FILED: KINGS COUNTY CLERK 03/21/2024 11:14 AM
`NYSCEF DOC. NO. 38
`
`INDEX NO. 534728/2023
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`RECEIVED NYSCEF: 03/21/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`______________________________________________
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`MICHELLE GLATER and AVRAHAM EPSTEIN,
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`
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`Plaintiffs,
`
`
`-against-
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`MICHAEL KONIG, D.O., NORTHSHORE
`UNIVERSITY HOSPITAL d/b/a NORTHWELL
`HEALTH PHYSICIAN PARTNERS CARDIOLOGY –
`OCEAN PARKWAY, and MAIMONIDES MEDICAL
`CENTER,
`
`
`
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`
`
`
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`INDEX NO.: 534728/2023
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`
`
`VERIFIED ANSWER TO
`VERIFIED AMENDED
`COMPLAINT
`
`Defendants.
`______________________________________________
`
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`Defendant, MAIMONIDES MEDICAL CENTER, by its attorneys, McALOON &
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`FRIEDMAN, P.C., as and for its Verified Answer to the Verified Amended Complaint of the
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`plaintiffs, respectfully alleges upon information and belief as follows:
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`THE PARTIES
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`1.
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`Denies any knowledge or information sufficient to form a belief as to each
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`and every allegation set forth in Paragraphs 1 and 2 of plaintiffs’ Verified Amended Complaint.
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`2.
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`Denies each and every allegation set forth in Paragraphs 4 and 5 of
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`plaintiffs’ Verified Amended Complaint except admits that defendant, MICHAEL KONIG, D.O.,
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`is/was a NYS licensed physician and specialist in Cardiology/Cardiovascular Diseases.
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`3.
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`Denies each and every allegation set forth in Paragraph 7 of plaintiffs’
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`Verified Amended Complaint except admits that defendant, MICHAEL KONIG, D.O., is/was a
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`qualified and competent physician.
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`4.
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`Denies any knowledge or information sufficient to form a belief as to each
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`and every allegation set forth in Paragraphs 8, 10, 11 and 12 of plaintiffs’ Verified Amended
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`Complaint.
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`FILED: KINGS COUNTY CLERK 03/21/2024 11:14 AM
`NYSCEF DOC. NO. 38
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`INDEX NO. 534728/2023
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`RECEIVED NYSCEF: 03/21/2024
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`5.
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`Denies each and every allegation set forth in Paragraphs 9 and 16 of
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`plaintiffs’ Verified Amended Complaint.
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`6.
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`Denies each and every allegation set forth in Paragraphs 15 and 19 of
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`plaintiffs’ Verified Amended Complaint except admits
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`that defendant, MAIMONIDES
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`MEDICAL CENTER, owned, operated, managed, maintained and properly staffed its hospital
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`and medical facilities, and refers all questions of “control” to the court.
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`7.
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`Denies any knowledge or information sufficient to form a belief as to each
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`and every allegation set forth in Paragraphs 17 and 18 of plaintiffs’ Verified Amended
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`Complaint.
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`THE UNDERLYING FACTS
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`8.
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`Denies each and every allegation set forth and/or denies any knowledge or
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`information sufficient to form a belief as to each and every allegation set forth in Paragraphs 20,
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`21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 42 of
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`plaintiffs’ Verified Amended Complaint.
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`ANSWERING THE FIRST CAUSE OF ACTION
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`9.
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`Denies each and every allegation set forth in Paragraphs 43, 44, 45, 46 and
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`47 of plaintiffs’ Verified Amended Complaint.
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`ANSWERING THE SECOND CAUSE OF ACTION
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`10.
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`Denies each and every allegation set forth in Paragraphs 48, 49, 50 and 51
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`of plaintiffs’ Verified Amended Complaint.
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`AS AND FOR A FIRST, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`11.
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`The statute of limitations expired for all treatment provided prior to May
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`28, 2021, hence the lawsuit is untimely and subject to dismissal.
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`2 of 8
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`FILED: KINGS COUNTY CLERK 03/21/2024 11:14 AM
`NYSCEF DOC. NO. 38
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`INDEX NO. 534728/2023
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`RECEIVED NYSCEF: 03/21/2024
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`AS AND FOR A SECOND, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`12.
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`The injuries and damages of the plaintiffs, for which these causes of action
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`have been instituted, were caused wholly or in part through the culpable conduct and
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`contributory negligence on the part of plaintiffs and therefore the amount of damages, if any,
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`shall be diminished in the proportion which said conduct attributable to plaintiffs bears to the
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`defendant’s conduct, if any, which caused the damages.
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`AS AND FOR A THIRD, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`13.
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`The defendant’s liability, if any, is limited pursuant to CPLR §1600, et seq.
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`AS AND FOR A FOURTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`14.
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`Any verdict or judgment should be reduced by the amounts of past or
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`future collateral source reimbursements of alleged special damage pursuant to CPLR §4545(c).
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`AS AND FOR A FIFTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`15.
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`The plaintiffs’ right to recover damages is barred in whole or in part
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`pursuant to the Patient Protection and Affordable Care Act 26 USC Section 5000A.
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`AS AND FOR A SIXTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`16.
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`If any one of the parties or non-parties settles with plaintiffs, defendant is
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`entitled to an offset under G.O.L. §15-108.
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`AS AND FOR A SEVENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`17.
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`If there is any impact or effect from COVID-19, then these claims must be
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`dismissed on the basis of the absolute and qualified immunities granted by Governor Cuomo’s
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`March 7, 2020 and subsequent Executive Orders (“EO”), Article 30-D, §3082(2) of the Public
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`3 of 8
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`FILED: KINGS COUNTY CLERK 03/21/2024 11:14 AM
`NYSCEF DOC. NO. 38
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`INDEX NO. 534728/2023
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`RECEIVED NYSCEF: 03/21/2024
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`Health Law [now known as the Emergency or Disaster Treatment Protection Act (“EDTPA”)]
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`and Good Samaritan doctrine and laws.
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`AS AND FOR AN EIGHTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`18.
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`If there is any impact or effect from COVID-19, then these claims must be
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`dismissed in whole or in part pursuant to the EDTPA, which affords absolute and/or qualified
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`immunity from the allegations in the claims, including any claims that allegedly pre-date March
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`7, 2020, as such claims are covered under the EDTPA and amount to allegations of staffing or
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`resource shortage which is subject to an absolute immunity.
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`AS AND FOR A NINTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`19.
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`If there is any impact or effect from COVID-19, then these claims must be
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`dismissed due to lack of jurisdiction, failure to comply with conditions precedent and the
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`immunities granted by the PREP Act (42 U.S.C. §247d-6d).
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`AS AND FOR A TENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`20.
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`If there is any impact or effect from COVID-19, then the PREP Act
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`provides for the exclusive remedy for these claims, which are subject to a “no fault” fund. This
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`Court lacks jurisdiction over this matter.
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`AS AND FOR AN ELEVENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`21.
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`If there is any impact or effect from COVID-19, then the defendant acted
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`at all times within the proper standards of care generally, as well as the standards of care in place
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`in the locality in question at the time of the COVID-19 emergency.
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`AS AND FOR A TWELFTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`22.
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`If there is any impact or effect from COVID-19, then these claims are
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`barred in whole or in part by the error in judgment doctrine and/or in the unprecedented and
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`FILED: KINGS COUNTY CLERK 03/21/2024 11:14 AM
`NYSCEF DOC. NO. 38
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`INDEX NO. 534728/2023
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`RECEIVED NYSCEF: 03/21/2024
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`extenuating circumstances of COVID-19, which render the defendant’s judgment proper and
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`within the standards of care concerning accepted medical practice generally and/or in place at the
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`locality where the alleged acts or omissions occurred during the COVID-19 emergency.
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`AS AND FOR A THIRTEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`23.
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`If there is any impact or effect from COVID-19, then the defendant
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`followed Executive Orders, Federal mandates, as well as the guidance issued by the NY DOH,
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`the CDC, the W.H.O., the federal COVID-19 task force and other state and federal agencies.
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`AS AND FOR A FOURTEENTH, SEPARATE,
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`24.
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`Plaintiffs’ claims regarding COVID-19, if any, are not subject to any
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`community standard, due to the novel, evolving nature of COVID-19 at all relevant times, and
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`the defendant was at all times practicing in conformity with all recommendations, guidelines and
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`protocols.
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`AS AND FOR A FIFTEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`25.
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`Defendant acted at all times within the proper standards of care generally,
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`as well as the standards of care in place in the locality in question at the time of the COVID-19
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`emergency.
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`AS AND FOR A SIXTEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`26.
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`The defendant followed Executive Orders, Federal mandates, as well as
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`the guidance issued by the NY DOH, the CDC, the W.H.O., the federal COVID-19 task force
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`and other state and federal agencies.
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`AS AND FOR A SEVENTEENTH, SEPARATE
`AND DISTINCT AFFIRMATIVE DEFENSE:
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`27.
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`The defendant is immune from civil liability pursuant to Executive Order
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`202.10 and its progeny pursuant to PHL §3080.
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`5 of 8
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`FILED: KINGS COUNTY CLERK 03/21/2024 11:14 AM
`NYSCEF DOC. NO. 38
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`INDEX NO. 534728/2023
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`RECEIVED NYSCEF: 03/21/2024
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`WHEREFORE, the answering defendant demands judgment dismissing plaintiffs’
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`Verified Complaint, together with the costs and disbursements of this action.
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`McALOON & FRIEDMAN, P.C.
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`
`By:_________________________________
`LAURA R. SHAPIRO, ESQ.
`Attorneys for Defendant
`MAIMONIDES MEDICAL CENTER
`Office and P.O. Address
`One State Street Plaza, 23rd Floor
`New York, NY 10004
`Tel. (212) 732-8700
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`6 of 8
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`FILED: KINGS COUNTY CLERK 03/21/2024 11:14 AM
`NYSCEF DOC. NO. 38
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`INDEX NO. 534728/2023
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`RECEIVED NYSCEF: 03/21/2024
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`ATTORNEY’S VERIFICATION
`
`
`
`)
`STATE OF NEW YORK
` : SS.:
`COUNTY OF NEW YORK )
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`I, the undersigned, an attorney admitted to practice in the Courts of New York State, state
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`that I am a member of the firm of McALOON & FRIEDMAN, P.C., attorneys of record for the
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`defendant, MAIMONIDES MEDICAL CENTER, in the within action; I have read the
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`foregoing ANSWER and know the contents thereof; the same is true to my own knowledge,
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`except as to the matters therein alleged to be on information and belief, and as to those matters I
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`believe it to be true. The reason this verification is made by me and not by defendant is because
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`defendant resides outside the county where deponent maintains her office.
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`The grounds of my belief as to all matters not stated upon my own knowledge are as
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`follows: all records, reports and documents maintained by deponent in her file.
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`I affirm that the foregoing statements are true, under the penalties of perjury.
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`Dated: New York, New York
`March 21, 2024
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`
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`_______________________________
`LAURA R. SHAPIRO, ESQ.
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`7 of 8
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`FILED: KINGS COUNTY CLERK 03/21/2024 11:14 AM
`NYSCEF DOC. NO. 38
`RECEIVED NYSCEF: 03/21/2024
`____________________________________________________________________________________________
` Index No.: 534728
`Year 2023
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF KINGS
`____________________________________________________________________________________________ _
`
`MICHELLE GLATER and AVRAHAM EPSTEIN,
`
`
`INDEX NO. 534728/2023
`
`Plaintiffs,
`
`
`
`-against-
`
`
`MICHAEL KONIG, D.O., NORTHSHORE UNIVERSITY HOSPITAL d/b/a NORTHWELL HEALTH
`PHYSICIAN PARTNERS CARDIOLOGY – OCEAN PAWKWAY, and MAIMONIDES MEDICAL CENTER,
`
`
`Defendants.
`___________________________________________________________________________________________ __
`
`VERIFIED ANSWER TO VERIFIED AMENDED COMPLAITN
`ON BEHALF OF MAIMONIDES MEDICAL CENTER
`_________________________________________________________________________________________ ____
`
`
`
`Attorneys for Defendant
`MAIMONIDES MEDICAL CENTER
`Office and Post Office Address, Telephone
`One State Street Plaza, 23rd Floor
`New York, New York 10004-1561
`(212) 732-8700 (212) 227-2903
`___________________________________________________________________________________________ __
`Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon
`information and belief and reasonable inquiry, the contentions contained in the annexed document are not frivolous.
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`Dated: March 21, 2024
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`
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`Signature:
`Print Signer’s Name: LAURA R. SHAPIRO
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`___________________________________________________________________________________________ __
`To
`Attorney(s) for
`____________________________________________________________________________________________ _
`
`
`
`
`
`
`Service of a copy of the within
`Attorney(s) for
`
`
`
`Dated,
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`___________________________________________________________________________________________ __
`Sir: - Please take notice
`[ ] Notice of Entry
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`
`
`
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`is hereby admitted.
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`duly entered in the office of the clerk of the
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`that the within is a (certified) true copy of a
`within named court on 20
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`that an order
`to the HON.
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`
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`of which the within is a true copy will be presented for settlement
` one of the judges of the within named court,
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`at
`on 20 at M.
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`
`
`
`
`
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`Yours, etc.,
`
`
`Attorneys for Defendant
`MAIMONIDES MEDICAL CENTER
`Office and Post Office Address, Telephone
`One State Street Plaza, 23rd Floor
`New York, New York 10004-1561
`Tel. (212) 732-8700
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`8 of 8
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` [
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` ] Notice of Settlement
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`Dated,
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`
`