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(FILED: NEW YORK COUNTY CLERK 0772372012) INDEX NO. 805132/2012
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/23/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
EDWARD SCARANO and SUSAN SCARANO,
Index No: 805132/2012
Plaintiffs,
- against - AMENDED VERIFIED
ANSWER WITH
DEANVAFIADIS, D.D.S., Individually and d/b/a NEW CROSS-CLAIM
YORK SMILE INSTITUTE, GARY GOLDSTEIN,
D.D.S., GARY RUTH, D.D.S., MAXILLOFACIAL
SURGERY SERVICES, L.L.C., GEORGE
ANASTRASSOV, M_D., D.D.S., BABAK GHALILI,
D.D.S., and "JOHN DOE, M.D.", the name being
fictitious but intended to be the Anesthesiologist who
rendered services on plaintiff on September 21, 2011,
Defendants.
Defendant, GARY RUTH, D.D.S., by its attorneys, WENICK & FINGER,
P.C., answering plaintiffs’ verified complaint, alleges on information and belief as
follows:
AS AND FOR A FIRST CAUSE OF ACTION ON BEHALF
OF PLAINTIFF EDWARD SCARANO AS AGAINST ALL DEFENDANTS
1 DENIES knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph designated “FIRST”.
2. DENIES knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraphs designated “SECOND” and “THIRD”
insofar as the same may refer to or, in anywise, affect the undersigned defendant.
3 DENIES each and every allegation contained in paragraph
designated “FOURTH” and affirmatively states that at all times relevant hereto, GARY
RUTH, D.D.S. was duly licensed as a Dentist General Anesthesiologist in the State of
New York and refers all questions of law to this Honorable Court.
4 DENIES knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraphs designated “FIFTH” and SIXTH”
insofar as the same may refer to or, in anywise, affect the undersigned defendant.
5 Denies each and every allegation contained in paragraph
designated “SEVENTH” insofar as the same may refer to or, in anywise, affect the
undersigned defendant.
6 DENIES knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph designated “EIGHTH” insofar as the
same may refer to or, in anywise, affect the undersigned defendant.
7 DENIES each and every allegation contained in paragraph
designated “NINTH”.
8 DENIES knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph designated “TENTH” insofar as the
same may refer to or, in anywise, affect the undersigned defendant.
9 DENIES each and every allegation contained in paragraph
designated “ELEVENTH”.
10. DENIES knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraphs designated “TWELFTH”,
“THIRTEENTH”, “FOURTEENTH”, FIFTEENTH”, “SIXTEENTH”,
“SEVENTEENTH”, “EIGHTEENTH”, “NINTEENTH”, “TWENTIETH”, “TWENTY-
FIRST”, “TWENTY-SECOND”, “TWENTY-THIRD”, “TWENTY-FOURTH”,
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“TWENTY-FIFTH”, “TWENTY-SIXTH”, “TWENTY-SEVENTH”, “TWENTY-
BIGHTH”, “TWENTY-NINTH” and “TTHIRTIETH” insofar as the same may refer to
or, in anywise, affect the undersigned defendant.
11. DENIES each and every allegation contained in paragraphs
designated “THIRTY-FIRST” and affirmatively states that at certain times relevant
hereto, DR. GARY RUTH provided certain dental services to plaintiff.
12. DENIES knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraphs designated “THIRTY-SECOND”,
“THIRTY-THIRD”, “THIRTY-FOURTH’, “THIRTY-FIFTH” and “THIRTY-SEXTH”
insofar as the same may refer to or, in anywise, affect the undersigned defendant.
13. Denies each and every allegation contained in paragraphs
designated "THIRTY-SEVENTH”, “THIRTY-EIGHTH”, “THIRTY-NINTH”,
“FORTIETH” and FORTY-FIRST” insofar as the same may refer to or, in anywise, affect
the undersigned defendant and refers all questions of law to this Honorable Court.
AS AND FOR A SECOND CAUSE OF ACTION ON BEHALF OF
PLAINTIFF EDWARD SCARANO AS AGAINST ALL DEFENDANTS
14. In response to paragraph “FORTY-SECOND” of plaintiff’ s
complaint, defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and
every admission or denial heretofore made in response to paragraphs “FIRST” through
“FORTY-FIRST” with the same force and effect as though fully set forth herein.
15. Denies each and every allegation contained in paragraphs
designated “FORTY-THIRD”, “FORTY-FOURTH”, “FORTY-FIFTH”, “FORTY-
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SIXTH”, “FORTY-SEVENTH” and FORTY-EIGHTH” insofar as the same may refer to
or, in anywise, affect the undersigned defendant and refers all questions of law to this
Honorable Court.
AS AND FOR A’ THIRD CAUSE OF ACTION ON BEHALF OF
PLAINTIFF EDWARD SCARANO AS AGAINST ALL DEFENDANTS
16. In response to paragraph “FORTY-NINTH” of plaintiffs
complaint, defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and
every admission or denial heretofore made in response to paragraphs “FIRST” through
“FORTY-EIGHTH” with the same force and effect as though fully set forth herein.
17. Denies each and every allegation contained in paragraphs
designated “FIFTIETH”, “FIFTY-FIRST”, “FIFTY-SECOND” and “FIFTY-THIRD”,
insofar as the same may refer to or, in anywise, affect the undersigned defendant and
refers all questions of law to this Honorable Court.
AS AND FOR A FOURTH CAUSE OF ACTION ON BEHALF OF
PLAINTIFF EDWARD SCARANO AS AGAINST ALL DEFENDANTS
18. In response to paragraph “FIFTY-FOURTH” of plaintiff's
complaint, defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and
every admission or denial heretofore made in response to paragraphs “FIRST” through
“PIFTY-THIRD” with the same force and effect as though fully set forth herein.
19. Denies each and every allegation contained in paragraphs
designated “FIFTY-FIFTH”, “FIFTY-SIXTH”, “FIFTY-SEVEN’ ” and “FIFTY-
EIGHTH”, “ insofar as the same may refer to or, in anywise, affect the undersigned
defendant and refers all questions of law to this Honorable Court.
AS AND FOR P A FIFTH CAUSE OF ACTION ON BEHALF OF
PLAINTIFF EDWARD SCARANO AS AGAINST DEFENDANTS MAXILLOFACIAL
SURGERY SERVICES, ANASTRASSOV, GHALILI and DOE
20. In response to paragraph “FIFTY-NINTH” of plaintiffs complaint,
defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and every
admission or denial heretofore made in response to paragraphs “FIRST” through “FIFTY-
BIGHTH” with the same force and effect as though fully set forth herein.
21. Denies each and every allegation contained in paragraphs
designated “SIXTIETH”, “SIXTY-FIRST” and “SIXTY-SECOND” insofar as the same
may refer to or, in anywise, affect the undersigned defendant and refers all questions of
law to this Honorable Court.
AS AND FOR A SIXTH CAUSE OF ACTION ON BEHALF OF
PLAINTIFF EDWARD SCARANO AS AGAINST DEFENDANTS MAXILLOFACIAL
SURGERY SERVICES, ANASTRASSOV, and GHALILI
22. In response to paragraph “SIXTY-THIRD” of plaintiffs complaint,
defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and every
admission or denial heretofore made in response to paragraphs “FIRST” through
“SIXTY-SECOND” with the same force and effect as though fully set forth herein.
23. Denies each and every allegation contained in paragraphs
designated “SIXT Y-FOURTH”, “SIXT Y-FIFTH” and “SIXTY-SIXTH” insofar as the
same may refer to or, in anywise, affect the undersigned defendant and refers all questions
of law to this Honorable Court.
AS AND FOR A SEVENTH CAUSE OF ACTION ON BEHALF
OF PLAINTIFF SUSAN SCARANO
24. In response to paragraph “SIXTY-SEVENTH” of plaintiff's
complaint, defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and
every admission or denial heretofore made in response to paragraphs “FIRST” through
“SIXTY-SIXTH” with the same force and effect as though fully set forth herein.
1 25. DENIES knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph designated “SIXT Y-EIGHTH” insofar
as the same may refer to or, in anywise, affect the undersigned defendant and refers all
questions of law to this Honorable Court.
26. Denies each and every allegation contained in paragraphs
designated “SIXTY-NINTH” and “SEVENTIETH?” insofar as the same may refer to or, in
anywise, affect the undersigned defendant and refers all questions of law to this
Honorable Court.
27. Any allegation in plaintiff's complaint that has not been
specifically heretofore “Admitted” is hereby “Denied”.
AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING:
28. ‘That the injuries of the plaintiff were caused in whole or in part by
the culpable conduct of the plaintiff, and plaintiffs claim is therefore barred or
diminished in the proportion that such culpable conduct bears to the total culpable
conduct causing the injuries.
AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING:
29. The undersigned defendant’s liability, if any, is subject to the
limitations provided pursuant to Article 16 of the CPLR.
AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING:
30. That verdict or judgment, if any, against the undersigned defendant
be reduced pursuant to CPLR §4545 by those amounts which have been or will, with
reasonable certainty, be reimbursed or paid to plaintiff from any collateral source.
AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING:
31. Plaintiff claims for punitive damages in the FIRST, THIRD and
SEVENTH Causes of Action fail to state claims upon which relief can be granted as to
this answering defendant.
AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING:
32. Plaintiff's FOURTH, FIFTH and SIXTH Causes of Action fails to
state a claim upon which relief can be granted as to this answering defendant.
AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE,
DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING:
33. Plaintiff's allegation of lack of informed consent is barred by
reason of the applicable provisions of Public Health Law §2805(d).
AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING:
34. If any party settles prior to verdict, then the answering defendant is
entitled to the protection of G.O.L. § 15-108.
AS AND FOR A EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING:
35. That the incidents complained of and therefore the cause or causes
of action did not accrue nor did any part thereof accrue within the appropriate statutory
period, and any such causes of action are, therefore, barred by the Statute of Limitations.
AS AND FOR A CROSS-CLAIM AGAINST DEAN VAFIADIS, D.D.S., Individually
and d/b/a NEW YORK SMILE INSTITUTE, GARY GOLDSTEIN, D.D.S.,
MAXILLOFACIAL SURGERY SERVICES, L.L.C., GEORGE ANASTRASSOV,
MD., D.D.S., BABAK GHALILI, D.D.S., and "JOHN DOE, M.D.", the name being
fictitious but intended to be the Anesthesiologist who rendered services on plaintiff on
September 21, 2011, THE ANSWERING DEFENDANT, GARY RUTH, D.D.S.,
ALLEGES AS FOLLOWS:
36. Denies each and every allegation contained in paragraph
designated “26” insofar as the same may refer to or, in anywise, affect the undersigned
defendant.
37. That plaintiff sustained the injuries and damages in the manner and
at the time and place alleged, and if it is found that the answering defendant is liable to
plaintiff herein, all of which is specifically denied, then said answering defendant, on the
basis of apportionment of responsibility and common law and contractual indemnification
for the alleged occurrence, is entitled to indemmification from any judgment and/or
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contribution from the above-named other defendant, for all or part of any verdict or
judgment that plaintiff may recover against answering defendant
WHEREFORE, defendant, GARY RUTH, D.D.S., demands judgment
dismissing plaintiffs’ complaint together with the costs and disbursements of this action,
and any expenses incurred by it in the defense thereof, including attorneys’ fees.
Dated: New York, New York
uly20, 2012 46, 4
Barbara S. Finger
WENICK & FINGER, P.C.,
Attorneys for Defendant
GARY RUTH, D.D.S.
28 East 28th Street, 13th Floor
New York, New York 10016-7900
(646) 837-0100
File No.: 04110-02697
TO VALERIE J. CROWN, ATTORNEY AT LAW, P.C.
Attorneys for Plaintiffs
151 North Main Street, 4th Floor
New City, New York 10956
(845) 708-5900
CHARLES J. SIEGEL
Attorneys for Defendant
DEAN VAFIADIS, D.D.S.
125 Broad Street - 7th Floor
New York, New York 10004
GEORGE ANASTRASSOV, M.D., D.D.S
18 East 50" Street
New York, New York 10022
BABAK GHALILI, D.D.S.
37 Park Avenue, Suite A
New York, New York 10016
BABAK GHALILI, D.D.S.
18 East 50" Street
New York, New York 10022
GARY GOLDSTEIN, D.D:S.
18 East 50" Street
New York, New York 10022
MAXILLOFACIAL SURGERY SERVICES, L.L.C.
18 East 50® Street
New York, New York 10022
NEW YORK SMILE INSTITUTE
The Takashimaya Building
693 Fifth Avenue — 14" Floor
New York, New York 10022
10
ATTORNEY'S VERIFICATION
Barbara S. Finger affirms under the penalties of perjury that she is an attorney
associated with the firm of WENICK & FINGER, P.C., the attorneys for defendant GARY
RUTH, D.D.S., in the captioned action; that she has read the foregoing answer and knows
the contents thereof; that the same is true to her own knowledge, except as to the matters
therein stated to be alleged on information and belief, and that, as to those matters, she
believes it to be true.
The reason this verification is made by your affirmant and not by the defendant
herein is that the defendant is not in the County of New York, where the undersigned has
her offices.
The sources of your affirmant's information and belief are from. conversations had
with the defendants herein and from documents in the files.
Dated: New York, New York
July 20, 2012
eee
BARBARA S. FINGER
ll
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(FILED: NEW YORK COUNTY CLERK 0772372012) INDEX NO. 805132/2012 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 07/23/2012 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK EDWARD SCARANO and SUSAN SCARANO, Index No: 805132/2012 Plaintiffs, - against - AMENDED VERIFIED ANSWER WITH DEANVAFIADIS, D.D.S., Individually and d/b/a NEW CROSS-CLAIM YORK SMILE INSTITUTE, GARY GOLDSTEIN, D.D.S., GARY RUTH, D.D.S., MAXILLOFACIAL SURGERY SERVICES, L.L.C., GEORGE ANASTRASSOV, M_D., D.D.S., BABAK GHALILI, D.D.S., and "JOHN DOE, M.D.", the name being fictitious but intended to be the Anesthesiologist who rendered services on plaintiff on September 21, 2011, Defendants. Defendant, GARY RUTH, D.D.S., by its attorneys, WENICK & FINGER, P.C., answering plaintiffs’ verified complaint, alleges on information and belief as follows: AS AND FOR A FIRST CAUSE OF ACTION ON BEHALF OF PLAINTIFF EDWARD SCARANO AS AGAINST ALL DEFENDANTS 1 DENIES knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph designated “FIRST”. 2. DENIES knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs designated “SECOND” and “THIRD” insofar as the same may refer to or, in anywise, affect the undersigned defendant. 3 DENIES each and every allegation contained in paragraph designated “FOURTH” and affirmatively states that at all times relevant hereto, GARY RUTH, D.D.S. was duly licensed as a Dentist General Anesthesiologist in the State of New York and refers all questions of law to this Honorable Court. 4 DENIES knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs designated “FIFTH” and SIXTH” insofar as the same may refer to or, in anywise, affect the undersigned defendant. 5 Denies each and every allegation contained in paragraph designated “SEVENTH” insofar as the same may refer to or, in anywise, affect the undersigned defendant. 6 DENIES knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph designated “EIGHTH” insofar as the same may refer to or, in anywise, affect the undersigned defendant. 7 DENIES each and every allegation contained in paragraph designated “NINTH”. 8 DENIES knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph designated “TENTH” insofar as the same may refer to or, in anywise, affect the undersigned defendant. 9 DENIES each and every allegation contained in paragraph designated “ELEVENTH”. 10. DENIES knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs designated “TWELFTH”, “THIRTEENTH”, “FOURTEENTH”, FIFTEENTH”, “SIXTEENTH”, “SEVENTEENTH”, “EIGHTEENTH”, “NINTEENTH”, “TWENTIETH”, “TWENTY- FIRST”, “TWENTY-SECOND”, “TWENTY-THIRD”, “TWENTY-FOURTH”, 2 “TWENTY-FIFTH”, “TWENTY-SIXTH”, “TWENTY-SEVENTH”, “TWENTY- BIGHTH”, “TWENTY-NINTH” and “TTHIRTIETH” insofar as the same may refer to or, in anywise, affect the undersigned defendant. 11. DENIES each and every allegation contained in paragraphs designated “THIRTY-FIRST” and affirmatively states that at certain times relevant hereto, DR. GARY RUTH provided certain dental services to plaintiff. 12. DENIES knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs designated “THIRTY-SECOND”, “THIRTY-THIRD”, “THIRTY-FOURTH’, “THIRTY-FIFTH” and “THIRTY-SEXTH” insofar as the same may refer to or, in anywise, affect the undersigned defendant. 13. Denies each and every allegation contained in paragraphs designated "THIRTY-SEVENTH”, “THIRTY-EIGHTH”, “THIRTY-NINTH”, “FORTIETH” and FORTY-FIRST” insofar as the same may refer to or, in anywise, affect the undersigned defendant and refers all questions of law to this Honorable Court. AS AND FOR A SECOND CAUSE OF ACTION ON BEHALF OF PLAINTIFF EDWARD SCARANO AS AGAINST ALL DEFENDANTS 14. In response to paragraph “FORTY-SECOND” of plaintiff’ s complaint, defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and every admission or denial heretofore made in response to paragraphs “FIRST” through “FORTY-FIRST” with the same force and effect as though fully set forth herein. 15. Denies each and every allegation contained in paragraphs designated “FORTY-THIRD”, “FORTY-FOURTH”, “FORTY-FIFTH”, “FORTY- 3 SIXTH”, “FORTY-SEVENTH” and FORTY-EIGHTH” insofar as the same may refer to or, in anywise, affect the undersigned defendant and refers all questions of law to this Honorable Court. AS AND FOR A’ THIRD CAUSE OF ACTION ON BEHALF OF PLAINTIFF EDWARD SCARANO AS AGAINST ALL DEFENDANTS 16. In response to paragraph “FORTY-NINTH” of plaintiffs complaint, defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and every admission or denial heretofore made in response to paragraphs “FIRST” through “FORTY-EIGHTH” with the same force and effect as though fully set forth herein. 17. Denies each and every allegation contained in paragraphs designated “FIFTIETH”, “FIFTY-FIRST”, “FIFTY-SECOND” and “FIFTY-THIRD”, insofar as the same may refer to or, in anywise, affect the undersigned defendant and refers all questions of law to this Honorable Court. AS AND FOR A FOURTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF EDWARD SCARANO AS AGAINST ALL DEFENDANTS 18. In response to paragraph “FIFTY-FOURTH” of plaintiff's complaint, defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and every admission or denial heretofore made in response to paragraphs “FIRST” through “PIFTY-THIRD” with the same force and effect as though fully set forth herein. 19. Denies each and every allegation contained in paragraphs designated “FIFTY-FIFTH”, “FIFTY-SIXTH”, “FIFTY-SEVEN’ ” and “FIFTY- EIGHTH”, “ insofar as the same may refer to or, in anywise, affect the undersigned defendant and refers all questions of law to this Honorable Court. AS AND FOR P A FIFTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF EDWARD SCARANO AS AGAINST DEFENDANTS MAXILLOFACIAL SURGERY SERVICES, ANASTRASSOV, GHALILI and DOE 20. In response to paragraph “FIFTY-NINTH” of plaintiffs complaint, defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and every admission or denial heretofore made in response to paragraphs “FIRST” through “FIFTY- BIGHTH” with the same force and effect as though fully set forth herein. 21. Denies each and every allegation contained in paragraphs designated “SIXTIETH”, “SIXTY-FIRST” and “SIXTY-SECOND” insofar as the same may refer to or, in anywise, affect the undersigned defendant and refers all questions of law to this Honorable Court. AS AND FOR A SIXTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF EDWARD SCARANO AS AGAINST DEFENDANTS MAXILLOFACIAL SURGERY SERVICES, ANASTRASSOV, and GHALILI 22. In response to paragraph “SIXTY-THIRD” of plaintiffs complaint, defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and every admission or denial heretofore made in response to paragraphs “FIRST” through “SIXTY-SECOND” with the same force and effect as though fully set forth herein. 23. Denies each and every allegation contained in paragraphs designated “SIXT Y-FOURTH”, “SIXT Y-FIFTH” and “SIXTY-SIXTH” insofar as the same may refer to or, in anywise, affect the undersigned defendant and refers all questions of law to this Honorable Court. AS AND FOR A SEVENTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF SUSAN SCARANO 24. In response to paragraph “SIXTY-SEVENTH” of plaintiff's complaint, defendant, GARY RUTH, D.D.S. repeats, reiterates and realleges each and every admission or denial heretofore made in response to paragraphs “FIRST” through “SIXTY-SIXTH” with the same force and effect as though fully set forth herein. 1 25. DENIES knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph designated “SIXT Y-EIGHTH” insofar as the same may refer to or, in anywise, affect the undersigned defendant and refers all questions of law to this Honorable Court. 26. Denies each and every allegation contained in paragraphs designated “SIXTY-NINTH” and “SEVENTIETH?” insofar as the same may refer to or, in anywise, affect the undersigned defendant and refers all questions of law to this Honorable Court. 27. Any allegation in plaintiff's complaint that has not been specifically heretofore “Admitted” is hereby “Denied”. AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING: 28. ‘That the injuries of the plaintiff were caused in whole or in part by the culpable conduct of the plaintiff, and plaintiffs claim is therefore barred or diminished in the proportion that such culpable conduct bears to the total culpable conduct causing the injuries. AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING: 29. The undersigned defendant’s liability, if any, is subject to the limitations provided pursuant to Article 16 of the CPLR. AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING: 30. That verdict or judgment, if any, against the undersigned defendant be reduced pursuant to CPLR §4545 by those amounts which have been or will, with reasonable certainty, be reimbursed or paid to plaintiff from any collateral source. AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING: 31. Plaintiff claims for punitive damages in the FIRST, THIRD and SEVENTH Causes of Action fail to state claims upon which relief can be granted as to this answering defendant. AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING: 32. Plaintiff's FOURTH, FIFTH and SIXTH Causes of Action fails to state a claim upon which relief can be granted as to this answering defendant. AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE, DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING: 33. Plaintiff's allegation of lack of informed consent is barred by reason of the applicable provisions of Public Health Law §2805(d). AS AND FOR A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING: 34. If any party settles prior to verdict, then the answering defendant is entitled to the protection of G.O.L. § 15-108. AS AND FOR A EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, ANSWERING DEFENDANT ALLEGES THE FOLLOWING: 35. That the incidents complained of and therefore the cause or causes of action did not accrue nor did any part thereof accrue within the appropriate statutory period, and any such causes of action are, therefore, barred by the Statute of Limitations. AS AND FOR A CROSS-CLAIM AGAINST DEAN VAFIADIS, D.D.S., Individually and d/b/a NEW YORK SMILE INSTITUTE, GARY GOLDSTEIN, D.D.S., MAXILLOFACIAL SURGERY SERVICES, L.L.C., GEORGE ANASTRASSOV, MD., D.D.S., BABAK GHALILI, D.D.S., and "JOHN DOE, M.D.", the name being fictitious but intended to be the Anesthesiologist who rendered services on plaintiff on September 21, 2011, THE ANSWERING DEFENDANT, GARY RUTH, D.D.S., ALLEGES AS FOLLOWS: 36. Denies each and every allegation contained in paragraph designated “26” insofar as the same may refer to or, in anywise, affect the undersigned defendant. 37. That plaintiff sustained the injuries and damages in the manner and at the time and place alleged, and if it is found that the answering defendant is liable to plaintiff herein, all of which is specifically denied, then said answering defendant, on the basis of apportionment of responsibility and common law and contractual indemnification for the alleged occurrence, is entitled to indemmification from any judgment and/or 8 contribution from the above-named other defendant, for all or part of any verdict or judgment that plaintiff may recover against answering defendant WHEREFORE, defendant, GARY RUTH, D.D.S., demands judgment dismissing plaintiffs’ complaint together with the costs and disbursements of this action, and any expenses incurred by it in the defense thereof, including attorneys’ fees. Dated: New York, New York uly20, 2012 46, 4 Barbara S. Finger WENICK & FINGER, P.C., Attorneys for Defendant GARY RUTH, D.D.S. 28 East 28th Street, 13th Floor New York, New York 10016-7900 (646) 837-0100 File No.: 04110-02697 TO VALERIE J. CROWN, ATTORNEY AT LAW, P.C. Attorneys for Plaintiffs 151 North Main Street, 4th Floor New City, New York 10956 (845) 708-5900 CHARLES J. SIEGEL Attorneys for Defendant DEAN VAFIADIS, D.D.S. 125 Broad Street - 7th Floor New York, New York 10004 GEORGE ANASTRASSOV, M.D., D.D.S 18 East 50" Street New York, New York 10022 BABAK GHALILI, D.D.S. 37 Park Avenue, Suite A New York, New York 10016 BABAK GHALILI, D.D.S. 18 East 50" Street New York, New York 10022 GARY GOLDSTEIN, D.D:S. 18 East 50" Street New York, New York 10022 MAXILLOFACIAL SURGERY SERVICES, L.L.C. 18 East 50® Street New York, New York 10022 NEW YORK SMILE INSTITUTE The Takashimaya Building 693 Fifth Avenue — 14" Floor New York, New York 10022 10 ATTORNEY'S VERIFICATION Barbara S. Finger affirms under the penalties of perjury that she is an attorney associated with the firm of WENICK & FINGER, P.C., the attorneys for defendant GARY RUTH, D.D.S., in the captioned action; that she has read the foregoing answer and knows the contents thereof; that the same is true to her own knowledge, except as to the matters therein stated to be alleged on information and belief, and that, as to those matters, she believes it to be true. The reason this verification is made by your affirmant and not by the defendant herein is that the defendant is not in the County of New York, where the undersigned has her offices. The sources of your affirmant's information and belief are from. conversations had with the defendants herein and from documents in the files. Dated: New York, New York July 20, 2012 eee BARBARA S. FINGER ll