FILED: KINGS COUNTY CLERK 04/02/2024 12:15 PM
`NYSCEF DOC. NO. 8
`
`INDEX NO. 503877/2024
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`RECEIVED NYSCEF: 04/02/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`-----------------------------------------------------------------------x
`HASSAN ENNEJJARI and ASMAA RAFAI,
`
`Plaintiffs,
`
`Index No.: 503877/2024
`
`VERIFIED ANSWER
`
`-against-
`
`CARL JEAN, D.P.M., OLATUNDE OSOFISAN, D.P.M.
`THE FOOT SPECIALTY PRACTICE, P.C., and
`THE BROOKLYN HOSPITAL CENTER,
`
`Defendants.
`-----------------------------------------------------------------------x
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`The defendants, CARL JEAN, D.P.M. and THE FOOT SPECIALTY PRACTICE, P.C., by
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`their attorneys, BARKER PATTERSON NICHOLS, LLP, answering the Verified Complaint of the
`
`plaintiffs, upon information and belief, respectfully shows to this Court and alleges:
`
`1.
`
`2.
`
`Deny in the form alleged in paragraph “1”.
`
`Deny each and every allegation in paragraphs “2”, “13”, “15”, “16” and “17” in the
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`form alleged except admit at all relevant times CARL JEAN, D.P.M. was duly licensed to practice
`
`podiatry in the State of New York and at all times rendered care in accordance with the standard
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`of care that existed at the time and respectfully refer all questions of law to this Honorable Court
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`and all questions of fact to the trier of fact.
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`3.
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`Deny having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraph “3”, “7”, “8” , “9”and “10” of the Verified Complaint.
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`4.
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`Deny each and every allegation in paragraph “4” in the form alleged except admit
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`at all relevant times hereinafter mentioned defendant THE FOOT SPECIALTY PRACTICE, P.C.
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`was and still a professional corporation duly organized and existing under and by virtue laws of
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`NYSCEF DOC. NO. 8
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`INDEX NO. 503877/2024
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`RECEIVED NYSCEF: 04/02/2024
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`-----------------------------------------------------------------------x
`HASSAN ENNEJJARI and ASMAA RAFAI,
`
`Plaintiffs,
`
`Index No.: 503877/2024
`
`VERIFIED ANSWER
`
`-against-
`
`CARL JEAN, D.P.M., OLATUNDE OSOFISAN, D.P.M.
`THE FOOT SPECIALTY PRACTICE, P.C., and
`THE BROOKLYN HOSPITAL CENTER,
`
`Defendants.
`-----------------------------------------------------------------------x
`
`The defendants, CARL JEAN, D.P.M. and THE FOOT SPECIALTY PRACTICE, P.C., by
`
`their attorneys, BARKER PATTERSON NICHOLS, LLP, answering the Verified Complaint of the
`
`plaintiffs, upon information and belief, respectfully shows to this Court and alleges:
`
`1.
`
`2.
`
`Deny in the form alleged in paragraph “1”.
`
`Deny each and every allegation in paragraphs “2”, “13”, “15”, “16” and “17” in the
`
`form alleged except admit at all relevant times CARL JEAN, D.P.M. was duly licensed to practice
`
`podiatry in the State of New York and at all times rendered care in accordance with the standard
`
`of care that existed at the time and respectfully refer all questions of law to this Honorable Court
`
`and all questions of fact to the trier of fact.
`
`3.
`
`Deny having knowledge or information sufficient to form a belief as to the
`
`allegations contained within paragraph “3”, “7”, “8” , “9”and “10” of the Verified Complaint.
`
`4.
`
`Deny each and every allegation in paragraph “4” in the form alleged except admit
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`at all relevant times hereinafter mentioned defendant THE FOOT SPECIALTY PRACTICE, P.C.
`
`was and still a professional corporation duly organized and existing under and by virtue laws of
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`1 of 9
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`FILED: KINGS COUNTY CLERK 04/02/2024 12:15 PM
`NYSCEF DOC. NO. 8
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`INDEX NO. 503877/2024
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`RECEIVED NYSCEF: 04/02/2024
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`the State of New York and respectfully refer all questions of law to this Honorable court and all
`
`questions of fact to the trier of fact.
`
`5.
`
`Deny each and every allegation in paragraph “5” and “6” in the form alleged except
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`admit at all relevant time CARL JEAN, D.P.M. maintained an office at 903 Utica Avenue,
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`Brooklyn, New York, as well as other office locations, and at all times hereinafter rendered care at
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`903 Utica Avenue, Brooklyn, New York, to the plaintiff, in accordance with the standard of care
`
`that existed at the time and respectfully refer all questions of law to this Honorable Court and all
`
`questions of fact to the trier of fact.
`
`6.
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`Deny each and every allegation contained in paragraphs “11”, “12” and “14” of
`
`the Verified Complaint.
`
`ANSWERING THE FIRST CAUSE OF ACTION:
`
`7.
`
`Deny each and every allegation contained in paragraphs “18”, “19” and “20” of the
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`Verified Complaint.
`
`ANSWERING THE SECOND CAUSE OF ACTION:
`
`8.
`
`In response to paragraph “21”, defendants repeat and reallege each admission or
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`denial made herein with the same force and effect herein as to paragraphs “1” through “20” as
`
`though same were more fully set forth herein at length.
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`9.
`
`Deny each and every allegation contained in paragraphs “22”, “23”, “24”, “25” and
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`“26” of the Verified Complaint.
`
`ANSWERING THE THIRD CAUSE OF ACTION:
`
`10.
`
`In response to paragraph “27”, defendants repeat and reallege each admission or
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`denial made herein with the same force and effect herein as to paragraphs “1” through “26” as
`
`though same were more fully set forth herein at length.
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`2
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`2 of 9
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`FILED: KINGS COUNTY CLERK 04/02/2024 12:15 PM
`NYSCEF DOC. NO. 8
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`INDEX NO. 503877/2024
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`RECEIVED NYSCEF: 04/02/2024
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`11.
`
`Deny having knowledge or information sufficient to form a belief as to the
`
`allegations contained in paragraph “28” of the Verified Complaint.
`
`12.
`
`Deny each and every allegation contained in paragraphs “29” and “30” of the
`
`Verified Complaint.
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`13.
`
`Any paragraph not answered is deemed denied.
`
`AS AND FOR A FIRST DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
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`14.
`
`In the event plaintiff recovers a verdict or judgment against defendants, such verdict
`
`or judgment must be reduced pursuant to §4545 of the CPLR 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.
`
`AS AND FOR A SECOND DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`15.
`
`If plaintiff is entitled to recover damages for loss of earnings or impairment of
`
`earning ability as against defendants CARL JEAN, D.P.M. and THE FOOT SPECIALTY
`
`PRACTICE, P.C. by reason of the matters alleged in the Verified Complaint, liability for which is
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`hereby denied, then pursuant to CPLR §4546 the amount of damages recoverable against said
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`defendants, if any, shall be reduced by the amount of federal, state and local income taxes which
`
`the plaintiff would have been obligated by law to pay.
`
`AS AND FOR A THIRD DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`16.
`
`That the statute of limitations set forth in CPLR 214(A) bars any claim with regard
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`to the professional services rendered more than two and one-half (2½) years prior to the
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`commencement of the within action.
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`3
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`3 of 9
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`FILED: KINGS COUNTY CLERK 04/02/2024 12:15 PM
`NYSCEF DOC. NO. 8
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`INDEX NO. 503877/2024
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`RECEIVED NYSCEF: 04/02/2024
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`AS AND FOR A FOURTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`17.
`
`That the defendants acted in accordance with the appropriate provisions of Section
`
`2805-d of the Public Health Law and relies on the defenses set out therein.
`
`AS AND FOR A FIFTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`18.
`
`The defendants assert the defense of set-off to reduce the plaintiff’s claims under
`
`§15-108 of the General Obligations Law.
`
`AS AND FOR A SIXTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`19.
`
`That the damages of the plaintiff were caused in whole or in part by the culpable
`
`conduct of the plaintiff which either bars the claims completely or else diminishes the damages by
`
`the proportion that such culpable conduct of the plaintiff bears to the total culpable conduct causing
`
`the damages.
`
`AS AND FOR A SEVENTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`20.
`
`That the answering defendants reserve the right to claim the limitations of liability
`
`pursuant to Article 16 of the CPLR, for any recovery herein by the plaintiff for non-economic
`
`loss.
`
`AS AND FOR AN EIGHTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`21.
`
`The defendants will offer proof regarding the Affordable Care Act including the
`
`cost of premiums and out-of-pocket limits that were made available to plaintiff under the
`
`Affordable Care Act, and will offer proof of the medical costs which plaintiff will not incur under
`
`the Affordable Care Act.
`
`4
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`4 of 9
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`FILED: KINGS COUNTY CLERK 04/02/2024 12:15 PM
`NYSCEF DOC. NO. 8
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`INDEX NO. 503877/2024
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`RECEIVED NYSCEF: 04/02/2024
`
`AS AND FOR A NINTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`22.
`
`Plaintiff failed to mitigate, diminish or otherwise act to lessen or reduce the injuries
`
`and damages alleged in the Complaint.
`
`AS AND FOR A TENTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`23.
`
`The complaint fails to state a valid cause of action upon which relief can be granted
`
`to the plaintiff as and against the defendants.
`
`AS AND FOR AN ELEVENTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`24.
`
`These claims must be dismissed on the basis of the absolute and qualified
`
`immunities granted by Governor Cuomo’s March 7, 2020 and subsequent Executive Orders
`
`(“EO”), Article 30-D, §3082(2) of the Public Health Law [now known as the Emergency or
`
`Disaster Treatment Protection Act (“EDTPA”)] and Good Samaritan doctrine and laws.
`
`AS AND FOR A TWELFTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`25.
`
`These claims must be dismissed in whole or in part pursuant to the EDTPA, which
`
`affords absolute and/or qualified immunity from the allegations in the claims, including any claims
`
`that allegedly pre-date March 7, 2020, as such claims are covered under the EDTPA and amount
`
`to allegations of staffing or resource shortage which is subject to an absolute immunity.
`
`AS AND FOR A THIRTEENTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`26.
`
`Defendants acted at all times within the proper standards of care generally, as well
`
`as the standards of care in place in the locality in question at the time of the COVID-19 emergency.
`
`5
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`5 of 9
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`FILED: KINGS COUNTY CLERK 04/02/2024 12:15 PM
`NYSCEF DOC. NO. 8
`
`INDEX NO. 503877/2024
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`RECEIVED NYSCEF: 04/02/2024
`
`AS AND FOR A FOURTEENTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`27.
`
`These claims are barred in whole or in part by the error in judgment doctrine and/
`
`or the unprecedented and extenuating circumstances of COVID-19, which render the defendants’
`
`judgment proper and within the standards of care concerning accepted medical practice generally
`
`and/ or in place at the locality where the alleged acts or omissions occurred during the COVID-19
`
`emergency.
`
`AS AND FOR A FIFTEENTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`28.
`
`The defendants followed Executive Orders, Federal mandates, as well as the
`
`guidance issued by the NY DOH, the CDC, the W.H.O., the federal COVID-19 task force and
`
`other state and federal agencies.
`
`AS AND FOR A SIXTEENTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`29.
`
`That plaintiff’s claim regarding COVID-19 are not subject to any community
`
`standard, due to the novel, evolving nature of COVID-19 at all relevant times, and the defendants
`
`were all times were practicing in conformity with all recommendations, guidelines and protocols.
`
`AS AND FOR A SEVENTEENTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`30.
`
`Defendants avail itself of the doctrine of danger invites rescue. Defendants, its
`
`employees and staff, put themselves at risk for patient care despite risks associated with COVID-
`
`19, supply of certain countermeasures and person protection equipment.
`
`6
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`6 of 9
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`FILED: KINGS COUNTY CLERK 04/02/2024 12:15 PM
`NYSCEF DOC. NO. 8
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`INDEX NO. 503877/2024
`
`RECEIVED NYSCEF: 04/02/2024
`
`AS AND FOR AN EIGHTEENTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`31.
`
`Plaintiff’s Complaint fails to state a claim upon which relief may be granted for the
`
`total lack of any scientific or medical evidence linking the transmittal method of COVID-19 to the
`
`presence or absence of any preventative measures such that the alleged negligence and alleged
`
`injuries sustained were preventable by defendants.
`
`AS AND FOR A NINETEENTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`32.
`
`Plaintiff’s claims are barred because any alleged conduct on the part of the
`
`defendants were made in good faith and as part of defendants’ efforts to comply with its obligations,
`
`if any, under the law in preventing the spread of COVID-19.
`
`AS AND FOR A TWENTY-FIRST DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`33.
`
`Plaintiff failed to state a claim upon which relief can be granted for gross
`
`negligence, willful, wanton, malicious, reckless, and/or intentional conduct, and those claims
`
`should therefore be dismissed.
`
`AS AND FOR A TWENTY-SECOND DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`34.
`
`These claims must be dismissed due to lack of jurisdiction, failure to comply with
`
`conditions precedent and the immunities granted by the PREP Act (42 U.S.C. §247d-6d).
`
`AS AND FOR A TWENTY-THIRD DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`35.
`
`The PREP Act provides for the exclusive remedy for these claims, which are subject
`
`to a federal administrative fund. This Court thus lacks subject matter jurisdiction over this matter.
`
`7
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`FILED: KINGS COUNTY CLERK 04/02/2024 12:15 PM
`NYSCEF DOC. NO. 8
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`INDEX NO. 503877/2024
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`RECEIVED NYSCEF: 04/02/2024
`
`AS AND FOR A TWENTY-FOURTH DEFENSE,
`THE ANSWERING DEFENDANTS ALLEGE UON INFORMATION AND BELIEF:
`
`36.
`
`The plaintiff has failed to properly serve defendants and failed to obtain personal
`
`jurisdiction.
`
`WHEREFORE, the defendants, CARL JEAN, D.P.M. and THE FOOT SPECIALTY
`
`PRACTICE, P.C., demands judgment dismissing the plaintiff’s complaint with the costs and
`
`disbursements of this action.
`
`Dated: New York, New York
`April 2, 2024
`
`Yours, etc.,
`
`BARKER PATTERSON NICHOLS, LLP
`
`By:
`
`S usan A . V ar i
`
`Susan A. Vari, Esq.
`Attorneys for Defendants
` CARL JEAN, D.P.M. and THE FOOT
` SPECIALTY PRACTICE, P.C.
`420 Lexington Avenue, Suite 219
`New York, New York 10170
`929-955-4500
`BPN File No.: 0385-004
`
`TO: ZUCKER & REGEV, P.C.
`Attorneys for Plaintiffs
`186 Joralemon Street, Suite 1010
`Brooklyn, New York 11201
`(718) 624-1211
`
`8
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`FILED: KINGS COUNTY CLERK 04/02/2024 12:15 PM
`NYSCEF DOC. NO. 8
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`INDEX NO. 503877/2024
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`RECEIVED NYSCEF: 04/02/2024
`
`ATTORNEY'S VERIFICATION
`
`) )
`
` ss:
`)
`
`STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`SUSAN A. VARI, an attorney duly admitted and licensed to practice in the courts of this
`
`State affirms the following pursuant to CPLR §2106:
`
`I am the attorney for the defendants, CARL JEAN, D.P.M. and THE FOOT SPECIALTY
`
`PRACTICE, P.C., herein; and I have read the foregoing Verified Answer and know the contents
`
`thereof; that the same is true to my own knowledge except as to the matters therein stated to be
`
`alleged upon information and belief, and that as to those matters, I believe them to be true.
`
`That the reason this verification is made by your affirmant and not by the defendants
`
`personally is, that the defendants are not within the county where your affirmant has an office.
`
`That the sources of your affirmant's information and the grounds of his/her belief as to
`
`the matters so alleged herein are investigations had by the defendants, his/her agents, servants
`
`and representatives into the subject matter hereof and correspondence relating thereto, reports of
`
`which investigations and copies of which correspondence are in the possession of your affirmant.
`
`Dated: New York, New York
`April 2, 2024
`
`S usan A . V ar i
`
`SUSAN A. VARI, ESQ.
`
`9
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`9 of 9
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