Preview
FILED: NEW YORK COUNTY CLERK 05/11/2018 03:53 PM INDEX NO. 805031/2018
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/11/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JESSYE NORMAN,
Index No.: 805031/2018
Plaintiff,
VERIFIED ANSWER
-against-
THE MOUNT SINAI HOSPITAL, METROPOLITAN
JEWISH HOME CARE INC. AND BEST CARE INC.,
Defendants.
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Defendant BEST CARE INC., by its attorneys, HEIDELL, PITTONI, MURPHY
& BACH, LLP, upon information and belief, answers the Verified Complaint herein as follows:
AS AND TO THE FIRST CAUSE OF ACTION
FIRST: Denies the allegations contained in the paragraphs of the complaint
"1" "9" "11"
designated and through as to the answering defendant and otherwise begs leave to
refer allquestions of law to the court and all questions of fact to the trier thereof.
SECOND: Denies knowledge or information sufficient to form a belief as to the
"2"
allegations contained in the paragraphs of the complaint designated through "8".
AS AND TO THE SECOND CAUSE OF ACTION
"12"
THIRD: Answering the paragraph of the complaint designated defendant
repeats and realleges each and every denial and admission in answer to the paragraphs of the
"1" "11"
complaint designated through with the same force and effect as if herein set forth at
length.
FOURTH: Denies knowledge or information sufficient to form a belief as to the
"13" thorugh"19" "22"
allegations contained in the paragraphs of the complaint designated and
through "24".
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FIFTH: Denies the allegations contained in the paragraphs of the complaint
"21" "25" "27"
designated "20", and through as to the answering defendant and otherwise begs
leave to refer allquestions of law to the court and all questions of fact to the trier thereof.
AS AND TO THE THIRD CAUSE OF ACTION
"28"
SIXTH: Answering the paragraph of the complaint designated defendant
repeats and realleges each and every denial and admission in answer to the paragraphs of the
"1" "27"
complaint designated through with the same force and effect as if herein set forth at
length.
SEVENTH: Denies the allegations contained in the paragraphs of the complaint
"29" "32"
designated and except admits that the answering defendant was and is a licensed
domestic corporation organized and existing pursuant to the laws of New York and otherwise
denies knowledge or information sufficient to form a belief as to the allegations within these
paragraphs and begs leave to refer all questions of law to the court and allquestions of fact to the
trier thereof.
EIGHTH: Denies the allegations contained in the paragraphs of the complaint
"30"
designated except admits that the answering defendant utilized various staff in the treatment
of itspatients and otherwise denies knowledge or information sufficient to form a belief as to the
allegations within these paragraphs and begs leave to refer all questions of law to the court and
all questions of fact to the trier thereof.
NINTH: Denies knowledge or information sufficient to form a belief as to the
"31" "38"
allegations contained in the paragraphs of the complaint designated and through "41".
TENTH: Denies knowledge or information sufficient to form a belief as to the
"33" "35"
allegations contained in the paragraphs of the complaint designated and and otherwise
begs leave to refer all questions of law to the court and allquestions of fact to the trier thereof.
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ELEVENTH: Denies the allegations contained in the paragraphs of the complaint
"36" "37"
designated and except admits that the answering defendant provided certain
professional services to and for plaintiff in accordance with good and accepted practice and
otherwise denies knowledge or information sufficient to form a belief as to the allegations within
these paragraphs and begs leave to refer all questions of law to the court and all questions of fact
to the trierthereof.
TWELFTH: Denies the allegations contained in the paragraphs of the complaint
"42"
designated "34", through "45".
THIRTEENTH: Any paragraph/allegation not answered is deemed denied.
FOR A FIRST DEFENSE
FOURTEENTH: That this action was not commenced against defendant until
after the expiration of the time period specified in the applicable statute of limitations and any
recovery based on the alleged causes of action herein is barred.
FOR A SECOND DEFENSE
FIFTEENTH: That whatever damages may have been sustained at the time and
place alleged in the complaint by plaintiff were caused, in whole or in part, by the culpable
conduct of plaintiff and without any negligence on the part of defendant. Damages, if any, are to
be diminished proportionally to the culpable conduct of the plaintiff.
FOR A THIRD DEFENSE
SIXTEENTH: That the equitable share of liability, if any, of defendant BEST
CARE INC., shall be determined pursuant to the provisions of Article 16 of the CPLR.
FOR A FOURTH DEFENSE
SEVENTEENTH: That one or more of the causes of action in the complaint fail
to state a cause of action upon which relief may be granted.
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FOR A FIFTH DEFENSE
EIGHTEENTH: This action is barred or defendant is entitled to a set-off against
any award herein as plaintiff has previously recovered sums for all or part of the damages
claimed herein.
FOR A SIXTH DEFENSE
NINETEENTH: Plaintiff has failed to mitigate her alleged damages claimed
herein.
FOR A SEVENTH DEFENSE
TWENTIETH: The amount of alleged damages claimed by plaintiff should be
reduced pursuant to CPLR §4545 to the extent of any collateral source benefits, remuneration or
compensation received.
FOR A EIGHTH DEFENSE
TWENTY-FIRST: That the complaint does not set forth a basis for punitive
damages.
FOR A NINTH DEFENSE
TWENTY-SECOND: That any claims for punitive damages contained in the
complaint fail to state a claim upon which relief may be granted, violate various provisions of the
Constitution of the United States and the State of New York, and violate various statutory
proscriptions thereof.
FOR A TENTH DEFENSE
TWENTY-THIRD: That any claims for punitive damages contained in the
complaint fail to state a claim upon which relief may be granted, violate various provisions of the
Constitution of the United States and the State of New York, and violate various statutory
proscriptions thereof.
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FOR A ELEVENTH DEFENSE
TWENTY-FOURTH: Plaintiff cannot maintain his claim for exemplary or
punitive damages as against this defendant because he has failed to plead the ultimate facts
necessary to support such a claim.
WHEREFORE, defendant BEST CARE INC. demands judgment dismissing the
complaint herein, together with the costs and disbursements of this action.
Dated: New York, New York
May 11, 2018
Yours, etc.,
HEIDELL, PITTONI, MURPHY & BACH, LLP
L -
By:
VINCENT L. GALLO
Attorneys for Defendant
BEST CARE INC.
Office & P.O. Address
99 Park Avenue
New York, New York 10016
(212) 286-8585
TO: Monica Risi Merrill, Esq.
Kelner & Kelner, Esqs.
Attorneys for Plaintiff
-37th
140 Broadway FlOOr
New York, New York 10005
(212) 425-0700
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JESSYE NORMAN
Index No.: 805031/2018
Plaintiff,
VERIFICATION
-against-
THE MOUNT SINAI HOSPITAL, METROPOLITAN
JEWISH HOME CARE INC. AND BEST CARE INC.
Defendants.
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I,the undersigned, an attorney admitted to practice law in the Courts of New York
State, state that I am a Partner of the firm of HEIDELL, PITTONI, MURPHY & BACH, LLP,
the attorneys of record for defendant BEST CARE INC.; that I have read the foregoing
ANSWER and know the contents thereof; the same is true to my own knowledge, except as to
the matters therein stated to be alleged upon information and belief, and as to those matters I
believe them to be true.
The reason this verification is made by me and not by defendant, is because
defendant BEST CARE INC., is not present within the County of New York which is where this
attorney maintains his office.
The grounds of my belief as to all matters not stated upon my own knowledge are
as follows:
Papers and records of said defendant.
I affirm that the foregoing statements are true, under the penalties of perjury.
Dated: New York, New York
May 11, 2018
L
VINCENT L. GALLO
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Preview
FILED: NEW YORK COUNTY CLERK 05/11/2018 03:53 PM INDEX NO. 805031/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/11/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X -----------------------------------------------------------------------X JESSYE NORMAN, Index No.: 805031/2018 Plaintiff, VERIFIED ANSWER -against- THE MOUNT SINAI HOSPITAL, METROPOLITAN JEWISH HOME CARE INC. AND BEST CARE INC., Defendants. X -----------------------------------------------------------------------X Defendant BEST CARE INC., by its attorneys, HEIDELL, PITTONI, MURPHY & BACH, LLP, upon information and belief, answers the Verified Complaint herein as follows: AS AND TO THE FIRST CAUSE OF ACTION FIRST: Denies the allegations contained in the paragraphs of the complaint "1" "9" "11" designated and through as to the answering defendant and otherwise begs leave to refer allquestions of law to the court and all questions of fact to the trier thereof. SECOND: Denies knowledge or information sufficient to form a belief as to the "2" allegations contained in the paragraphs of the complaint designated through "8". AS AND TO THE SECOND CAUSE OF ACTION "12" THIRD: Answering the paragraph of the complaint designated defendant repeats and realleges each and every denial and admission in answer to the paragraphs of the "1" "11" complaint designated through with the same force and effect as if herein set forth at length. FOURTH: Denies knowledge or information sufficient to form a belief as to the "13" thorugh"19" "22" allegations contained in the paragraphs of the complaint designated and through "24". 1857295.1 1 of 6 FILED: NEW YORK COUNTY CLERK 05/11/2018 03:53 PM INDEX NO. 805031/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/11/2018 FIFTH: Denies the allegations contained in the paragraphs of the complaint "21" "25" "27" designated "20", and through as to the answering defendant and otherwise begs leave to refer allquestions of law to the court and all questions of fact to the trier thereof. AS AND TO THE THIRD CAUSE OF ACTION "28" SIXTH: Answering the paragraph of the complaint designated defendant repeats and realleges each and every denial and admission in answer to the paragraphs of the "1" "27" complaint designated through with the same force and effect as if herein set forth at length. SEVENTH: Denies the allegations contained in the paragraphs of the complaint "29" "32" designated and except admits that the answering defendant was and is a licensed domestic corporation organized and existing pursuant to the laws of New York and otherwise denies knowledge or information sufficient to form a belief as to the allegations within these paragraphs and begs leave to refer all questions of law to the court and allquestions of fact to the trier thereof. EIGHTH: Denies the allegations contained in the paragraphs of the complaint "30" designated except admits that the answering defendant utilized various staff in the treatment of itspatients and otherwise denies knowledge or information sufficient to form a belief as to the allegations within these paragraphs and begs leave to refer all questions of law to the court and all questions of fact to the trier thereof. NINTH: Denies knowledge or information sufficient to form a belief as to the "31" "38" allegations contained in the paragraphs of the complaint designated and through "41". TENTH: Denies knowledge or information sufficient to form a belief as to the "33" "35" allegations contained in the paragraphs of the complaint designated and and otherwise begs leave to refer all questions of law to the court and allquestions of fact to the trier thereof. 1857295.1 2 of 6 FILED: NEW YORK COUNTY CLERK 05/11/2018 03:53 PM INDEX NO. 805031/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/11/2018 ELEVENTH: Denies the allegations contained in the paragraphs of the complaint "36" "37" designated and except admits that the answering defendant provided certain professional services to and for plaintiff in accordance with good and accepted practice and otherwise denies knowledge or information sufficient to form a belief as to the allegations within these paragraphs and begs leave to refer all questions of law to the court and all questions of fact to the trierthereof. TWELFTH: Denies the allegations contained in the paragraphs of the complaint "42" designated "34", through "45". THIRTEENTH: Any paragraph/allegation not answered is deemed denied. FOR A FIRST DEFENSE FOURTEENTH: That this action was not commenced against defendant until after the expiration of the time period specified in the applicable statute of limitations and any recovery based on the alleged causes of action herein is barred. FOR A SECOND DEFENSE FIFTEENTH: That whatever damages may have been sustained at the time and place alleged in the complaint by plaintiff were caused, in whole or in part, by the culpable conduct of plaintiff and without any negligence on the part of defendant. Damages, if any, are to be diminished proportionally to the culpable conduct of the plaintiff. FOR A THIRD DEFENSE SIXTEENTH: That the equitable share of liability, if any, of defendant BEST CARE INC., shall be determined pursuant to the provisions of Article 16 of the CPLR. FOR A FOURTH DEFENSE SEVENTEENTH: That one or more of the causes of action in the complaint fail to state a cause of action upon which relief may be granted. 1857295.1 3 of 6 FILED: NEW YORK COUNTY CLERK 05/11/2018 03:53 PM INDEX NO. 805031/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/11/2018 FOR A FIFTH DEFENSE EIGHTEENTH: This action is barred or defendant is entitled to a set-off against any award herein as plaintiff has previously recovered sums for all or part of the damages claimed herein. FOR A SIXTH DEFENSE NINETEENTH: Plaintiff has failed to mitigate her alleged damages claimed herein. FOR A SEVENTH DEFENSE TWENTIETH: The amount of alleged damages claimed by plaintiff should be reduced pursuant to CPLR §4545 to the extent of any collateral source benefits, remuneration or compensation received. FOR A EIGHTH DEFENSE TWENTY-FIRST: That the complaint does not set forth a basis for punitive damages. FOR A NINTH DEFENSE TWENTY-SECOND: That any claims for punitive damages contained in the complaint fail to state a claim upon which relief may be granted, violate various provisions of the Constitution of the United States and the State of New York, and violate various statutory proscriptions thereof. FOR A TENTH DEFENSE TWENTY-THIRD: That any claims for punitive damages contained in the complaint fail to state a claim upon which relief may be granted, violate various provisions of the Constitution of the United States and the State of New York, and violate various statutory proscriptions thereof. 1857295.1 4 of 6 FILED: NEW YORK COUNTY CLERK 05/11/2018 03:53 PM INDEX NO. 805031/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/11/2018 FOR A ELEVENTH DEFENSE TWENTY-FOURTH: Plaintiff cannot maintain his claim for exemplary or punitive damages as against this defendant because he has failed to plead the ultimate facts necessary to support such a claim. WHEREFORE, defendant BEST CARE INC. demands judgment dismissing the complaint herein, together with the costs and disbursements of this action. Dated: New York, New York May 11, 2018 Yours, etc., HEIDELL, PITTONI, MURPHY & BACH, LLP L - By: VINCENT L. GALLO Attorneys for Defendant BEST CARE INC. Office & P.O. Address 99 Park Avenue New York, New York 10016 (212) 286-8585 TO: Monica Risi Merrill, Esq. Kelner & Kelner, Esqs. Attorneys for Plaintiff -37th 140 Broadway FlOOr New York, New York 10005 (212) 425-0700 1857295.1 5 of 6 FILED: NEW YORK COUNTY CLERK 05/11/2018 03:53 PM INDEX NO. 805031/2018 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/11/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X -----------------------------------------------------------------------X JESSYE NORMAN Index No.: 805031/2018 Plaintiff, VERIFICATION -against- THE MOUNT SINAI HOSPITAL, METROPOLITAN JEWISH HOME CARE INC. AND BEST CARE INC. Defendants. X -----------------------------------------------------------------------X I,the undersigned, an attorney admitted to practice law in the Courts of New York State, state that I am a Partner of the firm of HEIDELL, PITTONI, MURPHY & BACH, LLP, the attorneys of record for defendant BEST CARE INC.; that I have read the foregoing ANSWER and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters I believe them to be true. The reason this verification is made by me and not by defendant, is because defendant BEST CARE INC., is not present within the County of New York which is where this attorney maintains his office. The grounds of my belief as to all matters not stated upon my own knowledge are as follows: Papers and records of said defendant. I affirm that the foregoing statements are true, under the penalties of perjury. Dated: New York, New York May 11, 2018 L VINCENT L. GALLO 1857295.1 6 of 6