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FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
`
`
`INDEX NO. 508724/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`------------------------------------------------------------------------X
`ZELIG GOLDMAN, Administrator for the Estate of
`SARAH GOLDMAN, Deceased, and ZELIG GOLDMAN,
`Individually,
`
`
`
`CODY DeMARCO, M.D., SANDERS CHANG, M.D., BRUCE
`SAFFRAN, M.D., STEVEN NAYMAGON, M.D., RANDOLPH
`M. STEINHAGEN, and MOUNT SINAI HOSPITAL,
`
`Defendants.
`
`------------------------------------------------------------------------X
`Defendant, STEVEN NAYMAGON, M.D., by his attorneys, WILSON, ELSER,
`
`
`
`Index # 508724/23
`
`
`
`VERIFIED ANSWER
`TO AMENDED
`COMPLAINT
`
`
`
`
`-against-
`
`Plaintiff,
`
`
`
`MOSKOWITZ, EDELMAN and DICKER LLP, hereby answers the Verified Complaint as
`
`follows:
`
`1.
`
`Deny knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained in unnumbered Paragraph (directly above First Cause of Action).
`
`AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
`
`2.
`
`Deny the allegations contained in Paragraphs “1”, “2”, “3”, “4”, “5”, “6”, “7”, “9”,
`
`“10”, “11”, “12”, “13”, “14”, “15”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “25”, “26”, “27”,
`
`“28”, “29”, “30”, “31”, “33”, “34”, “35”, “36”, “37”, “38”, “39”, “41”, “42”, “43”, “45”, “ in the
`
`form alleged, and refer all questions of law to the Honorable Court.
`
`3.
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`Deny the allegations contained in Paragraphs “8”, “16”, “24”, “32”, “40”, “ in the
`
`form alleged, except admit that plaintiff-decedent SARAH GOLDMAN was a patient at THE
`
`MOUNT SINAI HOSPITAL s/h/a MOUNT SINAI HOSPITAL.
`
`4.
`
`Deny the allegations contained in Paragraph “44” in the form alleged except admit
`
`that THE MOUNT SINAI HOSPITAL s/h/a MOUNT SINAI HOSPITAL is a domestic
`
`
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`1 of 7
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`

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`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
`
`
`INDEX NO. 508724/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`corporation duly organized and existing under and by virtue of the laws of the State of New York,
`
`and refer questions of law to the Honorable Court.
`
`5.
`
`Deny the allegations contained in Paragraph “46” in the form alleged except admit
`
`that THE MOUNT SINAI HOSPITAL s/h/a MOUNT SINAI HOSPITAL maintained appropriate
`
`services incident to its function as a hospital, and refer all questions of law to the Honorable Court.
`
`6.
`
`Deny the allegations contained in Paragraph “47”.
`
`AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
`
`7.
`
`In response to Paragraph “48”, repeat each admission or denial made herein as
`
`though fully set forth hereat.
`
`8.
`
`Deny knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained in Paragraph “49”, “51”, and “52”.
`
`9.
`
`Deny the allegations contained in Paragraph “50” and “53”.
`
`AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
`
`10.
`
`In response to Paragraph “54”, repeat each admission or denial made herein as
`
`though fully set forth hereat.
`
`11.
`
`Deny the allegations in Paragraphs “55”, “56”, “57”, “58”, “59”, “60”, and “61”.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`12.
`
`The answering Defendant asserts those applicable affirmative defenses for which
`
`provision is made at Public Health Law Section 2805(d).
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`13.
`
`That the alleged injuries of plaintiff was 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
`
`
`
`- 2 -
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`2 of 7
`
`

`

`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
`
`
`INDEX NO. 508724/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`the proportion that such culpable conduct of the plaintiff bears to the total culpable conduct causing
`
`the alleged injuries.
`
`
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`14.
`
`Pursuant to CPLR Article 16, the liability, if any, of the answering Defendant, for
`
`non-economic loss shall not exceed his/her equitable share of liability.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`
`15.
`
`If plaintiff is entitled to recover damages for economic loss as against the answering
`
`Defendant by reason of the matters alleged in the complaint, the liability for which is hereby
`
`denied, then pursuant to CPLR 4545 the amount of damages recoverable against said Defendant,
`
`if any, shall be reduced by the amount by which such economic loss was or will be replaced or
`
`indemnified from any collateral source payment.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`16.
`
`If plaintiff is entitled to recover damages for loss of earnings or impairment of
`
`earning ability as against the answering Defendant by reason of the matters alleged in the
`
`complaint, the 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 plaintiff would have been obligated by law to pay.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`17.
`
`The Complaint fails to state a cause of action upon which relief can be granted as a
`
`matter of law.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`18.
`
`Plaintiff has failed to mitigate the alleged damages claimed herein.
`
`
`
`
`
`- 3 -
`
`3 of 7
`
`

`

`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
`
`
`INDEX NO. 508724/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`19.
`
`The answering Defendant claims the benefit of each and every provision of General
`
`Obligation Law §15-108 including, but not limited to, the reduction of plaintiff’s claim against the
`
`answering Defendants herein to the extent of any amounts stipulated by a release or covenant not
`
`to sue entered into by the plaintiff or in the amount of consideration paid for same, or in the amount
`
`of any released tortfeasor’s equitable share of the damages under Article 14 of the Civil Practice
`
`Law and Rules, whichever is the greatest, or whichever the answering Defendant herein elects to
`
`apply.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`20.
`
`That any injuries or damages claimed were caused, in whole or in part, by the
`
`negligence or other culpable conduct of third parties over which the answering Defendant had no
`
`control or right to exercise such control.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`21. The complaint is time barred inasmuch as suit was not initiated within the statutory period
`
`of limitations prescribed in CPLR §214-a, and EPTL § 5-4.1.
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`The alleged causes of action set forth in the plaintiffs Complaint against Defendant
`
`22.
`
`is barred, including by Executive Order 202.10, Education Law § 6527(2), Education Law § 6545,
`
`Education Law § 6909, Article 30-D of the Public Health Law, Public Health Law §3082, and/or
`
`Public Readiness and Emergency Preparedness Act (“PREP Act”), 42 U.S.C.§ 247D-6D and 42
`
`U.S.C. § 247d-6c. The defendant was providing medical services in support of the response to
`
`COVID-19. The causes of action set forth in the plaintiff’s Complaint sound in ordinary
`
`negligence and/or medical malpractice, and they do not constitute gross negligence. The plaintiff’s
`
`
`
`- 4 -
`
`4 of 7
`
`

`

`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
`
`
`INDEX NO. 508724/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`bare assertions of gross negligence in the Complaint lack the required specificity to support a cause
`
`of action for gross negligence.
`
`WHEREFORE, Defendant, STEVEN NAYMAGON, M.D., demands
`
`judgment
`
`dismissing the Verified Complaint of the plaintiff herein, together with costs, disbursements, and
`
`attorney’s fees of this action.
`
`Dated:
`
`New York, New York
` May 18, 2023
`
`
`Yours, etc.
`
`WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
`
`
`
`
`
`To:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 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
`
`SHELDON E. GREEN, ESQ.
`Attorneys for Plaintiff
`566 Sunset Drive
`Woodmere, New York 11598
`(516) 569-3300
`
`
`
`- 5 -
`
`5 of 7
`
`

`

`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
`
`
`INDEX NO. 508724/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`
`
`ATTORNEY'S VERIFICATION
`
`RICHARD NG, an attorney duly admitted to practice in this state, affirms the following to
`
`be true:
`
`I have read the foregoing Answer submitted in behalf of defendant, STEVEN
`
`NAYMAGON, M.D., and know the contents thereof. The same are true to my knowledge except
`
`as to the matters therein stated to be alleged upon information and belief, and as to those matters I
`
`believe them to be true. My knowledge is based on inquiry reasonable under the circumstances
`
`and based on review of file materials and investigation.
`
`That this verification is made by the deponent because the material allegations of the
`
`pleading are based upon my personal knowledge upon information and belief as the attorney for
`
`the answering defendant.
`
`
`Dated: New York, New York
`
`May 18, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` RICHARD NG
`
`
`
`- 6 -
`
`6 of 7
`
`

`

`FILED: KINGS COUNTY CLERK 05/18/2023 01:32 PM
`NYSCEF DOC. NO. 23
`
`INDEX NO. 508724/2023
`
`RECEIVED NYSCEF: 05/18/2023
`
`
`
`
`
`
`______________________________________________________________________
`Index No.: 508724/23
`Richard Ng, Esq.
`File No. 12895.00434
`
`
`
`Plaintiff,
`
`-against-
`
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`
`ZELIG GOLDMAN, Administrator for the Estate of
`SARAH GOLDMAN, Deceased, and ZELIG GOLDMAN, Individually,
`
`
`
`
`
`
`
`CODY DeMARCO, M.D., SANDERS CHANG, M.D., BRUCE SAFFRAN, M.D., STEVEN
`NAYGAMON, M.D., RANDOLPH M. STEINHAGEN, and MOUNT SINAI HOSPITAL,
`
`
`
`
`
`
`Defendants.
`
`
`VERIFIED ANSWER TO AMENDED COMPLAINT
`
`
`WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
`
`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, NY 10017
`212.490.3000 – Tel.
`212.490-3038 – Fax
`
`________________________________________________________________________________________________
`
`
`
`
`
`
`283079004v.1
`
`7 of 7
`
`

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