FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`
`
`-against-
`
`
`
`
`
`Plaintiffs,
`
`
`Index No.: 702552/2024
`
`
`VERIFIED ANSWER
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`------------------------------------------------------------------------x
`WALTER GAHAGAN, by his attorney-in-fact, KATHLEEN
`GAHAGAN and KATHLEEN GAHAGAN, individually,
`
`
`
`
`GREGORY P. SIROKY, MD, BRYAN KAHAN, M.D.,
`FRITZLINE MONTALMANT, M.D., ROBERT G.
`COLANGELO, ST. FRANCIS HOSPITAL, ROSLYN NEW
`YORK D/B/A ST. FRANCIS HOSPITAL & HEART
`CENTER, and NEW YORK CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.,
`
`Defendants.
`
`
`
`
`
`------------------------------------------------------------------------x
`
`
`
`
`The defendants, BRYAN KAHAN, M.D., FRITZLINE MONTALMANT, M.D. and
`
`NEW YORK CARDIOVASCULAR ANESTHESIOLOGISTS, P.C., by their attorneys,
`
`DORF NELSON & ZAUDERER, LLP, answering the complaint of the plaintiffs, upon
`
`information and belief, respectfully shows to this Court and alleges:
`
`
`
`ANSWERING THE FIRST CAUSE OF ACTION:
`
`1.
`
`Deny the allegations contained in paragraphs “4”, “14”, “27”, “28”, “29”, “31”,
`
`“32” and “33.”
`
`2.
`
`Deny knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraphs “1”, “2”, “3”, “5”, “6”, “7”, “8”, “9”, “11”, “13”, “15”, “16”, “17”, “18”,
`
`“19”, “21”, “22”, “24” and “26.”
`
`3.
`
`4.
`
`Admit the allegations contained in paragraphs “10”, “12” and “20.”
`
`As and for a response to the allegations in paragraphs “30”, “34” and “35,” the
`
`defendants deny and refer all questions of law to the trial court.
`
`5.
`
`Deny the allegations contained in paragraph “23,” except admit that Dr. Kahan was
`
`1 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`an employee of New York Cardiovascular Anesthesiologists, P.C.
`
`6.
`
`Deny the allegations contained in paragraph “25,” except admit that Dr.
`
`Montalmant was a shareholder in New York Cardiovascular Anesthesiologists, P.C.
`
`ANSWERING THE SECOND CAUSE OF ACTION:
`
`7.
`
`Answering the subdivision thereof numbered “36", repeats and reiterates each and
`
`every denial or admission hereinbefore made with the same force and effect as if again set forth at
`
`length herein.
`
`8.
`
`9.
`
`Deny the allegations contained in paragraphs “37”, “38”, “39”, “40” and “41.”
`
`As and for a response to the allegations in paragraph “42,” the defendants deny and
`
`refer all questions of law to the trial court.
`
`ANSWERING THE THIRD CAUSE OF ACTION:
`
`10.
`
`Answering the subdivision thereof numbered "43", repeats and reiterates each and
`
`every denial or admission hereinbefore made with the same force and effect as if again set forth at
`
`length herein.
`
`11.
`
`12.
`
`Deny the allegations contained in paragraph “46.”
`
`Deny knowledge or information sufficient to form a belief as to the allegations
`
`contained in paragraphs “44” and “45.”
`
`13.
`
`As and for a response to the allegations in paragraphs “47” and “48,” the defendants
`
`deny and refer all questions of law to the trial court.
`
`ANSWERING THE FOURTH CAUSE OF ACTION:
`
`14.
`
`Answering the subdivision thereof numbered "49", repeats and reiterates each and
`
`every denial or admission hereinbefore made with the same force and effect as if again set forth at
`
`length herein.
`
`
`
`2
`
`2 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`15.
`
`As and for a response to the allegations in paragraphs “50”, “51” and “52,” the
`
`defendant denies and refer all questions of law to the trial court.
`
`AS AND FOR A FIRST DEFENSE,
`THIS ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`16.
`
`That the plaintiff herein was guilty of culpable conduct, including contributory
`
`
`
`negligence and comparative negligence, which said conduct bars plaintiff's right of recovery in
`
`proportion to which the said culpable conduct or negligence attributable to plaintiff bears the
`
`culpable conduct or negligence which caused the damages, if any, or the occurrence complained
`
`of by plaintiff was caused in whole or in part by the assumption of risk of the plaintiff.
`
`AS AND FOR A SECOND DEFENSE,
`THIS ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`17.
`
`The defendants reserve the right to claim the limitations of liability pursuant to the
`
`
`
`terms of Article 16 of the CPLR.
`
`AS AND FOR A THIRD DEFENSE,
`THIS ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`Provisions of C.P.L.R. Article 50-B apply to this action.
`
`18.
`
`AS AND FOR A FOURTH DEFENSE,
`THIS ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`19.
`
`The plaintiff's cause of action based upon lack of informed consent is barred by the
`
`
`
`applicable provision of the Public Health Law section 2805(d).
`
`AS AND FOR A FIFTH DEFENSE,
`THIS ANSWERING DEFENDANTS ALLEGE UPON INFORMATION AND BELIEF:
`
`G.O.L.5-322.1 renders void and unenforceable any claim of contractual
`
`20.
`
`indemnification.
`
`
`
`WHEREFORE,
`
`the
`
`defendants, BRYAN KAHAN, M.D., FRITZLINE
`
`MONTALMANT, M.D. and NEW YORK CARDIOVASCULAR ANESTHESIOLOGISTS,
`
`
`
`3
`
`3 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`P.C., demand judgment dismissing the plaintiffs’ complaint with the costs and disbursements of
`
`this action.
`
`Dated: Rye, New York
`
`April 19, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Yours, etc.,
`
`DORF NELSON & ZAUDERER, LLP
`
`
`
`By: Vincent A. Nagler, Esq.
`
`Vincent A. Nagler, Esq.
`Attorneys for Defendants
`BRYAN KAHAN, M.D., FRITZLINE
`MONTALMANT, M.D. and NEW YORK
`CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.
`555 Theodore Fremd Avenue
`Rye, New York 10580
`(914) 381-7600
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TO: DUFFY & DUFFY, PLLC
`
`Attorneys for Plaintiffs
`1370 RR Plaza West Tower, 13th Floor
`
`
`Uniondale, New York 11556
`
`(516) 394-4200
`
`
`
`
`
`
`
`
`4
`
`4 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`ATTORNEY'S VERIFICATION
`
`Vincent A. Nagler, Esq. an attorney duly admitted and licensed to practice in the courts of
`
`
`
`
`
`this State affirms the following pursuant to CPLR 2106:
`
`
`
`I am the attorney for the defendants, BRYAN KAHAN, M.D., FRITZLINE
`
`MONTALMANT, M.D. and NEW YORK CARDIOVASCULAR ANESTHESIOLOGISTS,
`
`P.C., herein; and I have read the foregoing answer and know the contents thereof; that the same is
`
`true to my own knowledge except as to the matters therein stated to be alleged upon information
`
`and belief, and that as to those matters, I believe them to be true.
`
`
`
`That the reason this verification is made by your affirmant and not by the defendant
`
`personally is, that the defendant is not within the county where your affirmant has an office.
`
`That the sources of your affirmant's information and the grounds of his/her belief as to the matters
`
`so alleged herein are investigations had by the defendant, his/her agents, servants and
`
`representatives into the subject matter hereof and correspondence relating thereto, reports of which
`
`investigations and copies of which correspondence are in the possession of your affirmant.
`
`Dated: Rye, New York
`
`April 19, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Vincent A. Nagler, Esq.
`Vincent A. Nagler, Esq.
`
`
`
`
`
`
`
`
`
`
`5
`
`5 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`Index No.: 702552/2024
`
`DEMAND FOR
`AUTHORIZATIONS
`
`
`
`
`
`Plaintiffs,
`
`
`
`-against-
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`------------------------------------------------------------------------x
`WALTER GAHAGAN, by his attorney-in-fact, KATHLEEN
`GAHAGAN and KATHLEEN GAHAGAN, individually,
`
`
`
`
`GREGORY P. SIROKY, MD, BRYAN KAHAN, M.D.,
`FRITZLINE MONTALMANT, M.D., ROBERT G.
`COLANGELO, ST. FRANCIS HOSPITAL, ROSLYN NEW
`YORK D/B/A ST. FRANCIS HOSPITAL & HEART
`CENTER, and NEW YORK CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.,
`
`Defendants.
`
`
`
`
`
`------------------------------------------------------------------------x
`S I 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 DORF NELSON & ZAUDERER, LLP, or
`
`their authorized representatives, to obtain copies of the records of:
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`
`
`all collateral sources;
`
`employment records;
`
`pharmacy records;
`
`physical therapy records;
`
`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;
`
`Medicare;
`
`Medicaid;
`
`Workers Compensation;
`
`6
`
`6 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`10.
`
`11.
`
`all health care insurers;
`
`Primary care physician;
`
`12. Mental healthcare providers with whom the plaintiff 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: Rye, New York
`
`April 19, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TO: DUFFY & DUFFY, PLLC
`
`Attorneys for Plaintiffs
`1370 RR Plaza West Tower, 13th Floor
`
`
`Uniondale, New York 11556
`
`(516) 394-4200
`
`
`
`
`
`Yours, etc.,
`
`DORF NELSON & ZAUDERER, LLP
`
`
`
`By: Vincent A. Nagler, Esq.
`
`Vincent A. Nagler, Esq.
`Attorneys for Defendants
`BRYAN KAHAN, M.D., FRITZLINE
`MONTALMANT, M.D. and NEW YORK
`CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.
`555 Theodore Fremd Avenue
`Rye, New York 10580
`(914) 381-7600
`
`
`
`7
`
`7 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`------------------------------------------------------------------------x
`WALTER GAHAGAN, by his attorney-in-fact, KATHLEEN
`GAHAGAN and KATHLEEN GAHAGAN, individually,
`
`
`
`
`GREGORY P. SIROKY, MD, BRYAN KAHAN, M.D.,
`FRITZLINE MONTALMANT, M.D., ROBERT G.
`COLANGELO, ST. FRANCIS HOSPITAL, ROSLYN NEW
`YORK D/B/A ST. FRANCIS HOSPITAL & HEART
`CENTER, and NEW YORK CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.,
`
`Defendants.
`
`
`
`
`
`------------------------------------------------------------------------x
`
` O U N S E L O R S:
`
`PLEASE TAKE NOTICE that, the below named attorney demands that the plaintiff furnish
`
` C
`
`
`
`
`the below named defendant(s) with the following, at the time the Note of Issue is filed:
`
`HIPAA COMPLIANT AUTHORIZATIONS FOR ALL PROVIDERS IDENTIFIED DURING
`
`DISCOVERY ENABLING THE DEFENDANTS 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: Rye, New York
`
`April 19, 2024
`
`
`
`
`8
`
`8 of 52
`
`
`
`-against-
`
`
`
`
`
`Plaintiffs,
`
`Index No.: 702552/2024
`
`DEMAND FOR TRIAL
`AUTHORIZATIONS
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`Yours, etc.,
`
`DORF NELSON & ZAUDERER, LLP
`
`
`
`By: Vincent A. Nagler, Esq.
`
`Vincent A. Nagler, Esq.
`Attorneys for Defendants
`BRYAN KAHAN, M.D., FRITZLINE
`MONTALMANT, M.D. and NEW YORK
`CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.
`555 Theodore Fremd Avenue
`Rye, New York 10580
`(914) 381-7600
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TO: DUFFY & DUFFY, PLLC
`
`Attorneys for Plaintiffs
`1370 RR Plaza West Tower, 13th Floor
`
`
`Uniondale, New York 11556
`
`(516) 394-4200
`
`
`
`
`
`
`
`9
`
`9 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`------------------------------------------------------------------------x
`WALTER GAHAGAN, by his attorney-in-fact, KATHLEEN
`GAHAGAN and KATHLEEN GAHAGAN, individually,
`
`
`
`
`GREGORY P. SIROKY, MD, BRYAN KAHAN, M.D.,
`FRITZLINE MONTALMANT, M.D., ROBERT G.
`COLANGELO, ST. FRANCIS HOSPITAL, ROSLYN NEW
`YORK D/B/A ST. FRANCIS HOSPITAL & HEART
`CENTER, and NEW YORK CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.,
`
`Defendants.
`
`
`
`
`
`------------------------------------------------------------------------x
`
` I R S :
`
`PLEASE TAKE NOTICE that, pursuant to Rule 3042(a) of the Civil Practice Law and
`
` S
`
`
`
`
`Rules, you are hereby required to serve upon the undersigned attorneys for the defendant(s),
`
`BRYAN KAHAN, M.D., FRITZLINE MONTALMANT, M.D. and NEW YORK
`
`CARDIOVASCULAR ANESTHESIOLOGISTS, P.C., 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.
`
`The dates and times of the day of the alleged negligent acts and/or omissions which
`
`will be alleged against the defendant(s) herein.
`
`
`
`2.
`
`The location of the alleged negligent acts and/or omissions charged against the
`
`defendant(s) herein.
`
`
`
`3.
`
`A statement of each and every act of negligence, commission or omission which
`
`you will claim as the basis of the alleged malpractice of the defendant(s) herein.
`
`
`
`10
`
`10 of 52
`
`
`
`-against-
`
`
`
`
`
`Plaintiffs,
`
`Index No.: 702552/2024
`
`DEMAND FOR A
`VERIFIED BILL OF
`PARTICULARS
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`
`
`4.
`
`State the names of each and every person who performed such acts or failed to act;
`
`if the names are not known, describe the physical appearance with sufficient clarity for ready
`
`identification and state the occupation of each such person.
`
`
`
`5.
`
`State whether or not any claim is made as to improper or defective equipment and
`
`if so, identify the equipment and state the defective conditions.
`
`
`
`6.
`
`Give a statement of the accepted medical practices, customs and medical standards
`
`which it is claimed were violated/departed from by the answering defendant.
`
`
`
`7.
`
`If the plaintiff(s) complains that the defendant(s) ignored signs, symptoms, made
`
`an erroneous diagnosis, afforded
`
`improper
`
`treatment, administered
`
`improper and/or
`
`contraindicated drugs in an incorrect dosage, failed to take or administer tests or improperly took
`
`and administered tests, state:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`(a)
`
`(b)
`
`
`(c)
`
`(d)
`
`(e)
`
`(f)
`
`the complaints, signs, symptoms that the defendant(s) ignored;
`
`in what respect the diagnosis was erroneous and incorrect, what the claimed
`correct diagnosis is, the point in time that the plaintiff claims the
`defendant(s) should have made the correct diagnosis;
`
`the improper treatment that was afforded and in what manner the said
`treatment was improperly performed;
`
`the name of each and every contraindicated drug;
`
`the name of each proper drug allegedly administered incorrectly;
`
`the name of each and every test the defendant(s) failed to take or administer;
`and,
`
`(g)
`
`the name of each and every test the defendant(s) improperly took or
`
`administered and the manner in which each said test was improperly taken or administered.
`
`
`
`8.
`
`If plaintiff(s) claims
`
`that defendant(s)
`
`improperly performed a physical
`
`examination or performed a contraindicated procedure and/or unnecessary procedure, state:
`
`
`
`11
`
`11 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`(a)
`
`(b)
`
`(c)
`
`in what manner the physical examination was improperly performed;
`
`
`
`the name of the surgical procedure and the date performed; and,
`
`in what manner the surgical procedures were improperly performed.
`
`9.
`
`State the injuries which plaintiff(s) alleges to have sustained as a result of the
`
`alleged negligence and/or medical malpractice of the defendant(s).
`
`
`
`
`
`
`
`a.
`
`State which of the injuries listed above are claimed to be permanent.
`
`10.
`
`If it will be claimed that the alleged injuries required hospitalization, state the name
`
`of each and every hospital with dates of confinement or outpatient treatment.
`
`
`
`11.
`
`If it will be claimed that the alleged injuries required confinement to bed or home,
`
`state the period plaintiff was confined to bed, and period plaintiff was confined to home.
`
`
`
`12.
`
`State separately the total amounts claimed by the plaintiff(s) as special damages for
`
`each of the following:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`physicians' services (with the names and addresses of treating physicians);
`
`nurses' services (including names and address of private duty nurse or
`agency);
`
`medicine (with name and address of pharmacy); and,
`
`hospital expenses (with the names and addresses of all hospitals).
`
`13.
`
`If loss of earnings will be claimed to have resulted from the alleged malpractice,
`
`
`
`
`
`
`
`
`
`
`set forth:
`
`
`
`
`
`
`
`
`
`(a)
`
`(b)
`
`(c)
`
`the amount of lost earnings claimed;
`
`the plaintiff's gross earnings for the last calendar year prior to the alleged
`negligence;
`
`the plaintiff's gross earnings for any calendar year during which it will be
`claimed plaintiff was incapacitated from work;
`
`(d)
`
`other income the plaintiff was receiving;
`
`12
`
`12 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`(e)
`
`(f)
`
`(g)
`
`name and address of employer(s) at the time plaintiff was incapacitated;
`
`name of present employer and occupation, if different from 13(e).
`
`If loss of earnings are being claimed IRS tax forms for the past 5 years are
`to be provided by plaintiff.
`
`14.
`
`If it will be claimed that plaintiff(s) lost profits from a business or enterprise as a
`
`
`
`
`
`
`result of the defendant(s)' negligence, state the following:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`name of business and address;
`
`state plaintiff's ownership capacity and interest in business;
`
`state amount of profits and/or revenues plaintiff claims were lost as a result
`of defendant's negligence; and,
`
`state amount of net profit recorded by business in the two years prior to the
`alleged negligence.
`
`15.
`
`If it is anticipated that further loss of earnings will be incurred in the future as a
`
`
`
`
`
`
`
`
`
`
`result of the alleged malpractice, set forth:
`
`(a)
`
`(b)
`
`anticipated future lost earnings; and,
`
`the period of time it is anticipated that future loss of earnings will be
`incurred.
`
`16.
`
`State whether or not plaintiff(s) has been reimbursed for physician and/or hospital
`
`
`
`
`
`
`expenses.
`
`
`
`
`
`
`
`(a)
`
`If the answer is in the affirmative, state for which such claims plaintiff has
`been reimbursed, the amount of reimbursement received for each element
`of special damages and the name of the person, firm or organization who
`made such reimbursement.
`
`(b)
`
`If such reimbursement was made by an insurance company, state the
`number of the policy under which paid.
`
`13
`
`13 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`
`
`17.
`
`If further medical expenses are anticipated as a result of the alleged malpractice,
`
`set forth the expenses and the anticipated period of time the expenses will be incurred for the
`
`following:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`(e)
`
`physicians' expenses;
`
`hospital expenses;
`
`expenses for medicine;
`
`nursing expenses; and,
`
`other (specify).
`
`18.
`
`19.
`
`State the date of birth and present address of the plaintiff(s).
`
`Set forth the Social Security number of the plaintiff(s).
`
`20. Set forth by chapter, article, section and paragraph each statute, ordinance, rule or
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`regulation, if any, which it is claimed the answering defendant(s) violated.
`
`
`
`21.
`
`State the date and substance of any grievance filed by or on behalf of plaintiff
`
`regarding the treatment that serves as the basis of this Complaint, with identification of the entity
`
`to which the grievance was filed.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`22.
`
`State:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`(e)
`
`what procedures or treatment were provided without informed consent;
`
`what risks were disclosed relative to the procedures or treatment stated in
`response to 22(a) above;
`
`what alternatives to treatment were discussed;
`
`whether a written consent was signed for the procedures, or treatment stated
`in response to 22(a) above;
`
`the names of all persons who witnessed or were present when consent(s)
`was signed;
`
`14
`
`14 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`(f)
`
`whether oral consent was given for the procedure or treatment stated in
`response to 22(a) above.
`
`23.
`
`If plaintiff alleges defendant was negligent in hiring and retaining staff, please state:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`
`(e)
`
`(f)
`
`(g)
`
`the identity of those persons the plaintiff alleges the hospital negligently
`hired;
`
`what information the hospital allegedly had or should have had regarding
`the person or persons negligently hired;
`
`the regulation, if any, that the plaintiff alleges the hospital violated;
`
`in what manner the person or persons identified in 25(a) were not acting in
`the scope of their employment?
`
`the dates when the plaintiff experienced the affects of the alleged negligent
`hiring; and
`
`how the hospital allegedly failed to use reasonable care in hiring staff;
`
`the manner in which the defendant was negligent in hiring staff personnel.
`
`24.
`
`If plaintiff alleges defendant was negligent in the administration of a hospital,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`please state:
`
`
`
`
`
`
`
`
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`(e)
`
`the manner in which the administration of the hospital was negligent;
`
`the areas of the hospital that were negligently administered;
`
`identify the ways in which it will be claimed the administration of the
`hospital should have been conducted;
`
`the dates when the plaintiff experienced the effects of the negligent hospital
`administration;
`
`the injuries to the plaintiff as a result of the negligent hospital
`administration.
`
`
`Dated: Rye, New York
`
`April 19, 2024
`
`
`
`
`
`
`
`15
`
`15 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`Yours, etc.,
`
`DORF NELSON & ZAUDERER, LLP
`
`
`
`
`
`By: Vincent A. Nagler, Esq.
`
`Vincent A. Nagler, Esq.
`Attorneys for Defendants
`BRYAN KAHAN, M.D., FRITZLINE
`MONTALMANT, M.D. and NEW YORK
`CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.
`555 Theodore Fremd Avenue
`Rye, New York 10580
`(914) 381-7600
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TO: DUFFY & DUFFY, PLLC
`
`Attorneys for Plaintiffs
`1370 RR Plaza West Tower, 13th Floor
`
`
`Uniondale, New York 11556
`
`(516) 394-4200
`
`
`
`
`
`
`
`16
`
`16 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`Index No.: 702552/2024
`
`COMBINED DEMANDS
`
` O U N S E L O R S:
`
`PLEASE TAKE NOTICE that, pursuant to Article 31 of the Civil Practice Law and
`
` C
`
`
`
`
`Rules, the defendant(s), hereby demands that you furnish the undersigned attorney for the aforesaid
`
`defendant(s) within twenty (20) days of the service of this Notice:
`
`
`
`1.
`
`STATEMENTS: Copies of all written or verbal statements, whether signed or
`
`otherwise, including but not limited to audio and/or video tape recordings of the aforesaid
`
`defendants, the agents, servants or employees of said defendants; complete copies of any and all
`
`medical records; insurance records; bills, statements or invoices; prescriptions or any writings
`
`received from or through said defendant(s) or any other source; or a notice or letter stating that
`
`you have no such statements.
`
`
`
`2.
`
`REPORTS AND AUTHORIZATIONS: Copies of all existing and future reports
`
`of all physicians who have treated or examined the plaintiff in connection with the injuries for
`
`which recovery is sought (see Honig v. Westphal 52 N.Y.2d 605 (1981); duly executed and
`
`acknowledged authorizations permitting the defendant(s) to obtain and copy all hospital records,
`
`
`
`17
`
`17 of 52
`
`
`
`-against-
`
`
`
`
`
`Plaintiffs,
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`------------------------------------------------------------------------x
`WALTER GAHAGAN, by his attorney-in-fact, KATHLEEN
`GAHAGAN and KATHLEEN GAHAGAN, individually,
`
`
`
`
`GREGORY P. SIROKY, MD, BRYAN KAHAN, M.D.,
`FRITZLINE MONTALMANT, M.D., ROBERT G.
`COLANGELO, ST. FRANCIS HOSPITAL, ROSLYN NEW
`YORK D/B/A ST. FRANCIS HOSPITAL & HEART
`CENTER, and NEW YORK CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.,
`
`Defendants.
`
`
`
`
`
`------------------------------------------------------------------------x
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`X-ray reports, physicians' records and all other records referred to in any physicians' report, and
`
`records of plaintiff's employment relating to wage and/or income loss.
`
`
`
`3.
`
`WITNESSES: Pursuant to Article 31 of the CPLR, the New York State Rules of
`
`Court, and the applicable case law, we hereby demand that you furnish the undersigned attorney
`
`for the aforesaid defendant(s) the names and addresses of each and every witness to the incident
`
`and alleged malpractice which is the subject of the above entitled action; to any allegedly defective
`
`condition; to any notice of such condition to this defendant(s); to any admissions by these
`
`defendant(s); and to any other elements reflecting on liability and damages; and, all non-expert
`
`witnesses from whom the plaintiff intends to introduce testimony at the time of trial.
`
`
`
`4.
`
`PHOTOGRAPHS: Pursuant to CPLR §3101, Reese v. Long Island Railroad, 259
`
`N.Y.S.2d 231, aff'd, 262 N.Y.S.2d 195 (2d Dep't, 1965); Murdick v. Bush, 254 N.Y.S.2d 54; and
`
`Hayward v. Willard Mountain, Inc., 266 N.Y.S.2d 453, we hereby demand that you furnish the
`
`undersigned attorney for the aforesaid defendant(s) all existing and future photographs of the scene
`
`of the incident, which is the subject of this litigation, photographs of the instrumentalities involved
`
`in this litigation and photographs of the injuries and residuals of such injuries alleged to have been
`
`sustained.
`
`
`
`5.
`
`Pursuant to CPLR §4545, the undersigned demands that you forward to this office
`
`all documents or other information in your possession or in the possession of your clients
`
`concerning the costs of medical care, custodial care, or rehabilitation services, loss of earnings or
`
`other economic loss which was replaced or indemnified, in whole or in part, from any collateral
`
`source such as insurance, Social Security (except those benefits provided under Title XVIII of the
`
`Social Security Act), Workers Compensation or employee benefit programs, except such collateral
`
`sources entitled by law to liens against recovery of the plaintiff(s).
`
`
`
`18
`
`18 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`
`
`You are required, if you do not have one or more of the above, to submit a letter or affidavit
`
`so stating within twenty (20) days of the service of this notice.
`
`
`
`UPON YOUR FAILURE TO COMPLY, the defendant(s) shall rely on all sanctions
`
`provided by law and/or a motion shall be made to the above Court for an Order directing
`
`compliance plus costs of this motion.
`
`Dated: Rye, New York
`
`April 19, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Yours, etc.,
`
`DORF NELSON & ZAUDERER, LLP
`
`
`
`By: Vincent A. Nagler, Esq.
`
`Vincent A. Nagler, Esq.
`Attorneys for Defendants
`BRYAN KAHAN, M.D., FRITZLINE
`MONTALMANT, M.D. and NEW YORK
`CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.
`555 Theodore Fremd Avenue
`Rye, New York 10580
`(914) 381-7600
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TO: DUFFY & DUFFY, PLLC
`
`Attorneys for Plaintiffs
`1370 RR Plaza West Tower, 13th Floor
`
`
`Uniondale, New York 11556
`
`(516) 394-4200
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`19
`
`19 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`------------------------------------------------------------------------x
`WALTER GAHAGAN, by his attorney-in-fact, KATHLEEN
`GAHAGAN and KATHLEEN GAHAGAN, individually,
`
`
`
`
`GREGORY P. SIROKY, MD, BRYAN KAHAN, M.D.,
`FRITZLINE MONTALMANT, M.D., ROBERT G.
`COLANGELO, ST. FRANCIS HOSPITAL, ROSLYN NEW
`YORK D/B/A ST. FRANCIS HOSPITAL & HEART
`CENTER, and NEW YORK CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.,
`
`Defendants.
`
`
`
`
`
`------------------------------------------------------------------------x
`
` I R S:
`
`PLEASE TAKE NOTICE that, pursuant to Article 31 of the CPLR, the attorneys for the
`
` S
`
`
`
`
`plaintiff(s) are required to provide the following within twenty (20) days:
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`any radiologic films, tissue samples, pathology slides in possession of plaintiff(s)
`or plain
`
`any journals, calendars or diaries maintained by plaintiff(s) relative to the claims in
`this case;
`
`any photographs or videotapes plaintiff(s) intends to use at trial;
`
`any and all pleadings and transcripts pertaining to any other legal action which may
`be pending or completed which arose from the same injuries or claims as this
`lawsuit;
`
`copies of any bills, paid checks, statements or invoices documenting any claimed
`special damages;
`
`copies of any and all records and correspondence defendants, BRYAN KAHAN,
`M.D., FRITZLINE MONTALMANT, M.D.
`and NEW YORK
`CARDIOVASCULAR ANESTHESIOLOGISTS, P.C., as well as any other
`provider, provided and/or forwarded to plaintiff and/or plaintiff’s counsel prior to
`the inception of this lawsuit and/or service of this demand;
`
`
`
`
`20
`
`20 of 52
`
`
`
`-against-
`
`
`
`
`
`Plaintiffs,
`
`Index No.: 702552/2024
`
`NOTICE OF DISCOVERY
`AND INSPECTION
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`7.
`
`
`8.
`
`9.
`
`10.
`
`11.
`
`duplicates of all notices/correspondence/communication from any healthcare
`provider claiming any right of subrogation or lien;
`
`IRS Tax forms for the past 5 years;
`
`affidavit of Service;
`
`Proof of filing;
`
`Insured’s records in plaintiff(s) possession.
`
`That such production and discovery will be made at the office of the undersigned, DORF
`
`
`
`
`NELSON & ZAUDERER, LLP, 555 Theodore Fremd Avenue, Rye, New York 10580, on June
`
`19, 2024, at 10 o'clock in the forenoon of that day. This notice may otherwise be complied with
`
`by the service of duplicates of the demanded items upon the offices of the undersigned.
`
`Dated: Rye, New York
`
`April 19, 2024
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Yours, etc.,
`
`DORF NELSON & ZAUDERER, LLP
`
`
`
`By: Vincent A. Nagler, Esq.
`
`Vincent A. Nagler, Esq.
`Attorneys for Defendants
`BRYAN KAHAN, M.D., FRITZLINE
`MONTALMANT, M.D. and NEW YORK
`CARDIOVASCULAR
`ANESTHESIOLOGISTS, P.C.
`555 Theodore Fremd Avenue
`Rye, New York 10580
`(914) 381-7600
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`TO: DUFFY & DUFFY, PLLC
`
`Attorneys for Plaintiffs
`1370 RR Plaza West Tower, 13th Floor
`
`
`Uniondale, New York 11556
`
`(516) 394-4200
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`21
`
`21 of 52
`
`

`

`FILED: QUEENS COUNTY CLERK 04/19/2024 10:08 AM
`NYSCEF DOC. NO. 21
`
`INDEX NO. 702552/2024
`
`RECEIVED NYSCEF: 04/19/2024
`
`
`Index No.: 702552/2024
`
`DEMAND FOR
`TOTAL DAMAGES
`
`
`
`-against-
`
`
`
`
`
`Plaintiffs,
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`------------------------------------------------------------------------x