Preview
FILED: ERIE COUNTY CLERK 03/09/2021 04:41 PM INDEX NO. 21022467
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/09/2021
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
JOHN P. MEISENBURG &
SHARON A. MEISENBURG,
Plaintiffs,
' vs" ANSWER
Index No. 21022467
THOMAS F. HUGHES,III, M.D.,
FARID BERENJI, M.D. &
GENERAL PHYSICAN P.C.,
Defendants.
GENERAL PHYSICIAN, P.C.,(hereinafter "the defendant") by its
attorneys, CONNORS LLP, for its answer to the complaint herein:
1. DENIES KNOWLEDGE AND INFORMATION sufficient to form a
belief as to the allegations contained in paragraphs 1, 2, 3, 23 and 41 of the
complaint.
2. ADMITS the allegations contained within paragraph 12 of the
complaint.
3. Answering paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of the complaint,
defendant, admits that at all times herein mentioned, THOMAS F. HUGHES,III,
M.D. and FARID BERENJI, M.D. were and still are physicians licensed to practice
in the State of New York and hold themselves out to the public as a competent
physicians possessing that reasonable degree of knowledge and ability in
rendering medical treatment that is expected in the community where they
practices, and denies knowledge and information sufficient to form a belief as to
the remaining allegations and inferences contained therein.
4. Answering paragraphs 13, 14, 15, 16, 18, 20, 21, 25, 26, 33, 34, 36 and
37 of the complaint, no response is necessary as the allegations assert legal
conclusions, but insofar as a response may be deemed necessary, the defendant
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denies the allegations and inferences of negligence and/or malpractice contained
therein, and denies knowledge and information sufficient to form a belief as to the
remaining allegations and inferences contained in said paragraphs.
5. Answering paragraphs 17 and 19 of the complaint, the defendant
admits that the patient received care as reflected in the medical records, denies
any inferences or allegations of negligence and/or malpractice as they pertain to it,
and denies knowledge and information sufficient to form a belief as to the
remaining allegations and inferences contained therein.
6. REPEATS and REALLEGES the answers to the allegations and
inferences contained in paragraphs 24, 32 and 40 with the same force and effect as
if fully set forth herein.
7. DENIES the allegations contained in paragraphs 22, 27, 28, 29, 30,
31, 35, 38, 39, 42 and 43 of the complaint.
FURTHER ANSWERING THE COMPLAINT
8. DENIES the remaining allegations of the complaint not hereinbefore
specifically admitted or otherwise denied.
FOR A FIRST AFFIRMATIVE DEFENSE,
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
9. The defendant has not been properly served in this action and is,
therefore, not subject to jurisdiction of this court.
FOR A SECOND AFFIRMATIVE DEFENSE,
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
10. Upon trial, it may appear that some or all of the damages claimed by
plaintiffs were brought about or contributed to by reason of the acts, culpable
conduct, physical condition, disease or illness, actions, negligence, assumption of
risk and/or failure to mitigate; if so, plaintiffs' damages, if any, must be diminished
accordingly.
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FOR A THIRD AFFIRMATIVE DEFENSE,
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
11. That said causes of action were not commenced within the time limit
required by the State of New York and therefore are barred by the applicable
statute of limitations.
FOR A FOURTH AFFIRMATIVE DEFENSE
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
12. That should the defendant be found liable for plaintiffs' injuries, it is
alleged upon information and belief that the plaintiffs' alleged losses were in whole
or in part paid by a collateral source or collateral sources which entitles the
defendant to a collateral source offset pursuant to Article 45 of the CPLR.
FOR A FIFTH AFFIRMATIVE DEFENSE,
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
13. That there was no negligence on the part of the defendant which was
the proximate cause of the injuries alleged in the complaint, but if the defendant is
found liable to the plaintiff, then such liability is limited by Article 16 of the Civil
Practice Law and Rules.
FOR A SIXTH AFFIRMATIVE DEFENSE,
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
14. That if the defendant is found liable to the plaintiffs for any injuries
and/or damages alleged in the complaint, such culpability of the defendant will be
50% or less of the total liability assigned to all persons liable or potentially liable
for the injuries and damages alleged in the complaint, and as a result, the
defendant claims the benefit of the limited liability provisions of CPLR § 1601 in
that its responsibility for payment of non-economic loss shall not exceed its
equitable share determined in accordance with the relative culpability of each
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person and/or entity causing or contributing to the total liability for plaintiffs'
non-economic loss.
FOR A SEVENTH AFFIRMATIVE DEFENSE,
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
15. In the event that the plaintiffs provide a release or covenant not to
sue or not to enforce a judgment to one or two or more persons claimed to be liable
for the same injury alleged in the plaintiffs' complaint, the defendant will seek an
offset pursuant to General Obligations Law § 15-108.
FOR AN EIGHTH AFFIRMATIVE DEFENSE,
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
16. That the plaintiffs' claims based upon an alleged lack of informed
consent are barred by the defenses set forth in New York Public Health Law
§ 2805-d(4), which are incorporated by reference herein.
FOR A NINTH AFFIRMATIVE DEFENSE,
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
17. Upon information and belief, the plaintiffs cause of action for lack of
informed consent is barred by the provisions of Public Health Law §2805-d.
FOR A TENTH AFFIRMATIVE DEFENSE,
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
18. That should the answering defendant be found liable for plaintiffs
injuries, it is alleged upon information and belief that the plaintiff failed to take
steps to minimize his damages in whole or in part. Therefore, the plaintiffs are
foreclosed from recovery of that portion of the damages resulting from this failure
to mitigate.
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FOR AN ELEVENTH AFFIRMATIVE DEFENSE,
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
19. That the injuries and/or illnesses, if any, sustained by plaintiff and/or
plaintiffs decedent were caused or contributed to by fault, neglect, and want of
care on the part of plaintiff or on the part of others for whose acts or omissions or
breach of legal duty the defendants are not liable.
FOR A TWELFTH AFFIRMATIVE DEFENSE,
THE DEFENDANT ALLEGES UPON
INFORMATION AND BELIEF:
20. That the plaintiffs' complaint fails to state a cause of action upon
which relief could be granted.
WHEREFORE, the defendant hereby demands (1)judgment dismissing the
plaintiffs' complaint;(2) that the plaintiffs' damages, if any, be diminished in the
proportion which the culpable conduct and contributory negligence attributed to
plaintiffs bear to the culpable conduct and negligence which caused such damages;
(3) an allocation and apportionment of the relative culpabilities of all parties, and
damages, if any;(4) together with the costs and disbursements of this action.
DATED: Buffalo, New York
March 9, 2021
Michael J. Roac ( 1.--
,Esq.
Seth A. Hiser, Esq.
CONNORS LLP
Attorneys for Defendants
1000 Liberty Building
Buffalo, New York 14202
(716) 852-5533
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TO: Michael S. Porter, Esq.
Daniel P. Laraby, Esq.
PORTER NORDBY HOWE,LLP
Attorneys for Plaintiffs
125 East Jefferson Street, 11th Floor
Syracuse, New York 13202-2550
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Preview
FILED: ERIE COUNTY CLERK 03/09/2021 04:41 PM INDEX NO. 21022467 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/09/2021 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE JOHN P. MEISENBURG & SHARON A. MEISENBURG, Plaintiffs, ' vs" ANSWER Index No. 21022467 THOMAS F. HUGHES,III, M.D., FARID BERENJI, M.D. & GENERAL PHYSICAN P.C., Defendants. GENERAL PHYSICIAN, P.C.,(hereinafter "the defendant") by its attorneys, CONNORS LLP, for its answer to the complaint herein: 1. DENIES KNOWLEDGE AND INFORMATION sufficient to form a belief as to the allegations contained in paragraphs 1, 2, 3, 23 and 41 of the complaint. 2. ADMITS the allegations contained within paragraph 12 of the complaint. 3. Answering paragraphs 4, 5, 6, 7, 8, 9, 10 and 11 of the complaint, defendant, admits that at all times herein mentioned, THOMAS F. HUGHES,III, M.D. and FARID BERENJI, M.D. were and still are physicians licensed to practice in the State of New York and hold themselves out to the public as a competent physicians possessing that reasonable degree of knowledge and ability in rendering medical treatment that is expected in the community where they practices, and denies knowledge and information sufficient to form a belief as to the remaining allegations and inferences contained therein. 4. Answering paragraphs 13, 14, 15, 16, 18, 20, 21, 25, 26, 33, 34, 36 and 37 of the complaint, no response is necessary as the allegations assert legal conclusions, but insofar as a response may be deemed necessary, the defendant 1 of 6 FILED: ERIE COUNTY CLERK 03/09/2021 04:41 PM INDEX NO. 21022467 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/09/2021 denies the allegations and inferences of negligence and/or malpractice contained therein, and denies knowledge and information sufficient to form a belief as to the remaining allegations and inferences contained in said paragraphs. 5. Answering paragraphs 17 and 19 of the complaint, the defendant admits that the patient received care as reflected in the medical records, denies any inferences or allegations of negligence and/or malpractice as they pertain to it, and denies knowledge and information sufficient to form a belief as to the remaining allegations and inferences contained therein. 6. REPEATS and REALLEGES the answers to the allegations and inferences contained in paragraphs 24, 32 and 40 with the same force and effect as if fully set forth herein. 7. DENIES the allegations contained in paragraphs 22, 27, 28, 29, 30, 31, 35, 38, 39, 42 and 43 of the complaint. FURTHER ANSWERING THE COMPLAINT 8. DENIES the remaining allegations of the complaint not hereinbefore specifically admitted or otherwise denied. FOR A FIRST AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 9. The defendant has not been properly served in this action and is, therefore, not subject to jurisdiction of this court. FOR A SECOND AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 10. Upon trial, it may appear that some or all of the damages claimed by plaintiffs were brought about or contributed to by reason of the acts, culpable conduct, physical condition, disease or illness, actions, negligence, assumption of risk and/or failure to mitigate; if so, plaintiffs' damages, if any, must be diminished accordingly. 2 of 6 FILED: ERIE COUNTY CLERK 03/09/2021 04:41 PM INDEX NO. 21022467 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/09/2021 FOR A THIRD AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 11. That said causes of action were not commenced within the time limit required by the State of New York and therefore are barred by the applicable statute of limitations. FOR A FOURTH AFFIRMATIVE DEFENSE THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 12. That should the defendant be found liable for plaintiffs' injuries, it is alleged upon information and belief that the plaintiffs' alleged losses were in whole or in part paid by a collateral source or collateral sources which entitles the defendant to a collateral source offset pursuant to Article 45 of the CPLR. FOR A FIFTH AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 13. That there was no negligence on the part of the defendant which was the proximate cause of the injuries alleged in the complaint, but if the defendant is found liable to the plaintiff, then such liability is limited by Article 16 of the Civil Practice Law and Rules. FOR A SIXTH AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 14. That if the defendant is found liable to the plaintiffs for any injuries and/or damages alleged in the complaint, such culpability of the defendant will be 50% or less of the total liability assigned to all persons liable or potentially liable for the injuries and damages alleged in the complaint, and as a result, the defendant claims the benefit of the limited liability provisions of CPLR § 1601 in that its responsibility for payment of non-economic loss shall not exceed its equitable share determined in accordance with the relative culpability of each 3 of 6 FILED: ERIE COUNTY CLERK 03/09/2021 04:41 PM INDEX NO. 21022467 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/09/2021 person and/or entity causing or contributing to the total liability for plaintiffs' non-economic loss. FOR A SEVENTH AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 15. In the event that the plaintiffs provide a release or covenant not to sue or not to enforce a judgment to one or two or more persons claimed to be liable for the same injury alleged in the plaintiffs' complaint, the defendant will seek an offset pursuant to General Obligations Law § 15-108. FOR AN EIGHTH AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 16. That the plaintiffs' claims based upon an alleged lack of informed consent are barred by the defenses set forth in New York Public Health Law § 2805-d(4), which are incorporated by reference herein. FOR A NINTH AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 17. Upon information and belief, the plaintiffs cause of action for lack of informed consent is barred by the provisions of Public Health Law §2805-d. FOR A TENTH AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 18. That should the answering defendant be found liable for plaintiffs injuries, it is alleged upon information and belief that the plaintiff failed to take steps to minimize his damages in whole or in part. Therefore, the plaintiffs are foreclosed from recovery of that portion of the damages resulting from this failure to mitigate. 4 of 6 FILED: ERIE COUNTY CLERK 03/09/2021 04:41 PM INDEX NO. 21022467 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/09/2021 FOR AN ELEVENTH AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 19. That the injuries and/or illnesses, if any, sustained by plaintiff and/or plaintiffs decedent were caused or contributed to by fault, neglect, and want of care on the part of plaintiff or on the part of others for whose acts or omissions or breach of legal duty the defendants are not liable. FOR A TWELFTH AFFIRMATIVE DEFENSE, THE DEFENDANT ALLEGES UPON INFORMATION AND BELIEF: 20. That the plaintiffs' complaint fails to state a cause of action upon which relief could be granted. WHEREFORE, the defendant hereby demands (1)judgment dismissing the plaintiffs' complaint;(2) that the plaintiffs' damages, if any, be diminished in the proportion which the culpable conduct and contributory negligence attributed to plaintiffs bear to the culpable conduct and negligence which caused such damages; (3) an allocation and apportionment of the relative culpabilities of all parties, and damages, if any;(4) together with the costs and disbursements of this action. DATED: Buffalo, New York March 9, 2021 Michael J. Roac ( 1.-- ,Esq. Seth A. Hiser, Esq. CONNORS LLP Attorneys for Defendants 1000 Liberty Building Buffalo, New York 14202 (716) 852-5533 5 of 6 FILED: ERIE COUNTY CLERK 03/09/2021 04:41 PM INDEX NO. 21022467 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 03/09/2021 TO: Michael S. Porter, Esq. Daniel P. Laraby, Esq. PORTER NORDBY HOWE,LLP Attorneys for Plaintiffs 125 East Jefferson Street, 11th Floor Syracuse, New York 13202-2550 6 of 6