FILED: KINGS COUNTY CLERK 03/25/2024 10:00 AM
`NYSCEF DOC. NO. 28
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`INDEX NO. 500608/2024
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`RECEIVED NYSCEF: 03/25/2024
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`INDEX NO.: 500608/2024
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`AMENDED
`VERIFIED ANSWER
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`______________________________________________
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`JANIS R. SMITH, as Executor of the Estate of
`SHELDON L. SMITH, deceased,
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`
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`Plaintiffs,
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`
`-against-
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`MAIMONIDES HOSPITAL, HAYM SOLOMON
`HOME FOR THE AGED LLC, HAYM SOLOMON
`HOME FOR THE AGED LLC d/b/a HAYM SALOMON
`HOME FOR NURSING & REHABILITATION, CNH
`OPERATING, LLC, CNH OPERATING, LLC d/b/a
`THE CHATEAU AT BROOKLYN REHABILITATION
`AND NURSING CENTER, THE CHATEAU AT
`BROOKLYN REHABILITATION AND NURSING
`CENTER,
`
`
`Defendants.
`______________________________________________
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`
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`Defendant, MAIMONIDES MEDICAL CENTER
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`i/s/h/a MAIMONIDES
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`HOSPITAL, by its attorneys, McALOON & FRIEDMAN, P.C., as and for its Amended
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`Verified Answer to the Verified Complaint of the plaintiffs, respectfully alleges upon information
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`and belief as follows:
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`ANSWERING THE FIRST CAUSE OF ACTION
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`1.
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`Denies any knowledge or information sufficient to form a belief as to each
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`and every allegation set forth in Paragraphs 1, 2, 3, 4, 6, 7 and 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,
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`18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43,
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`44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69,
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`70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95,
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`96, 97, 98, 99, 100, 101, 102, 103, 104, 105, of plaintiffs’ Verified Complaint.
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`FILED: KINGS COUNTY CLERK 03/25/2024 10:00 AM
`NYSCEF DOC. NO. 28
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`INDEX NO. 500608/2024
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`RECEIVED NYSCEF: 03/25/2024
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`2.
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`Denies each and every allegation set forth in Paragraph 5 of plaintiffs’
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`Verified Complaint.
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`ANSWERING THE SECOND CAUSE OF ACTION
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`3.
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`The answering defendant repeats and reiterates each and every denial or
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`denial of knowledge or information sufficient to form a belief as to each of the allegations of the
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`Complaint repeated and realleged by plaintiffs in Paragraph 106 of the Verified Complaint.
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`4.
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`Denies any knowledge or information sufficient to form a belief as to each
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`and every allegation set forth in Paragraphs 107, 108, 109, 110, 126, 111 and 112 of plaintiffs’
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`Verified Complaint.
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`ANSWERING THE THIRD CAUSE OF ACTION
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`5.
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`The answering defendant repeats and reiterates each and every denial or
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`denial of knowledge or information sufficient to form a belief as to each of the allegations of the
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`Complaint repeated and realleged by plaintiffs in Paragraph 113 of the Verified Complaint.
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`6.
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`Denies each and every allegation set forth in Paragraphs 114, 115, 116,
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`117, 118, 119 and 120 of plaintiffs’ Verified Complaint.
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`ANSWERING THE FOURTH CAUSE OF ACTION
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`7.
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`The answering defendant repeats and reiterates each and every denial or
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`denial of knowledge or information sufficient to form a belief as to each of the allegations of the
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`Complaint repeated and realleged by plaintiffs in Paragraph 121 of the Verified Complaint.
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`8.
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`Denies each and every allegation set forth in Paragraph 122 of plaintiffs’
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`Verified Complaint.
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`2 of 10
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`FILED: KINGS COUNTY CLERK 03/25/2024 10:00 AM
`NYSCEF DOC. NO. 28
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`INDEX NO. 500608/2024
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`RECEIVED NYSCEF: 03/25/2024
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`9.
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`Denies each and every allegation set forth in Paragraph 123 of plaintiffs’
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`Verified Complaint except admits that defendant, MAIMONIDES MEDICAL CENTER, is/was
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`a licensed New York State hospital corporation.
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`10.
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`Denies each and every allegation set forth in Paragraphs 126 and 127 of
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`plaintiffs’ Verified Complaint.
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`11.
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`Denies each and every allegation set forth in Paragraph 130 of plaintiffs’
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`Verified Complaint and refers the question of “control” to the court.
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`12.
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`Denies in the form alleged each and every allegation set forth in
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`Paragraphs 131 and 132 of plaintiffs’ Verified Complaint.
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`13.
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`Denies each and every allegation set forth in Paragraph 133 of plaintiffs’
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`Verified Complaint except admits that defendant, MAIMONIDES MEDICAL CENTER, is/was
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`a licensed New York State hospital corporation.
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`14.
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`Admits each and every allegation set forth in Paragraph 134 of plaintiffs’
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`Verified Complaint only as to the specific dates listed and denies as to all other dates “prior
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`and/or subsequent thereto.”
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`15.
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`Denies each and every allegation set forth in Paragraphs 135, 136 and 137
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`of plaintiffs’ Verified Complaint except admits that patient, SHELDON L. SMITH, was treated at
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`defendant, MAIMONIDES MEDICAL CENTER, by qualified and competent healthcare
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`professionals who met the standards of care.
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`16.
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`Denies each and every allegation set forth in Paragraphs 138, 139, 140,
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`141 and 142 of plaintiffs’ Verified Complaint.
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`3 of 10
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`FILED: KINGS COUNTY CLERK 03/25/2024 10:00 AM
`NYSCEF DOC. NO. 28
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`INDEX NO. 500608/2024
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`RECEIVED NYSCEF: 03/25/2024
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`ANSWERING THE FIFTH CAUSE OF ACTION
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`17.
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`The answering defendant repeats and reiterates each and every denial or
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`denial of knowledge or information sufficient to form a belief as to each of the allegations of the
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`Complaint repeated and realleged by plaintiffs in Paragraph 143 of the Verified Complaint.
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`18.
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`Denies each and every allegation set forth in Paragraphs 144, 145, 146,
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`147, 148 and 149 of plaintiffs’ Verified Complaint.
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`AS AND FOR A FIRST, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`19.
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`The action is time-barred by the applicable statutes of limitations.
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`AS AND FOR A SECOND, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`20.
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`The defendant’s liability, if any, is limited pursuant to CPLR §1600, et seq.
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`AS AND FOR A THIRD, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`21.
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`Defendant, MAIMONIDES MEDICAL CENTER, does not maintain
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`insurance for gross negligence.
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`AS AND FOR A FOURTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`22.
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`Plaintiffs fail to assert a valid cause of action for damages for gross
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`negligence.
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`AS AND FOR A FIFTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`23.
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`Any verdict or judgment should be reduced by the amounts of past or
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`future collateral source reimbursements of alleged special damage pursuant to CPLR §4545(c).
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`4 of 10
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`FILED: KINGS COUNTY CLERK 03/25/2024 10:00 AM
`NYSCEF DOC. NO. 28
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`INDEX NO. 500608/2024
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`RECEIVED NYSCEF: 03/25/2024
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`AS AND FOR A SIXTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`24.
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`Plaintiffs’ Fourth Cause of Action, if any, is barred pursuant to §2805-d of
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`the Public Health Law to the extent that plaintiffs are or may be claiming lack of informed
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`consent against defendant, MAIMONIDES MEDICAL CENTER.
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`AS AND FOR A SEVENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`25.
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`Plaintiffs failed to mitigate damages.
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`AS AND FOR A EIGHTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`26.
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`If any one of the parties or non-parties settles with plaintiffs, defendant is
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`entitled to an offset under G.O.L. §15-108.
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`AS AND FOR A NINTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`27.
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`The injuries and damages of the plaintiff, for which these causes of action
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`have been instituted, were caused wholly or in part through the culpable conduct and
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`contributory negligence on the part of plaintiff and therefore the amount of damages, if any, shall
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`be diminished in the proportion which said conduct attributable to plaintiff bears to the
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`defendant’s conduct, if any, which caused the damages.
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`AS AND FOR AN TENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`28.
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`The plaintiff’s right to recover damages is barred in whole or in part
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`pursuant to the Patient Protection and Affordable Care Act 26 USC Section 5000A.
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`FILED: KINGS COUNTY CLERK 03/25/2024 10:00 AM
`NYSCEF DOC. NO. 28
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`INDEX NO. 500608/2024
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`RECEIVED NYSCEF: 03/25/2024
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`AS AND FOR A ELEVENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`29.
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`If there is any impact or effect from COVID-19, then these claims must be
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`dismissed on the basis of the absolute and qualified immunities granted by Governor Cuomo’s
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`March 7, 2020 and subsequent Executive Orders (“EO”), Article 30-D, §3082(2) of the Public
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`Health Law [now known as the Emergency or Disaster Treatment Protection Act (“EDTPA”)]
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`and Good Samaritan doctrine and laws.
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`AS AND FOR A TWELFTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`30.
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`If there is any impact or effect from COVID-19, then these claims must be
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`dismissed in whole or in part pursuant to the EDTPA, which affords absolute and/or qualified
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`immunity from the allegations in the claims, including any claims that allegedly pre-date March
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`7, 2020, as such claims are covered under the EDTPA and amount to allegations of staffing or
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`resource shortage which is subject to an absolute immunity.
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`AS AND FOR A THIRTEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`31.
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`If there is any impact or effect from COVID-19, then these claims must be
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`dismissed due to lack of jurisdiction, failure to comply with conditions precedent and the
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`immunities granted by the PREP Act (42 U.S.C. §247d-6d).
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`AS AND FOR A FOURTHEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`32.
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`If there is any impact or effect from COVID-19, then the PREP Act
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`provides for the exclusive remedy for these claims, which are subject to a “no fault” fund. This
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`Court lacks jurisdiction over this matter.
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`6 of 10
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`FILED: KINGS COUNTY CLERK 03/25/2024 10:00 AM
`NYSCEF DOC. NO. 28
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`INDEX NO. 500608/2024
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`RECEIVED NYSCEF: 03/25/2024
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`AS AND FOR A FIFTEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`33.
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`If there is any impact or effect from COVID-19, then the defendant acted
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`at all times within the proper standards of care generally, as well as the standards of care in place
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`in the locality in question at the time of the COVID-19 emergency.
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`AS AND FOR A SIXTEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`34.
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`If there is any impact or effect from COVID-19, then these claims are
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`barred in whole or in part by the error in judgment doctrine and/or in the unprecedented and
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`extenuating circumstances of COVID-19, which render the defendant’s judgment proper and
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`within the standards of care concerning accepted medical practice generally and/or in place at the
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`locality where the alleged acts or omissions occurred during the COVID-19 emergency.
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`AS AND FOR AN SEVENTEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`35.
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`If there is any impact or effect from COVID-19, then the defendant
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`followed Executive Orders, Federal mandates, as well as the guidance issued by the NY DOH,
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`the CDC, the W.H.O., the federal COVID-19 task force and other state and federal agencies.
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`AS AND FOR AN EIGHTEENTH, SEPARATE,
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`36.
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`Plaintiffs’ claims regarding COVID-19, if any, are not subject to any
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`community standard, due to the novel, evolving nature of COVID-19 at all relevant times, and
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`the defendant was at all times practicing in conformity with all recommendations, guidelines and
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`protocols.
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`7 of 10
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`FILED: KINGS COUNTY CLERK 03/25/2024 10:00 AM
`NYSCEF DOC. NO. 28
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`INDEX NO. 500608/2024
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`RECEIVED NYSCEF: 03/25/2024
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`AS AND FOR A NINETEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`37.
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`Defendant acted at all times within the proper standards of care generally,
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`as well as the standards of care in place in the locality in question at the time of the COVID-19
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`emergency.
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`AS AND FOR A TWENTIETH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`38.
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`The defendant followed Executive Orders, Federal mandates, as well as
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`the guidance issued by the NY DOH, the CDC, the W.H.O., the federal COVID-19 task force
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`and other state and federal agencies.
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`AS AND FOR A TWENTIETH FIRST, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`39.
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`The defendant is immune from civil liability pursuant to Executive Order
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`202.10 and its progeny pursuant to PHL §3080.
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`AS AND FOR A TWENTIETH SECOND, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`40.
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`Plaintiffs lack the authority and capacity to have commenced and to
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`prosecute this action.
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`WHEREFORE, the answering defendant demands judgment dismissing plaintiffs’
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`Verified Complaint, together with the costs and disbursements of this action.
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`McALOON & FRIEDMAN, P.C.
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`By:_______________________________
`JULIANA CARAN
`Attorneys for Defendant
`MAIMONIDES MEDICAL CENTER
`i/s/h/a MAIMONIDES HOSPITAL
`One State Street Plaza, 23rd Floor
`New York, NY 10004-1561
`Tel. (212) 732-8700
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`8 of 10
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`FILED: KINGS COUNTY CLERK 03/25/2024 10:00 AM
`NYSCEF DOC. NO. 28
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`INDEX NO. 500608/2024
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`RECEIVED NYSCEF: 03/25/2024
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`ATTORNEY’S VERIFICATION
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`
`
`)
`STATE OF NEW YORK
` : SS.:
`COUNTY OF NEW YORK )
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`I, the undersigned, an attorney admitted to practice in the Courts of New York State, state
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`that I am a member of the firm of McALOON & FRIEDMAN, P.C., attorneys of record for the
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`defendant, MAIMONIDES MEDICAL CENTER, in the within action; I have read the
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`foregoing ANSWER and know the contents thereof; the same is true to my own knowledge,
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`except as to the matters therein alleged to be on information and belief, and as to those matters I
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`believe it to be true. The reason this verification is made by me and not by defendant is because
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`defendant resides outside the county where deponent maintains her office.
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`The grounds of my belief as to all matters not stated upon my own knowledge are as
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`follows: all records, reports and documents maintained by deponent in her file.
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`I affirm that the foregoing statements are true, under the penalties of perjury.
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`Dated: New York, New York
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`March 25, 2024
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`____________________________________
` JULIANA CARAN, ESQ.
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`9 of 10
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`FILED: KINGS COUNTY CLERK 03/25/2024 10:00 AM
`NYSCEF DOC. NO. 28
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`INDEX NO. 500608/2024
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`RECEIVED NYSCEF: 03/25/2024
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`____________________________________________________________________________________________
` Index No.: 500608
`Year 2024
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`____________________________________________________________________________________________ _
`JANIS R. SMITH, as Executor of the Estate of SHELDON L. SMITH, deceased,
`
`
`-against-
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`Plaintiffs,
`
`
`MAIMONIDES HOSPITAL, HAYM SOLOMON HOME FOR THE AGED LLC, HAYM SOLOMON HOME
`FOR THE AGED LLC d/b/a HAYM SALOMON HOME FOR NURSING & REHABILITATION, CNH
`OPERATING, LLC, CNH OPERATING, LLC d/b/a THE CHATEAU AT BROOKLYN REHABILITATION AND
`NURSING CENTER, THE CHATEAU AT BROOKLYN REHABILITATION AND NURSING CENTER,
`
`
`Defendants.
`___________________________________________________________________________________________ __
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`AMENDED VERIFIED ANSWER
`_________________________________________________________________________________________ ____
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`
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`Attorneys for Defendant
`MAIMONIDES MEDICAL CENTER i/s/h/a MAIMONIDES HOSPITAL
`Office and Post Office Address, Telephone
`One State Street Plaza, 23rd Floor
`New York, New York 10004-1561
`(212) 732-8700 (212) 227-2903
`___________________________________________________________________________________________ __
`Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon
`information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous.
`Dated: March 25, 2024
`Signature:
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`
`
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`Print Signer’s Name: JULIANA CARAN
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`___________________________________________________________________________________________ __
`To
`Attorney(s) for
`____________________________________________________________________________________________ _
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`
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`Service of a copy of the within
`Attorney(s) for
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`Dated,
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`___________________________________________________________________________________________ __
`Sir: - Please take notice
`[ ] Notice of Entry
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`is hereby admitted.
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`duly entered in the office of the clerk of the
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`that the within is a (certified) true copy of a
`within named court on 20
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`that an order
`to the HON.
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`
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`of which the within is a true copy will be presented for settlement
` one of the judges of the within named court,
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`at
`on 20 at M.
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`
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`Yours, etc.,
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` [
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` ] Notice of Settlement
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`
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`Dated,
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`
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`Attorneys for Defendant
`MAIMONIDES MEDICAL CETER
`Office and Post Office Address, Telephone
`One State Street Plaza, 23rd Floor
`New York, New York 10004-1561
`Tel. (212) 732-8700
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`10 of 10
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