FILED: KINGS COUNTY CLERK 03/27/2024 10:56 AM
`NYSCEF DOC. NO. 16
`
`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`1 of 8
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`x Index No. 504550/2024
`STACEY THOMAS and MONIQUE CUNIN, as CO-
`ADMINISTRATORS of the ESTATE of DENZIL
`THOMAS, DECEASED,
`
`Plaintiffs,
`
`:
`
`VERIFIED ANSWER
`
`
`
`-against-
`
`NEW YORK CITY HEALTH AND HOSPITALS:
`CORPORATION/KINGS
`COUNTY
`HOSPITAL:
`CENTER,
`OFER
`AZOULAY,
`M.D.,
`YURIY:
`YUSUPOV, M.D., LEO BOUDOURAKIS, M.D., and:
`KELSEY ENSOR, M.D.,
`:
`
`:
`Defendants.
`x
`
`PLEASE TAKE NOTICE that Defendant, YURIY YUSUPOV, M.D., D.D.S. s/h/a
`
`YURIY YUSUPOV, M.D. by and through his attorneys, FURMAN KORNFELD & BRENNAN
`
`LLP, hereby responds to the plaintiffs’ Verified Complaint as follows:
`
`(GENERAL AVERMENTS)
`
`
`
`1.
`
`Denies knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained in paragraphs “1”, “2”, “3”, “4”, “5”, “6”, “7”, “8, “11? “12”, “13”, “14”,
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`“157, “16”, “19”, “20”, “21”, “22”, “23”, “24”, “30”, “31”, “32”, “33”, “34”, “35” and “36” of
`
`the Verified Complaint.
`
`2.
`
`Denies each and every allegation contained in paragraphs “9” and “26” of the
`
`Verified Complaint except admits that defendant YURIY YUSUPOV, M.D., D.D.S. s/h/a
`
`YURIY YUSUPOV, M.D. was and is a physician and dentist duly licensed to practice medicine
`
`and dentistry in the state of New York and was employed by New York City Health and
`
`Hospitals Corporation pursuant to section 50-k of the General Municipal Law at the time of the
`
`alleged incident for care and treatment at New York City Health and Hospitals Corporation
`
`
`NYSCEF DOC. NO. 16
`
`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`1 of 8
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`
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`x Index No. 504550/2024
`STACEY THOMAS and MONIQUE CUNIN, as CO-
`ADMINISTRATORS of the ESTATE of DENZIL
`THOMAS, DECEASED,
`
`Plaintiffs,
`
`:
`
`VERIFIED ANSWER
`
`
`
`-against-
`
`NEW YORK CITY HEALTH AND HOSPITALS:
`CORPORATION/KINGS
`COUNTY
`HOSPITAL:
`CENTER,
`OFER
`AZOULAY,
`M.D.,
`YURIY:
`YUSUPOV, M.D., LEO BOUDOURAKIS, M.D., and:
`KELSEY ENSOR, M.D.,
`:
`
`:
`Defendants.
`x
`
`PLEASE TAKE NOTICE that Defendant, YURIY YUSUPOV, M.D., D.D.S. s/h/a
`
`YURIY YUSUPOV, M.D. by and through his attorneys, FURMAN KORNFELD & BRENNAN
`
`LLP, hereby responds to the plaintiffs’ Verified Complaint as follows:
`
`(GENERAL AVERMENTS)
`
`
`
`1.
`
`Denies knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained in paragraphs “1”, “2”, “3”, “4”, “5”, “6”, “7”, “8, “11? “12”, “13”, “14”,
`
`“157, “16”, “19”, “20”, “21”, “22”, “23”, “24”, “30”, “31”, “32”, “33”, “34”, “35” and “36” of
`
`the Verified Complaint.
`
`2.
`
`Denies each and every allegation contained in paragraphs “9” and “26” of the
`
`Verified Complaint except admits that defendant YURIY YUSUPOV, M.D., D.D.S. s/h/a
`
`YURIY YUSUPOV, M.D. was and is a physician and dentist duly licensed to practice medicine
`
`and dentistry in the state of New York and was employed by New York City Health and
`
`Hospitals Corporation pursuant to section 50-k of the General Municipal Law at the time of the
`
`alleged incident for care and treatment at New York City Health and Hospitals Corporation
`
`
`
`FILED: KINGS COUNTY CLERK 03/27/2024 10:56 AM
`NYSCEF DOC. NO. 16
`
`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`2 of 8
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`facilities only and otherwise refers all questions of law to the Court and all questions of fact to
`
`the triers of fact.
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`3.
`
`Denies each and every allegation contained in paragraphs “10”, “18”, “25” and
`
`“31” of the Verified Complaint insofar as the allegations present questions of law and/or fact to
`
`be preserved for trial.
`
`4.
`
`Denies each and every allegation contained in paragraphs “17”, “27”, “28”, “29”,
`
`and “37” of the Verified Complaint.
`
`FIRST CAUSE OF ACTION
`(Malpractice)
`
`
`
`5.
`
`In response to paragraph “38” of the Verified Complaint, Defendant repeats,
`
`reiterates and realleges each and every response as previously set forth in paragraphs numbered
`
`“1” through “37” of the Verified Complaint, with the same force and effect as if fully set forth at
`
`length herein.
`
`6.
`
`Denies each and every allegation contained in paragraphs “39”, “40”, “41”, “43”
`
`and “44” of the Verified Complaint insofar as the allegations present questions of law and/or fact
`
`to be preserved for trial.
`
`7.
`
`Denies each and every allegation contained in paragraphs “42”, “51”, “52”, “53”,
`
`“54, “55”, “56”, “57” and “58” of the Verified Complaint.
`
`8.
`
`Denies each and every allegation contained in paragraphs “45”, “46”, “47”, “48”,
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`“49” and “50” of the Verified Complaint except begs leave to refer all questions of fact to the
`
`trier of fact and all questions of law to the Court.
`
`
`
`FILED: KINGS COUNTY CLERK 03/27/2024 10:56 AM
`NYSCEF DOC. NO. 16
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`3 of 8
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`SECOND CAUSE OF ACTION
`(Informed Consent)
`
`
`
`
`
`9.
`
`In response to paragraph “59” of the Verified Complaint, Defendant repeats,
`
`reiterates and realleges each and every response as previously set forth in paragraphs numbered
`
`“1” through “58” of the Verified Complaint, with the same force and effect as if fully set forth at
`
`length herein.
`
`10.
`
`| Denies each and every allegation contained in paragraphs “60”, “61”, “62” and
`
`“63” of the Verified Complaint.
`
`THIRD CAUSE OF ACTION
`(Wrongful Death)
`
`
`
`
`
`11.
`
`In response to paragraph “64” of the Verified Complaint, Defendant repeats,
`
`reiterates and realleges each and every response as previously set forth in paragraphs numbered
`
`“1” through “63” of the Verified Complaint, with the same force and effect as if fully set forth at
`
`length herein.
`
`12.
`
`Denies each and every allegation contained in paragraphs “65”, “67” and “68” of
`
`the Verified Complaint.
`
`13.
`
`Denies knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained in paragraph “66” of the Verified Complaint.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`
`
`The Verified Complaint fails to state a cause of action against the answering defendant for
`
`which relief may be granted and should be dismissed.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`
`
`Plaintiffs lack standing and capacity to bring this action.
`
`
`
`FILED: KINGS COUNTY CLERK 03/27/2024 10:56 AM
`NYSCEF DOC. NO. 16
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`4 of 8
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`
`
`The answering party Defendant alleges that the incident and all the injuries and damages
`
`resulting therefrom were caused in whole or in part by the culpable conduct of the Plaintiffs
`
`and/or plaintiffs’ decedent, including but not limited to Plaintiffs and/or plaintiffs’ decedent’s
`
`intentional acts, contributory negligence and/or assumption of risk, and the defendant therefore
`
`requests that this Court determine the proportionate share that such culpable conduct contributes
`
`in whole or in part to the incident and the damages claimed therefrom.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`
`
`
`To the extent that plaintiffs and/or plaintiffs’ decedent sustained any alleged damages
`
`which Defendant expressly denies, it was caused by the culpable conduct, wrongdoing,
`
`negligence, lack of care, breaches, omissions and failure to act of third parties, their agents,
`
`servants or employees over whom Defendant had no control and for which Defendant bears no
`
`legal responsibility.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`
`
`The Verified Complaint and all its causes of action are barred by the applicable statute of
`
`limitations.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`
`
`Kings County Hospital Center is not a jural entity.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`
`
`Plaintiffs are barred from seeking all or part of the damages sought in this lawsuit as a
`
`result of their failure to mitigate the damages allegedly sustained.
`
`
`
`FILED: KINGS COUNTY CLERK 03/27/2024 10:56 AM
`NYSCEF DOC. NO. 16
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`5 of 8
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`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`
`
`Defendant invokes the protection of Public Health Law § 2805(d)(4) with respect to the
`
`alleged cause of action for informed consent and reserves all rights pursuant thereto.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`
`
`The answering defendant hereby gives notice that they intend to rely upon such other
`
`defenses as may become apparent during the discovery proceeding in this case and hereby
`
`reserves their right to amend this Answer to assert any such defenses.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`
`
`Pursuant to CPLR §4545 if it be determined or established that plaintiffs or plaintiffs’
`
`decedent have received or with reasonable certainty shall receive the cost of medical care, dental
`
`care, custodial care or rehabilitation services, loss of earnings, or other economic loss, and that
`
`the same shall be replaced or indemnified, in whole or in part from any collateral source such as
`
`insurance, social security, workers’ compensation or employee benefit programs, then and in that
`
`event defendant hereby pleads in mitigation of damages the assessments of any cost or expense
`
`as
`
`a collateral source in reduction of the amount of the award by such replacement or
`
`indemnification.
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`
`
`Pursuant to Article 16, the liability, if any, of the answering Defendant, for non-economic
`
`loss shall not exceed its equitable shares of liability.
`
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`
`
`
`Defendant is entitled to a set-off if any tortfeasor has or will settle with Plaintiffs
`
`pursuant to G.O.L. 15-108.
`
`
`
`FILED: KINGS COUNTY CLERK 03/27/2024 10:56 AM
`NYSCEF DOC. NO. 16
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`6 of 8
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`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`
`
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`Any alleged conduct by Defendant was not the cause in fact or proximate cause of any
`
`injury alleged by plaintiffs.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`
`
`If plaintiffs sustained the injuries and damages alleged, plaintiffs’ claims are nevertheless
`
`barred because said injuries and damages were not foreseeable.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`
`
`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 A SIXTEENTH AFFIRMATIVE DEFENSE
`
`
`
`The injuries complained of were caused by a unique, unprecedented and unforeseeable
`
`coronavirus in the context of a global pandemic not proximately caused by the negligence of any
`
`party to the occurrence.
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`
`
`
`That the Court lacks personal jurisdiction over the answering defendant and/or this action
`
`has not been properly commenced for, among other reasons, plaintiff's failure to comply with
`
`CPLR §305, §306, §306-a, §306-b and/or §308.
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`
`
`
`If plaintiffs are entitled to recover damages for loss of earnings or impairment of earning
`
`ability as against this 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 said defendant, if any, shall be reduced by the amount of federal, state and local income
`
`taxes which the plaintiffs would have been obligated by law to pay.
`
`
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`FILED: KINGS COUNTY CLERK 03/27/2024 10:56 AM
`NYSCEF DOC. NO. 16
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`7 of 8
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`WHEREFORE, Defendant YURIY YUSUPOV, M.D.,
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`D.D.S.
`
`s/h/a YURIY
`
`YUSUPOV, M.D. demands judgment dismissing the Verified Complaint, together with the costs
`
`and disbursements of this action.
`
`Dated: New York, New York
`March 27, 2024
`
`FURMAN KORNFELD & BRENNAN LLP
`By: Ab XE
`
`
`
`Ita Parnass, Esq.
`Attorneys for Defendant
`Of Counsel to Andrea Cohen, Esq.
`YURIY YUSUPOV, M.D., D.D.S. s/h/a YURIY
`YUSUPOV, M.D.
`Wall Street Plaza
`88 Pine Street, 32" Floor
`New York, New York 10005
`(212) 867-4100
`FKB File No.: 625.353
`
`To:
`
`QUELLER, FISHER, WASHOR, FUCHS & KOOL and
`THE LAW OFFICE OF WILLIAM A. GALLINA, LLP.
`Attorneys for Plaintiffs
`233 Broadway, Suite 1800
`New York, New York 10279
`(212) 406-1700
`
`
`
`FILED: KINGS COUNTY CLERK 03/27/2024 10:56 AM
`NYSCEF DOC. NO. 16
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`8 of 8
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`VERIFICATION/AFFIRMATION
`
`ITA PARNASS, an attorney admitted to practice before the courts of the State of New York, affirms that she is of
`counsel to the Office of ANDREA COHEN, General Counsel, of the NEW YORK CITY HEALTH AND
`HOSPITALS CORPORATION; that deponent has read the foregoing Answer to the Verified Complaint, cross-
`claim(s) and counterclaim(s), if any, and knows the contents thereof; that the same are true to deponent's own
`knowledge, except as to the matters alleged upon information and belief, which deponent believes to be true based
`upon the files, books and records maintained by New York City Health and Hospitals Corporation, and the officers
`or agents thereof; and further swears that on this date he/she caused said answer, cross-claim(s) and counterclaim(s),
`if any, together with the accompanying combined demands, to be served upon:
`
`QUELLER, FISHER, WASHOR, FUCHS & KOOL and
`THE LAW OFFICE OF WILLIAM A. GALLINA, LLP.
`Attorneys for Plaintiffs
`233 Broadway, Suite 1800
`New York, New York 10279
`(212) 406-1700
`
`Dated:
`
`New York, New York
`March 27, 2024
`
`
`
`ITA PARNASS
`
`CERTIFICATION
`
`The signature below shall constitute the signature required pursuant to NYCRR 130-1.1-a and pertains to all of the
`enclosed documents: answer, cross-claim(s) and counter-claims(s), if any, together with the accompanying
`combined demands.
`
`Dated:
`
`New York, New York
`March 27, 2024
`
`By:
`
`po
`
`
`
`ITA PARNASS
`
`
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