throbber
FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`
`
`Plaintiff,
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`
`
`
`Index No.: 604086/2023
`
`
`VERIFIED ANSWER
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`
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`-against-
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NASSAU
`==========================================X
`PATRICIA MARINO,
`
`
`
`
`
`EXCEL AT WOODBURY FOR REHABILITATION
`AND NURSING, LLC., WOODBURY CENTER FOR
`HEALTHCARE, SELENA SUTTER-REIZOVIC,
`SELENA SUTTER-REIZOVIC, P.T., P.C., SELENA
`SUTTER-REIZOVIC, INC., MITCHELL MARTIN
`HEALTHCARE, LLC., MITCHELL/MARTIN, INC.,
`8533 JERICHO TPKE REALTY CO., INC.,
`WOODBURY REAL ESTATE HOLDING CO., LLC.,
`FREDERICK WHITE, FREDERICK WHITE, LLC.,
`ISSAC LAUFER, CHAIM LEBOWITZ,
`JEFFREY WHITE AND MAX LEBOWITZ,
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`Defendants.
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`==========================================X
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`Defendant, CHAIM LEBOWITZ, by his attorneys, RUBIN PATERNITI GONZALEZ
`
`RIZZO KAUFMAN LLP, answers the plaintiff’s verified complaint as follows, upon information
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`and belief:
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`1.
`
`Denies knowledge or information sufficient to form a belief as to each and every
`
`allegation contained in the paragraphs of the verified complaint designated “1”, “9”, “10”, “11”,
`
`“12”, “13”, “14”, “15”, “16”, “17”, “18”, “19”, “21”, “22”, “25”, “26”, “27”, “28”, “29”, “30”,
`
`“31”, “38”, “39”, “40”, “41”, “42”, “43”, “44”, “45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”,
`
`“53”, “54”, “55”, “56”, “57”, “58”, “59”, “60”, “61”, “62”, “63”, “64”, “65”, “66”, “72”, “73”,
`
`“74”, “75”, “76”, “77”, “78”, “79”, “80”, “81”, “82”, “83”, “84”, “85”, “86”, “87”, “88”, “89”,
`
`“90”, “91”, “92”, “93”, “94”, “95”, “96”, “97”, “98”, “99”, “100”, “101”, “102”, “103”, “104”,
`
`“105”, “106”, “107”, “108”, “109”, “110”, “111”, “112”, “113”, “114”, “115”, “116”, “117”,
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`1 of 16
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`

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`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`INDEX NO. 604086/2023
`RECEIVED NYSCEF: 05/05/2023
`RECEIVED NYSCEF: 05/05/2023
`
`“118”, “119”, “120”, “121”, “122”, “123”, “124”, “125”, “126”, “127”, “128”, “129”, “130”,
`“118”, “119”, “120”, “121”, “122”, “123”, “124”, “125”, “126”, “127”, “128”, “129”, “130”,
`
`“131”, “132”, “133”, “134”, “135”, “136”, “137”, “138”, “139”, “140”, “141”, “142”, “143”,
`“131”, “132”, “133”, “134”, “135”, “136”, “137”, “138”, “139”, “140”, “141”, “142”, “143”,
`
`“144”, “145”, “146”, “147”, “148”, “149”, “150”, “151”, “152”, “153”, “154”, “155”, “156”,
`“144”, “145”, “146”, “147”, “148”, “149”, “150”, “151”, “152”, “153”, “154”, “155”, “156”,
`
`“157”, “158”, “159”, “160”, “161”, “162”, “163”, “164”, “165”, “166”, “167”, “168”, “169”,
`“157”, “158”, “159”, “160”, “161”, “162”, “163”, “164”, “165”, “166”, “167”, “168”, “169”,
`
`“170”, “171”, “172”, “173”, “174”, “175”, “176”, “177”, “178”, “179”, “180”, “182”, “183”,
`“170”, “171”, “172”, “173”, “174”, “175”, “176”, “177”, “178”, “179”, “180”, “182”, “183”,
`
`“184”, “185”, “186”, “188”, “189”, “190”, “191”, “192”, “193”, “195”, “196”, “197”, “198”,
`“184”, “185”, “186”, “188”, “189”, “190”, “191”, “192”, “193”, “195”, “196”, “197”, “198”,
`
`“199”, “201”, “202”, “203”, “205”, “206”, “207”, “208”, “209”, “210”, “211”, “212”, “213”,
`“199”, “201”, “202”, “203”, “205”, “206”, “207”, “208”, “209”, “210”, “211”, “212”, “213”,
`
`“214”, “215”, “216”, “217”, “218”, “219”, “220”, “221”, “222”, “223”, “225”, “226”, “227”,
`“214”, “215”, “216”, “217”, “218”, “219”, “220”, “221”, “222”, “223”, “225”, “226”, “227”,
`
`“228”, “229”, “230”, “231”, “232”, “233”, “234”, “235”, “237”, “238”, “239”, “240”, “241”,
`“228”, “229”, “230”, “231”, “232”, “233”, “234”, “235”, “237”, “238”, “239”, “240”, “241”,
`
`“242”, “243”, “244”, “245”, “246”, “248”, “249”, “250”, “251”, “252”, “253”, “254”, “255”,
`“242”, “243”, “244”, “245”, “246”, “248”, “249”, “250”, “251”, “252”, “253”, “254”, “255”,
`
`“256”, “257”, “258”, “260”, “261”, “263”, “264”, “265”, “266”, “267”, “268”, “269”, “270”,
`“256”, “257”, “258”, “260”, “261”, “263”, “264”, “265”, “266”, “267”, “268”, “269”, “270”,
`
`“271”, “272”, “274”, “275”, “276”, “278”, “279”, “280”, “281”, “282”, “283”, “284”, “285”,
`“271”, “272”, “274”, “275”, “276”, “278”, “279”, “280”, “281”, “282”, “283”, “284”, “285”,
`
`“286”, “287”, “289”, “290”, “291”, “293”, “294”, “295”, “296”, “297”, “298”, “299”, “300”,
`“286”, “287”, “289”, “290”, “291”, “293”, “294”, “295”, “296”, “297”, “298”, “299”, “300”,
`
`“301”, “302”, “303”, “305”, “306”, “308”, “309”, “310”, “311”, “312”, “313”, “314”, “315”,
`“301”, “302”, “303”, “305”, “306”, “308”, “309”, “310”, “311”, “312”, “313”, “314”, “315”,
`
`“316”, “317”, “318”, “320”, “321”, “323”, “324”, “325”, “326”, “327”, “328”, “329”, “330”,
`“316”, “317”, “318”, “320”, “321”, “323”, “324”, “325”, “326”, “327”, “328”, “329”, “330”,
`
`“331”, “332”, “333”, “335”, “336”, “338”, “339”, “340”, “341”, “342”, “343”, “344”, “345”,
`“331”, “332”, “333”, “335”, “336”, “338”, “339”, “340”, “341”, “342”, “343”, “344”, “345”,
`
`“346”, “347”, “348”, “350”, “351”, “352”, “353”, “354”, “355”, “356”, “357”, “358”, “359”,
`“346”, “347”, “348”, “350”, “351”, “352”, “353”, “354”, “355”, “356”, “357”, “358”, “359”,
`
`“360”, “361”, “362”, “363”, “364”, “365”, “367”, “368”, “370”, “371”, “372”, “373”, “374”,
`“360”, “361”, “362”, “363”, “364”, “365”, “367”, “368”, “370”, “371”, “372”, “373”, “374”,
`
`“375”, “376”, “377”, “378”, “380”, “381”, “383”, “384”, “385”, “386”, “387”, “388”, “389”,
`“375”, “376”, “377”, “378”, “380”, “381”, “383”, “384”, “385”, “386”, “387”, “388”, “389”,
`
`“390”, “391”, “392”, “394”, “395”, “396”, “398”, “399”, “400”, “401”, “402”, “403”, “404”,
`“390”, “391”, “392”, “394”, “395”, “396”, “398”, “399”, “400”, “401”, “402”, “403”, “404”,
`
`“405”, “406”, “407”, “409”, “410”, “411”, “413”, “414”, “415”, “416”, “417”, “418”, “419”,
`“405”, “406”, “407”, “409”, “410”, “411”, “413”, “414”, “415”, “416”, “417”, “418”, “419”,
`
`“420”, “421”, “422”, “423”, “425”, “426”, “428”, “429”, “430”, “431”, “432”, “433”, “434”,
`“420”, “421”, “422”, “423”, “425”, “426”, “428”, “429”, “430”, “431”, “432”, “433”, “434”,
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`2 of 16
`2 of 16
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`

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`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`“435”, “436”, “437”, “439”, “440”, “443”, “444”, “445”, “446”, “447”, “448”, “449”, “450”,
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`“451”, “452”, “454”, “455” and 456.
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`2.
`
`Denies, in the form alleged, each and every allegation contained in the paragraphs
`
`of the verified complaint designated “2”, “3”, “4”, “5”, “6”, “20”, “23”, “24”, “32”, “200”, “204”
`
`and “441”.
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`3.
`
`Denies each and every allegation contained in the paragraphs of the verified
`
`complaint designated “7”, “8”, “33”, “34”, “35”, “36”, “37”, “67”, “68”, “69”, “70”, “71”, “181”,
`
`“187”, “194”, “224”, “236”, “247”, “259”,“262”, “273”, “277”, “288”, “292”, “304”, “307”,
`
`“319”, “322”, “334”, “337”, “349”, “354” , “366”, “369”, “379”, “382”, “393”, “397”, “408”,
`
`“412”, “424”, “427”, “438”, “442”, “453”, “460”, “461”, “462”, “463” and “464” except begs
`
`leave to refer all questions of fact to the trier of fact and all questions of law to the Court.
`
`4.
`
`Denies each and every allegation contained in the paragraphs of the verified
`
`complaint designated “457” and “458”.
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`5.
`
`Denies each and every allegation contained in the paragraph of the verified
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`complaint designated “459” except begs leave to refer all questions of fact to the trier of fact and
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`all questions of law to the Court and admits that defendant rendered nursing care to and for said
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`plaintiff on certain dates in accordance with acceptable medical standards of care.
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`ANSWERING THE FIRST CAUSE OF ACTION
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`6.
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`Repeats and realleges each and every response to paragraphs “1” through “464” of
`
`the verified complaint as if fully set forth herein, as his response to paragraph “465” of the verified
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`complaint.
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`7.
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`Denies each and every allegation contained in the paragraphs of the verified
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`complaint designated “466”, “467”, “468”, “469” and “470”.
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`3 of 16
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`

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`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
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`RECEIVED NYSCEF: 05/05/2023
`
`8.
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`Denies each and every allegation contained in the paragraph of the verified
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`complaint designated “471” except begs leave to refer all questions of fact to the trier of fact and
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`all questions of law to the Court.
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`ANSWERING THE SECOND CAUSE OF ACTION
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`9.
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`Repeats and realleges each and every response to paragraphs “1” through “471” of
`
`the verified complaint as if fully set forth herein, as his response to paragraph “472” of the verified
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`complaint.
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`10.
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`Denies, in the form alleged, each and every allegation contained in the paragraph
`
`of the verified complaint designated “473”.
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`11.
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`Denies each and every allegation contained in the paragraphs of the verified
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`complaint designated “474”, “475”, “476”, “477” and “478”.
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`12.
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`Denies each and every allegation contained in the paragraph of the verified
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`complaint designated “479” except begs leave to refer all questions of fact to the trier of fact and
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`all questions of law to the Court.
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`ANSWERING THE THIRD CAUSE OF ACTION
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`13.
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`Repeats and realleges each and every response to paragraphs “1” through “479” of
`
`the verified complaint as if fully set forth herein, as his response to paragraph “480” of the verified
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`complaint.
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`14.
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`Denies knowledge or information sufficient to form a belief as to each and every
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`allegation contained in the paragraphs of the verified complaint designated “481”, “482”, “483”,
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`“484”, “485”, “486”, “487”, “488”, “489”, “491”, “492”, “493”, “494”, “495”, “510”, “511”,
`
`“512”, “513”, “514”, “515”, “516”, “517”, “518”, “520”, “521”, “522”, “523”, “524”, “525”,
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`“526”, “527”, “528”, “529”, “530”, “531”, “532”, “534”, “535”, “536”, “537”, “538”, “539”,
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`4 of 16
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`

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`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`“540”, “541”, “542”, “543”, “544”, “545”, “546”, “548”, “549”, “550”, “551”, “552”, “553”,
`
`“554”, “555”, “556”, “557”, “558”, “559”, “560”, “562”, “563”, “564”, “565”, “566”, “567”,
`
`“568”, “569”, “570”, “571”, “572”, “573”, “574”, “575”, “577”, “578”, “579”, “580”, “581”,
`
`“582”, “583”, “584”, “585”, “586”, “587”, “588”, “589”, “591”, “592”, “593”, “594”, “596”,
`
`“597”, “598”, “599”, “600”, “601”, “602”, “603”, “604”, “605”, “606”, “608”, “609”, “610”,
`
`“611”, “612”, “613”, “614”, “615”, “616”, “617”, “619”, “620”, “621”, “622”, “623” and “624”.
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`15.
`
`Denies each and every allegation contained in the paragraphs of the verified
`
`complaint designated “490”, “496”, “497”, “498”, “499”, “500”, “501”, “502”, “503”, “504”,
`
`“505”, “506”, “507”, “508”, “509”, “519”, “533”, “547”, “561”, “576”, “590”, “595”, “607”,
`
`“618”, “626”, “627”, “628”, “629”, “630”, “631”, “632”, “633”, “634”, “635”, “636”, “637”,
`
`“638”, “639”, “640”, “641”, “642”, “643”, “644”, “645”, “646”, “647”, “648”, “649”, “650”,
`
`“651”, “652”, “653”, “654”, “655”, “656”, “657”, “658”, “659”, “660”, “661”, “662”, “663”,
`
`“664”, “665”, “666”, “667” and “684” except begs leave to refer all questions of fact to the trier
`
`of fact and all questions of law to the Court.
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`16.
`
`Denies each and every allegation contained in the paragraphs of the verified
`
`complaint designated “625”, “668”, “669”, “670”, “671”, “672”, “673”, “674”, “675”, “676”,
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`“677”, “678”, “679”, “680”, “681”, “682” and “683”.
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`ANSWERING THE FOURTH CAUSE OF ACTION
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`17.
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`Repeats and realleges each and every response to paragraphs “1” through “684” of
`
`the verified complaint as if fully set forth herein, as his response to paragraph “685” of the verified
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`complaint.
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`18.
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`Denies each and every allegation contained in the paragraphs of the verified
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`complaint designated “686”, “687”, “688”, “689”, “690”, “691”, “692”, “693”, “694”, “695”,
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`5 of 16
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`

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`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`“696”, “697”, “698”, “699”, “700”, “701”, “702”, “703”, “704”, “705”, “706”, “707”, “708”,
`
`“709”, “710”, “711”, “712”, “713”, “714”, “715”, “716”, “717”, “718”, “719”, “720”, “721”,
`
`“722”, “723”, “724”, “725”, “726”, “727”, “728”, “729”, “730”, “731”, “732”, “733”, “734”,
`
`“735”, “736”, “737”, “738”, “739”, “740”, “741”, “743”, “744”, “745”, “746”, “747”, “748”,
`
`“749”, “750”, “751”, “752”, “753” and “754” except begs leave to refer all questions of fact to the
`
`trier of fact and all questions of law to the Court.
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`19.
`
`Denies each and every allegation contained in the paragraph of the verified
`
`complaint designated “742”.
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`ANSWERING THE FIFTH CAUSE OF ACTION
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`20.
`
`Repeats and realleges each and every response to paragraphs “1” through “754” of
`
`the verified complaint as if fully set forth herein, as his response to paragraph “755” of the verified
`
`complaint.
`
`21.
`
`Denies each and every allegation contained in the paragraphs of the verified
`
`complaint designated “756”, “757”, “758”, “760” and “761” except 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 the paragraph of the verified
`
`complaint designated “759”.
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`ANSWERING THE SIXTH CAUSE OF ACTION
`
`23.
`
`Repeats and realleges each and every response to paragraphs “1” through “761” of
`
`the verified complaint as if fully set forth herein, as his response to paragraph “762” of the verified
`
`complaint.
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`6 of 16
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`

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`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`24.
`
`Denies each and every allegation contained in the paragraphs of the verified
`
`complaint designated “763”, “764”, “765”, “766”, “767”, “769” and “770” 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 the paragraph of the verified
`
`complaint designated “768”.
`
`ANSWERING THE SEVENTH CAUSE OF ACTION
`
`26.
`
`Repeats and realleges each and every response to paragraphs “1” through “770” of
`
`the verified complaint as if fully set forth herein, as his response to paragraph “771” of the verified
`
`complaint.
`
`27.
`
`Denies each and every allegation contained in the paragraph of the verified
`
`complaint designated “772”, “773”, “774”, “775”, “776”, “777”, “778”, “779”, “780”, “781”,
`
`“782”, “783”, “784”, “786” and “787” except begs leave to refer all questions of fact to the trier
`
`of fact and all questions of law to the Court.
`
`28.
`
`Denies each and every allegation contained in the paragraph of the verified
`
`complaint designated “785”.
`
`ANSWERING “STATEMENT REGARDING EXCEPTIONS IN CPLR SECTION 1602”
`
`29.
`
`Denies each and every allegation contained in the paragraph of the verified
`
`complaint designated “788” except begs leave to refer all questions of fact to the trier of fact and
`
`all questions of law to the Court.
`
`FIRST AFFIRMATIVE DEFENSE
`
`30.
`
`This Court lacks personal jurisdiction over the answering defendant.
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`7 of 16
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`

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`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`SECOND AFFIRMATIVE DEFENSE
`
`31.
`
`The alleged causes of action set forth in the verified complaint are time-barred by
`
`the applicable Statute of Limitations.
`
`THIRD AFFIRMATIVE DEFENSE
`
`32. Whatever injuries plaintiff may have sustained at the time and place alleged in the
`
`verified complaint were caused in whole or in part or were contributed to 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.
`
`FOURTH AFFIRMATIVE DEFENSE
`
`
`
`33.
`
`Upon information and belief, the injuries and damages alleged were caused by the
`
`culpable conduct of some third person or persons over whom answering defendant neither had,
`
`nor exercised control.
`
`FIFTH AFFIRMATIVE DEFENSE
`
`
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`34.
`
`Upon information and belief, whatever damages, if any, suffered by plaintiff has
`
`been set-off by a prior recovery.
`
`SIXTH AFFIRMATIVE DEFENSE
`
`
`
`35.
`
`Defendant claims the protections, benefits and limitations on liability as set forth in
`
`Article 16 of the C.P.L.R.
`
`SEVENTH AFFIRMATIVE DEFENSE
`
`
`
`36.
`
`
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`The verified complaint fails to a state a cause of action upon which relief
`
`can be granted.
`
`
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`8 of 16
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`

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`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`EIGHTH AFFIRMATIVE DEFENSE
`
`
`
`37.
`
`Defendant claims the protections, benefits and limitations on liability as set forth in
`
`Article 14 of the C.P.L.R.
`
`NINTH AFFIRMATIVE DEFENSE
`
`
`
`38.
`
`Defendant claims the protections, benefits and limitations on liability as set forth in
`
`Rule 4545 of the C.P.L.R.
`
`TENTH AFFIRMATIVE DEFENSE
`
`
`
`39.
`
`Answering defendant and his agents, servants and employees are immune from
`
`civil liability in accordance with Executive Order 202.10, any and all related or subsequent
`
`Executive Orders issued by the Governor of the State of New York, and Public Health Law Article
`
`30-D.
`
`ELEVENTH AFFIRMATIVE DEFENSE
`
`
`
`40.
`
`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, answering defendant and his agents, servants and employees are covered
`
`persons and his 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.
`
`TWELFTH AFFIRMATIVE DEFENSE
`
`
`
`41.
`
`The PREP Act provides
`
`the remedy for plaintiff’s claims under
`
`the
`
`Countermeasures Injury Compensation Program (CCIP). Accordingly, plaintiff failed to exhaust
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`9 of 16
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`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
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`RECEIVED NYSCEF: 05/05/2023
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`their 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).
`
`THIRTEENTH AFFIRMATIVE DEFENSE
`
`
`
`42.
`
`The allocation of health care resources during an emergency is a discretionary
`
`governmental function and answering defendant, his agents, servants and employees are therefore
`
`immune from civil liability.
`
`FOURTEENTH AFFIRMATIVE DEFENSE
`
`
`
`43.
`
`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.
`
`FIFTEENTH AFFIRMATIVE DEFENSE
`
`
`
`44.
`
`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)) and therefore the
`
`venue/choice of Court is incorrect.
`
`SIXTEENTH AFFIRMATIVE DEFENSE
`
`
`
`45.
`
`Given the declared public health emergency, answering defendant and his 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.
`
`SEVENTEENTH AFFIRMATIVE DEFENSE
`
`
`
`46.
`
`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
`
`10 of 16
`
`

`

`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`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.
`
`EIGHTEENTH AFFIRMATIVE DEFENSE
`
`
`
`47.
`
`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.
`
`NINETEENTH AFFIRMATIVE DEFENSE
`
`
`
`48.
`
`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 verified complaint
`
`shall reduce any judgment rendered in favor of plaintiff as against this defendant to the extent of
`
`the greater of either the sums or consideration paid or promised to plaintiff or the amount of the
`
`released tortfeasor’s(s’) equitable share(s) of the damages in accordance with General Obligations
`
`Law §15-108.
`
`TWENTIETH AFFIRMATIVE DEFENSE
`
`
`
`49.
`
`Defendant reserves the right to amend this Answer and assert additional defenses
`
`upon ascertaining more definitive facts during and upon completion of discovery and investigation
`
`of plaintiff’s purported claim.
`
`TWENTY-FIRST AFFIRMATIVE DEFENSE
`
`
`
`50.
`
`Plaintiff’s verified complaint fails to comply with the single allegation per
`
`paragraph provision of CPLR 3014.
`
`
`
`11 of 16
`
`

`

`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`TWENTY-SECOND AFFIRMATIVE DEFENSE
`
`
`
`51.
`
`Plaintiff is barred from recovering relief sought in verified complaint by failing to
`
`exercise reasonable care and diligence to mitigate any alleged damages.
`
`TWENTY-THIRD AFFIRMATIVE DEFENSE
`
`
`
`52.
`
`At all times, answering defendant has complied with all applicable Federal and
`
`State Rules, Regulations, Codes, Ordinances and Statutes.
`
`TWENTY-FOURTH AFFIRMATIVE DEFENSE
`
`
`
`53.
`
`Answering defendant alleges that it committed no act or omission that was
`
`malicious, oppressive, willful, wanton, reckless or grossly negligent and, therefore, any award of
`
`punitive damages is barred.
`
`TWENTY-FIFTH AFFIRMATIVE DEFENSE
`
`
`
`54. With respect to plaintiff’s demand for punitive damages, answering defendant
`
`specifically incorporates by reference all standards of limitations regarding the determination and
`
`enforceability of punitive damage awards, including but not limited to, those standards or
`
`limitations which arose in BMW of North America v. Gore, 116 U.S. 1589 (1996), Cooper
`
`Industries, Inc. v. Leatherman Tool Group, Inc., 32 U.S. 424 (2001), and State Farm Mutual
`
`Automobile In. Co. v. Campbell, 123 S. Ct. 1513 (2003).
`
`TWENTY-SIXTH AFFIRMATIVE DEFENSE
`
`
`
`55.
`
`To the extent that plaintiff seeks punitive or “exemplary” damages for the conduct
`
`which allegedly caused plaintiff’s injuries as asserted in the verified complaint, such an award by
`
`this Court would violate this answering defendant’s federal and state constitutional rights.
`
`
`
`12 of 16
`
`

`

`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`
`56.
`
`Plaintiff’s verified complaint does not set forth a basis for punitive damages.
`
`TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`
`57.
`
`The acts or omissions of the answering defendant herein did not constitute willful
`
`
`
`
`
`malfeasance, gross neglect and/or gross abuse as alleged in plaintiff’s verified complaint, and any
`
`and all claims for punitive damages and attorney’s fees should be denied.
`
`TWENTY-NINTH AFFIRMATIVE DEFENSE
`
`
`
`58.
`
`Plaintiff’s claim for punitive damages is unwarranted and unconstitutional and
`
`violative of due process based on the claims made in the plaintiff’s verified complaint as the acts
`
`or omissions alleged by this answering defendant do not rise to the level of conduct for which
`
`exemplary damages are warranted.
`
`THIRTIETH AFFIRMATIVE DEFENSE
`
`
`
`59.
`
`This defendant has complied with 10 NYCRR § 415.12, and in particular paragraph
`
`(c); and if plaintiff developed any pressure sores while in defendant’s facility, they were
`
`unavoidable due to the plaintiff’s clinical condition, despite every reasonable effort to prevent
`
`them; and further that the plaintiff did receive necessary treatment and services to any already
`
`existing pressure sores to promote healing, prevent infection and prevent new sores from
`
`developing.
`
`THIRTY-FIRST AFFIRMATIVE DEFENSE
`
`
`
`60.
`
`The defendant has complied with all applicable 10 NYCRR § 415 provisions, and
`
`provisions of Article 28 of Public Health Law, and all provisions of 42 C.F.R. § 483, and has
`
`acted at all times within the standard of care.
`
`
`
`13 of 16
`
`

`

`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`THIRTY-SECOND AFFIRMATIVE DEFENSE
`
`
`
`61.
`
`The plaintiff entered defendant’s facility with a pre-existing clinical condition or
`
`conditions that rendered the alleged injuries and alleged diminution of activities of daily living
`
`unavoidable.
`
`THIRTY-THIRD AFFIRMATIVE DEFENSE
`
`
`
`62.
`
`Defendant invokes the protection, and is not in violation of, the Public Health Law
`
`§ 2801-d, § 2803-c, and § 2803-d, with respect to and to the extent of any cause of action for
`
`deprivation of the plaintiff’s rights. Defendant exercised all care reasonably necessary to prevent
`
`and limit the deprivation and injury to plaintiff.
`
`
`
`WHEREFORE, the defendant, CHAIM LEBOWITZ, by his attorneys, RUBIN
`
`PATERNITI GONZALEZ RIZZO KAUFMAN LLP, demands judgment dismissing the verified
`
`complaint, together with costs and disbursements of the within action.
`
`Dated: New York, New York
`
`May 4, 2023
`
`
`
`TO: All Parties Via NYSCEF
`
`
`
`
`
`RUBIN PATERNITI GONZALEZ
`RIZZO KAUFMAN LLP
`
`
`
`
`
`By:
`Kari A. Merolesi, Esq.
`
`Attorneys for Defendant
`CHAIM LEBOWITZ
`555 Fifth Avenue, Suite 600
`New York, New York 10017
`(646) 809-3370
`
`14 of 16
`
`

`

`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`ATTORNEY'S VERIFICATION BY AFFIRMATION
`
`
`
`KARI A. MEROLESI, an attorney duly admitted to practice before the Courts of the State
`
`of New York, affirms the following to be true under the penalties of perjury:
`
`
`
`I am a member of the firm of RUBIN PATERNITI GONZALEZ RIZZO KAUFMAN LLP,
`
`attorneys of record for defendant, CHAIM LEBOWITZ. I have read the annexed VERIFIED
`
`ANSWER and know the contents thereof, and the same are true to my knowledge, except those
`
`matters therein which are stated to be alleged upon information and belief, and as to those matters
`
`I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based
`
`upon facts, records, and other pertinent information contained in my files.
`
`
`
`The reason I make the foregoing affirmation instead of the defendant is because defendant
`
`is not presently in the county wherein the attorneys for the defendant maintain their offices.
`
`Dated: New York, New York
`
`May 4, 2023
`
`
`
`
`
`
`
`KARI A. MEROLESI
`
`
`
`15 of 16
`
`

`

`FILED: NASSAU COUNTY CLERK 05/05/2023 03:59 PM
`NYSCEF DOC. NO. 28
`
`INDEX NO. 604086/2023
`
`RECEIVED NYSCEF: 05/05/2023
`
`
`
`Index No.: 604086/2023
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NASSAU
`
`
`PATRICIA MARINO,
`
`
`
`
`
`EXCEL AT WOODBURY FOR REHABILITATION
`AND NURSING, LLC., WOODBURY CENTER FOR
`HEALTHCARE, SELENA SUTTER-REIZOVIC,
`SELENA SUTTER-REIZOVIC, P.T., P.C., SELENA
`SUTTER-REIZOVIC, INC., MITCHELL MARTIN
`HEALTHCARE, LLC., MITCHELL/MARTIN, INC.,
`8533 JERICHO TPKE REALTY CO., INC.,
`WOODBURY REAL ESTATE HOLDING CO., LLC.,
`FREDERICK WHITE, FREDERICK WHITE, LLC.,
`ISSAC LAUFER, CHAIM LEBOWITZ,
`JEFFREY WHITE AND MAX LEBOWITZ,
`
`-against-
`
`
`
`
`
`
`
`
`
`Defendants.
`
`VERIFIED ANSWER
`
`
`RUBIN PATERNITI GONZALEZ RIZZO KAUFMAN LLP
`Attorneys for Defendant
`CHAIM LEBOWITZ
`Office and Post Office Address
`555 Fifth Avenue, Suite 600
`New York, New York 10017
`Telephone (646) 809-3370
`
`
`
`
`
`
`
`
`
`
`
`TO: ALL PARTIES
`
`
`
`
`
`
`
`16 of 16
`
`

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