FILED: NEW YORK COUNTY CLERK 04/04/2024 11:34 AM
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`Index No.: 805037/2024
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`VERIFIED ANSWER
`
`Plaintiff,
`
`-against-
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-----------------------------------------------------------------------X
`SHAWN HOLLOWAY, as Administrator of the Estate
`of KAREN MURRELL a/k/a KAREN YVONNE
`MURRELL, Deceased,
`
`
`
`
`
`TERENCE CARDINAL COOKE HEALTH CARE
`CENTER and THE MOUNT SINAI HOSPITAL,
`
`
`Defendants.
`-----------------------------------------------------------------------X
`
`C O U N S E L O R S:
`
`
`Defendant, TERENCE CARDINAL COOKE HEALTH CARE CENTER (hereinafter
`
`“TERENCE CARDINAL COOKE” or “defendant”), by its attorneys, BARKER PATTERSON
`
`NICHOLS, LLP, answering the Verified Complaint of the plaintiff, upon information and belief,
`
`respectfully shows to this Court and alleges:
`
`1.
`
`Denies having knowledge or information sufficient to form a belief as to the truth
`
`of each and every allegation contained within paragraphs “1,” “2,” “3,” “7,” “8,” “9,” “10,” “11,”
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`“30,” “31,” “32,” “33,” “34,” “35,” “36,” “37,” “38,” “39” and “40” of plaintiff’s Verified
`
`Complaint.
`
`2.
`
`Denies each and every allegation in the form alleged contained within paragraph
`
`“4” of plaintiff’s Verified Complaint, except admits that the answering defendant is a domestic
`
`not-for-profit corporation.
`
`3.
`
`Denies each and every allegation in the form alleged contained within paragraphs
`
`“5,” “6,” “12,” “13,” “14,” “15,” “16,” “17,” “18,” “25,” “26,” “27” and “28” of plaintiff’s Verified
`
`Complaint.
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`4.
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`Denies each and every allegation in the form alleged contained within paragraphs
`
`“19,” “20,” “21,” “22,” “23,” “24” and “29” of plaintiff’s Verified Complaint and otherwise begs
`
`leave to refer all questions of law to the Court and all questions of fact to the trier thereof.
`
`ANSWERING THE FIRST CAUSE OF ACTION
`
`In response to paragraph “41” of plaintiff’s Verified Complaint, defendant repeats,
`
`5.
`
`reiterates and each and every denial and denial of knowledge or information sufficient to form a
`
`belief heretofore made in regard to each and every paragraph of the plaintiff’s Verified Complaint,
`
`designated as paragraphs “1” through “40” inclusive, with the same force and effect as though
`
`more fully set forth at length herein.
`
`6.
`
`Denies each and every allegation in the form alleged contained within paragraphs
`
`“42,” “43,” “44,” “45” and “46” of plaintiff’s Verified Complaint.
`
`7.
`
`Denies each and every allegation contained within paragraphs “47,” “48,” “49,”
`
`“50,” “51,” “54,” “55,” “56,” “57,” “58,” “59,” “60” and “61” of plaintiff’s Verified Complaint.
`
`8.
`
`Denies each and every allegation in the form alleged contained within paragraphs
`
`“52” and “53” of plaintiff’s Verified Complaint and otherwise begs leave to refer all questions of
`
`law to the Court and all questions of fact to the trier thereof.
`
`ANSWERING THE SECOND CAUSE OF ACTION
`
`9.
`
`In response to paragraph “62” of plaintiff’s Verified Complaint, defendant repeats,
`
`reiterates and realleges each and every denial and denial of knowledge or information sufficient to
`
`form a belief heretofore made in regard to each and every paragraph of the plaintiff’s Verified
`
`Complaint, designated as paragraphs “1” through “61” inclusive, with the same force and effect as
`
`though more fully set forth at length herein.
`
`10.
`
`Denies having knowledge or information sufficient to form a belief as to the truth
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`of each and every allegation contained within paragraphs “63,” “64,” “65,” “66,” “67,” “68,” “69,”
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`“70,” “71,” “72,” “78,” “79,” “80,” “81” and “86” of plaintiff’s Verified Complaint.
`
`11.
`
`Denies each and every allegation contained within paragraphs “73,” “74,” “75,”
`
`“76,” “77,” “82,” “83,” “84” and “85” of plaintiff’s Verified Complaint.
`
`ANSWERING THE THIRD CAUSE OF ACTION
`
`12.
`
`In response to paragraph “87” of plaintiff’s Verified Complaint, defendant repeats,
`
`reiterates and realleges each and every denial and denial of knowledge or information sufficient to
`
`form a belief heretofore made in regard to each and every paragraph of the plaintiff’s Verified
`
`Complaint, designated as paragraphs “1” through “86” inclusive, with the same force and effect as
`
`though more fully set forth at length herein.
`
`13.
`
`Denies each and every allegation contained within paragraphs “88,” “89,” “90,”
`
`“91,” “92,” “93,” “94,” “95,” “96,” “97,” “98,” “99,” “100,” “101,” “102” and “103” of plaintiff’s
`
`Verified Complaint.
`
`ANSWERING THE FOURTH CAUSE OF ACTION
`
`14.
`
`In response to paragraph “104” of plaintiff’s Verified Complaint, defendant repeats,
`
`reiterates and realleges each and every denial and denial of knowledge or information sufficient to
`
`form a belief heretofore made in regard to each and every paragraph of the plaintiff’s Verified
`
`Complaint, designated as paragraphs “1” through “103” inclusive, with the same force and effect
`
`as though more fully set forth at length herein.
`
`15.
`
`Denies having knowledge or information sufficient to form a belief as to the truth
`
`of each and every allegation contained within paragraphs “105,” “106,” “107,” “108,” “109,”
`
`“110,” “111,” “112” and “113” of plaintiff’s Verified Complaint.
`
`16.
`
`Denies each and every allegation contained within paragraphs “114,” “115,” “116,”
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`and “117” of plaintiff’s Verified Complaint.
`
`ANSWERING THE FIFTH CAUSE OF ACTION
`
`In response to paragraph “118” of plaintiff’s Verified Complaint, defendant repeats,
`
`17.
`
`reiterates and realleges each and every denial and denial of knowledge or information sufficient to
`
`form a belief heretofore made in regard to each and every paragraph of the plaintiff’s Verified
`
`Complaint, designated as paragraphs “1” through “117” inclusive, with the same force and effect
`
`as though more fully set forth at length herein.
`
`18.
`
`Denies each and every allegation contained within paragraphs “119,” “120,” “121,”
`
`“122,” “123,” “124,” “125” and “126” of plaintiff’s Verified Complaint.
`
`ANSWERING THE SIXTH CAUSE OF ACTION
`
`19.
`
`In response to paragraph “127” of plaintiff’s Verified Complaint, defendant repeats,
`
`reiterates and realleges each and every denial and denial of knowledge or information sufficient to
`
`form a belief heretofore made in regard to each and every paragraph of the plaintiff’s Verified
`
`Complaint, designated as paragraphs “1” through “126” inclusive, with the same force and effect
`
`as though more fully set forth at length herein.
`
`20.
`
`Denies having knowledge or information sufficient to form a belief as to the truth
`
`of each and every allegation contained within paragraph “128” of plaintiff’s Verified Complaint.
`
`21.
`
`Denies each and every allegation contained within paragraphs “129,” “130,” “131,
`
`“132,” “133” and “134” of plaintiff’s Verified Complaint.
`
`ANY PARAGRAPH NOT ANSWERED IS DEEMED DENIED.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`That any injuries sustained by plaintiff at the time and place mentioned in the
`
`
`22.
`
`Verified Complaint were caused solely and wholly by reason of the carelessness, negligence,
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`recklessness and acts or omissions on the part of the plaintiff and were not caused or contributed
`
`to by reason of any carelessness, negligence, recklessness or acts or omissions on the part of the
`
`answering defendant.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`Should it be held that Article 14 of the New York CPLR could apply to any claim
`
`
`23.
`
`being made by the plaintiff herein, defendant request that the relative culpability of each person
`
`who is or may be liable to contribute to any liability for the damages alleged by the plaintiff in
`
`this action should be determined in accordance with the decisional and statutory law of the State
`
`of New York, in such cases made and provided; and the equitable share of each person liable for
`
`contribution should be determined and apportioned in accordance with the relative culpability of
`
`each such person, if any, pursuant to Article 14 of the New York CPLR.
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`That the answering defendant reserves the right to claim the limitations of liability
`
`
`24.
`
`pursuant to Article 16 of the CPLR, for any recovery herein by the plaintiff for non-economic loss.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`
`In the event plaintiff recovers a verdict or judgment against defendant, such verdict
`
`
`25.
`
`or judgment must be reduced pursuant to §4545 of the CPLR by those amounts which have been,
`
`or will, with reasonable certainty replace or indemnify plaintiffs in whole or in part, for any past
`
`or future claimed economic loss, from any collateral source.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`If plaintiff is entitled to recover damages for loss of earnings or impairment of
`
`
`26.
`
`earning ability as against defendant, TERENCE CARDINAL COOKE, by reason of the matters
`
`alleged in the Verified Complaint, liability for which is hereby denied, then pursuant to CPLR
`
`§4546 the amount of damages recoverable against said defendant, if any, shall be reduced by the
`
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`amount of federal, state and local income taxes which the plaintiff would have been obligated by
`
`law to pay.
`
`
`27.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`The defendant asserts the defense of set-off to reduce the plaintiff’s claims under
`
`§15-108 of the General Obligations Law.
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`If the plaintiff was caused to sustain personal injuries and resulting damages at the
`
`
`28.
`
`time and place set forth in the plaintiff’s Verified Complaint and in the manner alleged therein
`
`through any carelessness, recklessness, acts, omissions, negligence and/or breaches of duty and/or
`
`warranty and/or contract other than of the answering defendant then the said injuries and damages
`
`arose out of the several and joint carelessness, recklessness, acts, omissions, negligence and
`
`breaches of duty and/or obligation and/or statute, and/or warranty, and/or contract in fact or
`
`implied in law, upon the part of non-parties subject to in personam jurisdiction, and if answering
`
`defendant is found negligent as to the plaintiffs for the injuries and damages set forth in the
`
`plaintiff’s Verified Complaint, then and in that event, the relative responsibilities of said pleading
`
`defendant must be apportioned by the percentage of liability of said non-parties subject to in
`
`personam jurisdiction.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`29.
`
`Any injuries or damages claimed were caused, in whole or in part, by the negligence
`
`of other culpable conduct or third-parties over which the answering defendant had no control or
`
`right to exercise such control.
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`30.
`
`If the plaintiff has been injured and damaged as alleged in plaintiff’s Verified
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`Complaint, upon information and belief, such injuries and damages were caused, in whole or in
`
`part, or were contributed to by reason of the carelessness, negligence or want of care on the part
`
`of the plaintiff and not by any carelessness, negligence or want of care, on the part of the defendant,
`
`and if any carelessness, negligence or want of care other than that of the plaintiffs caused or
`
`contributed to said alleged injuries and damages, it was the carelessness, negligence or want of
`
`care on the part of some other party or persons, firm or corporation, his/her, its or their agents,
`
`servants or employees over whom defendant had no control and for whose, carelessness,
`
`negligence or want of care defendant are not and were not responsible or liable.
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`Recovery in this action is barred in whole or in part as a result of the failure of the
`
`
`31.
`
`party making claim to take reasonable steps to reduce or otherwise mitigate the damages alleged.
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`Plaintiff’s right to recover damages, if any, are barred in whole or in part pursuant
`
`
`32.
`
`to the Patient Protection and Affordable Care Act, 26 USCS Section 5000A.
`
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
`
`The answering defendant did not breach any duties owed to the plaintiff neither
`
`
`33.
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`contractually nor by common law duty, and/or any alleged breach of duties were not the proximate
`
`cause of plaintiff’s alleged damages.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`
`This Honorable Court lacks jurisdiction over the answering defendant as it was not
`
`
`34.
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`properly served.
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
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`35.
`
`That the defendant acted in accordance with the appropriate provisions of Section
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`2805-d of the Public Health Law and relies on the defenses set out therein.
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`36.
`
`At all times, TERENCE CARDINAL COOKE complied with all applicable
`
`Federal and State Rules, Regulations, Codes, Ordinances and Statutes.
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
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`37.
`
`At all times, TERENCE CARDINAL COOKE complied with the provisions of
`
`New York State Public Health Law Section 2801-d and exercised all care reasonably necessary.
`
`Plaintiffs’ cause of action relative to Public Health Law Section 2801-d should be dismissed in
`
`its entirety.
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`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`
`38.
`
`The plaintiff entered the defendant’s facility with a pre-existing clinical condition
`
`and/or conditions that rendered the alleged injuries and alleged diminution of activities of daily
`
`living unavoidable.
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`AS AND FOR AN EIGTHTEENTH AFFIRMATIVE DEFENSE
`
`The answering defendant exercised all care reasonably necessary to prevent and
`
`39.
`
`limit any claimed deprivation and/or injury to the patient.
`
` AS AND FOR A NINETEENTHAFFIRMATIVE DEFENSE
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`Plaintiff’s Complaint fails to state a viable cause of action and warrants dismissal
`
`40.
`
`pursuant to CPLR §3211.
`
`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE
`
`41.
`
`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). The
`
`Complaint against this defendant is barred by U.S.C. §247d-6d(d).
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`42.
`
`The PREP Act provides for the exclusive remedy for these claims, which are
`
`subject to a “no fault” fund. This Court lacks the jurisdiction over this matter.
`
`43.
`
`Plaintiff’s claims are subject to federal immunity pursuant to 42 U.S.C. § 247d-
`
`6d(a)(1), and therefore removable insofar as plaintiff’s claims allege a Federal Question.
`
`44.
`
`To the extent plaintiff alleges willful misconduct, plaintiff’s claims are barred, as
`
`this Court lacks subject matter jurisdiction to hear substantive claims related to willful misconduct
`
`which proximately caused death or injury, as such claims must be brought in the United States
`
`District Court for the District of Columbia pursuant to 42 USC § 247d-6d(e)(1).
`
`AS AND FOR A TWENTY-FIST AFFIRMATIVE DEFENSE
`
`45.
`
`Defendant acted at all times within the proper standards of care generally, as well
`
`as the standards of care in place in the locality in question at the time of the COVID-19 emergency.
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`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`
`46.
`
`These claims are barred in whole or in part by the error in judgment doctrine and/
`
`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 TWENTY-THIRD AFFIRMATIVE DEFENSE
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`47.
`
`The defendant followed Executive Orders, Federal mandates, as well as the
`
`guidance issued by the NY DOH, the CDC, the W.H.O., the federal COVID-19 task force and
`
`other state and federal agencies.
`
`48.
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`The care and treatment provided by defendant met standards set forth in federal and
`
`state statutes and regulations, as well as the standards of care prevailing among similar facilities
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`in this community.
`
`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE
`
`49.
`
`That plaintiff’s claims regarding COVID-19 are not subject to any community
`
`standard, due to the novel, evolving nature of COVID-19 at all relevant times, and the defendant
`
`was all times practicing in conformity with all recommendations, guidelines and protocols.
`
`AS AND FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE
`
`50.
`
`The defendant is afforded all defenses pursuant to the Good Samaritan doctrine.
`
`AS AND FOR A TWENTY--SIXTH AFFIRMATIVE DEFENSE
`
`51.
`
`Defendant avail itself of the doctrine of danger invites rescue. Defendant put itself
`
`at risk for patient care despite sometimes unavailable PPE and other dangerous risks to their
`
`personal health.
`
`AS AND FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE
`
`If plaintiff sustained the injuries and damages alleged in the Complaint, said injuries
`52.
`are the result of some independent intervening cause over which defendant had no control.
`The injuries alleged in the Complaint were caused by conditions outside the scope
`53.
`
`and control of the defendant and, therefore, plaintiff cannot recover against this defendant.
`
`AS AND FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE
`
`54.
`
`Plaintiff’s claims are barred because any alleged conduct on the part of the
`
`defendant was made in good faith and as part of defendant's efforts to comply with its obligations,
`
`if any, under the law in preventing the spread of COVID-19.
`
`AS AND FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE
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`55.
`
`That there exists no proximate causation between any of the alleged acts or breach
`
`of duty by defendant claimed by plaintiff and plaintiff’s alleged injuries and/or damages.
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`AS AND FOR A THIRTIETH AFFIRMATIVE DEFENSE
`
`56.
`
`These claims must be dismissed on the basis of the absolute and qualified
`
`immunities granted by Governor Cuomo’s March 7, 2020 and subsequent Executive Orders
`
`(“EO”), Article 30-D, §3082(2) of the Public Health Law [now known as the Emergency or
`
`Disaster Treatment Protection Act (“EDTPA”)] and Good Samaritan doctrine and laws.
`
`57.
`
`These claims must be dismissed in whole or in part pursuant to the EDTPA, which
`
`affords absolute and/or qualified immunity from the allegations in the claims, including any claims
`
`that allegedly pre-date March 7, 2020 and continued through April 6, 2021 when repealed, as such
`
`claims are covered under the EDTPA and amount to allegations of staffing or resource shortage
`
`which is subject to an absolute immunity.
`
`AS AND FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE
`
`58.
`
`The doctrine of res ipsa loquitur is inapplicable on the facts alleged and must be
`
`dismissed.
`
`AS AND FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE
`
`59.
`
`Defendant reserves the right to allege additional affirmative defenses as they
`
`become known during discovery, and to amend their Answer accordingly.
`
`WHEREFORE, the defendant, TERENCE CARDINAL COOKE HEALTH CARE
`
`CENTER demands judgment dismissing the plaintiff’s Verified Complaint together with the costs
`
`and disbursements of this action.
`
`Dated: Valhalla, New York
`
`April 4, 2024
`
`
`
`
`
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`Yours, etc.,
`
`
`BARKER PATTERSON NICHOLS, LLP
`
`
`
`
`
`
`By: Dylan Braverman
`Dylan Braverman
`Attorneys for Defendant
`TERENCE CARDINAL COOKE
`HEALTH CARE CENTER
`115 E. Stevens Avenue, Suite 206
`Valhalla, New York 10595
`(914) 495-4805
`d.braverman@bpn.law
`BPN File No.: 0258-087
`
`
`TO: Gary Rosen
`
`ROSEN LAW LLC
`
`215 Lakeville Road
`
`Great Neck, New York 11020
`
`(516) 437-3400
`grosen@rosenlawllc.com
`
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`ATTORNEY'S VERIFICATION
`
`
`
`STATE OF NEW YORK
`COUNTY OF WESTCHESTER
`
`
`)
`) ss.:
`
`
`
`DYLAN BRAVERMAN, being duly sworn, deposes and says:
`
`
`
`That he is a member of the law firm of BARKER PATTERSON NICHOLS, LLP, attorneys
`
`for defendant, TERENCE CARDINAL COOKE CARE CENTER, that he has read the attached
`
`Verified Answer to the Complaint and the same is true to his own belief, except as to the matters
`
`alleged on information and belief, and as to those matters, he believes them to be true to the best
`
`of his knowledge. The reason the verification is made by a deponent and not defendant is that I
`
`am in possession of the material information on which this action is based.
`
`Dated: Valhalla, New York
`
`April 4, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
`
`
`
`
` Dylan Braverman
` Dylan Braverman
`
`
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`DEMAND FOR
`AUTHORIZATIONS
`
`Plaintiff,
`
`-against-
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-----------------------------------------------------------------------X
`SHAWN HOLLOWAY, as Administrator of the Estate
`of KAREN MURRELL a/k/a KAREN YVONNE
`MURRELL, Deceased,
`
`
`
`
`
`TERENCE CARDINAL COOKE HEALTH CARE
`CENTER and THE MOUNT SINAI HOSPITAL,
`
`
`Defendants.
`-----------------------------------------------------------------------X
`
`C O U N S E L O R S:
`
`
`
`PLEASE TAKE NOTICE that, within twenty (20) days from the date hereof, you are
`
`required to serve the undersigned with duly executed authorizations, which include the address of
`
`the party to whom the authorizations apply, permitting BARKER PATTERSON NICHOLS, LLP,
`
`or their authorized representatives, to obtain copies of the records of:
`
`1.
`2.
`
`3.
`4.
`5.
`6.
`7.
`8.
`9.
`10.
`
`11.
`12.
`
`Mount Sinai Hospital;
`Medical Examiner’s Office, including autopsy, photographs, pathology,
`toxicology etc.;
`Wound care providers;
`Home Health Care providers;
`Ambulance records;
`All collateral sources;
`Employment records;
`Pharmacy records;
`Physical therapy records;
`All radiological studies, including but not limited to x-rays, CT scans,
`MRIs, etc., and their corresponding reports.
`All prior and subsequent treating physicians and facilities;
`Internal Revenue Service Form 4506, 1099’s, W-2’s for the past 5 years
`with two forms of identification;
`13. Medicare/Medicaid/SSI/SSDI;
`14. Workers’ Compensation;
`All health care insurers;
`15.
`16.
`Primary care physician;
`
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`FILED: NEW YORK COUNTY CLERK 04/04/2024 11:34 AM
`NYSCEF DOC. NO. 4
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`INDEX NO. 805037/2024
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`RECEIVED NYSCEF: 04/04/2024
`
`17. Mental healthcare providers with whom the plaintiffs treated.
`
`
`PLEASE TAKE FURTHER NOTICE that, with respect to all authorizations for
`
`
`
`medical/hospital/healthcare records, the authorizations must comply with Federal HIPAA
`
`regulations.
`
`Dated: Valhalla, New York
`
`April 4, 2024
`
`
`
`TO: Gary Rosen
`
`ROSEN LAW LLC
`
`215 Lakeville Road
`
`Great Neck, New York 11020
`
`(516) 437-3400
`grosen@rosenlawllc.com
`
`Yours, etc.,
`
`
`BARKER PATTERSON NICHOLS, LLP
`
`
`
`
`
`
`By: Dylan Braverman
`Dylan Braverman
`Attorneys for Defendant
`TERENCE CARDINAL COOKE
`HEALTH CARE CENTER
`115 E. Stevens Avenue, Suite 206
`Valhalla, New York 10595
`(914) 495-4805
`d.braverman@bpn.law
`BPN File No.: 0258-087
`
`
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`FILED: NEW YORK COUNTY CLERK 04/04/2024 11:34 AM
`NYSCEF DOC. NO. 4
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`INDEX NO. 805037/2024
`
`RECEIVED NYSCEF: 04/04/2024
`
`
`
`
`
`
`Index No.: 805037/2024
`
`DEMAND FOR TRIAL
`AUTHORIZATIONS
`
`Plaintiff,
`
`-against-
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-----------------------------------------------------------------------X
`SHAWN HOLLOWAY, as Administrator of the Estate
`of KAREN MURRELL a/k/a KAREN YVONNE
`MURRELL, Deceased,
`
`
`
`
`
`TERENCE CARDINAL COOKE HEALTH CARE
`CENTER and THE MOUNT SINAI HOSPITAL,
`
`
`Defendants.
`-----------------------------------------------------------------------X
`
`C O U N S E L O R S:
`
`
`
`PLEASE TAKE NOTICE that, the below named attorney demands that the plaintiff
`
`furnishes the below named defendant with the following, at the time the Note of Issue is filed:
`
`HIPAA COMPLIANT AUTHORIZATIONS FOR ALL PROVIDERS IDENTIFIED
`
`DURING DISCOVERY ENABLING THE DEFENDANT TO SERVE SUBPOENAS FOR THE
`
`TRIAL OF THIS MATTER.
`
`
`
`Said authorizations are to contain full and proper names and addresses, together with any
`
`necessary identifying information, such as Social Security Number, and are to be HIPAA
`
`compliant to obtain the requisite records, films and billing records.
`
`
`
`PLEASE TAKE FURTHER NOTICE that, failure to comply with the above demand will
`
`be the basis of a motion seeking appropriate relief, including, but not limited to dismissal of the
`
`Complaint.
`
`Dated: Valhalla, New York
`
`April 4, 2024
`
`
`
`
`
`
`16 of 64
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`

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`FILED: NEW YORK COUNTY CLERK 04/04/2024 11:34 AM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 805037/2024
`
`RECEIVED NYSCEF: 04/04/2024
`
`Yours, etc.,
`
`
`BARKER PATTERSON NICHOLS, LLP
`
`
`
`
`
`
`By: Dylan Braverman
`Dylan Braverman
`Attorneys for Defendant
`TERENCE CARDINAL COOKE
`HEALTH CARE CENTER
`115 E. Stevens Avenue, Suite 206
`Valhalla, New York 10595
`(914) 495-4805
`d.braverman@bpn.law
`BPN File No.: 0258-087
`
`
`TO: Gary Rosen
`
`ROSEN LAW LLC
`
`215 Lakeville Road
`
`Great Neck, New York 11020
`
`(516) 437-3400
`grosen@rosenlawllc.com
`
`17 of 64
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`FILED: NEW YORK COUNTY CLERK 04/04/2024 11:34 AM
`NYSCEF DOC. NO. 4
`
`INDEX NO. 805037/2024
`
`RECEIVED NYSCEF: 04/04/2024
`
`
`
`
`
`
`Index No.: 805037/2024
`
`DEMAND FOR VERIFIED
`BILL OF PARTICULARS
`
`Plaintiff,
`
`-against-
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF NEW YORK
`-----------------------------------------------------------------------X
`SHAWN HOLLOWAY, as Administrator of the Estate
`of KAREN MURRELL a/k/a KAREN YVONNE
`MURRELL, Deceased,
`
`
`
`
`
`TERENCE CARDINAL COOKE HEALTH CARE
`CENTER and THE MOUNT SINAI HOSPITAL,
`
`
`Defendants.
`-----------------------------------------------------------------------X
`
`C O U N S E L O R S:
`
`
`PLEASE TAKE NOTICE that, pursuant to Rule 3042(a) of the Civil Practice Law and
`
`Rules, you are hereby required to serve upon the undersigned attorneys for the defendant,
`
`TERENCE CARDINAL COOKE, within thirty (30) days after the service of a copy of this
`
`demand, a Verified Bill of Particulars setting forth in detail the following:
`
`1.
`
`(a)
`
`Set forth each and every act of commission of the answering defendant
`
`which plaintiffs claim is the basis of the alleged negligence, malpractice or other wrongdoing on
`
`the part of the defendant.
`
`
`
`2.
`
`(b)
`
`(a)
`
`State the date or dates when such acts by this defendant allegedly took place.
`
`Set forth each and every act of omission of the answering defendant which
`
`plaintiff claims is the basis of the alleged negligence, malpractice or other wrongdoing on the part
`
`of these defendant.
`
`(b)
`
`State the date or dates when such acts by this defendant allegedly took place.
`
`3.
`
`Did the answering defendant’ malpractice occur in the course of an emergency
`
`treatment, procedure or surgery?
`
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`FILED: NEW YORK COUNTY CLERK 04/04/2024 11:34 AM
`NYSCEF DOC. NO. 4
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`INDEX NO. 805037/2024
`
`RECEIVED NYSCEF: 04/04/2024
`
`4.
`
`If it will be claimed that any of the acts or omissions particularized in Items 1 and
`
`2 above were performed by another for whose acts or omissions the answering defendant has legal
`
`responsibility, state as to each such act or omission the name of the person who performed it, and
`
`that person's legal relationship to this defendant.
`
`5.
`
`Referring to the Complaint, set forth, with particularity, the manner and respect in
`
`which it is claimed that answering defendant was negligent.
`
`6.
`
`If loss of earnings will be claimed to have resulted from the alleged negligence, set
`
`forth the following:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`The loss of earnings that will be claimed.
`
`The name and address of the employer at the time of the alleged negligence.
`
`The decedent's occupation at the time of the alleged negligence.
`
`The decedent's gross earnings for the last calendar year prior to the alleged
`negligence.
`
`The decedent's gross earning for any calendar year(s) during which it will
`be claimed that the claimant was incapacitated from work.
`
`If the decedent was employed by another immediately prior to the alleged
`incapacitation, state:
`
`(1) The name and address of the employer.
`
`(2) The decedent's weekly gross salary at that time.
`
`If the decedent was in whole or in part self-employed, state the decedent's
`earnings from such self-employment for each of the three (3) years prior to
`the alleged incapacitation.
`
`The last date the decedent worked prior to the alleged incapacitation.
`
`The dates the decedent worked prior to the alleged incapacitation.
`
`The amount and source of any reimbursement to the decedent or others for
`the alleged loss of earnings.
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`
`(e)
`
`
`(f)
`
`
`
`
`(g)
`
`
`(h)
`
`(i)
`
`(j)
`
`
`
`19 of 64
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`FILED: NEW YORK COUNTY CLERK 04/04/2024 11:34 AM
`NYSCEF DOC. NO. 4
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`INDEX NO. 805037/2024
`
`RECEIVED NYSCEF: 04/04/2024
`
`7.
`
`Please identify the employees or agents of the answering defendant who were
`
`allegedly careless and negligent in rendering care to the decedent.
`
`8.
`
`Concerning the claim of physical injury to the decedent, state the following:
`
`(a)
`
`
`(b)
`
`The nature, location and extent of each injury it will be claimed was caused
`by the negligence of the answering defendant.
`
`If any injuries are claimed to be permanent, so state.
`
`If it will be claimed that the injuries to the decedent necessitated treatment by any
`
`
`
`9.
`
`physicians, psychologists or other therapists, set forth:
`
`
`
`
`
`(a)
`
`(b)
`
`The name of each such person.
`
`The dates of treatment.
`
`10.
`
`If it will be claimed that the aforesaid injuries necessitated any hospitalizations, set
`
`forth the name of each hospital with the date of confinement or outpatient treatment.
`
`11.
`
`If it will be claimed that the aforesaid injuries necessitated treatment at any other
`
`institutions, set forth the name of each institution with dates of confinement or treatment.
`
`12.
`
`Decedent's residence or the residence of the decedent's estate's representative at the
`
`time of the commencement of this action.
`
`13.
`
`14.
`
`State the Social Security number of the decedent.
`
`Detail sums reimbursed to plaintiff or decedent for medical and/or hospital
`
`expenses by medical insurance or other sources, identifying the reimbursor.
`
`15.
`
`If it is claimed that answering defendant caused decedent's death, set forth the
`
`following:
`
`
`
`
`
`
`
`(a)
`
`(b)
`
`(c)
`
`The date of death.
`
`The place of death.
`
`The cause of death which plaintiff will claim at the time of trial.
`
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`FILED: NEW YORK COUNTY CLERK 04/04/2024 11:34 AM
`NYSCEF DOC. NO. 4
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`INDEX NO. 805037/2024
`
`RECEIVED NYSCEF: 04/04/2024
`
`(d) Was an autopsy performed? If so, set forth the date and place where autopsy
`was performed.
`
`
`(e)
`
`(f)
`
`(g)
`
`(h)
`
`The name and address of the last treating physician.
`
`The name and address of the physician who signed the death certificate.
`
`The decedent's address at the time of death.
`
`The decedent's date of birth.
`
`16.
`
`Set forth:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`17.
`
`The name,
`
`ad