevant, METROPOLITAN DIAGNOSTIC IMAGING, P.C.was a domestic professional corporation existing under the laws of the State of New York. 4. Denies in the form alleged each and every allegation set forth in paragraph designated “22” of the Complaint, except admits that at all times relevant, defendant DECKER was licensed to practice medicine in the State of New York, and was board certified in the field of diagnostic radiology. 5. Denies in the form alleged each and every allegation set forth in paragraph designated “23” of the Complaint, except admits that at all times relevant, defendant BAREK was licensed to practice medicine in the State of New York, and was board certified in the field of diagnostic radiology. 6. Denies each and every allegation set forth in paragraphs designated “26”, “27”, “29%, “31”, “32”, %33", “34”, “36” and “38” of the Complaint, and begs leave to refer all issues of law to this Honorable Court and all questions of fact to a trial therein. 7. Denies in the form alleged each and every allegation set forth in paragraph designated “35” of the Complaint, except admits that at all times relevant, the defendants, DECKER and BAREK, were licensed to practice medicine in the State of New York. 8. Denies each and every allegation set forth in paragraphs designated “37" and “39” of the Complaint.AS AND FOR A FIRST, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OR CAUSES OF ACTION IN THE COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES: 9. That the alleged causes of action of the plaintiff, as stated in the Complaint, are time-barred in that this action was not commenced within the period of the applicable Statute of Limitations. AS AND FOR A SECOND, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OR CAUSES OF ACTION IN THE COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES: 10. That the plaintiff lacks the legal capacity to commence this lawsuit. AS AND FOR A THIRD, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TO EACH AND EVERY CAUSE OR CAUSES OF ACTION IN THE COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES: il. The answering defendant reserves the right to claim the limitations of liability pursuant to Article 16 of the CPLR for any recovery herein by the plaintiff for non-economic Loss. AS AND FOR A FOURTH, SEPARATE AND COMPLETE AFFIRMATIVE DEFENSE TO EACH AND ‘EVERY CAUSE OR CAUSES OF ACTION IN THE COMPLAINT OF THE PLAINTIFF, THE DEFENDANT ALLEGES: 12. That the answering defendant claims the benefit of each and every provision of CPLR 4545{a), including but not limited to any credit or offset by reason of any replacement or indemnification of costs or expenses from any collateral source.WHEREFORE, the defendant demands judgment dismissing the Complaint of the plaintiffs herein, together with the costs and disbursements of this action. Yours, etc. GABRIELE & MARANO, LLP PIN t. . wn Aes ves. Jeffrey P, DeGeor Attorneys for Defendant LOWELL B. BAREK, M.D. Office and P.O. Address 100 Quentin Roosevelt Blvd. P.O. Box 8022 Garden City, New York 11530 (516) 542-1000fe | a BIBs SUPREME COURT OF THE STATE OF NEW YORK. COUNTY OF NASSAU. RYAN JONES by his fina DARELLJONES, * Index No.: 601537/12 Plaintiffs, -against- VERIFIED ANSWER ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP, METROPOLITAN DIAGNOSTIC IMACING, P.C., BRADLEY DEAN GERBER, M.D., STEVE SHARON, M.D., ho MARK J. DECKER, M.D., and LOWELL B. BAREK, M.D., i Defendants The defendant, ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP., by its attomeys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Verified Complaint of the plaintiff herein, upon information and belief, alleges as follows: 1. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “1,” “2,” “4,” “7,” “8” and “15” of the plaintiff's Verified Complaint. 2. Defendant admits the truth of those allegations contained in paragraphs numbered "3." “5” and “6” of plaintiff's Amended Complaint. 3. Defendant denies having any knowledge or information sufficient to form a belicf as to the truth of each and every allegation contained in paragraphs numbered “9,” “16” and “17” of the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. PLEASE NOTE: COMPLAINT MISSING PARAGRAPHS #10-14.4. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “18,” “19,” “20,” “21,7 “22,” $23,” “24,” “25,” “26” and “27” of the plaintiff's Verified Complaint. 5. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “28” of the plaintiff's Verified Complaint, in the form alleged, except admits certain professional services were rendered to and by defendant, ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LIP, and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 6. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “29,” “30,” “31,” 39,” “33” and “35” of the plaintiff's Verified Complaint. 7. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of cach and every allegation contained in paragraph number “34” of the plaintiff's Verified Complaint, in the form alleged and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 8. Defendant denies the truth of each and every allegation contained in paragraphs numbered “36,” “37,” “38” and “39” of the plaintiff's Verified Complaint. ° AS AND FOR A FIRST AFFIRMATIVE perensh 9. This answering defendant alleges, upon information and belief, that whatever injuries and/or damages were sustained by the plaintiff at the time and place alleged in the Verified Complaint were in whole or in part the result of the culpable conduct of the plaintiff.. AS AND FOR A SECOND AFFIRMATIVE DEFENSE ac The answering defendant herein denies liability; however, if a measure of damage of fifty percent or less is found against this answering defendant, then this answering defendant is entitled to the limitations of liability in CPLR Article 16. AS AND FOR A THIRD AFFIRMATIVE DEFENSE ll. — That this answering defendant alleges thas provisions of Public Health Law §2805-d apply to the plaintiff's Verified Complaint. ~ AS AND FOR A FOURTH AFFIRMATIVE DEFENSE i12. If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit arising out of the same incident to which the within action pertains, and/or does so in the future as against one or more of the defendants herein and/or any other alleged tortfeasor, this answering defendant asserts its right to any and all set-offs in accordance with General Obligations Law Section 15-108. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 13. Upon information and belief, any part or future costs and/or expenses incurred or to be ivicurred by the plaintiff for medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a) of the CPLR. If any damages are recoverable against the answering defendant, the amount of such damages shall be diminished by the amount of the funds which plaintiff has received or shall receive from such collateral source.AS AND FOR A SIXTH AFFIRMATIVE DEFENSE i 4 That the rights of action and/or the causes of action as set forth in the plaintiff's Complaint as against this answering defendant are barred by the applicable statutes of limitations. WHEREFORE, defendant, ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP., demands judgment dismissing the plaintiff's Verified Complaint, together with the costs and disbursements of this action. Dated: Islandia, New York October 15, 2012 ‘Yours, etc., LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendant ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP. One CA Plaza — Suite 225 Islandia, New York 11749 (631) 755-0101 Bye CHRISTINE B. HICKEY LJAA File No.: 0001-1577-0000 TO: Rosenbaum & Rosenbaum, P.C. Attorneys for Plaintiffs 110 Wall Street - 21 Floor New York, NY 10005 (212) 514-5007Attorney Verification CHRISTINE B. HICKEY, an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury: Affirmant is a member of the law firm of LEWIS JOHS AVALLONE AVILES, LLP attorneys of record for the defendant, ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP in the within action. Affirmant has read the foregoing Answer, knows the contents thereof, and that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that those matters affirmant believes to be true. This verification is made by affirmant and not by the defendants because defendants do not reside in the County wherein your affirmant maintains an office. The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are as follows: Verbal information from defendants, office records, and affirmant's general / investigation into the facts of this case. Dated: Islandia, New York October 15, 2012 | CHRISTINE B. HICKEYSUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU RYAN JONES by his f/n/a DARELL JONES, Index No.: 601537/12 Plaintiffs, -against- VERIFIED ANSWER ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP, METROPOLITAN DIAGNOSTIC IMACING, P.C., BRADLEY DEAN GERBER, M.D., STEVE SHARON, M_D., MARK J. DECKER, M.D., and LOWELL B. BAREK, M.D., Defendants The defendant, BRADLEY DEAN GERBER, M.D., by his attorneys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Verified Complaint of the plaintiff herein, upon information and belief, alleges as follows: 1. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “1,” “2,” “3” and “4” of the plaintiff's Verified Complaint. 2. Defendant admits the truth of those allegations contained in paragraph number "5" of plaintiffs Verified Complaint. 3, Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “6,” “7,” “8,” “9” and “15” of the plaintiff's Verified Complaint. PLEASE NOTE: COMPLAINT MISSING PARAGRAPHS #10-14.4, Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “16” of the plaintiff's Verified Complaint, in the form alleged, and respectfully refers ail questions of fact to the trier of fact and all questions of law to this Honorable Court. 5. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “17,” “18,” “19,” “21,” $22,” “23,” “25,” “26,” “27” and “28” of the plaintiff's Verified Complaint. 6. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “20” of the plaintiff's Verified Complaint, in the form alleged, except admits that defendant BRADLEY DEAN GERBER, M.D., was and is a physician licensed to practice medicine in the State of New York and respectfully refers all questions of fact 10 the trier of fact and all questions of law to this Honorable Court. 7 Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “24” of the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 8. ~~~ Defendant denies having any knowledge or information sufficient to form-a belief as to the truth of each and every allegation contained in paragraph number “29” of the plaintiff's “Verified Complaint, in the form alleged, except admits that defendant BRADLEY DEAN GERBER, M.D., rendered certain professional services to the plaintiff and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court.9. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “30,” “31,” “32” and “33” of the plaintiff's Verified Complaint. 10. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “34” and “35” of the plaintiff's Verified Complaint, in the form alleged and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. il. Defendant denies the truth of each and every allegation contained in paragraphs numbered “36,” “37,” “38” and “39” of the plaintiff's Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 4 12. This answering defendant alleges, upon information and belief, that whatever injuries and/or damages were sustained by the plaintiff at the time and place alleged in the Verified Complaint were in whole or in part the result of the culpable conduct of the plaintiff. AS AND FOR A SECOND AFFIRMATIVE DEFENSE “ 1B. The answering defendant herein denies liability; however, if a measure of damage of fifty percent or less is found against this answering defendant, then this answering defendant is entitled to the limitations of liability in CPLR Article 16. a ° AS AND-FOR A THIRD AFFIRMATIVE DEFENSE — 14, If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit arising out of the same incident to which the within action pertains, and/or does so in the future as against one or more of the defendants herein and/or any other alleged tortfeasor, this answering defendant asserts its right to any and all set-offs in accordance with General Obligations Law Section 15-108.AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 150° , Upon information and belief, any part or future costs and/or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic Joss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a) of the CPLR. If any damages are recoverable against the answering defendant, the amount of such damages shall be diminished by ihe amount of the funds which plaintiff has received or shall receive from such collateral source. ‘AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 16: ‘That the rights of action and/or the causes of action as set forth in the plaintiff's Complaint as against this answering defendant are barred by the applicable statutes of limitations. WHEREFORE, defendant, BRADLEY DEAN GERBER, M.D., demands judgment dismissing the plaintiff's Verified Complaint, together with the costs and disbursements of this action. Dated: Islandia, New York November 28, 2012 ~ Yours, etc., LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendant BRADLEY DEAN GERBER, M.D. One CA Plaza — Suite 225 Islandia, New York 11749 (631) 755-0101 ~ By: CHRISTINE B. HICKEY LJAA File No,: 0001-1577-0000TO: Rosenbaum & Rosenbaum, P.C. Attorneys for Plaintiffs 110 Wall Street - 21" Floor New York, NY 10005 (212) 514-5007Attorney Verification CHRISTINE B. HICKEY, an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury: Affirmant is a member of the law firm of LEWIS JOHS AVALLONE AVILES, LLP attorneys of record for the defendant, BRADLEY DEAN GERBER, M.D. in the within action. Affirmant has read the foregoing Answer, knows the contents thereof, and that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that those matters affirmant believes to be true. This verification is made by affirmant and not by the defendant because defendant does not reside in the County wherein your affirmant maintains an office. The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are as follows: Verbal information from defendants, office records, and affirmant's general investigation into the facts of this case. Dated: Islandia, New York November 28, 2012 CHRISTINE B. HICKEYmo NY | 1 2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU RYAN JONES by his f/n/a DARELL JONES, Index No.: 601537/12 Plaintiffs, -against- VERIFIED ANSWER ORLIN & COHEN ORTHOPEDIC ASSOCIATES, LLP, METROPOLITAN DIAGNOSTIC IMACING, P.C., BRADLEY DEAN GERBER, M.D., STEVE SHARON, M_D., MARK J. DECKER, M.D., and LOWELL B. BAREK, M.D., Defendants The defendant, STEPHEN SHARON, M.D., i/s/h/a STEVE SHARON, M.D., by his attorneys, LEWIS JOHS AVALLONE AVILES, LLP, answering the Verified Complaint of the plaintiff herein, upon information and belief, alleges as follows: 1. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “1,” 2,” “3, “4? and “5S” of the plaintiff's Verified Complaint. 2. Defendant admits the truth of those allegations contained in paragraph number “6" of plaintiff's V‘ Verified Complaint, 3. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “7,” “8,” “9,” _ 15” and “16” of the plaintiff's Verified Complaint. PLEASE NOTE: COMPLAINT MISSING PARAGRAPHS #10-14.4, Defendant denies having any knowledge or information sufficient to form a belief as to the truth of cach and every allegation contained in paragraph number “17” of the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 5. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered 18, "19" and “99” of the plaintiff's Verified Complaint. 6. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “21” of the plaintiff's Verified Complaint, in the form alleged, except admits that defendant STEPHEN SHARON, MD., i/s/h/a STEVE SHARON, M.D., was and is a physician licensed to practice medicine in the State of New York and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 7. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered 22,” “23” and “94” “of the plaintiff's Verified Complaint. 8. Defendant denies having any knowledge or information sufficient to form a belief _—--— ——~asto the truth of eachr and every allegationcontained in paragraph: number “25” of the-plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of ~ fact and all questions of law to this Honorable Court. 9 Defendant denies having any knowledge or information sufficient to fori a belief as to the truth of each and every allegation contained in paragraphs numbered $26,” “27,” “28” and “29” of the plaintiff's Verified Complaint.10. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraph number “30”of the plaintiff's Verified Complaint, in the form alleged, except admits that defendant STEPHEN SHARON, M_LD., i/s/hfa STEVE SHARON, M.D., rendered certain professional services to the plaintiff and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 11. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “31,” “32” and “33” of the plaintiff's Verified Complaint. 12. Defendant denies having any knowledge or information sufficient to form a belief as to the truth of each and every allegation contained in paragraphs numbered “34” and “35” of the plaintiff's Verified Complaint, in the form alleged, and respectfully refers all questions of fact to the trier of fact and all questions of law to this Honorable Court. 13. Defendant denies the truth of each and every allegation contained in paragraphs numbered “36,” “37,” “38” and “39” of the plaintiff's Verified Complaint. “a AS AND FOR A FIRST AFFIRMATIVE DEFENSE Y ZY /“ 14, This answering defendant alleges, upon information and belief, that whatever injuries: and/or damages~were- sustained by the: plaintiff at the time and place alleged-in the Verified Complaint were in whole or in part the result of the culpable conduct of the plaintiff. ~” AS AND FOR A SECOND AFFIRMATIVE DEFENSE J5. ‘The answering defendant herein denies liability; however, if a measure of damage of fifty percent or less is found against this answering defendant, then this answering defendant is entitled to the limitations of liability in CPLR Article 16.AS AND FOR A THIRD AFFIRMATIVE DEFENSE 16. If plaintiff settles, discontinues and/or ends this lawsuit and/or any other lawsuit arising out of the same incident to which the within action pertains, and/or does so in the future as against one or more of the defendants herein and/or any other alleged tortfeasor, this answering defendant asserts its right to any and all set-offs in accordance with General Obligations Law Section 15-108. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 17. Upon information and belief, any part or future costs and/or expenses incurred or to be incurred by the plaintiff for medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, has been or will with reasonable certainty be replaced or indemnified in whole or in part from a collateral source as defined in section 4545(a) of the CPLR. If any damages are recoverable against the answering defendant, the amount of such damages shall be diminished by the amount of the funds which plaintiff has received or shall receive from such collateral source. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE _ Complaint as against this answering defendant are barred by the applicable statutes of limitations. That the rights of action and/or the causes of action as set forth in the plaintiff's |WHEREFORE, defendant, STEPHEN SHARON, M.D., i/s/h/a STEVE SHARON, M.D., demands judgment dismissing the plaintiffs Verified Complaint, together with the costs and disbursements of this action. Dated: Islandia, New York TO: November 26, 2012 Yours, etc., LEWIS JOHS AVALLONE AVILES, LLP Attorneys for Defendant STEPHEN SHARON, M.D., Vs/b/a STEVE SHARON, M.D. One CA Plaza - Suite 225 Islandia, New York 11749 (631) 755-0101 __ 2 By: CHRISTINE B. HICKEY LIAA File No.: 0001-1577-0000 Rosenbaum & Rosenbaum, P.C. Attorneys for Plaintiffs 110 Wall Street ~ 21" Floor New York, NY 10005 (212) 514-5007Attorney Verification CHRISTINE B. HICKEY, an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury: Affirmant is a member of the law firm of LEWIS JOHS AVALLONE AVILES, LLP attorneys of record for the defendant, STEPHEN SHARON, M.D., i/s/h/a STEVE SHARON, M.D. in the within action. Affirmant has read the foregoing Answer, knows the contents thereof, and that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and that those matters affirmant believes to be true. This verification is made by affirmant and not by the defendant because defendant does not reside in the County wherein your affirmant maintains an office. The grounds of affirmant's belief as to all matters not stated upon affirmant's knowledge are as follows: Verbal information from defendants, office records, and affirmant's general investigation into the facts of this case. Dated: Islandia, New York November 26, 2012 WP CHRISTINE B. HICKEY