FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`--------------------------------------------------------------------------------- X
`THOMASINA JUDGE, as Administrator of the Estate of
`
`ERVIN JUDGE, deceased,
`
` Plaintiff,
`
`
`
`
`-against-
`
`
`ALTAF SHAIK, M.D., HENRY THUKHA, M.D., ALEKSANDR
`ORLOVSKIY, M.D., CROWN HEIGHTS CENTER FOR
`NURSING AND REHABILITATION, KINGS COUNTY
`HOSPITAL CENTER, NEW YORK CITY HEALTH AND
`HOSPITALS CORPORATION and SEA CREST NURSING
`AND REHABILITATION CENTER,
`
` Defendants.
`--------------------------------------------------------------------------------- X
`
`
`
`
`
`
`Index No.: 512694/2023
`
`VERIFIED ANSWER
`TO COMPLAINT
`
`
`
`
`
`
`
`Defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION also s/h/a
`
`KINGS COUNTY HOSPITAL CENTER, as and for its Verified Answer to the plaintiff’s Verified
`
`Complaint upon information and belief alleges as follows:
`
`THE PARTIES
`
`1.
`
`Denies knowledge or information sufficient to form a belief as to the truth of each
`
`and every allegation contained in those paragraphs designated as “1”, “2”, “3”, “4”, “5”, “6”, “7”,
`
`“8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, “25”,
`
`“26”, “27”, “28”, “29”, “30”, “31”, “32”, “41”, “42”, “43”, “44”, “45”, “46” and “47” of the Verified
`
`Complaint, and except begs leave to refer all questions of fact to the trier of fact and all
`
`questions of law to the Court.
`
`2.
`
`Denies in the form alleged each and every allegation contained in those
`
`paragraphs designated as “33”, “34”, “35”, “36”, “37”, “38”, “39”, “40” of the Verified Complaint
`
`except admits that defendant, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION,
`
`is a public benefit corporation established under the laws of the State of New York; and New
`
`York City Health and Hospitals Corporation operates defendant, KINGS COUNTY HOSPITAL
`
`CENTER, located at 451 Clarkson Avenue, Brooklyn, NY 11203, and who at times that may or
`
`
`
`1 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`may not be referenced in the Complaint provided professional services to the decedent in a
`
`skillful manner in accordance with accepted standards of care, and begs leave to refer all
`
`questions of fact to the trier of fact and all questions of law to the Court.
`
`UNDERLYING FACTS
`
`With respect to that paragraph of the Verified Complaint designated as “48”,
`
`3.
`
`defendants repeat, reiterate and reallege each and every admission, denial, and denial of truth
`
`of each and every allegation contained in those paragraphs designated as “1” through “47” with
`
`the same force and effect as if set forth fully herein.
`
`4.
`
`Denies knowledge or information sufficient to form a belief as to the truth of each
`
`and every allegation contained in those paragraphs designated as “49”, “50”, “51”, “52”, “53”,
`
`“54”, “55”, “56”, “57”, “58”, “59”, “64” and “65” of the Verified Complaint, and except begs leave
`
`to refer all questions of fact to the trier of fact and all questions of law to the Court.
`
`5.
`
`Denies in the form alleged each and every allegation contained in those
`
`paragraphs designated as “60”, “61”, “62” and “63” of the Verified Complaint except admits that
`
`defendant, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, is a public benefit
`
`corporation established under the laws of the State of New York; and New York City Health and
`
`Hospitals Corporation operates defendant, KINGS COUNTY HOSPITAL CENTER, located at
`
`451 Clarkson Avenue, Brooklyn, NY 11203, and who at times that may or may not be
`
`referenced in the Complaint provided professional services to the decedent in a skillful manner
`
`in accordance with accepted standards of care, and begs leave to refer all questions of fact to
`
`the trier of fact and all questions of law to the Court.
`
`6.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“66” except admits that on or about April 21, 2022 a purported notice of claim was presented to
`
`NEW YORK CITY HEALTH AND HOSPITALS CORPORATION and that more than 30 days
`
`have elapsed since such presentation and that no adjustment has been made.
`
`
`
`2
`
`2 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`7.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“67” and “69” except admits that on or about March 8, 2023 a purported notice of claim was
`
`presented to NEW YORK CITY HEALTH AND HOSPITALS CORPORATION and that more
`
`than 30 days have elapsed since such presentation and that no adjustment has been made.
`
`8.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“68,” except admits that a hearing was held on August 26, 2022 pursuant to §50-h of GML and
`
`that this action was commenced within one year and ninety days of its alleged accrual.
`
`9.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“70” of the Verified Complaint.
`
`AS AND FOR A FIRST CAUSE OF ACTION
`
`10. With respect to that paragraph of the Verified Complaint designated as “71”,
`
`defendants repeat, reiterate and reallege each and every admission, denial, and denial of truth
`
`of each and every allegation contained in those paragraphs designated as “1” through “70” with
`
`the same force and effect as if set forth fully herein.
`
`11.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“72” and “73” of the Verified Complaint as to defendants, NEW YORK CITY HEALTH AND
`
`HOSPITALS CORPORATION and KINGS COUNTY HOSPITAL CENTER, and otherwise
`
`denies knowledge or information sufficient to form a belief as to the truth of each and every
`
`allegation, and begs leave to refer all questions of fact to the trier of fact and all questions of law
`
`to the Court.
`
`12.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“74” and “75” of the Verified Complaint.
`
`AS AND FOR A SECOND CAUSE OF ACTION
`
`13. With respect to that paragraph of the Verified Complaint designated as “76”,
`
`defendants repeat, reiterate and reallege each and every admission, denial, and denial of truth
`
`
`
`3
`
`3 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`of each and every allegation contained in those paragraphs designated as “1” through “75” with
`
`the same force and effect as if set forth fully herein.
`
`14.
`
`Denies in the form alleged each and every allegation contained in those
`
`paragraphs designated as “77” of the Verified Complaint except admits that defendant, NEW
`
`YORK CITY HEALTH AND HOSPITALS CORPORATION, is a public benefit corporation
`
`established under the laws of the State of New York; and New York City Health and Hospitals
`
`Corporation operates defendant, KINGS COUNTY HOSPITAL CENTER, located at 451
`
`Clarkson Avenue, Brooklyn, NY 11203, and who at times that may or may not be referenced in
`
`the Complaint provided professional services to the decedent in a skillful manner in accordance
`
`with accepted standards of care, and begs leave to refer all questions of fact to the trier of fact
`
`and all questions of law to the Court.
`
`15.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“78”, “79” and “80” of the Verified Complaint as to defendants, NEW YORK CITY HEALTH AND
`
`HOSPITALS CORPORATION and KINGS COUNTY HOSPITAL CENTER, and otherwise
`
`denies knowledge or information sufficient to form a belief as to the truth of each and every
`
`allegation, and begs leave to refer all questions of fact to the trier of fact and all questions of law
`
`to the Court.
`
`16.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“81” and “82” of the Verified Complaint.
`
`AS AND FOR A THIRD CAUSE OF ACTION
`
`17. With respect to that paragraph of the Verified Complaint designated as “83”,
`
`defendants repeat, reiterate and reallege each and every admission, denial, and denial of truth
`
`of each and every allegation contained in those paragraphs designated as “1” through “82” with
`
`the same force and effect as if set forth fully herein.
`
`18.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“84” and “85” of the Verified Complaint as to defendants, NEW YORK CITY HEALTH AND
`
`
`
`4
`
`4 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`HOSPITALS CORPORATION and KINGS COUNTY HOSPITAL CENTER, and otherwise
`
`denies knowledge or information sufficient to form a belief as to the truth of each and every
`
`allegation, and begs leave to refer all questions of fact to the trier of fact and all questions of law
`
`to the Court.
`
`19.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“86” and “87” of the Verified Complaint.
`
`AS AND FOR A FOURTH CAUSE OF ACTION
`
`20. With respect to that paragraph of the Verified Complaint designated as “88”,
`
`defendants repeat, reiterate and reallege each and every admission, denial, and denial of truth
`
`of each and every allegation contained in those paragraphs designated as “1” through “87” with
`
`the same force and effect as if set forth fully herein.
`
`21.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“89” and “90” of the Verified Complaint as to defendants, NEW YORK CITY HEALTH AND
`
`HOSPITALS CORPORATION and KINGS COUNTY HOSPITAL CENTER, and otherwise
`
`denies knowledge or information sufficient to form a belief as to the truth of each and every
`
`allegation, and begs leave to refer all questions of fact to the trier of fact and all questions of law
`
`to the Court.
`
`22.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“91” and “92” of the Verified Complaint.
`
`AS AND FOR A FIFTH CAUSE OF ACTION
`
`23. With respect to that paragraph of the Verified Complaint designated as “93”,
`
`defendants repeat, reiterate and reallege each and every admission, denial, and denial of truth
`
`of each and every allegation contained in those paragraphs designated as “1” through “92” with
`
`the same force and effect as if set forth fully herein.
`
`24.
`
`Denies knowledge or information sufficient to form a belief as to the truth of each
`
`and every allegation contained in those paragraphs designated as “94” and “95” of the Verified
`
`
`
`5
`
`5 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`Complaint, and except begs leave to refer all questions of fact to the trier of fact and all
`
`questions of law to the Court.
`
`25.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“96”, “97” and “98” of the Verified Complaint as to defendants, NEW YORK CITY HEALTH AND
`
`HOSPITALS CORPORATION and KINGS COUNTY HOSPITAL CENTER, and otherwise
`
`denies knowledge or information sufficient to form a belief as to the truth of each and every
`
`allegation, and begs leave to refer all questions of fact to the trier of fact and all questions of law
`
`to the Court.
`
`26.
`
`Denies each and every allegation contained in those paragraphs designated as
`
`“99” and “100” of the Verified Complaint.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`27.
`
`Upon information and belief, that whatever damages the plaintiff may have
`
`sustained at the time and place mentioned in the Complaint were caused in whole or in part by
`
`the culpable conduct and want of care on the part of the plaintiff and without any negligence or
`
`fault or want of care on the part of the answering defendant. The amount of damages
`
`recovered, if any, shall therefore be diminished in the proportion to which said culpable conduct,
`
`attributable to the plaintiff, bears to the culpable conduct which caused said injuries alleged.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`28.
`
`CPLR Section 1600 et seq. is applicable to the instant action and should be
`
`applied by the Court at the time of trial with regards to alleged liability on the part of the
`
`defendant.
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`29.
`
`That any sums or consideration paid to or promised to plaintiff by any person(s)
`
`or corporation(s) claimed to be liable for the injuries or damages alleged in the complaint shall
`
`reduce any judgment rendered in favor of plaintiff as against these defendants to the extent of
`
`the greater of either the sums or consideration paid or promised to plaintiff or the amount of the
`
`
`
`6
`
`6 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`released tortfeasor’s (s’) equitable share(s) of the damages in accordance with General
`
`Obligations Law §15-108.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`
`30.
`
`CPLR §4545 is applicable to the instant action and should be applied by this
`
`Court at time of trial.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`31.
`
`This action was not commenced within the time specified in Section 7401 of the
`
`Unconsolidated Laws of New York State.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`32.
`
`Defendant disclosed all risks, benefits, and alternatives to plaintiff and/or
`
`Plaintiff’s medical decision-maker that a reasonable individual in defendant’s position would
`
`have disclosed under substantially similar circumstances and obtained the informed consent to
`
`Plaintiff and/or Plaintiff’s medical decision-maker prior to undertaking the course of conduct set
`
`forth in Plaintiff’s Complaint.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`33.
`
`Plaintiff does not have legal capacity to bring suit.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`34.
`
`The complaint fails to state a cause of action for which relief can be granted.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`35.
`
`Pursuant to the Public Readiness and Emergency Preparedness Act (PREP Act)
`
`(42 U.S.C. § 247d-6d et seq.),
`
`the Declaration under
`
`the PREP Act
`
`for Medical
`
`Countermeasures Against COVID-19 by the Secretary of the Department of Health & Human
`
`Services, and all relevant regulations, the defendant and its agents, servants and employees
`
`are covered persons and their actions arose out of or related to the administration of covered
`
`countermeasures as defined by the Act. Accordingly, this Court lacks subject matter jurisdiction
`
`and they are immune from liability under state and federal law.
`
`
`
`7
`
`7 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`36.
`
`The PREP Act provides
`
`the
`
`remedy
`
`for plaintiff’s claims under
`
`the
`
`Countermeasures Injury Compensation Program (CCIP). Accordingly, plaintiff failed to exhaust
`
`her administrative remedies and thus the Court lacks subject matter jurisdiction. 42 U.S.C.
`
`§247d-6e(d)(1); Parker v. St. Lawrence County Public Health Department, 102 A.D.3d 140 (3d
`
`Dept. 2012).
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`37.
`
`The allocation of health care resources during an emergency is a discretionary
`
`governmental function and the defendant, its agents, servants and employees are therefore
`
`immune from civil liability.
`
`AS AND FOR AN TWELFTH AFFIRMATIVE DEFENSE
`
`38.
`
`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 THIRTEENTH AFFIRMATIVE DEFENSE
`
`39.
`
`Given the declared public health emergency, the Court lacks subject matter
`
`jurisdiction pursuant to the Federal Officers Statute (28 U.S.C. §1442(a)(1)).
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`40.
`
`Given the declared public health emergency, the defendant and its agents,
`
`servants and employees acted at all times reasonably and in accordance with the applicable
`
`standard of care in effect under the conditions existing at the time.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`41.
`
`Pursuant to the “Coronavirus Aid, Relief, and Economic Security Act’’ signed into
`
`law on March 27, 2020, the defendant is immune from any cause of action arising under Federal
`
`or State law for any harm caused by an act or omission of the professional in the provision of
`
`health care services during the COVID-19 public health emergency.
`
`
`
`
`
`8
`
`8 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`
`42.
`
`Pursuant to the Volunteer Protection Act of 1997, the defendant is immune from
`
`any cause of action arising under Federal or State law for any harm caused by an act or
`
`omission of the professional in the provision of health care services.
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`
`43.
`
`The claims made in plaintiff’s Verified Complaint regarding the acts or omissions
`
`alleged by
`
`the answering defendants do not
`
`rise
`
`to
`
`the
`
`level of gross
`
`negligence/recklessness/willful misconduct/intentional misconduct and any damages allegedly
`
`sustained or incurred as a result of gross negligence/recklessness/willful misconduct/intentional
`
`misconduct are hereby denied.
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`
`44.
`
`The answering defendant asserts all defenses and privileges pursuant to Public
`
`Health Law § 2801 and § 2803 inasmuch as the defendant facility exercised all care reasonably
`
`necessary to prevent and limit the deprivation of rights and/or injury claimed herein.
`
`AS AND FOR A NINETEENTH AFFIRMATIVE DEFENSE
`
`45.
`
`Defendant’s alleged conduct was insufficient as a matter of law to allow for the
`
`imposition of punitive damages. The alleged acts or omissions of defendants were not abusive,
`
`willful, neglectful, or in reckless disregard of plaintiff’s safety and well-being, as alleged in the
`
`Complaint, and any and all claims for punitive damages should be denied.
`
`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
`
`46.
`
`Defendant New York City Health and Hospitals Corporation is a governmental
`
`entity and therefore immune from any claim for punitive damages.
`
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`
`47.
`
`The Complaint is time barred inasmuch as the suit was not instituted within the
`
`applicable Statue of Limitations.
`
`
`
`
`
`9
`
`9 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`
`48.
`
`Plaintiff's complaint fails to state a claim upon which relief can be granted.
`
`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`
`49.
`
`Upon information and belief, the answering defendant was not negligent, as its
`
`acts and/or alleged omissions were reasonable and prudent pursuant to the emergency doctrine
`
`and did not create the emergency that formed the context for said acts and/or alleged
`
`omissions.
`
`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`
`50.
`
`The answering defendant objects to all punitive language, as the answering
`
`defendant was not negligent, careless, reckless or grossly negligent. The answering defendant
`
`reserves the right to strike any and all punitive language from the complaint and all future
`
`pleadings.
`
`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`
`51.
`
`The answering defendant is immune from liability for the acts, omissions, and
`
`injuries alleged in the Complaint, pursuant to Executive Orders (A. Cuomo) 202 et seq. (9
`
`NYCRR §8.202 et seq.), including but not limited to Executive Order (A. Cuomo) 202.10 (9
`
`NYCRR §8.202 et seq.), and/or the Emergency or Disaster Treatment Protection Act ("EDTPA")
`
`(Public Health Law Article 30-D) as it was in effect at the time of the care rendered in this case.
`
`AS AND FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE
`
`52.
`
`The answering defendant is immune from liability for the acts, omissions, and
`
`injuries alleged in the Complaint, pursuant to the United States Public Readiness and
`
`Emergency Preparedness ("PREP") Act (42 USC §247d-6d et seq.) and/or the Coronavirus Aid,
`
`Relief, and Economic Security ("CARES") Act of 2020, §4113c (42 USC §247d-6d[i][1], as
`
`added by Pub L 116-136, 116 US Stat 3548).
`
`
`
`
`
`
`
`10
`
`10 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`
`53.
`
`Plaintiff's state law claims must be dismissed, as they are preempted by the
`
`United States Public Readiness and Emergency Preparedness ("PREP") Act (42 USC §247d-6d
`
`et seq.) and/or the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of 2020,
`
`§4113c (42 USC §247d-6d[i][1], as added by Pub L 116-136, 116 US Stat 3548).
`
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`
`54.
`
`This Court lacks jurisdiction over the subject matter of plaintiff's claims, pursuant
`
`to the United States Public Readiness and Emergency Preparedness ("PREP") Act (42 USC
`
`§247d-6d et seq.) and/or the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of
`
`2020, §4113c (42 USC §247d-6d[i][1], as added by Pub. L. 116-136, 116 US Stat 3548).
`
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
`
`55.
`
`The damages set forth in plaintiff's complaint were caused by intervening and
`
`superseding causes that relieve defendant of liability, including but not limited to the COVID-19
`
`pandemic and the spread of SARS-CoV-2 or a virus mutating therefrom.
`
`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`
`56.
`
`At the time of the allegations set forth in plaintiff's complaint, defendant was
`
`faced with a sudden and unexpected emergency situation caused by the COVID-19 pandemic
`
`and the spread of SARS-CoV-2 or a virus mutating therefrom, which defendant did not cause,
`
`and defendant acted reasonably during the same.
`
`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`
`57.
`
`The damages set forth in plaintiff's complaint were caused, if at all, in whole or
`
`part by the COVID-19 pandemic and the spread of SARS-CoV-2 or a virus mutating therefrom,
`
`which constituted an 'act of god' or 'force majeure' over which defendant had no control and
`
`which defendant could not reasonably foresee or prepare for with sufficient efficacy to prevent
`
`the damages set forth in the Complaint from occurring, if they occurred at all.
`
`
`
`
`
`11
`
`11 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
`
`58.
`
`At the time of the allegations set forth in plaintiff's complaint, defendant was
`
`acting in the interest of public necessity in the face of a public emergency caused by the
`
`COVID-19 pandemic and the spread of SARS-CoV-2 or a virus mutating therefrom, and any
`
`acts or omissions set forth in plaintiff's complaint were to protect the public as a whole from
`
`greater harm that would otherwise have occurred.
`
`AS AND FOR AN THIRTHY-THIRD AFFIRMATIVE DEFENSE
`
`59.
`
`The PREP Act provides
`
`the
`
`remedy
`
`for plaintiff’s claims under
`
`the
`
`Countermeasures Injury Compensation Program (CCIP). Accordingly, plaintiff failed to exhaust
`
`his/her administrative remedies and thus the Court lacks subject matter jurisdiction. 42 U.S.C
`
`§247-6e(d)(1); Parker v. St. Lawrence County Pubic Heath Department, 102 A.D. 3d 140 (3d
`
`Dept. 2012).
`
`AS AND FOR AN THIRTY-FOURTH AFFIRMATIVE DEFENSE
`
`60.
`
`Plaintiff has failed to comply with the requirements of CPLR § 3012 (a).
`
`
`
`WHEREFORE, defendant, NEW YORK CITY HEALTH AND HOSPITALS
`
`CORPORATION also s/h/a KINGS COUNTY HOSPITAL CENTER, demands judgment
`
`dismissing the Verified Complaint herein, together with the costs and disbursements of this
`
`action.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`12
`
`12 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`To the best of my knowledge, information and belief, formed after an inquiry reasonable under
`the circumstances, the presentation of this paper or the contentions herein are not frivolous, as
`that term is defined in Part 130 of the Court Rules
`
`
`Dated: Garden City, New York
`
`May 25, 2022
`
`
`Yours, etc.
`
`KAUFMAN, BORGEEST & RYAN, LLP
`Of Counsel to Andrea Cohen,
`General Counsel
`NEW YORK CITY HEALTH AND HOSPITALS
`CORPORATION
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By:
`Patrick A. Dolan
`Attorneys for Defendant
`NEW YORK CITY HEALTH AND HOSPITALS
`CORPORATION also s/h/a KINGS COUNTY
`HOSPITAL CENTER
`1205 Franklin Avenue
`Garden City, New York 11530
`(516) 248-6000
`KBR File No.: 961.161
`
`
`TO: SANOCKI NEWMAN & TURRET LLP
`
`Attorney for Claimant
`225 Broadway-8th floor
`
`
`New York, NY 10007
`
`(212) 962-1190
`
`Attn: Joshua Fogel, Esq
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`13
`
`13 of 14
`
` 9016284
`
`

`

`FILED: KINGS COUNTY CLERK 05/25/2023 12:45 PM
`NYSCEF DOC. NO. 14
`
`INDEX NO. 512694/2023
`
`RECEIVED NYSCEF: 05/25/2023
`
`
`
`
`
`
`
`ATTORNEY VERIFICATION
`
`PATRICK A. DOLAN, an attorney admitted to practice in the Courts of the State of New
`
`York, affirms that the following statements are true, under the penalties of perjury:
`
`I a member of the law firm of KAUFMAN, BORGEEST & RYAN, LLP and know the
`
`contents thereof. The same is true of my own 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. The grounds for my belief as to all matters not stated upon my own knowledge are the
`
`claims on file in this case. The reason I make this verification is pursuant to CPLR § 3020(d)(2).
`
`Dated: New York, New York
`
`May 25, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`PATRICK A. DOLAN
`
`
`
`14
`
`14 of 14
`
` 9016284
`
`