FILED: BRONX COUNTY CLERK 03/29/2024 12:31 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 819204/2023E
`
`RECEIVED NYSCEF: 03/29/2024
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF BRONX
`
`X
`
`ESTHER ROSARIO by ANITA ROSARIO as
`ATTORNEY-IN-FACT
`
`Index No.: 819204/2023E
`
`Plaintiff,
`
`VERIFIED ANSWER
`
`-against-
`
`RIVERDALE SNF LLC d/b/a SCHERVIER NURSING
`CARE CENTER and RIVERDALE SNR LLC d/b/a
`SCHERVIER REHABILITATION & NURSING CENTER,
`
`Defendants,
`
`X
`
`Defendant, RIVERDALE SNF LLC d/b/a SCHERVIER NURSING CARE CENTER,
`
`by its attorneys, KAUFMAN BORGEEST & RYAN LLP, as and for its Verified Answer to
`
`plaintiff's Verified Complaint states and alleges upon information and belief:
`
`1.
`
`Denies knowledge or information sufficient to form a belief as to the truth of the
`
`allegations set forth in the paragraphs of the Verified Complaint designated as "1", "2", "3", "4",
`
`"29", "34", "59" and "64" and otherwise begs leave to refer all questions of fact to the trier thereof
`
`and all questions of law to the Court
`
`2.
`
`Denies each and every allegation contained in the paragraphs designated as "5",
`
`"6", "7", "8", "9", "15", "17", "18", "19", "20", "21", "22", "23", "24", "25", "35", "36", "37",
`
`"38", "39", "45", "4.7", "48", "49", "50", "51", "52", "53", "54", "55" and "56" of the Verified
`
`Complaint except to admit defendant is a domestic limited liability company, operates a licensed
`
`residential health care facility, maintains a business address at 2975 Independence Avenue, Bronx,
`
`New York 10463 and otherwise begs leave to refer all questions of fact to the trier thereof and all
`
`questions of law to the Court.
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`1 of 9
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`10058084
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`NYSCEF DOC. NO. 4
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`INDEX NO. 819204/2023E
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`RECEIVED NYSCEF: 03/29/2024
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF BRONX
`
`X
`
`ESTHER ROSARIO by ANITA ROSARIO as
`ATTORNEY-IN-FACT
`
`Index No.: 819204/2023E
`
`Plaintiff,
`
`VERIFIED ANSWER
`
`-against-
`
`RIVERDALE SNF LLC d/b/a SCHERVIER NURSING
`CARE CENTER and RIVERDALE SNR LLC d/b/a
`SCHERVIER REHABILITATION & NURSING CENTER,
`
`Defendants,
`
`X
`
`Defendant, RIVERDALE SNF LLC d/b/a SCHERVIER NURSING CARE CENTER,
`
`by its attorneys, KAUFMAN BORGEEST & RYAN LLP, as and for its Verified Answer to
`
`plaintiff's Verified Complaint states and alleges upon information and belief:
`
`1.
`
`Denies knowledge or information sufficient to form a belief as to the truth of the
`
`allegations set forth in the paragraphs of the Verified Complaint designated as "1", "2", "3", "4",
`
`"29", "34", "59" and "64" and otherwise begs leave to refer all questions of fact to the trier thereof
`
`and all questions of law to the Court
`
`2.
`
`Denies each and every allegation contained in the paragraphs designated as "5",
`
`"6", "7", "8", "9", "15", "17", "18", "19", "20", "21", "22", "23", "24", "25", "35", "36", "37",
`
`"38", "39", "45", "4.7", "48", "49", "50", "51", "52", "53", "54", "55" and "56" of the Verified
`
`Complaint except to admit defendant is a domestic limited liability company, operates a licensed
`
`residential health care facility, maintains a business address at 2975 Independence Avenue, Bronx,
`
`New York 10463 and otherwise begs leave to refer all questions of fact to the trier thereof and all
`
`questions of law to the Court.
`
`1 of 9
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`10058084
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`FILED: BRONX COUNTY CLERK 03/29/2024 12:31 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 819204/2023E
`
`RECEIVED NYSCEF: 03/29/2024
`
`3.
`
`Denies in the form alleged each and every allegation contained in the paragraphs
`
`designated as "10", "11", "13", "26", "33", "40", "41", "43" and "63" of the Verified Complaint
`
`and otherwise begs leave to refer all questions of fact to the trier thereof and all questions of law
`
`to the Court.
`
`4.
`
`Denies each and every allegation contained in the paragraphs designated as "12",
`
`"16", "28", "32", "42", "46", "58", "62", "65", "66", "67", "68", "69", "70", "71", "72", "73" and
`
`"74" of the Verified Complaint.
`
`5.
`
`Denies in the form alleged each and every allegation contained in the paragraphs
`
`designated as "14", "27", "30", "31", "44", "57", "60" and "61" of the Verified Complaint except
`
`to admit that plaintiff ward was a resident of defendant's licensed residential health care facility
`
`and otherwise begs leave to refer all questions of fact to the trier thereof and all questions of law
`
`to the Court.
`
`AS AND FOR A FIRST CAUSE IN NEGLIGENCE AGAINST DEFENDANTS
`
`6.
`
`With respect to that paragraph of the Verified Complaint designated as "75",
`
`answering Defendant repeats, reiterates and re-alleges each and every admission, denial, denial in
`
`the form and manner, and denial of knowledge or information sufficient to form a belief of each
`
`and every allegation contained in those paragraphs designated as "1" through "74", with the same
`
`force and effect as if set forth herein.
`
`7.
`
`Denies each and every allegation contained in the paragraphs designated as "76",
`
`"77", "78", "79", "80", "81" and "82" of the Verified Complaint.
`
`AS AND FOR A SECOND CAUSE OF ACTION PURSUANT TO PUBLIC
`HEALTH LAW SECTION 2801-d AGAINST DEFENDANTS
`
`8.
`
`With respect to that paragraph of the Verified Complaint designated as "83",
`
`answering Defendant repeats, reiterates and re-alleges each and every admission, denial, denial in
`
`2
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`2 of 9
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`10058084
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`FILED: BRONX COUNTY CLERK 03/29/2024 12:31 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 819204/2023E
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`RECEIVED NYSCEF: 03/29/2024
`
`the form and manner, and denial of knowledge or information sufficient to form a belief of each
`
`and every allegation contained in those paragraphs designated as "1" through "82", with the same
`
`force and effect as if set forth herein.
`
`9.
`
`Denies each and every allegation contained in the paragraphs designated as "84",
`
`"85", "86", "87", "88", "89" and "90" of the Verified Complaint.
`
`AS AND FOR A THIRD CAUSE OF ACTION FOR MEDICAL MALPRACTICE
`AGAINST DEFENDANTS
`
`10. With respect to that paragraph of the Verified Complaint designated as "91",
`
`answering Defendant repeats, reiterates and re-alleges each and every admission, denial, denial in
`
`the form and manner, and denial of knowledge or information sufficient to form a belief of each
`
`and every allegation contained in those paragraphs designated as "1" through "90", with the same
`
`force and effect as if set forth herein.
`
`11.
`
`Denies each and every allegation contained in the paragraphs designated as "92",
`
`"93", "94", "95" and "96" of the Verified Complaint.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`12.
`
`Upon information and belief, whatever injury and/or damages the Plaintiff may
`
`have sustained at the time and place mentioned in the Verified Complaint and/or as a result of the
`
`occurrence alleged in the Verified Complaint, all of which are denied by this answering Defendant,
`
`were caused in whole or in part by the culpable conduct of the Plaintiff. The amount of damages
`
`recovered, if any, shall therefore be diminished in the proportion which the culpable conduct,
`
`attributable to plaintiff and/or plaintiff's decedent, bears to the culpable conduct which caused said
`
`injuries.
`
`3
`
`3 of 9
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`10058084
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`FILED: BRONX COUNTY CLERK 03/29/2024 12:31 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 819204/2023E
`
`RECEIVED NYSCEF: 03/29/2024
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`13.
`
`Upon information and belief, the injuries and damages alleged were caused by the
`
`culpable conduct of some third person or persons over whom answering Defendant neither had nor
`
`exercised control.
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`14.
`
`Defendant invokes the protection of Public Health Law §2801-d with respect to the
`
`alleged cause of action for deprivation of Plaintiff's rights. Defendant exercised all care
`
`reasonably necessary to prevent and limit any deprivation and injury to Plaintiff.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`
`15.
`
`Pursuant to the Public Readiness and Emergency Preparedness Act (PREP Act) (42
`
`U.S.C. § 247d-6d et seq.), the Declaration under the PREP Act for Medical Countermeasures
`
`Against COVID-19 by the Secretary of the Department of Health & Human Services, and all
`
`relevant regulations, the Defendant and its agents, servants and employees are covered persons
`
`and their actions arose out of or related to the administration of covered countermeasures as
`
`defined by the Act. Accordingly, this Court lacks subject matter jurisdiction and they are immune
`
`from liability under State and Federal law.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`16.
`
`The PREP Act provides
`
`the
`
`remedy for plaintiff's claims under
`
`the
`
`Countermeasures Injury Compensation Program (CCIP). Accordingly, plaintiff failed to exhaust
`
`his/her administrative remedies and thus the Court lacks subject matter jurisdiction. 42 U.S.C.
`
`§247d-6e(d)(1); Parker v. St. Lawrence County Public Health Department, 102 A.D.3d 140 (3d
`
`Dept. 2012).
`
`4
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`4 of 9
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`10058084
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`FILED: BRONX COUNTY CLERK 03/29/2024 12:31 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 819204/2023E
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`RECEIVED NYSCEF: 03/29/2024
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`17.
`
`The allocation of health care resources during an emergency is a discretionary
`
`governmental function and the Defendant, its agents, servants and employees are therefore
`
`immune from civil liability.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`18.
`
`The injuries complained of were due exclusively to causes of so
`
`extraordinary a nature that they could not reasonably have been foreseen and the result avoided.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`19.
`
`Given the declared public health emergency, the Court lacks subject matter
`
`jurisdiction pursuant to the Federal Officers Statute (28 U.S.C. §1442(a)(1)).
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`20.
`
`Given the declared public health emergency, the Defendant and its agents, servants
`
`and employees acted at all times reasonably and in accordance with the applicable standard of care
`
`in effect under the conditions existing at the time.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`21.
`
`Pursuant to the "Coronavirus Aid Relief, and Economic Security Act" signed into
`
`law on March 27, 2020, the defendant is immune from any cause of action arising under Federal
`
`or State law for any harm caused by an act or omission of the professional in the provision of
`
`health care services during the COVID-19 public health emergency.
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`22.
`
`Pursuant to the Volunteer Protection Act of 1997, the defendant is immune from
`
`any cause of action arising under Federal or State law for any harm caused by an act or omission
`
`of the professional in the provision of health care services.
`
`5
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`5 of 9
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`FILED: BRONX COUNTY CLERK 03/29/2024 12:31 PM
`NYSCEF DOC. NO. 4
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`INDEX NO. 819204/2023E
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`RECEIVED NYSCEF: 03/29/2024
`
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`
`23.
`
`That the causes of action herein may not be maintained because it is barred by the
`
`applicable statute of limitations prescribed by the CPLR and the laws of the State of New York
`
`AS AND FOR A THRITEENTH AFFIRMATIVE DEFENSE
`
`24.
`
`That pursuant to CPLR §1600 et seq., if it is determined by verdict or decision that
`
`two or more tortfeasors are jointly liable to the Plaintiff, and if the liability of the answering
`
`Defendant is found to be 50% or less of the total liability assigned to all persons liable, the liability
`
`of such Defendant to the Plaintiff for non-economic loss shall not exceed this Defendant's
`
`equitable share determined in accordance with the relative culpability of each person causing or
`
`contributing to the total liability for non-economic loss.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`25.
`
`In the event plaintiff recovers a verdict or judgment against defendant, then said
`
`verdict or judgment must be reduced, pursuant to CPLR § 4545(c), by those amounts which have
`
`been, or will, with reasonable certainty, replace or indemnify plaintiffs, in whole or in part for any
`
`past or future claimed economic loss, from any collateral source, such as, insurance, social
`
`security, workers' compensation or employee benefit programs.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`26.
`
`That the Verified Complaint fails to state a cause or causes of action upon which
`
`relief can be granted against the defendants.
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`
`27.
`
`The Plaintiff, pursuant to § 3211(a)(3) of the Civil Practice Laws and Rules, lacks
`
`the capacity to sue.
`
`6
`
`6 of 9
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`FILED: BRONX COUNTY CLERK 03/29/2024 12:31 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 819204/2023E
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`RECEIVED NYSCEF: 03/29/2024
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`
`28.
`
`The answering Defendant aver that the plaintiffs intent to seek punitive damages
`
`under New York law, without bifurcating the trial and trying all punitive damages issues only, if
`
`and after liability on the merits has been found, would violate the defendant's due process rights
`
`guaranteed by the Fourteenth Amendment to the United State Constitution, as well as the due
`
`process provisions of the New York Constitution, and would be improper under the common law
`
`and public policies of the State of New York and under applicable court rules and statutes.
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`
`29.
`
`That in the event of any judgment or verdict on behalf of the plaintiff, the answering
`
`defendant, is entitled to a set-off, credit and/or release with respect to the amounts of any payments
`
`made to the plaintiff for medical and other expenses prior thereto and/or with respect to any
`
`settlement proceeds paid to the plaintiff from the circumstances herein, pursuant to Section 15-108
`
`of the General Obligations Law and any other pertinent statutes and case law regarding set-off and
`
`release.
`
`WHEREFORE, Defendant, RIVERDALE SNF LLC d/b/a SCHERVIER NURSING
`
`CARE CENTER, demands judgment dismissing the Verified Complaint herein, together with the
`
`costs and disbursements of this action.
`
`7
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`7 of 9
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`FILED: BRONX COUNTY CLERK 03/29/2024 12:31 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 819204/2023E
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`RECEIVED NYSCEF: 03/29/2024
`
`Dated: Garden City, New York
`March 29, 2024
`
`To the best of my knowledge, information and belief, formed after an inquiry reasonable under
`the circumstances, the presentation of this paper or the contentions herein are not frivolous, as
`that term is defined in Part 130 of the Court Rules.
`
`Yours, etc.,
`
`KAUFMAN BORGEEST & RYAN LLP
`
`By: Keith Kaplan, Esq.
`Attorneys for Defendant
`RIVERDALE SNF LLC d/b/a SCHERVIER
`NURSING CARE CENTER
`1205 Franklin Avenue, Suite 200
`Garden City, New York 11530
`(516) 248-6000
`
`TO: Via NYSCEF
`LAW FIRM OF D.F. TRUHOWSKY
`Attorneys for Plaintiff
`100 Park Avenue, 16th Floor
`New York, New York 10017
`(212) 880-6496
`
`8
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`8 of 9
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`FILED: BRONX COUNTY CLERK 03/29/2024 12:31 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 819204/2023E
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`RECEIVED NYSCEF: 03/29/2024
`
`VERIFICATION
`
`STATE OF NEW YORK
`
`COUNTY OF NASSAU
`
`)
`) ss.:
`)
`
`KEITH L. KAPLAN, being duly sworn, states:
`
`That he is a member of the law firm of KAUFMAN BORGEEST & RYAN LLP, attorneys
`
`for the Defendant RIVERDALE SNF LLC d/b/a SCHERVIER NURSING CARE CENTER
`
`in this action and that the foregoing VERIFIED ANSWER is true to his knowledge, except as to
`
`those matters therein stated upon information and belief, and as to those matters he believes them to
`
`be true; that the grounds of his belief as to all matters not stated upon his knowledge are
`
`correspondence and other writings furnished by the Defendant and other documentations maintained
`
`in the office of its attorneys; and that the reason this verification is not made by Defendant is that the
`
`Defendant maintains a corporation in a county other than the county where their attorneys have their
`
`law office.
`
`Dated: Garden City, New York
`March 29, 2024
`
`KEITH L. KAPLAN
`
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