`NYSCEF DOC. NO. 23
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`INDEX NO. 508724/2023
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`RECEIVED NYSCEF: 05/18/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
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`ZELIG GOLDMAN, Administrator for the Estate of
`SARAH GOLDMAN, Deceased, and ZELIG GOLDMAN,
`Individually,
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`CODY DeMARCO, M.D., SANDERS CHANG, M.D., BRUCE
`SAFFRAN, M.D., STEVEN NAYMAGON, M.D., RANDOLPH
`M. STEINHAGEN, and MOUNT SINAI HOSPITAL,
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`Defendants.
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`Defendant, STEVEN NAYMAGON, M.D., by his attorneys, WILSON, ELSER,
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`Index # 508724/23
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`VERIFIED ANSWER
`TO AMENDED
`COMPLAINT
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`-against-
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`Plaintiff,
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`MOSKOWITZ, EDELMAN and DICKER LLP, hereby answers the Verified Complaint as
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`follows:
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`1.
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`Deny knowledge or information sufficient to form a belief as to the truth of the
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`allegations contained in unnumbered Paragraph (directly above First Cause of Action).
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`AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
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`2.
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`Deny the allegations contained in Paragraphs “1”, “2”, “3”, “4”, “5”, “6”, “7”, “9”,
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`“10”, “11”, “12”, “13”, “14”, “15”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “25”, “26”, “27”,
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`“28”, “29”, “30”, “31”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “41”, “42”, “43”, “45”, “ in the
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`form alleged, and refer all questions of law to the Honorable Court.
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`3.
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`Deny the allegations contained in Paragraphs “8”, “16”, “24”, “32”, “40”, “ in the
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`form alleged, except admit that plaintiff-decedent SARAH GOLDMAN was a patient at THE
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`MOUNT SINAI HOSPITAL s/h/a MOUNT SINAI HOSPITAL.
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`4.
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`Deny the allegations contained in Paragraph “44” in the form alleged except admit
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`that THE MOUNT SINAI HOSPITAL s/h/a MOUNT SINAI HOSPITAL is a domestic
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`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
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`INDEX NO. 508724/2023
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`RECEIVED NYSCEF: 05/18/2023
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`corporation duly organized and existing under and by virtue of the laws of the State of New York,
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`and refer questions of law to the Honorable Court.
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`5.
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`Deny the allegations contained in Paragraph “46” in the form alleged except admit
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`that THE MOUNT SINAI HOSPITAL s/h/a MOUNT SINAI HOSPITAL maintained appropriate
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`services incident to its function as a hospital, and refer all questions of law to the Honorable Court.
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`6.
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`Deny the allegations contained in Paragraph “47”.
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`AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
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`7.
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`In response to Paragraph “48”, repeat each admission or denial made herein as
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`though fully set forth hereat.
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`8.
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`Deny knowledge or information sufficient to form a belief as to the truth of the
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`allegations contained in Paragraph “49”, “51”, and “52”.
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`9.
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`Deny the allegations contained in Paragraph “50” and “53”.
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`AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
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`10.
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`In response to Paragraph “54”, repeat each admission or denial made herein as
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`though fully set forth hereat.
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`11.
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`Deny the allegations in Paragraphs “55”, “56”, “57”, “58”, “59”, “60”, and “61”.
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
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`12.
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`The answering Defendant asserts those applicable affirmative defenses for which
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`provision is made at Public Health Law Section 2805(d).
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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`13.
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`That the alleged injuries of plaintiff was caused in whole or in part by the culpable
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`conduct of the plaintiff which either bars the claims completely or else diminishes the damages by
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`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
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`INDEX NO. 508724/2023
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`RECEIVED NYSCEF: 05/18/2023
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`the proportion that such culpable conduct of the plaintiff bears to the total culpable conduct causing
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`the alleged injuries.
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
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`14.
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`Pursuant to CPLR Article 16, the liability, if any, of the answering Defendant, for
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`non-economic loss shall not exceed his/her equitable share of liability.
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
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`15.
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`If plaintiff is entitled to recover damages for economic loss as against the answering
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`Defendant by reason of the matters alleged in the complaint, the liability for which is hereby
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`denied, then pursuant to CPLR 4545 the amount of damages recoverable against said Defendant,
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`if any, shall be reduced by the amount by which such economic loss was or will be replaced or
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`indemnified from any collateral source payment.
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
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`16.
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`If plaintiff is entitled to recover damages for loss of earnings or impairment of
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`earning ability as against the answering Defendant by reason of the matters alleged in the
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`complaint, the liability for which is hereby denied, then pursuant to CPLR 4546 the amount of
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`damages recoverable against said Defendant, if any, shall be reduced by the amount of federal,
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`state and local income taxes which the plaintiff would have been obligated by law to pay.
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
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`17.
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`The Complaint fails to state a cause of action upon which relief can be granted as a
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`matter of law.
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
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`18.
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`Plaintiff has failed to mitigate the alleged damages claimed herein.
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`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
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`INDEX NO. 508724/2023
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`RECEIVED NYSCEF: 05/18/2023
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`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
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`19.
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`The answering Defendant claims the benefit of each and every provision of General
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`Obligation Law §15-108 including, but not limited to, the reduction of plaintiff’s claim against the
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`answering Defendants herein to the extent of any amounts stipulated by a release or covenant not
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`to sue entered into by the plaintiff or in the amount of consideration paid for same, or in the amount
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`of any released tortfeasor’s equitable share of the damages under Article 14 of the Civil Practice
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`Law and Rules, whichever is the greatest, or whichever the answering Defendant herein elects to
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`apply.
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
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`20.
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`That any injuries or damages claimed were caused, in whole or in part, by the
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`negligence or other culpable conduct of third parties over which the answering Defendant had no
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`control or right to exercise such control.
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`21. The complaint is time barred inasmuch as suit was not initiated within the statutory period
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`of limitations prescribed in CPLR §214-a, and EPTL § 5-4.1.
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
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`The alleged causes of action set forth in the plaintiffs Complaint against Defendant
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`22.
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`is barred, including by Executive Order 202.10, Education Law § 6527(2), Education Law § 6545,
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`Education Law § 6909, Article 30-D of the Public Health Law, Public Health Law §3082, and/or
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`Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C.§ 247D-6D and 42
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`U.S.C. § 247d-6c. The defendant was providing medical services in support of the response to
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`COVID-19. The causes of action set forth in the plaintiff’s Complaint sound in ordinary
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`negligence and/or medical malpractice, and they do not constitute gross negligence. The plaintiff’s
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`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
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`INDEX NO. 508724/2023
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`RECEIVED NYSCEF: 05/18/2023
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`bare assertions of gross negligence in the Complaint lack the required specificity to support a cause
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`of action for gross negligence.
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`WHEREFORE, Defendant, STEVEN NAYMAGON, M.D., demands
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`judgment
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`dismissing the Verified Complaint of the plaintiff herein, together with costs, disbursements, and
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`attorney’s fees of this action.
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`Dated:
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`New York, New York
` May 18, 2023
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`Yours, etc.
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`WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
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`To:
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` By:
`Richard Ng, Esq.
`Attorneys for Defendants
`CODY DeMARCO, M.D., SANDERS CHANG,
`M.D., STEVEN NAYMAGON, M.D., RANDOLPH
`M. STEINHAGEN, M.D., and THE MOUNT SINAI
`HOSPITAL s/h/a MOUNT SINAI HOSPITAL
`150 East 42nd Street
`New York, New York 10007
`(212) 490-3000
`File No.: 12895.434
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`SHELDON E. GREEN, ESQ.
`Attorneys for Plaintiff
`566 Sunset Drive
`Woodmere, New York 11598
`(516) 569-3300
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`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
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`INDEX NO. 508724/2023
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`RECEIVED NYSCEF: 05/18/2023
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`ATTORNEY'S VERIFICATION
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`RICHARD NG, an attorney duly admitted to practice in this state, affirms the following to
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`be true:
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`I have read the foregoing Answer submitted in behalf of defendant, STEVEN
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`NAYMAGON, M.D., and know the contents thereof. The same are true to my knowledge except
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`as to the matters therein stated to be alleged upon information and belief, and as to those matters I
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`believe them to be true. My knowledge is based on inquiry reasonable under the circumstances
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`and based on review of file materials and investigation.
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`That this verification is made by the deponent because the material allegations of the
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`pleading are based upon my personal knowledge upon information and belief as the attorney for
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`the answering defendant.
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`Dated: New York, New York
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`May 18, 2023
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` RICHARD NG
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`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
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`INDEX NO. 508724/2023
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`RECEIVED NYSCEF: 05/18/2023
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`______________________________________________________________________
`Index No.: 508724/23
`Richard Ng, Esq.
`File No. 12895.00434
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`Plaintiff,
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`-against-
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
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`ZELIG GOLDMAN, Administrator for the Estate of
`SARAH GOLDMAN, Deceased, and ZELIG GOLDMAN, Individually,
`
`
`
`
`
`
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`CODY DeMARCO, M.D., SANDERS CHANG, M.D., BRUCE SAFFRAN, M.D., STEVEN
`NAYGAMON, M.D., RANDOLPH M. STEINHAGEN, and MOUNT SINAI HOSPITAL,
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`Defendants.
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`VERIFIED ANSWER TO AMENDED COMPLAINT
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`WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
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`Attorneys for Defendants CODY DeMARCO, M.D., SANDERS CHANG, M.D., STEVEN NAYMAGON, M.D.,
`RANDOLPH M. STEINHAGEN, M.D., and THE MOUNT SINAI HOSPITAL s/h/a MOUNT
`SINAI HOSPITAL
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`150 East 42nd Street
`New York, NY 10017
`212.490.3000 – Tel.
`212.490-3038 – Fax
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`________________________________________________________________________________________________
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