`NYSCEF DOC. NO. 19
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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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,
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`Plaintiffs,
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`:
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`VERIFIED ANSWER
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`
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`-against-
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`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.,
`:
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`Defendants.
`x
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`PLEASE TAKE NOTICE that Defendant, OFER AZOULAY, M.D., by and through
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`his attorneys, FURMAN KORNFELD & BRENNAN LLP, hereby responds to the plaintiffs’
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`Verified Complaint as follows:
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`(GENERAL AVERMENTS)
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`1.
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`Denies knowledge or information sufficient to form a belief as to the truth of the
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`allegations contained in paragraphs “1”, “2”, “3”, “4”, “5”, “6”, “9”, “10 “S11”, “12”, “13”,
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`“14 15" “16”, “24, “25”, “26”, “27”, “28”, “29”, “30”, “31”, “32”, “33”, “34”, “35” and
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`“36” of the Verified Complaint.
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`2.
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`Denies each and every allegation contained in paragraphs “7” and “20” of the
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`Verified Complaint except admits that defendant OFER AZOULAY, M.D. was and is
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`a
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`physician duly licensed to practice medicine in the state of New York and was employed by New
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`York City Health and Hospitals Corporation pursuant to section 50-k of the General Municipal
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`Law at the time of the alleged incident for care and treatment at New York City Health and
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`FILED: KINGS COUNTY CLERK 03/27/2024 11:06 AM
`NYSCEF DOC. NO. 19
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`Hospitals Corporation facilities only and otherwise refers all questions of law to the Court and all
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`questions of fact to the triers of fact.
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`3.
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`Denies each and every allegation contained in paragraphs “8”, “18”, “19” and
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`“31” of the Verified Complaint insofar as the allegations present questions of law and/or fact to
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`be preserved for trial.
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`4,
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`Denies each and every allegation contained in paragraphs “17”, “21”, “22”, “23”
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`and “37” of the Verified Complaint.
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`FIRST CAUSE OF ACTION
`(Malpractice)
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`3.
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`In response to paragraph “38” of the Verified Complaint, Defendant repeats,
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`reiterates and realleges each and every response as previously set forth in paragraphs numbered
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`“1” through “37” of the Verified Complaint, with the same force and effect as if fully set forth at
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`length herein.
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`6.
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`Denies each and every allegation contained in paragraphs “39”, “40”, “41”, “43”
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`and “44” of the Verified Complaint insofar as the allegations present questions of law and/or fact
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`to be preserved for trial.
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`7.
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`Denies each and every allegation contained in paragraphs “42”, “51”, “52”, “53”,
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`“5A? «55 “56, “57” and “58” of the Verified Complaint.
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`8.
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`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
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`trier of fact and all questions of law to the Court.
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`FILED: KINGS COUNTY CLERK 03/27/2024 11:06 AM
`NYSCEF DOC. NO. 19
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`SECOND CAUSE OF ACTION
`(Informed Consent)
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`9.
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`In response to paragraph “59” of the Verified Complaint, Defendant repeats,
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`reiterates and realleges each and every response as previously set forth in paragraphs numbered
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`“1” through “58” of the Verified Complaint, with the same force and effect as if fully set forth at
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`length herein.
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`10.
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`Denies each and every allegation contained in paragraphs “60”, “61”, “62” and
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`“63” of the Verified Complaint.
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`THIRD CAUSE OF ACTION
`(Wrongful Death)
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`11.
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`In response to paragraph “64” of the Verified Complaint, Defendant repeats,
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`reiterates and realleges each and every response as previously set forth in paragraphs numbered
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`“1” through “63” of the Verified Complaint, with the same force and effect as if fully set forth at
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`length herein.
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`12.
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`Denies each and every allegation contained in paragraphs “65”, “67” and “68” of
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`the Verified Complaint.
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`13.
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`Denies knowledge or information sufficient to form a belief as to the truth of the
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`allegations contained in paragraph “66” of the Verified Complaint.
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
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`The Verified Complaint fails to state a cause of action against the answering defendant for
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`which relief may be granted and should be dismissed.
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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`Plaintiffs lack standing and capacity to bring this action.
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`FILED: KINGS COUNTY CLERK 03/27/2024 11:06 AM
`NYSCEF DOC. NO. 19
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
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`The answering party Defendant alleges that the incident and all the injuries and damages
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`resulting therefrom were caused in whole or in part by the culpable conduct of the Plaintiffs
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`and/or plaintiffs’ decedent, including but not limited to Plaintiffs and/or plaintiffs’ decedent’s
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`intentional acts, contributory negligence and/or assumption of risk, and the defendant therefore
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`requests that this Court determine the proportionate share that such culpable conduct contributes
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`in whole or in part to the incident and the damages claimed therefrom.
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
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`To the extent that plaintiffs and/or plaintiffs’ decedent sustained any alleged damages
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`which Defendant expressly denies,
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`it was caused by
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`the culpable conduct, wrongdoing,
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`negligence, lack of care, breaches, omissions and failure to act of third parties, their agents,
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`servants or employees over whom Defendant had no control and for which Defendant bears no
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`legal responsibility.
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
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`The Verified Complaint and all its causes of action are barred by the applicable statute of
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`limitations.
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
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`Kings County Hospital Center is not a jural entity.
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
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`Plaintiffs are barred from seeking all or part of the damages sought in this lawsuit as a
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`result of their failure to mitigate the damages allegedly sustained.
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`FILED: KINGS COUNTY CLERK 03/27/2024 11:06 AM
`NYSCEF DOC. NO. 19
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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
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`Defendant invokes the protection of Public Health Law § 2805(d)(4) with respect to the
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`alleged cause of action for informed consent and reserves all rights pursuant thereto.
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
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`The answering defendant hereby gives notice that they intend to rely upon such other
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`defenses as may become apparent during the discovery proceeding in this case and hereby
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`reserves their right to amend this Answer to assert any such defenses.
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
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`Pursuant to CPLR §4545 if it be determined or established that plaintiffs or plaintiffs’
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`decedent have received or with reasonable certainty shall receive the cost of medical care, dental
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`care, custodial care or rehabilitation services, loss of earnings, or other economic loss, and that
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`the same shall be replaced or indemnified, in whole or in part from any collateral source such as
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`insurance, social security, workers’ compensation or employee benefit programs, then and in that
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`event defendant hereby pleads in mitigation of damages the assessments of any cost or expense
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`as
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`a collateral source in reduction of the amount of the award by such replacement or
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`indemnification.
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
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`Pursuant to Article 16, the liability, if any, of the answering Defendant, for non-economic
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`loss shall not exceed its equitable shares of liability.
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`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
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`Defendant is entitled to a set-off if any tortfeasor has or will settle with Plaintiffs
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`pursuant to G.O.L. 15-108.
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`FILED: KINGS COUNTY CLERK 03/27/2024 11:06 AM
`NYSCEF DOC. NO. 19
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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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
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`injury alleged by plaintiffs.
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
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`If plaintiffs sustained the injuries and damages alleged, plaintiffs’ claims are nevertheless
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`barred because said injuries and damages were not foreseeable.
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
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`The injuries complained of were due exclusively to causes of so extraordinary a nature
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`that they could not reasonably have been foreseen and the result avoided.
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
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`The injuries complained of were caused by a unique, unprecedented and unforeseeable
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`coronavirus in the context of a global pandemic not proximately caused by the negligence of any
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`party to the occurrence.
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`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
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`That the Court lacks personal jurisdiction over the answering defendant and/or this action
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`has not been properly commenced for, among other reasons, plaintiff's failure to comply with
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`CPLR §305, §306, §306-a, §306-b and/or §308.
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`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
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`If plaintiffs are entitled to recover damages for loss of earnings or impairment of earning
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`ability as against this defendant, by reason of the matters alleged in the Complaint, liability for
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`which is hereby denied, then pursuant to CPLR §4546 the amount of damages recoverable
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`against said defendant, if any, shall be reduced by the amount of federal, state and local income
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`taxes which the plaintiffs would have been obligated by law to pay.
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`FILED: KINGS COUNTY CLERK 03/27/2024 11:06 AM
`NYSCEF DOC. NO. 19
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`WHEREFORE, Defendant OFER AZOULAY, M.D. demands judgment dismissing the
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`Verified Complaint, together with the costs and disbursements of this action.
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`Dated: New York, New York
`March 27, 2024
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`FURMAN KORNFELD & BRENNAN LLP
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`Ma Foe
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`
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`Ita Parnass, Esq.
`Attorneys for Defendant
`Of Counsel to Andrea Cohen, Esq.
`OFER AZOULAY, M.D.
`Wall Street Plaza
`88 Pine Street, 32" Floor
`New York, New York 10005
`(212) 867-4100
`FKB File No.: 625.353
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`To:
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`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
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`FILED: KINGS COUNTY CLERK 03/27/2024 11:06 AM
`NYSCEF DOC. NO. 19
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`INDEX NO. 504550/2024
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`RECEIVED NYSCEF: 03/27/2024
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`VERIFICATION/AFFIRMATION
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`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:
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`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
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`Dated:
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`New York, New York
`March 27, 2024
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`ITA PARNASS
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`CERTIFICATION
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`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.
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`Dated:
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`New York, New York
`March 27, 2024
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`Ak
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`oe
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`By:
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`ITA PARNASS
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