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FILED: QUEENS COUNTY CLERK 01/08/2020 02:14 PM INDEX NO. 717964/2018
NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/08/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
Index No.: 717964/2018
THERESA ROBINSON AND DEREK ROBINSON,
Plaintiffs, RESPONSE TO
PLAINTIFFS'
DEMAND
-against- FOR BILL OF
PARTICULARS AS TO
NORTHWELL HEALTH, INC., LONG ISLAND AFFIRMATIVE
JEWISH MEDICAL CENTER, DEEPAK DEFENSES
NANDA, M.D., P.C., DEEPAK NANDA, M.D.
and EMMANUEL M. PAFOS, M.D.
Defendants.
C O U N S E L O R S:
PLEASE TAKE NOTICE, that defendants, NORTHWELL HEALTH, INC. and
LONG ISLAND JEWISH MEDICAL CENTER, by its attorneys, GORDON & SILBER,
P.C., hereby responds to plaintiff's Demand for a Bill of Particulars as to Affirmative
Defenses dated July 2, 2019 as follows:
FIRST AFFIRMATIVE DEFENSE AS TO STATUTE OF LIMITATIONS
Answering Defendants object to this demand as the affirmative defense of statute of
limitations is statutory in nature and, thus, no particulars are necessary. Further, it is the
plaintiffs'
burden to prove an action was timely commenced. Notwithstanding and without
waiving the aforesaid objections, defendants reserve all rights afforded to them by the
applicable statute of limitations for all time-barred claims
SECOND AFFIRMATDT DEFENSE AS TO SET OFF
Answering Defendants object to this demand on the ground that this defense is
statutory in nature and need not be particularized. Notwithstanding this objection and without
waiver thereof, the defendants are entitled to a set-off against any recovery that the plaintiffs
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have received for all or part of the damages claimed herein.
THIRD AFFIRMATIVE DEFENSE AS TO CPLR ARTICLE 16
Answering Defendants object to this demand as this demand is evidentiary and beyond
the scope of a Bill of Particulars. Further, the affirmative defense pertaining to CPLR Article
16 is statutory in nature and need not be amplified herein.
FOURTH AFFIRMATIVE DEFENSE AS TO §15-108 OF THE GENERAL
OBLIGATIONS LAW
Answering Defendants object to this demand as the affirmative defense pertaining to
§15-105 and/or §15-108 of the General Obligations Law is statutory in nature and, thus, no
particulars are necessary.
FIFTH AFFIRMATIVE DEFENSE AS TO APPORTIONMENT OF FAULT
Answering Defendsh object to this demand on the grounds that this defense is
statutory in nature and, as such, no particularization is necessary. Defendants reserve the right
to supplement and/or amend this r-onse up to an inclu&ng time of trial.
SIXTH AFFIRMATIVE DEFENSE AS TO CPLR §4546
Answering Defendants object to this demand on the ground that it is palpably
improper and is asserted as a matter of law. Further the foregoing is not subject to a Bill of
Particulars.
S_EVENTH AFFIRMATIVE DEFENSE AS TO CULPABLE CONDUCT
Answering DefendanM must await the completion of discovery, including but not
limited to a receipt of the plaintiff s prior and subsequent treatment records and the
completion of all examinatinna before trialso as to more respond to plaintiff s demand.
fully
Without waiving said objection, upon information and belief, the plaintiff s comparative fault
and culpable conduct consists of, but is not limited to: failing to keep doctors fully apprised of
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medical treatment or consultations she underwent specialists and/or care
by primary
physicians; failing to present an accurate and complete history; failing to en=_municate
compl=i='= and and/or to follow
accurately completely; failing refusing orders,
recommendations and suggestions of treating physicians, hospital staff and/or employees,
with regard to treatment, medica%n, and/or therapy; failing to use reasonable care and
defendants/physicians'
diligence in following the instructions; failing to properly advise the
defendants/physicians and/or employees of plaintifPs complaints, signs and symptoms;
defendants/physicians'
failing to cooperate and comply with instructions with respect to
treatment, medication, therapy and/or procedures to be used, such as a reasonable and prudent
person with knowledge would exercise in similar circumstances; failing and to
refusing
properly follow instructions and/or advice of the physician regarding the care and course of
treatment to be followed; in failing to exercise that degree of care for her own health, safety
and recovery as a reasonably prudent person would exercise under the same and/or similar
circumstances; and in any other acts unknown to the Answering Defeñdsñts at this time.
EIGHTH AFFIRMATIVE DEFENSE AS TO INFORMED CONSENT
Answering Defendants object to this demand as premature given that discovery is still
underway. Further, this demand is overly broad, vague, and unspecific. Notwithstanding, and
without waiviñg the aforesaid objections, defendants reserve all rights afforded them the
by
Public Health Law § 2805-d, and all subsections thereunder.
NINTH AFFIRMATIVE DEFENSE AS TO LACK OF CAPACITY
Answering Defendants object to this demand the affirmative defanae of lack of
capacity is statutory in nature and need not be amplified herein.
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TENTH AFFIRMATIVEDEFENSE AS TO FAILURE TO STATE A CAUSE OF
ACTION
Answering Defeñdsñts object to this demand as it calls for evidentiary information
beyond the scope of a Bill of Particulars. Without waiving said objection, Answering
Defendants reserve their right to supplement this response up to and including the time of
trial.
ELEVENTH AFFIRMATIVE DEFENSE AS TO CPLR § 8303-a
Answering Defendants objects to the demand as it calls for evidentiary information
beyond the scope of a Bill of Particulars. The provision of CPLR §8303-a is self-
statutory
explanatory and does not require further elaboration in a bill of particulars. The answering
defendant reserves all rights afforded by CPLR §8303-a. Notwithstanding these objections
and without waiver thereof, the defendant reserves her right to supplement this renonse to
up
and including the time of trial.
PLEASE TAKE FURTHER NOTICE that Answering Defendants reserve their
right to supplement his responses to this demand, at any point, up until and including at the
time of trial.
Dated: New York, New York
January 7, 2020
Yours, etc.,
GORDON & SILBEM.
Ahfey R. Graha
Attorneys for De anti
NORTHWELL HEALTH, INC. and LONG
ISLAND JEWISH MEDICAL CENTER
Office and P.O. Address
355 Lexington Avenue
New York, NY 10017-6603
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212-834-0600
TO: THE PAGLINAWAN FIRM, PC
Attorneys for Plaintifs
THERESA ROBINSON and DEREK ROBINSON
42"I
150 East Street
New York, New York 10017
(212) 490-3000
BROWN, GAUJEAN, KRAUS & SASTOW, PLLC
Attorneys for Defendants
DEEPAK NANDA, M.D., P.C. AND
DEEPAK NANDA, M.D.
One Broadway, Suite 1010
White Plains, NY 10601
(914) 949-5300
GALVANO & XANTHAKIS, PC
Attorneys for Defendant
EMMANUEL M. PAFOS, M.D.
358 St. Marks Place, Suite 202
Staten Island, NY 10301
(212) 349-5150
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Preview
FILED: QUEENS COUNTY CLERK 01/08/2020 02:14 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/08/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Index No.: 717964/2018 THERESA ROBINSON AND DEREK ROBINSON, Plaintiffs, RESPONSE TO PLAINTIFFS' DEMAND -against- FOR BILL OF PARTICULARS AS TO NORTHWELL HEALTH, INC., LONG ISLAND AFFIRMATIVE JEWISH MEDICAL CENTER, DEEPAK DEFENSES NANDA, M.D., P.C., DEEPAK NANDA, M.D. and EMMANUEL M. PAFOS, M.D. Defendants. C O U N S E L O R S: PLEASE TAKE NOTICE, that defendants, NORTHWELL HEALTH, INC. and LONG ISLAND JEWISH MEDICAL CENTER, by its attorneys, GORDON & SILBER, P.C., hereby responds to plaintiff's Demand for a Bill of Particulars as to Affirmative Defenses dated July 2, 2019 as follows: FIRST AFFIRMATIVE DEFENSE AS TO STATUTE OF LIMITATIONS Answering Defendants object to this demand as the affirmative defense of statute of limitations is statutory in nature and, thus, no particulars are necessary. Further, it is the plaintiffs' burden to prove an action was timely commenced. Notwithstanding and without waiving the aforesaid objections, defendants reserve all rights afforded to them by the applicable statute of limitations for all time-barred claims SECOND AFFIRMATDT DEFENSE AS TO SET OFF Answering Defendants object to this demand on the ground that this defense is statutory in nature and need not be particularized. Notwithstanding this objection and without waiver thereof, the defendants are entitled to a set-off against any recovery that the plaintiffs {G0463112}ARG 1 of 5 FILED: QUEENS COUNTY CLERK 01/08/2020 02:14 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/08/2020 have received for all or part of the damages claimed herein. THIRD AFFIRMATIVE DEFENSE AS TO CPLR ARTICLE 16 Answering Defendants object to this demand as this demand is evidentiary and beyond the scope of a Bill of Particulars. Further, the affirmative defense pertaining to CPLR Article 16 is statutory in nature and need not be amplified herein. FOURTH AFFIRMATIVE DEFENSE AS TO §15-108 OF THE GENERAL OBLIGATIONS LAW Answering Defendants object to this demand as the affirmative defense pertaining to §15-105 and/or §15-108 of the General Obligations Law is statutory in nature and, thus, no particulars are necessary. FIFTH AFFIRMATIVE DEFENSE AS TO APPORTIONMENT OF FAULT Answering Defendsh object to this demand on the grounds that this defense is statutory in nature and, as such, no particularization is necessary. Defendants reserve the right to supplement and/or amend this r-onse up to an inclu&ng time of trial. SIXTH AFFIRMATIVE DEFENSE AS TO CPLR §4546 Answering Defendants object to this demand on the ground that it is palpably improper and is asserted as a matter of law. Further the foregoing is not subject to a Bill of Particulars. S_EVENTH AFFIRMATIVE DEFENSE AS TO CULPABLE CONDUCT Answering DefendanM must await the completion of discovery, including but not limited to a receipt of the plaintiff s prior and subsequent treatment records and the completion of all examinatinna before trialso as to more respond to plaintiff s demand. fully Without waiving said objection, upon information and belief, the plaintiff s comparative fault and culpable conduct consists of, but is not limited to: failing to keep doctors fully apprised of {G0463112)ARG 2 of 5 FILED: QUEENS COUNTY CLERK 01/08/2020 02:14 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/08/2020 medical treatment or consultations she underwent specialists and/or care by primary physicians; failing to present an accurate and complete history; failing to en=_municate compl=i='= and and/or to follow accurately completely; failing refusing orders, recommendations and suggestions of treating physicians, hospital staff and/or employees, with regard to treatment, medica%n, and/or therapy; failing to use reasonable care and defendants/physicians' diligence in following the instructions; failing to properly advise the defendants/physicians and/or employees of plaintifPs complaints, signs and symptoms; defendants/physicians' failing to cooperate and comply with instructions with respect to treatment, medication, therapy and/or procedures to be used, such as a reasonable and prudent person with knowledge would exercise in similar circumstances; failing and to refusing properly follow instructions and/or advice of the physician regarding the care and course of treatment to be followed; in failing to exercise that degree of care for her own health, safety and recovery as a reasonably prudent person would exercise under the same and/or similar circumstances; and in any other acts unknown to the Answering Defeñdsñts at this time. EIGHTH AFFIRMATIVE DEFENSE AS TO INFORMED CONSENT Answering Defendants object to this demand as premature given that discovery is still underway. Further, this demand is overly broad, vague, and unspecific. Notwithstanding, and without waiviñg the aforesaid objections, defendants reserve all rights afforded them the by Public Health Law § 2805-d, and all subsections thereunder. NINTH AFFIRMATIVE DEFENSE AS TO LACK OF CAPACITY Answering Defendants object to this demand the affirmative defanae of lack of capacity is statutory in nature and need not be amplified herein. {G0463112}ARG 3 of 5 FILED: QUEENS COUNTY CLERK 01/08/2020 02:14 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/08/2020 TENTH AFFIRMATIVEDEFENSE AS TO FAILURE TO STATE A CAUSE OF ACTION Answering Defeñdsñts object to this demand as it calls for evidentiary information beyond the scope of a Bill of Particulars. Without waiving said objection, Answering Defendants reserve their right to supplement this response up to and including the time of trial. ELEVENTH AFFIRMATIVE DEFENSE AS TO CPLR § 8303-a Answering Defendants objects to the demand as it calls for evidentiary information beyond the scope of a Bill of Particulars. The provision of CPLR §8303-a is self- statutory explanatory and does not require further elaboration in a bill of particulars. The answering defendant reserves all rights afforded by CPLR §8303-a. Notwithstanding these objections and without waiver thereof, the defendant reserves her right to supplement this renonse to up and including the time of trial. PLEASE TAKE FURTHER NOTICE that Answering Defendants reserve their right to supplement his responses to this demand, at any point, up until and including at the time of trial. Dated: New York, New York January 7, 2020 Yours, etc., GORDON & SILBEM. Ahfey R. Graha Attorneys for De anti NORTHWELL HEALTH, INC. and LONG ISLAND JEWISH MEDICAL CENTER Office and P.O. Address 355 Lexington Avenue New York, NY 10017-6603 {G0463112}ARG 4 of 5 FILED: QUEENS COUNTY CLERK 01/08/2020 02:14 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 01/08/2020 212-834-0600 TO: THE PAGLINAWAN FIRM, PC Attorneys for Plaintifs THERESA ROBINSON and DEREK ROBINSON 42"I 150 East Street New York, New York 10017 (212) 490-3000 BROWN, GAUJEAN, KRAUS & SASTOW, PLLC Attorneys for Defendants DEEPAK NANDA, M.D., P.C. AND DEEPAK NANDA, M.D. One Broadway, Suite 1010 White Plains, NY 10601 (914) 949-5300 GALVANO & XANTHAKIS, PC Attorneys for Defendant EMMANUEL M. PAFOS, M.D. 358 St. Marks Place, Suite 202 Staten Island, NY 10301 (212) 349-5150 {G0463112}ARG 5 of 5