Preview
INDEX NO. 2013EF361
(FILED: ONONDAGA COUNTY CLERK 0370372014)
NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/03/2014
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STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
ERIC T, SCHNEIDERMAN REGIONAL OFFICE DIVISION
Attomey General SYRACUSE REGIONAL OFFICE
February 26, 2014
Onondaga County Clerk
Onondaga County Courthouse
401 Montgomery Street
2" Floor
Syracuse, New York 13202
Re: Pablo Enrique Umana Fonseca, an Incompetent, by his Guardian ad Litem, Natalia
Mayela Lott v. Dilpreet Kaur, et al
Index No.: 361/2013 EF
Dear Chief Clerk:
Please find enclosed an Amended Answer in the above-captioned matter. Our Answer
included Fahd Ali, M.D. by mistake. We will not be defending Dr. Ali in this action where he is
competently represented by Danielle Fogel of the Sugarman Law Firm.
i
If there are any questions please feel free to contact me at (315) 448-4880. Thank you.
truly yours,
Ce
JOSEPH D. CALLERY
Assistant Attorney General
JDC/sb
Ene.
ce: Howard S. Hershenhorn, Esq.
Danielle Mikalajunas Fogel, Esq.
615 Erie Blvd. West, Suite 102, Syracuse, N.Y. 13204 i (315) 448-4800 Ud Fax (315) 448-4853* Not For Service of Papers
WWW .AG.NY.GOV
STATE OF NEW YORK SUPREME COURT
ONONDAGA COUNTY
aaee. ane
PABLO ENRIQUE UMANA FONSECA, an
Incompetent, by his Guardian Ad Litem,
NATALIA MAYELA LOTT,
Plaintiff,
VERIFIED ANSWER
Vv.
Index No. 361/2013 EF
ANUPA NADKARNI, DILPREET KAUR,
RUSHIKESH SHAH, KOLA AFOLABI, VIKAS
SINGH, RISA FARBER, JESSICA ARMY, LISA
KAUFMANN, and ALISHA HEMRAJ,
Defendants.
wenn n neni
nner ene nee e eens
Defendants, Dilpreet Kaur, Rushikesh Shah, Kola Afolabi, Vikas Singh, Jessica Army,
and Alisha Hemraj, by their attorney, ERIC T. SCHNEIDERMAN, Attorney General of
the State of New York, JOSEPH D. CALLERY, of Counsel, answering the Verified
Complaint in the above entitled proceeding allege as follows:
1 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to
the truth or falsity of the allegations contained in paragraphs 1, 3, 6, 8, 10, 12, 14, 15, 17, 18, 20,
22, 24, 26, 28, 29, 30, 31, 32, 33, 34, and 35 of the Verified Complaint.
2 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to
the truth or falsity of the allegations contained in paragraph 5 of the Verified Complaint, except
to admit DILPREET KAUR practiced as a resident at Upstate Hospital.
3 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to
the truth or falsity of the allegations contained in paragraph 7 of the Verified Complaint, except
to admit RUSHITESH SHAH practiced as a resident at Upstate Hospital.
4 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to
the truth or falsity of the allegations contained in paragraph 9 of the Verified Complaint, except
to admit KOLA AFOLABI practiced as a resident at Upstate Hospital..
5 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to
the truth or falsity of the allegations contained in paragraph 11 of the Verified Complaint, except
to admit VIKAS SINGH practiced as a resident at Upstate Hospital.
6. DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to
the truth or falsity of the allegations contained in paragraph 13 of the Verified Complaint, except
to admit RISA FARBER practiced as a resident at Upstate Hospital.
7 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to
the truth or falsity of the allegations contained in paragraph 16 of the Verified Complaint, except
to admit JESSICA ARMY practiced as a resident at Upstate Hospital.
8 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to
the truth or falsity of the allegations contained in paragraph 23 of the Verified Complaint, except
to admit ALISHA HEMRA\J practiced as a resident at Upstate Hospital.
9 DENIES each and every allegation sufficient to form a belief as to the truth or
falsity of the allegations contained in paragraph 39, 40, 47 and 48 of the Verified Complaint and
respectfully refers all questions of law to the Court.
10. REPEATS AND REALLEGES its responses in the answer to paragraph 41 of the
Verified Complaint.
11. DENIES each and every allegation contained in paragraphs 36, 37, 38, 43, 44, 45,
and 46 of the Verified Complaint.
12. DENIES each and every other allegation not heretofore admitted, controverted or
denied.
AS AND FOR A FIRST AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
13. That at the time and place of the accident, and the injuries and damages referred
to in the Complaint, the Plaintiff's incompetent knew or should have known of the risks and
dangers existing and he knowingly and voluntarily assumed the risks of the activities of which he
was engaged and the manner in which the same was accomplished.
AS AND FOR A SECOND AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
14. Upon information and belief, it was the culpable conduct of the Plaintiffs
incompetent, including contributory negligence and assumption of the risk, in full or in part, that
was the cause of or contributed to the damages alleged in the Complaint. The amount of
damages otherwise recoverable by the Plaintiff's incompetent should be diminished in the
proportion to which the culpable conduct attributable to the Plaintiff bears to the culpable
conduct which caused the damages.
AS AND FOR A THIRD AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
15. If any negligence or fault or want of care other than that of the Plaintiff's
incompetent caused or contributed to the injury and damages alleged in the Complaint herein, it
was the negligence or fault of want of care of some third person or persons for whose negligence
or fault or want of care this defendant is noi and was not responsible.
AS AND FOR A FOURTH AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
16. That any injuries which the Plaintiff's incompetent may have sustained at the time
and place set forth in the Complaint herein are attributable to the culpable conduct of third
person(s) who were not under the defendant’s control and such conduct was the sole and/or
contributing proximate cause of the accident, incident, injuries and/or damages complained of
and that Plaintiff therefore is not entitled to any award or recovery herein, and/or by reason of
said third person(s) culpable conduct, the amount of damages otherwise recoverable should be
diminished by such amount as constitutes the culpable conduct attributable to said third
person(s).
AS AND FOR A FIFTH AFFIRMATIVE
DEFENSE, DEFENDANT ALLEG
17. In the event that the Plaintiff's incompetent recovers a judgment against the
defendant for the cost of medical care, dental care, custodial care, rehabilitation services, loss of
earnings, or other economic loss resulting from the personal injury, if any, of the Plaintiff's
incompetent arising out of the subject accident, the defendant is entitled to a reduction in the
amount of the award in favor of the Plaintiff and against the defendant by the amount of past and
future collateral source payments to or for the benefit of the Plaintiff of such loss, cost, and
expenses pursuant to CPLR 4545.
AS AND FOR A SIXTH AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
18. That even though defendants deny liability in respect to the injuries of the
Plaintiff's incompetent, if any defendant is found liable to the Plaintiff, such liability will be fifty
percent (50%) or less, and, therefore, the individual defendant should only be severally liable to
the Plaintiff and not jointly liable.
AS AND FOR A SEVENTH AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGE
19. Consent for all procedures, tests, surgeries and other care and treatment was
obtained from Plaintiff and Plaintiff was informed of the reasonably foreseeable risks involved in
his care and treatment, as well as the alternatives, in a manner permitting the Plaintiff to make a
knowledgeable evaluation; and further, that some risks involved were-too commonly known and
did not require any specific disclosure; and further that the lack of informed consent, if any, was
not a proximate cause of the injury or condition for which recovery is sought; and further that
any risks or hazards which were not disclosed would not have deterred the Plaintiff from
consenting to the care and treatment in any event; and further, that the answering defendants
used reasonable discretion in making disclosures to Plaintiff of the risks and hazards of the
treatments involved and the alternatives; and further, that the State of New York complied with
the standards concerning informed consent set forth in Section 2805-d of the Public Health Law.
AS AND FOR A EIGHTH AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
20. To the extent that Plaintiff may have previously commenced other actions,
executed a release or settlement and/or compromised his Complaint for the same injury or
damages as set forth in the Complaint Plaintiff is not entitled to any award or recovery, and/or
the amount of damages otherwise recoverable by the Plaintiff should be reduced and/or
diminished to the extent of any amount stipulated by the release or covenant in the amount of the
consideration paid for it, or in the amount of the tort feasor’s equitable share of the damages,
whichever is greater pursuant to the General Obligations Law, Articles 16 and 42 of the CPLR
and/or as such cases made or provided.
AS AND FOR A NINTH AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
21. That the Court has no jurisdiction of the person of the Defendant.
AS AND FOR A TENTH AFFIRMATIVE
DEFENSE, DEFENDANT ALLEGES:
22. That the complaint fails to state a cause of action upon which relief may be
properly granted
WHEREFORE, the defendants, Dilpreet Kaur, Rushikesh Shah, Kola Afolabi, Vikas
Singh, Jessica Army, and Alisha Hemraj, demand judgment dismissing the Complaint herein,
together with the costs and disbursements of this action.
DATED: February 26, 2014
Syracuse, New York
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendant
wo
BY: 'OSIEPH) D. CALLERY -
stant Attorney General
615 Erie Boulevard West
Syracuse, New York 13204
Telephone: (315) 448-4800
TO: Onondaga County Clerk
Onondaga County Courthouse
401 Montgomery Street
2" Floor
Syracuse, New York 13204
Howard S. Hershenhorn, Esq.
Gair, Gair, Conason, Steigman,
Mackauf, Bloom & Rubinowitz
80 Pine Street
New York, New York 10005
Danielle Mikalajunas Fogel, Esq.
Sugarman Law Firm, LLP
211 West Jefferson Street
Syracuse, New York 13202-2680
VERIFICATION
I, JOSEPH D. CALLERY, being duly sworn, deposes and says:
I am of counsel to ERIC T. SCHNEIDERMAN, Attorney General of the State of New
York, and the person to whom the above entitled \awsuit has been assigned for preparation and
trial.
I have read the foregoing ANSWER and know its contents. The matters therein are
stated on information and belief and I believe them to be true. The grounds for my belief as to
all matters not stated upon my knowledge are correspondence records, investigations and other
material maintained in the file in this action in my office.
Dated: February 26, 2014
Syracuse, New York
LD
PH Pp. CALLERY
Agsigtant Attorney General
Preview
INDEX NO. 2013EF361 (FILED: ONONDAGA COUNTY CLERK 0370372014) NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/03/2014 RI ir om cs a STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL ERIC T, SCHNEIDERMAN REGIONAL OFFICE DIVISION Attomey General SYRACUSE REGIONAL OFFICE February 26, 2014 Onondaga County Clerk Onondaga County Courthouse 401 Montgomery Street 2" Floor Syracuse, New York 13202 Re: Pablo Enrique Umana Fonseca, an Incompetent, by his Guardian ad Litem, Natalia Mayela Lott v. Dilpreet Kaur, et al Index No.: 361/2013 EF Dear Chief Clerk: Please find enclosed an Amended Answer in the above-captioned matter. Our Answer included Fahd Ali, M.D. by mistake. We will not be defending Dr. Ali in this action where he is competently represented by Danielle Fogel of the Sugarman Law Firm. i If there are any questions please feel free to contact me at (315) 448-4880. Thank you. truly yours, Ce JOSEPH D. CALLERY Assistant Attorney General JDC/sb Ene. ce: Howard S. Hershenhorn, Esq. Danielle Mikalajunas Fogel, Esq. 615 Erie Blvd. West, Suite 102, Syracuse, N.Y. 13204 i (315) 448-4800 Ud Fax (315) 448-4853* Not For Service of Papers WWW .AG.NY.GOV STATE OF NEW YORK SUPREME COURT ONONDAGA COUNTY aaee. ane PABLO ENRIQUE UMANA FONSECA, an Incompetent, by his Guardian Ad Litem, NATALIA MAYELA LOTT, Plaintiff, VERIFIED ANSWER Vv. Index No. 361/2013 EF ANUPA NADKARNI, DILPREET KAUR, RUSHIKESH SHAH, KOLA AFOLABI, VIKAS SINGH, RISA FARBER, JESSICA ARMY, LISA KAUFMANN, and ALISHA HEMRAJ, Defendants. wenn n neni nner ene nee e eens Defendants, Dilpreet Kaur, Rushikesh Shah, Kola Afolabi, Vikas Singh, Jessica Army, and Alisha Hemraj, by their attorney, ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, JOSEPH D. CALLERY, of Counsel, answering the Verified Complaint in the above entitled proceeding allege as follows: 1 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the allegations contained in paragraphs 1, 3, 6, 8, 10, 12, 14, 15, 17, 18, 20, 22, 24, 26, 28, 29, 30, 31, 32, 33, 34, and 35 of the Verified Complaint. 2 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 5 of the Verified Complaint, except to admit DILPREET KAUR practiced as a resident at Upstate Hospital. 3 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 7 of the Verified Complaint, except to admit RUSHITESH SHAH practiced as a resident at Upstate Hospital. 4 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 9 of the Verified Complaint, except to admit KOLA AFOLABI practiced as a resident at Upstate Hospital.. 5 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 11 of the Verified Complaint, except to admit VIKAS SINGH practiced as a resident at Upstate Hospital. 6. DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 13 of the Verified Complaint, except to admit RISA FARBER practiced as a resident at Upstate Hospital. 7 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 16 of the Verified Complaint, except to admit JESSICA ARMY practiced as a resident at Upstate Hospital. 8 DENIES KNOWLEDGE OR INFORMATION sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 23 of the Verified Complaint, except to admit ALISHA HEMRA\J practiced as a resident at Upstate Hospital. 9 DENIES each and every allegation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 39, 40, 47 and 48 of the Verified Complaint and respectfully refers all questions of law to the Court. 10. REPEATS AND REALLEGES its responses in the answer to paragraph 41 of the Verified Complaint. 11. DENIES each and every allegation contained in paragraphs 36, 37, 38, 43, 44, 45, and 46 of the Verified Complaint. 12. DENIES each and every other allegation not heretofore admitted, controverted or denied. AS AND FOR A FIRST AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 13. That at the time and place of the accident, and the injuries and damages referred to in the Complaint, the Plaintiff's incompetent knew or should have known of the risks and dangers existing and he knowingly and voluntarily assumed the risks of the activities of which he was engaged and the manner in which the same was accomplished. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 14. Upon information and belief, it was the culpable conduct of the Plaintiffs incompetent, including contributory negligence and assumption of the risk, in full or in part, that was the cause of or contributed to the damages alleged in the Complaint. The amount of damages otherwise recoverable by the Plaintiff's incompetent should be diminished in the proportion to which the culpable conduct attributable to the Plaintiff bears to the culpable conduct which caused the damages. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 15. If any negligence or fault or want of care other than that of the Plaintiff's incompetent caused or contributed to the injury and damages alleged in the Complaint herein, it was the negligence or fault of want of care of some third person or persons for whose negligence or fault or want of care this defendant is noi and was not responsible. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 16. That any injuries which the Plaintiff's incompetent may have sustained at the time and place set forth in the Complaint herein are attributable to the culpable conduct of third person(s) who were not under the defendant’s control and such conduct was the sole and/or contributing proximate cause of the accident, incident, injuries and/or damages complained of and that Plaintiff therefore is not entitled to any award or recovery herein, and/or by reason of said third person(s) culpable conduct, the amount of damages otherwise recoverable should be diminished by such amount as constitutes the culpable conduct attributable to said third person(s). AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, DEFENDANT ALLEG 17. In the event that the Plaintiff's incompetent recovers a judgment against the defendant for the cost of medical care, dental care, custodial care, rehabilitation services, loss of earnings, or other economic loss resulting from the personal injury, if any, of the Plaintiff's incompetent arising out of the subject accident, the defendant is entitled to a reduction in the amount of the award in favor of the Plaintiff and against the defendant by the amount of past and future collateral source payments to or for the benefit of the Plaintiff of such loss, cost, and expenses pursuant to CPLR 4545. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 18. That even though defendants deny liability in respect to the injuries of the Plaintiff's incompetent, if any defendant is found liable to the Plaintiff, such liability will be fifty percent (50%) or less, and, therefore, the individual defendant should only be severally liable to the Plaintiff and not jointly liable. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, DEFENDANT ALLEGE 19. Consent for all procedures, tests, surgeries and other care and treatment was obtained from Plaintiff and Plaintiff was informed of the reasonably foreseeable risks involved in his care and treatment, as well as the alternatives, in a manner permitting the Plaintiff to make a knowledgeable evaluation; and further, that some risks involved were-too commonly known and did not require any specific disclosure; and further that the lack of informed consent, if any, was not a proximate cause of the injury or condition for which recovery is sought; and further that any risks or hazards which were not disclosed would not have deterred the Plaintiff from consenting to the care and treatment in any event; and further, that the answering defendants used reasonable discretion in making disclosures to Plaintiff of the risks and hazards of the treatments involved and the alternatives; and further, that the State of New York complied with the standards concerning informed consent set forth in Section 2805-d of the Public Health Law. AS AND FOR A EIGHTH AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 20. To the extent that Plaintiff may have previously commenced other actions, executed a release or settlement and/or compromised his Complaint for the same injury or damages as set forth in the Complaint Plaintiff is not entitled to any award or recovery, and/or the amount of damages otherwise recoverable by the Plaintiff should be reduced and/or diminished to the extent of any amount stipulated by the release or covenant in the amount of the consideration paid for it, or in the amount of the tort feasor’s equitable share of the damages, whichever is greater pursuant to the General Obligations Law, Articles 16 and 42 of the CPLR and/or as such cases made or provided. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 21. That the Court has no jurisdiction of the person of the Defendant. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, DEFENDANT ALLEGES: 22. That the complaint fails to state a cause of action upon which relief may be properly granted WHEREFORE, the defendants, Dilpreet Kaur, Rushikesh Shah, Kola Afolabi, Vikas Singh, Jessica Army, and Alisha Hemraj, demand judgment dismissing the Complaint herein, together with the costs and disbursements of this action. DATED: February 26, 2014 Syracuse, New York ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendant wo BY: 'OSIEPH) D. CALLERY - stant Attorney General 615 Erie Boulevard West Syracuse, New York 13204 Telephone: (315) 448-4800 TO: Onondaga County Clerk Onondaga County Courthouse 401 Montgomery Street 2" Floor Syracuse, New York 13204 Howard S. Hershenhorn, Esq. Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz 80 Pine Street New York, New York 10005 Danielle Mikalajunas Fogel, Esq. Sugarman Law Firm, LLP 211 West Jefferson Street Syracuse, New York 13202-2680 VERIFICATION I, JOSEPH D. CALLERY, being duly sworn, deposes and says: I am of counsel to ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, and the person to whom the above entitled \awsuit has been assigned for preparation and trial. I have read the foregoing ANSWER and know its contents. The matters therein are stated on information and belief and I believe them to be true. The grounds for my belief as to all matters not stated upon my knowledge are correspondence records, investigations and other material maintained in the file in this action in my office. Dated: February 26, 2014 Syracuse, New York LD PH Pp. CALLERY Agsigtant Attorney General