FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`RECEIVED NYSCEF: 05/10/2023
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`-------------------------------------------------------------------X
`WANDA ALEXANDER, as Administratrix of the Estate
`of CLARICE ALEXANDER and WANDA
`ALEXANDER, Individually,
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`Index No.: 534407/2022
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`Plaintiff(s),
`
`-against-
`
`VERIFIED ANSWER TO
`AMENDED VERIFIED
`COMPLAINT
`
`DITMAS PARK REHABILITATION & CARE
`CENTER LLC d/b/a DITMAS PARK CARE CENTER,
`MOUNT SINAI BROOKLYN, MAIMONIDES
`MEDICAL CENTER, ATLANTIS OPERATING LLC
`d/b/a THE PHOENIX REHABILITATION AND
`NURSING CENTER, CALVARY HOSPITAL, INC., and
`THE BROOKLYN HOSPITAL CENTER.
`
`Defendant(s),
`--------------------------------------------------------------------X
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`C O U N S E L O R S:
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`The defendant(s), CALVARY HOSPITAL, INC., by its attorneys, VIGORITO,
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`BARKER, PATTERSON, NICHOLS & PORTER, LLP, answering the Complaint of the
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`plaintiff(s), upon information and belief, respectfully shows to this Court and alleges:
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`1.
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`Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraphs “1”, “2”, and “3”.
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`2.
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`Denies each and every allegation contained in paragraph “4”.
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`ANSWERING THE FIRST CAUSE OF ACTION:
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`3.
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`In response to paragraph “5”, repeats and realleges each admission or denial made
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`herein with the same force and effect herein as to paragraphs “1” through “4” as though same were
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`more fully set forth herein at length.
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`4.
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`Denies having knowledge or information sufficient to form a belief as to the
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`FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`RECEIVED NYSCEF: 05/10/2023
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`allegations contained within paragraphs “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”, “14”, “15”,
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`“16”, “17”, “18”, “20”, “21”, “22”, “23” and “24”.
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`5.
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`Denies each and every allegation in paragraph “19” in the form alleged and refer
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`questions of fact to the trier of fact and questions of law to the Court.
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`ANSWERING THE SECOND CAUSE OF ACTION:
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`6.
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`In response to paragraph “25”, repeats and realleges each admission or denial made
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`herein with the same force and effect herein as to paragraphs “1” through “24” as though same
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`were more fully set forth herein at length.
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`7.
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`Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraphs “26”, “27”, “28”, “29”, “30”, “31”, “32”, “33”, “34”, “35”,
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`“36”, “37”, “38” and “39”.
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`ANSWERING THE THIRD CAUSE OF ACTION:
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`8.
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`In response to paragraph “40”, repeats and realleges each admission or denial made
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`herein with the same force and effect herein as to paragraphs “1” through “39” as though same
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`were more fully set forth herein at length.
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`9.
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` Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraphs “41”, “42”, “43”, “44” and “45”.
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`ANSWERING THE FOURTH CAUSE OF ACTION:
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`10.
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`In response to paragraph “46”, repeats and realleges each admission or denial made
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`herein with the same force and effect herein as to paragraphs “1” through “45” as though same
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`were more fully set forth herein at length.
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`11.
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`Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraphs “47”, “48”, “49”, “50”, “51”, “52”, “53”, “54”, “55”, “56”,
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`FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`RECEIVED NYSCEF: 05/10/2023
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`“57”, “58”, “59” and “60”.
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`ANSWERING THE FIFTH CAUSE OF ACTION:
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`12.
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`In response to paragraph “61”, repeats and realleges each admission or denial made
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`herein with the same force and effect herein as to paragraphs “1” through “60” as though same
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`were more fully set forth herein at length.
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`13.
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`Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraph “62”, “63”, “64”, “65” and “66”.
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`ANSWERING THE SIXTH CAUSE OF ACTION:
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`14.
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`In response to paragraph “67”, repeats and realleges each admission or denial made
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`herein with the same force and effect herein as to paragraphs “1” through “66” as though same
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`were more fully set forth herein at length.
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`15.
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`Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraph “68”, “69”, “70”, “71”, “72”, “73”, “74”, “75”, “76”, “77”,
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`“78”, “79”, “80” and “81”.
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`ANSWERING THE SEVENTH CAUSE OF ACTION:
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`16.
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`In response to paragraph “82”, repeats and realleges each admission or denial made
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`herein with the same force and effect herein as to paragraphs “1” through “81” as though same
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`were more fully set forth herein at length.
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`17.
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`Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraphs “83”, “84”, “85”, “86” and “87”.
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`ANSWERING THE EIGHTH CAUSE OF ACTION:
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`18.
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`In response to paragraph “88”, repeats and realleges each admission or denial made
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`herein with the same force and effect herein as to paragraphs “1” through “87” as though same
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`FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`RECEIVED NYSCEF: 05/10/2023
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`were more fully set forth herein at length.
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`19.
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`Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraphs “89”, “90”, “91”, “92”, “93”, “94”, “95”, “96”, “97”, “98”,
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`“99”, “100”, “101”, “103”, “104”, “105”, “106” and “107”.
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`20.
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`Denies each and every allegation in paragraph “102” in the form alleged and refer
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`questions of fact to the trier of fact and questions of law to the Court.
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`ANSWERING THE NINTH CAUSE OF ACTION:
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`21.
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`In response to paragraph “108”, repeats and realleges each admission or denial
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`made herein with the same force and effect herein as to paragraphs “1” through “107” as though
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`same were more fully set forth herein at length.
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`22.
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`Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraphs “109”, “110”, “111”, “112”, “113”, “114”, “115”, “116”,
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`“117”, “118”, “119” and “120”.
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`ANSWERING THE TENTH CAUSE OF ACTION:
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`23.
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`In response to paragraph “121”, repeats and realleges each admission or denial
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`made herein with the same force and effect herein as to paragraphs “1” through “120” as though
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`same were more fully set forth herein at length.
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`24.
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`Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraphs “122”, “123”, “124”, “125”, “126”, “127”, “128” and
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`“129”.
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`ANSWERING THE ELEVENTH CAUSE OF ACTION:
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`25.
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`In response to paragraph “130”, repeats and realleges each admission or denial
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`made herein with the same force and effect herein as to paragraphs “1” through “129” as though
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`FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`RECEIVED NYSCEF: 05/10/2023
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`same were more fully set forth herein at length.
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`26.
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`Denies each and every allegation in paragraph “131”, “132”, “133”, “134” and
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`“135” in the form alleged and refer questions of fact to the trier of fact and questions of law to the
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`Court.
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`27.
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`Denies each and every allegation contained in paragraphs “136”, “137”, “138”,
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`“139”, “140”, “141”, “142”, “143” and “144”.
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`ANSWERING THE TWELFTH CAUSE OF ACTION:
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`28.
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`In response to paragraph “145”, repeats and realleges each admission or denial
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`made herein with the same force and effect herein as to paragraphs “1” through “144” as though
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`same were more fully set forth herein at length.
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`29.
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`Denies each and every allegation contained in paragraphs “146”, “147”, “148”,
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`“149” and “150”.
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`ANSWERING THE THIRTEENTH CAUSE OF ACTION:
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`30.
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`In response to paragraph “151”, repeats and realleges each admission or denial
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`made herein with the same force and effect herein as to paragraphs “1” through “150” as though
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`same were more fully set forth herein at length.
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`31.
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`Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraphs “152”, “153”, “154”, “155”, “156”, “157”, “158”, “159”,
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`“160”, “161”, “162”, “163”, “164” and “165”.
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`ANSWERING THE FOURTEENTH CAUSE OF ACTION:
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`32.
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`In response to paragraph “166”, repeats and realleges each admission or denial
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`made herein with the same force and effect herein as to paragraphs “1” through “165” as though
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`same were more fully set forth herein at length.
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`33.
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`Denies having knowledge or information sufficient to form a belief as to the
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`FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`RECEIVED NYSCEF: 05/10/2023
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`allegations contained within paragraphs “167”, “168”, “169”, “170” and “171”.
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`ANSWERING THE FIFTEENTH CAUSE OF ACTION:
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`34.
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`In response to paragraph “172”, repeats and realleges each admission or denial
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`made herein with the same force and effect herein as to paragraphs “1” through “171” as though
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`same were more fully set forth herein at length.
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`35.
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`Denies each and every allegation contained in paragraphs “173”, “175”, “176”,
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`“177” and “178”.
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`36.
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`Denies having knowledge or information sufficient to form a belief as to the
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`allegations contained within paragraph “174” in the form alleged and refer questions of fact to the
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`trier of fact and questions of law to the Court.
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`37.
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`Any paragraph in the Complaint not answered is deemed denied.
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`AS AND FOR A FIRST DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`38.
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`That the answering defendant(s) reserve(s) the right to claim the limitations of
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`liability pursuant to Article 16 of the CPLR, for any recovery herein by the plaintiff for non-
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`economic loss.
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`AS AND FOR A SECOND DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`39.
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`That the statute of limitations set forth in CPLR 214(A) bars any claim with regard
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`to the professional services rendered more than two and one-half (2½) years prior to the
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`commencement of the within action.
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`AS AND FOR A THIRD DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`40.
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`In the event plaintiffs recover a verdict or judgment against defendants, such verdict
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`or judgment must be reduced pursuant to §4545 of the CPLR by those amounts which have been,
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`FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`RECEIVED NYSCEF: 05/10/2023
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`or will, with reasonable certainty replace or indemnify plaintiffs in whole or in part, for any past
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`or future claimed economic loss, from any collateral source.
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`AS AND FOR A FOURTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`41.
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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 defendant(s) by reason of the matters alleged in the Complaint, liability
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`for 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 plaintiff would have been obligated by law to pay.
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`AS AND FOR A FIFTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`42.
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`The defendant asserts the defense of set-off to reduce the plaintiff’s claims under
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`§15-108 of the General Obligations Law.
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`AS AND FOR A SIXTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`43.
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`If the plaintiff was caused to sustain personal injuries and resulting damages at the
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`time and place set forth in the plaintiff’s complaint and in the manner alleged therein through any
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`carelessness, recklessness, acts, omissions, negligence and/or breaches of duty and/or warranty
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`and/or contract other than of the plaintiff then the said injuries and damages arose out of the several
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`and joint carelessness, recklessness, acts, omissions, negligence and breaches of duty and/or
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`obligation and/or statute, and/or warranty, and/or contract in fact or implied in law, upon the part
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`of non-parties subject to in-personam jurisdiction, and if this pleading defendant is found negligent
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`as to the plaintiff for the injuries and damages set forth in the plaintiff’s complaint, then and in that
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`event, the relative responsibilities of said pleading defendant must be apportioned by the
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`percentage of liability of said non-parties subject to in-personam jurisdiction.
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`FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`RECEIVED NYSCEF: 05/10/2023
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`AS AND FOR A SEVENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`44.
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`The complaint did not contain the plaintiff’s address as required by CPLR §305-a.
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`AS AND FOR AN EIGHTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`45.
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`The complaint fails to state a valid cause of action upon which relief can be granted
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`to the plaintiff as and against the defendant(s).
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`AS AND FOR A NINTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`46.
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`These claims must be dismissed on the basis of the absolute and qualified
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`immunities granted by Governor Cuomo’s March 7, 2020 and subsequent Executive Orders
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`(“EO”), Article 30-D, §3082(2) of the Public Health Law [now known as the Emergency or
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`Disaster Treatment Protection Act (“EDTPA”)] and Good Samaritan doctrine and laws.
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`AS AND FOR A TENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`47.
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`These claims must be dismissed in whole or in part pursuant to the EDTPA, which
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`affords absolute and/or qualified immunity from the allegations in the claims, including any claims
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`that allegedly pre-date March 7, 2020, as such claims are covered under the EDTPA and amount
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`to allegations of staffing or resource shortage which is subject to an absolute immunity.
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`AS AND FOR AN ELEVENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`48.
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`Defendant acted at all times within the proper standards of care generally, as well
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`as the standards of care in place in the locality in question at the time of the COVID-19 emergency.
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`FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`RECEIVED NYSCEF: 05/10/2023
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`AS AND FOR A TWELFTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`49.
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`These claims are barred in whole or in part by the error in judgment doctrine and/
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`or the unprecedented and extenuating circumstances of COVID-19, which render the defendant’s
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`judgment proper and within the standards of care concerning accepted medical practice generally
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`and/ or in place at the locality where the alleged acts or omissions occurred during the COVID-19
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`emergency.
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`AS AND FOR A THIRTEENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`50.
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`The defendant followed Executive Orders, Federal mandates, as well as the
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`guidance issued by the NY DOH, the CDC, the W.H.O., the federal COVID-19 task force and
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`other state and federal agencies.
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`AS AND FOR A FOURTEENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`51.
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`That plaintiff’s claims regarding COVID-19 are not subject to any community
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`standard, due to the novel, evolving nature of COVID-19 at all relevant times, and the defendant
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`was all times were practicing in conformity with all recommendations, guidelines and protocols.
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`AS AND FOR A FIFTEENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`52.
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`Defendant avails itself of the doctrine of danger invites rescue. Defendant, its
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`employees and staff, put themselves at risk for patient care despite risks associated with COVID-
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`19, supply of certain countermeasures and person protection equipment.
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`AS AND FOR A SIXTEENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`53.
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`Plaintiff’s Complaint fails to state a claim upon which relief may be granted for the
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`total lack of any scientific or medical evidence linking the transmittal method of COVID-19 to the
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`FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`presence or absence of any preventative measures such that the alleged negligence and alleged
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`injuries sustained were preventable by defendant.
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`AS AND FOR A SEVENTEENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`54.
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`Plaintiff’s claims are barred because any alleged conduct on the part of the
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`defendant was made in good faith and as part of defendant’s efforts to comply with its obligations,
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`if any, under the law in preventing the spread of COVID-19.
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`AS AND FOR AN EIGHTEENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`55.
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`Plaintiff fails to state a claim upon which relief can be granted for gross negligence,
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`willful, wanton, malicious, reckless, and/or intentional conduct, and those claims should therefore
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`be dismissed.
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`AS AND FOR A NINETEENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`56.
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`These claims must be dismissed due to lack of jurisdiction, failure to comply with
`
`conditions precedent and the immunities granted by the PREP Act (42 U.S.C. §247d-6d).
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`AS AND FOR A TWENTIETH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`57.
`
`The PREP Act provides for the exclusive remedy for these claims, which are
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`subject to a federal administrative fund. This Court thus lacks subject matter jurisdiction over this
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`matter.
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`WHEREFORE, the defendant, CALVARY HOSPITAL, INC., demands judgment
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`dismissing the plaintiff(s)' complaint with the costs and disbursements of this action.
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`Dated: Garden City, New York
`May 10, 2023
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`FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`Yours, etc.,
`
`VIGORITO, BARKER, PATTERSON,
`NICHOLS & PORTER, LLP
`
`By: Jeffrey R . Nichols
`
`Jeffrey R. Nichols
`Attorneys for Defendant(s)
`CALVARY HOSPITAL, INC.
`300 Garden City Plaza, Suite 100
`Garden City, New York 11530
`(516) 282-3355
`VBPNP File No.: 0340-003
`
`TO:
`
`SINEL & OLESEN, PLLC
`Attorneys for Plaintiffs
`330 7th Avenue, 10th Floor
`New York, New York 10001
`(212) 465-1000
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`FILED: KINGS COUNTY CLERK 05/10/2023 04:00 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 534407/2022
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`RECEIVED NYSCEF: 05/10/2023
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`ATTORNEY'S VERIFICATION
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`Jeffrey R. Nichols, an attorney duly admitted and licensed to practice in the courts of this
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`State affirms the following pursuant to CPLR 2106:
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`I am the attorney for the defendant, CALVARY HOSPITAL, INC., herein; and I have
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`read the foregoing answer and know the contents thereof; that the same is true to my own
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`knowledge except as to the matters therein stated to be alleged upon information and belief, and
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`that as to those matters, I believe them to be true.
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`That the reason this verification is made by your affirmant and not by the defendant
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`personally is, that the defendant is not within the county where your affirmant has an office.
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`That the sources of your affirmant's information and the grounds of his/her belief as to the
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`matters so alleged herein are investigations had by the defendant, his/her agents, servants and
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`representatives into the subject matter hereof and correspondence relating thereto, reports of which
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`investigations and copies of which correspondence are in the possession of your affirmant.
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`Dated: Garden City, New York
`May 10, 2023
`
`Jeffrey R . Nichols
`
`Jeffrey R. Nichols
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