`NYSCEF DOC. NO. 6
`
`INDEX NO. 701481/2023
`
`RECEIVED NYSCEF: 02/22/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`---------------------------------------------------------------------X
`WALTER GREGG, as Administrator of the Estate of
`MARION GREGG, deceased,
`
`Plaintiff,
`
`-against-
`
`HIGHLAND CARE CENTER INC. d/b/a HIGHLAND
`CARE CENTER and ST. JOHN’S EPISCOPAL
`HOSPITAL,
`
`Defendants.
`---------------------------------------------------------------------X
`
`Index No. 701481/2023
`
`VERIFIED ANSWER
`
`Defendant, ST. JOHN’S EPISCOPAL HOSPITAL, by its attorneys, BARTLETT LLP,
`
`as and for its Answer to plaintiff’s Verified Complaint, respectfully shows to this Court and
`
`alleges upon information and belief:
`
`AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
`PURSUANT TO NEW YORK PUBLIC HEALTH LAW §2801-d AND §2803-c
`AGAINST HIGHLAND CARE CENTER INC. d/b/a HIGHLAND CARE CENTER
`
`1.
`
`Denies knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained in paragraphs “1”, “2”, “3”, “4”, “6”, “7”, “8”, “9”, “10”, “11”, “12”, “13”,
`
`“14”, “15”, “16”, “17”, “18”, “19”, “20”, “21”, “22”, “23”, “24”, “25” and “26”, and respectfully
`
`refers all questions of law to this Honorable Court.
`
`2.
`
`Denies the allegations contained in paragraphs “5”, “27”, “28”, “29”, “30”, “31”,
`
`“32”, “33”, “34” and “35”.
`
`AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
`FOR NEGLIGENCE AGAINST DEFENDANT
`HIGHLAND CARE CENTER INC. d/b/a HIGHLAND CARE CENTER
`
`3.
`
`In response to paragraph “36”, defendant repeats each admission or denial made
`
`herein as though fully set forth hereat.
`
`1 of 7
`
`
`
`FILED: QUEENS COUNTY CLERK 02/22/2023 02:20 PM
`NYSCEF DOC. NO. 6
`
`INDEX NO. 701481/2023
`
`RECEIVED NYSCEF: 02/22/2023
`
`4.
`
`Deny knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained within paragraphs “37”, “38”, “39”, “40” and “41”.
`
`5.
`
`Denies the allegations contained in paragraph “42”.
`
`AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
`FOR GROSS NEGLIGENCE AGAINST DEFENDANT
`HIGHLAND CARE CENTER INC. d/b/a HIGHLAND CARE CENTER
`
`6.
`
`In response to paragraph “43”, defendant repeats each admission or denial made
`
`herein as though fully set forth hereat.
`
`7.
`
`Denies knowledge and information sufficient to form a belief as to the truth of the
`
`allegations contained in paragraphs “44”, “45”, “46”, “47”, “48” and “49”.
`
`8.
`
`Denies the allegations contained in paragraph “50”.
`
`AS AND FOR AN ANSWER TO THE FOURTH CAUSE OF ACTION
`AGAINST DEFENDANT ST. JOHN’S EPISCOPAL HOSPITAL
`
`9.
`
`In response to paragraph “51”, defendant repeats each admission or denial made
`
`herein as though fully set forth hereat.
`
`10.
`
`Denies knowledge or information sufficient to form a belief as to the truth of the
`
`allegations contained within paragraphs “53”, “54” and “55”, except admit that one MARION
`
`GREGG was a patient at ST. JOHNS EPISCOPAL HOSPITAL from on or about November 12,
`
`2020 and thereafter, during which time she received hospital services which were at all such
`
`times provided in accordance with good and accepted practice, and begs leave to refer to the
`
`applicable medical records as to the facts and circumstances attendant thereto, and respectfully
`
`refers all questions of law to this Honorable Court.
`
`11.
`
`Denies the allegations contained in paragraphs “52”, “56”, “57”, “58”, “59” and
`
`“60”.
`
`2
`
`2 of 7
`
`
`
`FILED: QUEENS COUNTY CLERK 02/22/2023 02:20 PM
`NYSCEF DOC. NO. 6
`
`INDEX NO. 701481/2023
`
`RECEIVED NYSCEF: 02/22/2023
`
`AS AND FOR AN ANSWER TO THE FIFTH CAUSE
`OF ACTION AGAINST ALL DEFENDANTS
`
`12.
`
`In response to paragraph “61”, defendant repeats each admission or denial made
`
`herein as though fully set forth hereat.
`
`13.
`
`Denies the allegations contained in paragraphs “62”, “63”, “64”, “65”, “66” and
`
`“67”.
`
`FIRST AFFIRMATIVE DEFENSE
`
`14.
`
`That the damages of the plaintiff were caused in whole or in part by the culpable
`
`conduct of the plaintiff’s decedent which either bars the claims completely or else diminishes the
`
`damages by the proportion that such culpable conduct of the plaintiff bears to the total culpable
`
`conduct causing the damages.
`
`SECOND AFFIRMATIVE DEFENSE
`
`15.
`
`That if any liability is found as against this answering defendant, then said
`
`liability will constitute 50% or less of the total liability assigned to all persons liable, and as
`
`such, the liability of this answering defendant to plaintiff for non-economic loss shall be limited,
`
`and not exceed this answering defendant’s equitable share, as provided in Article 16 of the
`
`C.P.L.R.
`
`THIRD AFFIRMATIVE DEFENSE
`
`16.
`
`In the event plaintiff recovers a verdict or judgment against defendant, such
`
`verdict or judgment must be reduced pursuant to §4545 of the Civil Practice Laws and Rules by
`
`those amounts which have been, or will, with reasonable certainty replace or indemnify plaintiff
`
`in whole or in part for any past or future claimed economic loss, from any collateral source.
`
`FOURTH AFFIRMATIVE DEFENSE
`
`17.
`
`If plaintiff is entitled to recover damages for loss of earnings or impairment of
`
`3
`
`3 of 7
`
`
`
`FILED: QUEENS COUNTY CLERK 02/22/2023 02:20 PM
`NYSCEF DOC. NO. 6
`
`INDEX NO. 701481/2023
`
`RECEIVED NYSCEF: 02/22/2023
`
`earning ability as against this answering defendant by reason of the matters alleged in the
`
`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 amount of federal,
`
`state, and local income taxes which the plaintiffs would have been obligated by law to pay.
`
`FIFTH AFFIRMATIVE DEFENSE
`
`18.
`
`The answering defendant is entitled to a set-off to any recovery sought in this
`
`action, in the amount of the greater of the relative share of culpability or the amounts paid, if
`
`any, by any other tortfeasor, by operation of General Obligations Law §15-108 and Civil Practice
`
`Law & Rules §4533-b, and by operation of the doctrines of settlement, payment, release, accord,
`
`and satisfaction.
`
`SIXTH AFFIRMATIVE DEFENSE
`
`19.
`
`The plaintiff’s Complaint fails to state a cause of action for which relief might be
`
`granted.
`
`SEVENTH AFFIRMATIVE DEFENSE
`
`20.
`
`Plaintiff’s complaint fails to join indispensable parties necessary for the just
`
`adjudication of this matter.
`
`EIGHTH AFFIRMATIVE DEFENSE
`
`21.
`
`The plaintiff lacks the capacity to sue.
`
`NINTH AFFIRMATIVE DEFENSE
`
`22.
`
`That any claims for punitive damages contained in the Complaint fail to state a
`
`claim upon which relief may be granted, violate various provisions of the Constitution of the
`
`United States and the State of New York, and violate various statutory proscriptions thereof.
`
`23.
`
`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
`
`4
`
`4 of 7
`
`
`
`FILED: QUEENS COUNTY CLERK 02/22/2023 02:20 PM
`NYSCEF DOC. NO. 6
`
`INDEX NO. 701481/2023
`
`RECEIVED NYSCEF: 02/22/2023
`
`punitive damages is barred.
`
`24. 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
`
`limitation which arose in BMW of North America v. Gore, 116 U.S. 1589 (1996), Cooper
`
`Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001), and State Farm Mutual
`
`Automobile In. Co. v. Campbell, 123 S.Ct. 1513 (2003).
`
`25.
`
`To the extent that plaintiff seeks punitive or “exemplary” damages for the conduct
`
`which alleged caused plaintiff’s injuries as asserted in the complaint, such an award by this Court
`
`would violate this answering defendant’s federal and state constitutional rights.
`
`26.
`
`That the plaintiff’s Complaint does not set forth a basis for punitive damages.
`
`TENTH AFFIRMATIVE DEFENSE
`
`27.
`
`This answering defendant pleads as an affirmative defense Public Health Law
`
`§3082, broadly defined as “immunity from any liability for healthcare facilities and professionals
`
`for treatment administered for Covid-19 during the period from the inaction of the statute to the
`
`end of treatment of the plaintiff’s decedent herein, pursuant to the terms of the statute so as to
`
`provide limited liability which is applicable as set forth above, since treatment was impacted by
`
`the defendant’s emergency response to Covid-19.
`
`ELEVENTH AFFIRMATIVE DEFENSE
`
`28.
`
`The answering defendant, and each of them, claim the immunity from liability, as
`
`to each cause of action, afforded by the Emergency or Disaster Treatment Protection Act and
`
`Article 30-D of the Public Health Law, as it existed at the time of the treatment sued upon.
`
`WHEREFORE, this answering defendant demands judgment in its favor, together with
`
`5
`
`5 of 7
`
`
`
`FILED: QUEENS COUNTY CLERK 02/22/2023 02:20 PM
`NYSCEF DOC. NO. 6
`
`INDEX NO. 701481/2023
`
`RECEIVED NYSCEF: 02/22/2023
`
`the costs and disbursements of the within action.
`
`Dated: Central Islip, New York
`February 22, 2023
`
`TO:
`
`THE LICATESI LAW GROUP, LLP
`Attorneys for Plaintiff
`423 RXR Plaza, East Tower
`Uniondale, New York 11556
`(516) 227-2662
`
`Yours etc.,
`BARTLETT LLP
`
`By:
`
`_______
`ROBERT F. ELLIOTT
`Attorneys for Defendant
`ST. JOHN’S EPISCOPAL HOSPITAL
`320 Carleton Avenue, Suite 7500
`Central Islip, New York 11722
`Tel.: (516) 877-2900
`
`6
`
`6 of 7
`
`
`
`FILED: QUEENS COUNTY CLERK 02/22/2023 02:20 PM
`NYSCEF DOC. NO. 6
`
`INDEX NO. 701481/2023
`
`RECEIVED NYSCEF: 02/22/2023
`
`ATTORNEY'S VERIFICATION
`
`s.:
`
`)s
`
`)
`
`STATE OF NEW YORK
`
`COUNTY OF SUFFOLK
`
`ROBERT F. ELLIOTT, ESQ., being duly sworn, deposes and says:
`
`That he is a member in the firm of attorneys representing defendant ST. JOHN’S EPISCOPAL
`
`HOSPITAL.
`
`That he has read the attached Answer to plaintiff’s Verified Complaint and the same is true to
`
`his own belief, except as to matters alleged on information and belief, and as to those matters, he believes
`
`them to be true to the best of his knowledge.
`
`That deponent's sources of information are a legal file containing correspondence, pleading and
`
`records, with which deponent is fully familiar.
`
`That this verification is made by deponent because his clients are not presently within the
`
`county where deponent maintains his office.
`
`______________________________________
`ROBERT F. ELLIOTT
`
`Sworn to before me this
`22nd day of February, 2023
`
`________________________
` Notary Public
`
` ANGELA R. GEGELYS
` Notary Public, State of New York
` No. 01GE6285829
` Qualified in Nassau County
`Commission Expires July 22, 2025
`
`7
`
`7 of 7
`
`