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INDEX NO. 605641/2015
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/13/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
w-nennnnn-===----X Index No.: 605641/2015
ERIC W. KRISHER, Individually, and As Executor of the :
Estate of STEPHEN KRISHER,
Plaintiff,
VERIFIED ANSWER
-against-
RAYMOND FERGUSON, D.P.M., NORTH SHORE-LIJ_ :
WOUND CARE, NORTH SHORE-LIJ HEALTH
SYSTEM and NORTH SHORE UNIVERSITY
HOSPITAL,
Defendants.
Defendant, RAYMOND FERGUSON, D.P.M., by his attorneys, FURMAN
KORNFELD & BRENNAN LLP, as and for a Verified Answer to Plaintiffs Verified
Complaint, alleges upon information and belief:
AS AND FOR A FIRST CAUSE OF ACTION
1. Denies knowledge or information sufficient upon which to form a belief as to the
truth of the allegations contained in paragraphs “FIRST”, “SECOND”, “EIGHTH”, “NINTH:”,
“TENTH”, “ELEVENTH”, “TWELFTH”, “THIRTEENTH”, “FOURTEENTH”,
“FIFTEENTH”, “SIXTEENTH”, “SEVENTEENTH”, “NINETEENTH”, “TWENTIETH”,
“TWENTY-FIRST”, “TWENTY-SECOND”, “TWENTY-THIRD”, “TWENTY-FOURTH”,
“TWENTY-FIFTH”, “TWENTY-SIXTH”, “TWENTY-SEVENTH”, “TWENTY-EIGHTH”,
“TWENTY-NINTH” and “THIRTIETH” of the Plaintiff's Complaint.
2. Denies in form alleged each and every allegation contained in paragraphs
“FOURTH” and “FIFTH” of the Plaintiffs Complaint except admits that Defendant Raymond
Ferguson, D.P.M. is a podiatrist licensed to practice podiatry in the State of New York.3. Denies in form alleged each and every allegation contained in paragraph
“SIXTH” of the Plaintiff's except admits that Defendant Raymond Ferguson, D.P.M. treated the
decedent in accordance with accepted standards of podiatry.
4, Denies each and every allegation contained in paragraphs “SEVENTH”,
“BIGHTEENTH”, “THIRTY-FIRST”, “THIRTY-SECOND”, “THIRTY-FOURTH”, “THIRTY-
FIFTH” and “THIRTY-SIXTH” of the Plaintiffs Complaint.
5: Denies each and every allegation contained in paragraph “THIRTY-THIRD” of
the Plaintiffs Complaint and refers all questions of law to the Court and all questions of fact to
the triers of fact.
AS AND FOR A SECOND CAUSE OF ACTION
ON BEHALF OF PLAINTIFF, ERIC W. KRISHER, AS
EXECUTOR OF THE ESTATE OF STEPHEN KRISHER
6. In response to paragraph “THIRTY-SEVENTH” of the Plaintiff's Complaint,
defendant repeats, reiterates and realleges each and every response as previously set forth in
paragraphs numbered “FIRST” through “THIRTY-SIXTH” of the Plaintiff's Complaint, with the
same force and effect as it fully set forth at length herein.
7. Denies each and every allegation contained in paragraphs “THIRTY-NINTH”,
“FORTIETH”, “FORTY-FIRST”, “FORTY-SECOND”, “FORTY-THIRD” and “FORTY-
FOURTH?” of the Plaintiff's Complaint.
AS AND FOR A THIRD CAUSE OF ACTION
AGAINST DEFENDANTS, NORTH SHORE-LIJ
WOUND CARE, NORTH SHORE-LIJ HEALTH
SYSTEM, and NORTH SHORE UNIVERSITY HOSPITAL
8. In response to paragraph “FORTY-FIFTH” of the Plaintiffs Complaint,
defendant repeats, reiterates and realleges each and every response as previously set forth inparagraphs numbered “ONE” through “FORTY-FOURTH?” of the Plaintiffs Complaint, with the
same force and effect as it fully set forth at length herein.
9. Denies knowledge or information sufficient upon which to form a belief as to the
truth of the allegations contained in paragraphs “FORTY-SIXTH” and “FORTY-SEVENTH” of
the Plaintiff's Complaint.
10. Denies each and every allegation contained in paragraphs “FORTY-EIGHTH”,
and “FORTY-NINTH?” of the Plaintiff's Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
11. In the event the Plaintiff recovers a verdict or judgment against the Defendant,
said verdict or judgment should be reduced pursuant to CPLR §4545 (c) by those amounts which
have been or will, with reasonable certainty, replace or indemnify Plaintiff in whole or in part for
any past or future claimed economic loss, from any collateral source, as would have occurred in
the underlying action.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
12. Pursuant to Article 16, the liability, if any, of the answering defendant, for non-
economic loss shall not exceed its equitable shares of liability.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
13. Upon trial, it may appear that some or all of the damages claimed by plaintiffs
were brought about or contributed to by reason of Plaintiffs’ own acts, actions, negligence or
other culpable conduct.
If any damages are recoverable against said defendant, the amount of such damages shall
be diminished in the proportion which the culpable conduct attributable to the plaintiff bears to
the culpable conduct, if any, of said defendant.AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
14. Defendant invokes the protection of Public Health Law §2805-d(4) with respect
to the alleged cause of action for lack of informed consent, and reserves all rights pursuant
thereto.
WHEREFORE, Defendant, RAYMOND FERGUSON, D.P.M., hereby demands
judgment dismissing the Complaint, together with the costs and disbursements of this action.
Dated: New York, New York
To:
October 13, 2015
By:
Scott D. Rubin, Esq.
LEVINE & GROSSMAN
Attorneys for Plaintiffs
114 Old Country Road, Suite 460
Mineola, NY 11501
(516) 248-7575
Yours, etc.,
FURMAN KORNFELD & BRENNAN LLP
VALLE,
Neil S. Kornfeld, Esq.
Attorneys for the Defendant
RAYMOND FERGUSON, D.P.M.
61 Broadway, 26" Floor
New York, NY 10006
(212) 867-4100
File No.: 101.201ATTORNEY’S VERIFICATION
STATE OF NEW YORK __)
COUNTY OF NEW YORK ; “
NEIL 8. KORNFELD, ESQ., an attorney duly admitted to practice in the Courts of the
State of New York, states:
That he is a Partner of the firm of FURMAN KORNFELD & BRENNAN LLP,
representing Defendant, RAYMOND FERGUSON, D.P.M.
That pursuant to the CPLR, I have read the attached Verified Answer to Plaintiff's
Complaint and the same is true to my own belief, except as to the matters alleged on information
and belief, I believe them to be true to the best of my knowledge. The reason the verification is
made by me and not by the defendant is because said defendant does not maintain a place of
business within the county where I maintain my office.
That deponent’s source is a file maintained by my office and general investigations of the
facts of this case.
I affirm that the foregoing statements are true, under the penalties of perjury.
Dated: New York, New York
October 13, 2015 WME f
NEIL S. KORNFELD
Sworn to before me this
| 3° day of October, 2015
©
NOTARY PUBLIC
JACQUELINE V LEATHERS
NOTARY PUBLIC STATE OF NEW YORK
NEW YORK COUNTY
LIC, #01LE6228155
COMM. EXP.
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INDEX NO. 605641/2015 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 10/13/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU w-nennnnn-===----X Index No.: 605641/2015 ERIC W. KRISHER, Individually, and As Executor of the : Estate of STEPHEN KRISHER, Plaintiff, VERIFIED ANSWER -against- RAYMOND FERGUSON, D.P.M., NORTH SHORE-LIJ_ : WOUND CARE, NORTH SHORE-LIJ HEALTH SYSTEM and NORTH SHORE UNIVERSITY HOSPITAL, Defendants. Defendant, RAYMOND FERGUSON, D.P.M., by his attorneys, FURMAN KORNFELD & BRENNAN LLP, as and for a Verified Answer to Plaintiffs Verified Complaint, alleges upon information and belief: AS AND FOR A FIRST CAUSE OF ACTION 1. Denies knowledge or information sufficient upon which to form a belief as to the truth of the allegations contained in paragraphs “FIRST”, “SECOND”, “EIGHTH”, “NINTH:”, “TENTH”, “ELEVENTH”, “TWELFTH”, “THIRTEENTH”, “FOURTEENTH”, “FIFTEENTH”, “SIXTEENTH”, “SEVENTEENTH”, “NINETEENTH”, “TWENTIETH”, “TWENTY-FIRST”, “TWENTY-SECOND”, “TWENTY-THIRD”, “TWENTY-FOURTH”, “TWENTY-FIFTH”, “TWENTY-SIXTH”, “TWENTY-SEVENTH”, “TWENTY-EIGHTH”, “TWENTY-NINTH” and “THIRTIETH” of the Plaintiff's Complaint. 2. Denies in form alleged each and every allegation contained in paragraphs “FOURTH” and “FIFTH” of the Plaintiffs Complaint except admits that Defendant Raymond Ferguson, D.P.M. is a podiatrist licensed to practice podiatry in the State of New York.3. Denies in form alleged each and every allegation contained in paragraph “SIXTH” of the Plaintiff's except admits that Defendant Raymond Ferguson, D.P.M. treated the decedent in accordance with accepted standards of podiatry. 4, Denies each and every allegation contained in paragraphs “SEVENTH”, “BIGHTEENTH”, “THIRTY-FIRST”, “THIRTY-SECOND”, “THIRTY-FOURTH”, “THIRTY- FIFTH” and “THIRTY-SIXTH” of the Plaintiffs Complaint. 5: Denies each and every allegation contained in paragraph “THIRTY-THIRD” of the Plaintiffs Complaint and refers all questions of law to the Court and all questions of fact to the triers of fact. AS AND FOR A SECOND CAUSE OF ACTION ON BEHALF OF PLAINTIFF, ERIC W. KRISHER, AS EXECUTOR OF THE ESTATE OF STEPHEN KRISHER 6. In response to paragraph “THIRTY-SEVENTH” of the Plaintiff's Complaint, defendant repeats, reiterates and realleges each and every response as previously set forth in paragraphs numbered “FIRST” through “THIRTY-SIXTH” of the Plaintiff's Complaint, with the same force and effect as it fully set forth at length herein. 7. Denies each and every allegation contained in paragraphs “THIRTY-NINTH”, “FORTIETH”, “FORTY-FIRST”, “FORTY-SECOND”, “FORTY-THIRD” and “FORTY- FOURTH?” of the Plaintiff's Complaint. AS AND FOR A THIRD CAUSE OF ACTION AGAINST DEFENDANTS, NORTH SHORE-LIJ WOUND CARE, NORTH SHORE-LIJ HEALTH SYSTEM, and NORTH SHORE UNIVERSITY HOSPITAL 8. In response to paragraph “FORTY-FIFTH” of the Plaintiffs Complaint, defendant repeats, reiterates and realleges each and every response as previously set forth inparagraphs numbered “ONE” through “FORTY-FOURTH?” of the Plaintiffs Complaint, with the same force and effect as it fully set forth at length herein. 9. Denies knowledge or information sufficient upon which to form a belief as to the truth of the allegations contained in paragraphs “FORTY-SIXTH” and “FORTY-SEVENTH” of the Plaintiff's Complaint. 10. Denies each and every allegation contained in paragraphs “FORTY-EIGHTH”, and “FORTY-NINTH?” of the Plaintiff's Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 11. In the event the Plaintiff recovers a verdict or judgment against the Defendant, said verdict or judgment should be reduced pursuant to CPLR §4545 (c) by those amounts which have been or will, with reasonable certainty, replace or indemnify Plaintiff in whole or in part for any past or future claimed economic loss, from any collateral source, as would have occurred in the underlying action. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 12. Pursuant to Article 16, the liability, if any, of the answering defendant, for non- economic loss shall not exceed its equitable shares of liability. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 13. Upon trial, it may appear that some or all of the damages claimed by plaintiffs were brought about or contributed to by reason of Plaintiffs’ own acts, actions, negligence or other culpable conduct. If any damages are recoverable against said defendant, the amount of such damages shall be diminished in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct, if any, of said defendant.AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 14. Defendant invokes the protection of Public Health Law §2805-d(4) with respect to the alleged cause of action for lack of informed consent, and reserves all rights pursuant thereto. WHEREFORE, Defendant, RAYMOND FERGUSON, D.P.M., hereby demands judgment dismissing the Complaint, together with the costs and disbursements of this action. Dated: New York, New York To: October 13, 2015 By: Scott D. Rubin, Esq. LEVINE & GROSSMAN Attorneys for Plaintiffs 114 Old Country Road, Suite 460 Mineola, NY 11501 (516) 248-7575 Yours, etc., FURMAN KORNFELD & BRENNAN LLP VALLE, Neil S. Kornfeld, Esq. Attorneys for the Defendant RAYMOND FERGUSON, D.P.M. 61 Broadway, 26" Floor New York, NY 10006 (212) 867-4100 File No.: 101.201ATTORNEY’S VERIFICATION STATE OF NEW YORK __) COUNTY OF NEW YORK ; “ NEIL 8. KORNFELD, ESQ., an attorney duly admitted to practice in the Courts of the State of New York, states: That he is a Partner of the firm of FURMAN KORNFELD & BRENNAN LLP, representing Defendant, RAYMOND FERGUSON, D.P.M. That pursuant to the CPLR, I have read the attached Verified Answer to Plaintiff's Complaint and the same is true to my own belief, except as to the matters alleged on information and belief, I believe them to be true to the best of my knowledge. The reason the verification is made by me and not by the defendant is because said defendant does not maintain a place of business within the county where I maintain my office. That deponent’s source is a file maintained by my office and general investigations of the facts of this case. I affirm that the foregoing statements are true, under the penalties of perjury. Dated: New York, New York October 13, 2015 WME f NEIL S. KORNFELD Sworn to before me this | 3° day of October, 2015 © NOTARY PUBLIC JACQUELINE V LEATHERS NOTARY PUBLIC STATE OF NEW YORK NEW YORK COUNTY LIC, #01LE6228155 COMM. EXP.