Preview
FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/18/2021
STATE OF NEW YORK
SUPREME COURT :: COUNTY OF ERIE
ROBERT P. CLARK, as Administrator
of the Estate of SHARON M. CLARK,
Plaintiff, ANSWER
vs.
Index No.: 804695/2021
AUTUMN VIEW HEALTH CARE FACILITY,
AUTUMN VIEW HEALTH CARE FACILITY, LLC,
THE MCGUIRE GROUP, INC.,
VESTRA SPV1, LLC,
VESTRA SPV2, LLC,
BUFFALO GENERAL MEDICAL CENTER,
KALEIDA HEALTH,
Defendants.
Defendants, AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW
FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA
SPV2, LLC, by their attorneys, Bargnesi Britt, PLLC as and for their answer to plaintiff’s
complaint herein, allege as follows upon information and belief:
1. Admit the allegations contained in paragraph 38 of plaintiff’s complaint.
2. Deny the allegations contained in paragraphs 26, 27, 28, 30, 31, 32, 34,
35, 36, 39, 40, 46, 47, 48, 49, 50, 51, 52, 65, 71 and 72 of plaintiff’s complaint.
3. Deny knowledge or information sufficient to form a belief as to the
allegations contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,
18, 19, 20, 21, 22, 24, 25, 42, 43, 44, 45, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 67,
68 and 70 of plaintiff’s complaint.
4. In answering paragraphs 23, 29, 33, 37, 41, 53 and 69 of the plaintiff’s
complaint, these answering defendants repeat and reallege each and every admission or
denial previously made with regard to the allegations contained and/or referred to therein
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with the same force and effect as if said admissions and denials were herein again fully
set forth.
5. Deny each and every other remaining allegation of the plaintiff’s
complaint not herein specifically admitted or denied.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
6. In the event that the plaintiff recovers damages in this action which have
been paid or are payable by a collateral source, these answering defendants will seek a
collateral source offset pursuant to Article 45 of the Civil Practice Law and Rules.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
7. The allegations of the plaintiff’s complaint are barred by the applicable
statute of limitations.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
8. These answering defendants allege upon information and belief, that the
culpable conduct of the plaintiff, if not the sole cause of the damages sustained by her as
alleged in the complaint, contributed to such injuries and damages, and any damages
otherwise recoverable by the plaintiff in this action shall be diminished in the proportion
which the plaintiff’s culpable conduct bears to the culpable conduct which caused such
damages.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
9. That to the extent the plaintiff seeks to recover for any sum other than fair
and just compensation for pecuniary injuries resulting from decedent’s death, such
recovery is barred by Sections 5-4.3 of the Estates, Powers and Trusts Law.
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AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
10. Plaintiff failed to comply with the specific pleadings required as set forth
in CPLR §3012-a.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
11. Defendants exercised all care reasonably necessary to prevent and limit
the deprivation and injury for which liability is asserted.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
12. That the complaint fails to state a cause of action against these answering
defendants and, therefore, should be dismissed.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
13. Upon trial, it may appear that some or all of the damages plaintiff claims
have been caused by reason of plaintiff’s own failure to mitigate damages, including but
not limited to failure to obtain health insurance under the federal “Patient Protection and
Affordable Care Act”, and if so, plaintiff’s damages, if any, must be diminished
accordingly.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE
14. If these answering defendants are found liable to the plaintiff for any
injuries and/or damages alleged in the complaint; such culpability of these answering
defendants will be 50% or less of the total liability assigned to all persons liable or
potentially liable, including both parties and non-parties, for the injuries and/or damages
alleged in the complaint, and as a result these defendants claim 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
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/18/2021
culpability of each person and/or entity causing or contributing to the total liability for
plaintiff’s non-economic loss.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE
15. Plaintiff has failed to state an injury cognizable pursuant to statute, and
therefore the causes of action referring to the New York State Public Health Law §2801-d
fail to state a claim.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
16. That in the event there has been a settlement between plaintiff and any
other person liable or claimed to be liable in tort for the injuries and/or wrongful death
alleged in the complaint, then defendants hereby plead and seek the full benefit of
Section 15-108 of the General Obligations Law and demand that plaintiff’s claim against
the defendants in this action be reduced to the fullest amount and extent permitted by
Section 15-108 of the General Obligations Law.
AND FOR A CROSS-CLAIM AGAINST CODEFENDANTS,
THESE ANSWERING DEFENDANTS ALLEGE UPON
INFORMATION AND BELIEF:
17. That the relative culpability of each defendant who is or may be liable for
the damages alleged by the plaintiff in this action should be determined in accordance
with Article 14 of the Civil Practice Law and Rules, and the equitable share of each
defendant liable for contribution should be determined in accordance with the relative
culpability of each such person, if any; furthermore, in the alternative, defendants,
AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW FACILITY, LLC,
THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA SPV2, LLC,
should be completely indemnified by the proper codefendants in the event that
defendants, AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW
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FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA
SPV2, LLC, are found to be liable to the plaintiff.
WHEREFORE, that defendants, AUTUMN VIEW HEALTH CARE
FACILITY, AUTUMN VIEW FACILITY, LLC, THE MCGUIRE GROUP, INC.,
VESTRA SPV1, LLC and VESTRA SPV2, LLC, demand judgment as follows:
1. Dismissing the complaint herein.
2. Plaintiff’s damages to be diminished in the proportion which the culpable
conduct attributable to the plaintiff bears to the culpable conduct which caused the
damages.
3. In the event plaintiff recovers a verdict herein against defendants,
AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW FACILITY, LLC,
THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA SPV2, LLC, that
the Court apportion the various culpability of the defendants pursuant to Article 14 of the
Civil Practice Law and Rules or that the defendants, AUTUMN VIEW HEALTH CARE
FACILITY, AUTUMN VIEW FACILITY, LLC, THE MCGUIRE GROUP, INC.,
VESTRA SPV1, LLC and VESTRA SPV2, LLC, should be completely indemnified by
the proper codefendants in the event that defendants, AUTUMN VIEW HEALTH CARE
FACILITY, AUTUMN VIEW FACILITY, LLC, THE MCGUIRE GROUP, INC.,
VESTRA SPV1, LLC and VESTRA SPV2, LLC, are found to be liable to the plaintiff.
4. For such other, further and different relief as may seem just, equitable and
proper, together with the costs and disbursements of this action.
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NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/18/2021
DATED: Buffalo, New York
May 17, 2021
BARGNESI BRITT PLLC
By:___________________________
Julie M. Bargnesi, Esq.
Attorneys for Defendants
Autumn View Health Care Facility,
Autumn View Health Care Facility, LLC,
The McGuire Group, Inc.,
VESTRA SPV1, LLC and
VESTRA SPV2, LLC
Main Place Tower
350 Main Street, Suite 1105
Buffalo, New York 14220
(716) 343-7830
TO: JOHN J. FROMEN, ATTORNEYS AT LAW, P.C.
Michael A. Iacono, Esq.
Attorneys for Plaintiff
4367 Harlem Road
Snyder, New York 14226
(716) 855-1222
4844-9569-1497v.1
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Preview
FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/18/2021 STATE OF NEW YORK SUPREME COURT :: COUNTY OF ERIE ROBERT P. CLARK, as Administrator of the Estate of SHARON M. CLARK, Plaintiff, ANSWER vs. Index No.: 804695/2021 AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW HEALTH CARE FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC, VESTRA SPV2, LLC, BUFFALO GENERAL MEDICAL CENTER, KALEIDA HEALTH, Defendants. Defendants, AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA SPV2, LLC, by their attorneys, Bargnesi Britt, PLLC as and for their answer to plaintiff’s complaint herein, allege as follows upon information and belief: 1. Admit the allegations contained in paragraph 38 of plaintiff’s complaint. 2. Deny the allegations contained in paragraphs 26, 27, 28, 30, 31, 32, 34, 35, 36, 39, 40, 46, 47, 48, 49, 50, 51, 52, 65, 71 and 72 of plaintiff’s complaint. 3. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 42, 43, 44, 45, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 67, 68 and 70 of plaintiff’s complaint. 4. In answering paragraphs 23, 29, 33, 37, 41, 53 and 69 of the plaintiff’s complaint, these answering defendants repeat and reallege each and every admission or denial previously made with regard to the allegations contained and/or referred to therein 1 1 of 6 FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/18/2021 with the same force and effect as if said admissions and denials were herein again fully set forth. 5. Deny each and every other remaining allegation of the plaintiff’s complaint not herein specifically admitted or denied. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 6. In the event that the plaintiff recovers damages in this action which have been paid or are payable by a collateral source, these answering defendants will seek a collateral source offset pursuant to Article 45 of the Civil Practice Law and Rules. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 7. The allegations of the plaintiff’s complaint are barred by the applicable statute of limitations. AS AND FOR A THIRD AFFIRMATIVE DEFENSE 8. These answering defendants allege upon information and belief, that the culpable conduct of the plaintiff, if not the sole cause of the damages sustained by her as alleged in the complaint, contributed to such injuries and damages, and any damages otherwise recoverable by the plaintiff in this action shall be diminished in the proportion which the plaintiff’s culpable conduct bears to the culpable conduct which caused such damages. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 9. That to the extent the plaintiff seeks to recover for any sum other than fair and just compensation for pecuniary injuries resulting from decedent’s death, such recovery is barred by Sections 5-4.3 of the Estates, Powers and Trusts Law. 2 2 of 6 FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/18/2021 AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 10. Plaintiff failed to comply with the specific pleadings required as set forth in CPLR §3012-a. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 11. Defendants exercised all care reasonably necessary to prevent and limit the deprivation and injury for which liability is asserted. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 12. That the complaint fails to state a cause of action against these answering defendants and, therefore, should be dismissed. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 13. Upon trial, it may appear that some or all of the damages plaintiff claims have been caused by reason of plaintiff’s own failure to mitigate damages, including but not limited to failure to obtain health insurance under the federal “Patient Protection and Affordable Care Act”, and if so, plaintiff’s damages, if any, must be diminished accordingly. AS AND FOR A NINTH AFFIRMATIVE DEFENSE 14. If these answering defendants are found liable to the plaintiff for any injuries and/or damages alleged in the complaint; such culpability of these answering defendants will be 50% or less of the total liability assigned to all persons liable or potentially liable, including both parties and non-parties, for the injuries and/or damages alleged in the complaint, and as a result these defendants claim 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 3 3 of 6 FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/18/2021 culpability of each person and/or entity causing or contributing to the total liability for plaintiff’s non-economic loss. AS AND FOR A TENTH AFFIRMATIVE DEFENSE 15. Plaintiff has failed to state an injury cognizable pursuant to statute, and therefore the causes of action referring to the New York State Public Health Law §2801-d fail to state a claim. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE 16. That in the event there has been a settlement between plaintiff and any other person liable or claimed to be liable in tort for the injuries and/or wrongful death alleged in the complaint, then defendants hereby plead and seek the full benefit of Section 15-108 of the General Obligations Law and demand that plaintiff’s claim against the defendants in this action be reduced to the fullest amount and extent permitted by Section 15-108 of the General Obligations Law. AND FOR A CROSS-CLAIM AGAINST CODEFENDANTS, THESE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF: 17. That the relative culpability of each defendant who is or may be liable for the damages alleged by the plaintiff in this action should be determined in accordance with Article 14 of the Civil Practice Law and Rules, and the equitable share of each defendant liable for contribution should be determined in accordance with the relative culpability of each such person, if any; furthermore, in the alternative, defendants, AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA SPV2, LLC, should be completely indemnified by the proper codefendants in the event that defendants, AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW 4 4 of 6 FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/18/2021 FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA SPV2, LLC, are found to be liable to the plaintiff. WHEREFORE, that defendants, AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA SPV2, LLC, demand judgment as follows: 1. Dismissing the complaint herein. 2. Plaintiff’s damages to be diminished in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the damages. 3. In the event plaintiff recovers a verdict herein against defendants, AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA SPV2, LLC, that the Court apportion the various culpability of the defendants pursuant to Article 14 of the Civil Practice Law and Rules or that the defendants, AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA SPV2, LLC, should be completely indemnified by the proper codefendants in the event that defendants, AUTUMN VIEW HEALTH CARE FACILITY, AUTUMN VIEW FACILITY, LLC, THE MCGUIRE GROUP, INC., VESTRA SPV1, LLC and VESTRA SPV2, LLC, are found to be liable to the plaintiff. 4. For such other, further and different relief as may seem just, equitable and proper, together with the costs and disbursements of this action. 5 5 of 6 FILED: ERIE COUNTY CLERK 05/18/2021 03:24 PM INDEX NO. 804695/2021 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/18/2021 DATED: Buffalo, New York May 17, 2021 BARGNESI BRITT PLLC By:___________________________ Julie M. Bargnesi, Esq. Attorneys for Defendants Autumn View Health Care Facility, Autumn View Health Care Facility, LLC, The McGuire Group, Inc., VESTRA SPV1, LLC and VESTRA SPV2, LLC Main Place Tower 350 Main Street, Suite 1105 Buffalo, New York 14220 (716) 343-7830 TO: JOHN J. FROMEN, ATTORNEYS AT LAW, P.C. Michael A. Iacono, Esq. Attorneys for Plaintiff 4367 Harlem Road Snyder, New York 14226 (716) 855-1222 4844-9569-1497v.1 6 6 of 6