FILED: KINGS COUNTY CLERK 04/05/2024 02:49 PM
`NYSCEF DOC. NO. 10
`
`INDEX NO. 502610/2024
`
`RECEIVED NYSCEF: 04/05/2024
`
`Plaintiff,
`
`-against-
`
`
`
`ATLANTIS OPERATING LLC d/b/a THE PHOENIX
`REHABILITATION & NURSING CENTER, DR.
`ABIOLA OLAWALE FAMILUSI, M.D., and
`“JOHN/JANE DOE(S) 1-20” being a fictitious
`pseudonym(s) for medical professional(s) whose
`identities are currently unknown)
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`HASINA MCBRIDE, as Administrator of the Estate of
`:
`LOUIS CRAIG,
`:
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`
`COUNSEL:
`
`
`
`
`
`
`
`Index No: 502610/2024
`
`
`VERIFIED ANSWER
`
`
`
`
`Defendants.
`
`Defendant, ATLANTIS OPERATING LLC d/b/a THE PHOENIX REHABILITATION &
`
`NURSING CENTER, by its attorneys, SHEELEY LLP, as and for its Answer to plaintiffs’
`
`Complaint states the following upon information and belief:
`
`FIRST:
`
`Denies sufficient knowledge and information sufficient to form a belief as
`
`to each allegation in paragraphs 1, 2, 5, 6, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 39, 40, 41,
`
`42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68,
`
`69, 77, 78, 79, 80, 81, 82, 83, 89, 90, 91, 112, 113, 114, 115, 116, 117, 138, 139, 140, 141, 142,
`
`143, 144, and 145 of the Complaint.
`
`SECOND: Denies in the form alleged the allegations in paragraphs 7, 8, 9, 10, 11, 12,
`
`13, 14, 15, 16, 17, 30, 31, 32, 33, 34, 35, 36, 37, 38, 54, 70, 71, 72, 73, 74, 75, 76, and 111 of the
`
`Verified Complaint except admits defendant, ATLANTIS OPERATING LLC d/b/a THE
`
`PHOENIX REHABILITATION & NURSING CENTER, lawfully operated a facility located at
`
`1 of 7
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`NYSCEF DOC. NO. 10
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`INDEX NO. 502610/2024
`
`RECEIVED NYSCEF: 04/05/2024
`
`Plaintiff,
`
`-against-
`
`
`
`ATLANTIS OPERATING LLC d/b/a THE PHOENIX
`REHABILITATION & NURSING CENTER, DR.
`ABIOLA OLAWALE FAMILUSI, M.D., and
`“JOHN/JANE DOE(S) 1-20” being a fictitious
`pseudonym(s) for medical professional(s) whose
`identities are currently unknown)
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`HASINA MCBRIDE, as Administrator of the Estate of
`:
`LOUIS CRAIG,
`:
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`
`COUNSEL:
`
`
`
`
`
`
`
`Index No: 502610/2024
`
`
`VERIFIED ANSWER
`
`
`
`
`Defendants.
`
`Defendant, ATLANTIS OPERATING LLC d/b/a THE PHOENIX REHABILITATION &
`
`NURSING CENTER, by its attorneys, SHEELEY LLP, as and for its Answer to plaintiffs’
`
`Complaint states the following upon information and belief:
`
`FIRST:
`
`Denies sufficient knowledge and information sufficient to form a belief as
`
`to each allegation in paragraphs 1, 2, 5, 6, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 39, 40, 41,
`
`42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68,
`
`69, 77, 78, 79, 80, 81, 82, 83, 89, 90, 91, 112, 113, 114, 115, 116, 117, 138, 139, 140, 141, 142,
`
`143, 144, and 145 of the Complaint.
`
`SECOND: Denies in the form alleged the allegations in paragraphs 7, 8, 9, 10, 11, 12,
`
`13, 14, 15, 16, 17, 30, 31, 32, 33, 34, 35, 36, 37, 38, 54, 70, 71, 72, 73, 74, 75, 76, and 111 of the
`
`Verified Complaint except admits defendant, ATLANTIS OPERATING LLC d/b/a THE
`
`PHOENIX REHABILITATION & NURSING CENTER, lawfully operated a facility located at
`
`1 of 7
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`
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`FILED: KINGS COUNTY CLERK 04/05/2024 02:49 PM
`NYSCEF DOC. NO. 10
`
`INDEX NO. 502610/2024
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`RECEIVED NYSCEF: 04/05/2024
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`140 Saint Edwards Street, Brooklyn, New York 11201 and through certain of its employees, agents
`
`and independent contractors provided timely and appropriate care and treatment to LOUIS CRAIG
`
`on those dates and times referenced in the medical records exchanged in this matter, and further
`
`refers all questions of law and fact to this Honorable Court.
`
`THIRD:
`
`Denies the allegations in paragraphs 3, 4, 84, 85, 86, 87, 88, 92, 93, 94, 95,
`
`96, 97, 98, 99, 100, 101, 102, 104, 105, 106, 107, 108, 109, 110, 118, 119, 120, 121, 122, 123,
`
`124, 125, 126, 128, 129, 130, 131, 132, 133, 134, 135, 136, 146, 148, 149, 150, 151, 152, 153,
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`154, 155, 156, 158, 159, 160, 162, and 163 of the Complaint.
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`FOURTH: As for the allegations in paragraphs 103, 111, 119, 127, 137, 147, 157, and
`
`161 of the Complaint defendant repeats and realleges each response by defendant made previously
`
`herein.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`FIFTH:
`
`That any of the injuries sustained by the plaintiff as alleged in the Verified
`
`Complaint were caused in whole or in part by the culpable conduct of the plaintiff and were not
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`caused or contributed to by the answering defendant, which either bars the claims completely or
`
`else diminishes the damages.
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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`SIXTH:
`
`The answering defendant acted in accordance with Public Health Law
`
`2805(d) and relies on all defenses set forth therein.
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
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`SEVENTH: The answering defendant reserves the right to claim the limitations of
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`liability as set forth in CPLR Article 16, for any recovery herein by the plaintiff for non-economic
`
`loss.
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`2 of 7
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`FILED: KINGS COUNTY CLERK 04/05/2024 02:49 PM
`NYSCEF DOC. NO. 10
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`INDEX NO. 502610/2024
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`RECEIVED NYSCEF: 04/05/2024
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`If plaintiff recovers a verdict or judgment for economic loss against the
`
`EIGHTH:
`
`answering defendant, pursuant to CPLR 4545, such verdict or judgment must be reduced by those
`
`amounts which have or will replace or indemnify plaintiff in whole or in part from any collateral
`
`source of payment.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`NINTH:
`
`If the plaintiff is entitled to recover damages from loss of earnings or
`
`impairment of earning ability as against this answering defendant, by reason of the matters alleged
`
`in the complaint, liability for which is hereby denied, then pursuant to CPLR 4546 the amount of
`
`damages recoverable against this defendant, if any, shall be reduced by the amount of federal, state
`
`and local income taxes by which the plaintiff would have been obligated to pay.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`TENTH:
`
`The answering defendant reserves the right to claim the benefits and
`
`limitations of liability pursuant to General Obligations Law 15-108
`
` AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`ELEVENTH: The causes of action set forth in plaintiff’s Verified Complaint are barred
`
`inasmuch as suit was not instituted within the applicable Statute(s) of Limitations, and as such, the
`
`Verified Complaint must be dismissed.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
` The plaintiff has failed to acquire jurisdiction over the answering
`TWELFTH:
`
`defendant, and as such, the Verified Complaint must be dismissed.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`THIRTEENTH:
`
`The complaint fails to assert a cause of action upon which relief can
`
`be granted, and as such, the Verified Complaint must be dismissed.
`
`3 of 7
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`FILED: KINGS COUNTY CLERK 04/05/2024 02:49 PM
`NYSCEF DOC. NO. 10
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`INDEX NO. 502610/2024
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`RECEIVED NYSCEF: 04/05/2024
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`FOURTEENTH:
`
`That the plaintiffs fail to assert or allege facts in his/her complaint
`
`or “Wherefore” clause sufficient to entitle plaintiffs to seek punitive damages against the
`
`answering defendant. That the imposition of punitive damages against defendant would violate the
`
`constitutions of the State of New York and The United States.
`
` AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`FIFTEENTH: The causes of action pleaded herein are invalid as this answering defendant
`
`exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient
`
`for which liability is asserted herein.
`
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`
`SIXTEENTH:
`
`That plaintiff’s right to recover damages, if any, is barred in whole
`
`or in part pursuant to the Patient Protections and Affordable Care Act, 26 U.S.C. Section 5000a.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`
`SEVENTEENTH: This action is barred pursuant to the Public Readiness and
`
`Emergency Preparedness Act for Medical Countermeasures Against Covid-19, 42 U.S.C.A., 85
`
`Fed. Reg. 15198, amended by 85 Fed. Reg. 21012.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`EIGHTEENTH:
`
`This action is barred pursuant to the Immunity provisions
`
`implemented by New York State Law as a result of the Covid-19 crisis.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`NINETEENTH:
`
`This action is barred pursuant to the New York Emergency Disaster
`
`Treatment Protection Act, Article 30-A, New York Public Health Law §3080-3082.
`
`4 of 7
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`
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`FILED: KINGS COUNTY CLERK 04/05/2024 02:49 PM
`NYSCEF DOC. NO. 10
`
`INDEX NO. 502610/2024
`
`RECEIVED NYSCEF: 04/05/2024
`
`WHEREFORE, ATLANTIS OPERATING
`
`LLC
`
`d/b/a
`
`THE
`
`PHOENIX
`
`REHABILITATION & NURSING CENTER, demands judgment dismissing the Verified
`
`Complaint, together with costs and disbursement of the within action.
`
`Dated: New York, New York
`
`April 5, 2024
`
`
`SHEELEY LLP
`By:
`
`
`DANIEL RIFKIN, ESQ.
`Attorneys for Defendant,
`ATLANTIS OPERATING LLC d/b/a THE
`PHOENIX REHABILITATION & NURSING
`CENTER
`100 Wall Street, 19th Floor
`New York, New York 10005
`(646) 823-1634
`
`
`
`ROTH & KHALIFF, LLP
`Attorneys for Plaintiffs
`14 Wall Street, Suite 1603
`New York, New York 10005
`(212) 608-3015
`
`GALLAGHER, WALKER, BIANCO & PLASTARAS, LLP
`Attorneys for Defendant
`DR. ABIOLA OLAWALE FAMILUSI, M.D.
`98 Willis Avenue
`Mineola, New York 11510
`(516) 248-2002
`
`
`
`
`
`
`
`
`
`To:
`
`
`
`
`
`
`
`
`
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`5 of 7
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`FILED: KINGS COUNTY CLERK 04/05/2024 02:49 PM
`NYSCEF DOC. NO. 10
`
`INDEX NO. 502610/2024
`
`RECEIVED NYSCEF: 04/05/2024
`
`ATTORNEY’S VERIFICATION
`
`
`ss:
`
`)
`)
`)
`
`
`STATE OF NEW YORK
`
`
`
`
`
`COUNTY OF NEW YORK
`
`
`Daniel Rifkin, Esq., being duly sworn, deposes and states:
`
`That he is a Partner in the firm of Sheeley LLP, attorneys representing ATLANTIS
`
`OPERATING LLC d/b/a THE PHOENIX REHABILITATION & NURSING CENTER.
`
`That he has read the attached Verified Answer and that the content contained therein is true
`to his own belief, except as to matters alleged upon information and belief, and as to those matters
`he believes them to be true to the best of his knowledge.
`
`That the deponent’s sources of information include a claims file containing statements,
`reports and records of investigation, investigators, parties and witnesses, with which this deponent
`is fully familiar.
`
`That this verification is made by this deponent because his client is not within the county
`where the deponent maintains his office.
`
`
`
` _____________________
`DANIEL RIFKIN, ESQ.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
`
`
`
`
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`Sworn to before me this
`5 day of April, 2024
`
`
`
`__________________________
`
`Yvette La Madrid
`Notary Public, State of New York
`No.: 01LA6382396
`Qualified in New York County
`Commission Expires 04-03-2027
`
`6 of 7
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`FILED: KINGS COUNTY CLERK 04/05/2024 02:49 PM
`NYSCEF DOC. NO. 10
`
`INDEX NO. 502610/2024
`
`RECEIVED NYSCEF: 04/05/2024
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`
`HASINA MCBRIDE, as Administrator of the Estate of
`LOUIS CRAIG,
`
`
`Plaintiff,
`
`Index No: 502610/2024
`
`
`
`
`
`
`
`-against-
`
`
`
`ATLANTIS OPERATING LLC d/b/a THE PHOENIX
`REHABILITATION & NURSING CENTER, DR. ABIOLA
`OLAWALE FAMILUSI, M.D., and “JOHN/JANE DOE(S) 1-
`20” being a fictitious pseudonym(s) for medical professional(s)
`whose identities are currently unknown)
`
`
`Defendants.
`
`
`
`VERIFIED ANSWER
`
`
`
`
`SHEELEY LLP
`Attorneys for Defendant
`ATLANTIS OPERATING LLC d/b/a THE PHOENIX
`REHABILITATION & NURSING CENTER
`Office and Post Office Address
`100 Wall Street, 19th Floor
`New York, New York, 10005
`Telephone (646) 650-5952
`
`
`TO: ALL PARTIES
`
`
`
`
`
`7 of 7
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`
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