FILED: RICHMOND COUNTY CLERK 04/04/2024 10:33 AM
`NYSCEF DOC. NO. 12
`
`INDEX NO. 152321/2023
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`RECEIVED NYSCEF: 04/04/2024
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF RICHMOND
`------------------------------------------------------------------------------X
`MARIE PIRO,
`
`
`Plaintiff,
`
`
`
`-against-
`
`FRANK V. TAMBURRINO, MD, GREGORY MANIATIS, MD,
`YEFIM OLKOVSKY, MD and STATEN ISLAND UNIVERSITY
`HOSPITAL/NORTHWELL HEALTH,
`
`
`
`
`
`Index No.: 152321/2023
`
`VERIFIED ANSWER
`
`
`
`
`Defendants.
`------------------------------------------------------------------------------X
`
`
`
`
`
`Defendant, STATEN ISLAND UNIVERSITY HOSPITAL s/h/a STATEN ISLAND
`
`UNIVERSITY HOSPITAL/NORTHWELL HEALTH, by
`
`its attorneys, KAUFMAN
`
`BORGEEST & RYAN LLP, hereby responds to Plaintiff’s Verified Complaint, upon information
`
`and belief as follows:
`
`AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
`
`1.
`
`Denies knowledge and information as to each and every allegation contained in
`
`those paragraphs designated as “2”, “3”, “4”, “5”, “6”, “7”, “8”, “9”, “10”, “21”,“22”, “23”, “24”,
`
`“25”, “26”, “27”, “28”, ”29”, “43”, “44”, “45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”, “53”,
`
`“54”, “55”, “56”, “57”, and “58” of the Verified Complaint and refers questions of law to this
`
`Honorable Court.
`
`2.
`
`Denies in the form alleged each and every allegation contained in those paragraphs
`
`designated at “12” and “13”, of the Verified Complaint, except admits that Defendant Gregory
`
`Maniatis, MD was a cardiologist and interventional cardiologist, and refers questions of law to this
`
`Honorable Court.
`
`
`
`1 of 10
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` 10072974
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`NYSCEF DOC. NO. 12
`
`INDEX NO. 152321/2023
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`RECEIVED NYSCEF: 04/04/2024
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF RICHMOND
`------------------------------------------------------------------------------X
`MARIE PIRO,
`
`
`Plaintiff,
`
`
`
`-against-
`
`FRANK V. TAMBURRINO, MD, GREGORY MANIATIS, MD,
`YEFIM OLKOVSKY, MD and STATEN ISLAND UNIVERSITY
`HOSPITAL/NORTHWELL HEALTH,
`
`
`
`
`
`Index No.: 152321/2023
`
`VERIFIED ANSWER
`
`
`
`
`Defendants.
`------------------------------------------------------------------------------X
`
`
`
`
`
`Defendant, STATEN ISLAND UNIVERSITY HOSPITAL s/h/a STATEN ISLAND
`
`UNIVERSITY HOSPITAL/NORTHWELL HEALTH, by
`
`its attorneys, KAUFMAN
`
`BORGEEST & RYAN LLP, hereby responds to Plaintiff’s Verified Complaint, upon information
`
`and belief as follows:
`
`AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
`
`1.
`
`Denies knowledge and information as to each and every allegation contained in
`
`those paragraphs designated as “2”, “3”, “4”, “5”, “6”, “7”, “8”, “9”, “10”, “21”,“22”, “23”, “24”,
`
`“25”, “26”, “27”, “28”, ”29”, “43”, “44”, “45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”, “53”,
`
`“54”, “55”, “56”, “57”, and “58” of the Verified Complaint and refers questions of law to this
`
`Honorable Court.
`
`2.
`
`Denies in the form alleged each and every allegation contained in those paragraphs
`
`designated at “12” and “13”, of the Verified Complaint, except admits that Defendant Gregory
`
`Maniatis, MD was a cardiologist and interventional cardiologist, and refers questions of law to this
`
`Honorable Court.
`
`
`
`1 of 10
`
` 10072974
`
`
`
`FILED: RICHMOND COUNTY CLERK 04/04/2024 10:33 AM
`NYSCEF DOC. NO. 12
`
`INDEX NO. 152321/2023
`
`RECEIVED NYSCEF: 04/04/2024
`
`
`
`3.
`
`Denies in the form alleged each and every allegation contained in those paragraphs
`
`designated at “14” of the Verified Complaint, except admits that at all times Defendant Gregory
`
`Maniatis, MD was duly qualified and skilled to perform his profession and function.
`
`4.
`
`Denies each and every allegation contained in those paragraphs designated as ”15”,
`
`“16”, “17”, “18”, “20”, “59”, “60”, “61”, “62”, “63”, “64”, “65”, “66”, “67”, “68”, “69” and “70”.
`
`5.
`
`Denies in the form alleged each and every allegation contained in those paragraphs
`
`designated at “19” of the Verified Complaint, except admits that Defendant Gregory Maniatis, MD
`
`was an employee of Defendant STATEN ISLAND UNIVERSITY HOSPITAL s/h/a STATEN
`
`ISLAND UNIVERSITY HOSPITAL/NORTHWELL HEALTH and refers questions of law to
`
`this Honorable Court.
`
`6.
`
`Denies in the form alleged each and every allegation contained in those paragraphs
`
`designated as “30”, “31”, “32”, “33”, “34”, “35”, “36”, “37”, “38”, “39” and “42” of the Verified
`
`Complaint, except admits that at all relevant times, Defendant STATEN ISLAND UNIVERSITY
`
`HOSPITAL s/h/a STATEN ISLAND UNIVERSITY HOSPITAL/NORTHWELL HEALTH
`
`was a non-for-profit corporation organized pursuant to New York State law and duly staffed and
`
`equipped to perform its function and refers all questions of law to the Court.
`
`7.
`
`Denies in the form alleged each and every allegation contained in those paragraphs
`
`designated as “41” of the Verified Complaint, except admits that at all times Defendant STATEN
`
`ISLAND UNIVERSITY HOSPITAL
`
`s/h/a STATEN
`
`ISLAND UNIVERSITY
`
`HOSPITAL/NORTHWELL HEALTH was duly and appropriately staffed and capable to
`
`perform its function and refers questions of law to this Honorable Court.
`
`
`
`
`
`
`
`2 of 10
`
` 10072974
`
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`FILED: RICHMOND COUNTY CLERK 04/04/2024 10:33 AM
`NYSCEF DOC. NO. 12
`
`INDEX NO. 152321/2023
`
`RECEIVED NYSCEF: 04/04/2024
`
`
`
` AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
`
`8.
`
`With respect to that paragraph of the Plaintiff’s Verified Complaint designated as
`
`“71” answering defendant repeats, reiterates and realleges each and every admission or denial
`
`heretofore made in response to paragraphs “1” through “70” of Plaintiff’s Verified Complaint.
`
`9.
`
`Denies each and every allegation contained in those paragraphs designated as “72”,
`
`“73”, “74”, “75”.
`
`AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
`
`10. With respect to that paragraph of the plaintiff’s Verified Complaint designated as
`
`“76” answering defendant repeats, reiterates and realleges each and every admission or denial
`
`heretofore made in response to paragraphs “1” through “75” of Plaintiff’s Verified Complaint.
`
`11.
`
`Denies in the form alleged each and every allegation contained in those paragraphs
`
`designated as “77”, “78”, “79”and “80”, of the Verified Complaint and refers questions of law to
`
`this Honorable Court.
`
`12.
`
`Denies each and every allegation contained in those paragraphs designated as “81”,
`
`“82”, “83”, “84”and “85”.
`
`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
`
`13.
`
`Upon information and belief, whatever damages the Plaintiff may have sustained
`
`at the time(s) and place(s) mentioned in the Verified Complaint, were caused in whole or in part,
`
`by Plaintiff’s culpable conduct. The amount of damages recovered, if any, shall therefore be
`
`diminished in the proportion to which said culpable conduct is attributable.
`
`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
`
`14.
`
`Defendant invokes the protection of Public Health Law §2805-d (4) with respect to
`
`the cause of action for lack of informed consent, and reserves all rights pursuant thereto.
`
`
`
`3 of 10
`
` 10072974
`
`
`
`FILED: RICHMOND COUNTY CLERK 04/04/2024 10:33 AM
`NYSCEF DOC. NO. 12
`
`INDEX NO. 152321/2023
`
`RECEIVED NYSCEF: 04/04/2024
`
`
`
`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
`
`15.
`
`That the Complaint fails to state a cause or causes of action upon which relief can
`
`be granted against the answering Defendant.
`
`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
`
`16.
`
`Upon information and belief, any past or future costs or expenses incurred or to be
`
`incurred by the Plaintiff for medical care, dental care, custodial care or rehabilitative services, loss
`
`of earnings or other economic loss, has been or will with reasonable certainty be replaced or
`
`indemnified in whole or in part from a collateral source as defined in Section 4545 (c) of the New
`
`York Civil Practice Law and Rules.
`
`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
`
`17.
`
`If any damages are recoverable against this answering defendant, the amount of
`
`such damages shall be diminished by the amount of the funds which Plaintiff has or shall receive
`
`from such collateral source.
`
`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
`
`18.
`
`That pursuant to CPLR §1600 et seq., if it is determined by verdict or decision that
`
`two or more tortfeasors are jointly liable to the plaintiff, and if the liability of the answering
`
`defendant is found to be 50% or less of the total liability assigned to all persons liable, the liability
`
`of such defendant to the plaintiff for non-economic loss shall not exceed this defendant’s equitable
`
`share determined in accordance with the relative culpability of each person causing or contributing
`
`to the total liability for non-economic loss.
`
`
`
`
`
`
`
`
`
`4 of 10
`
` 10072974
`
`
`
`FILED: RICHMOND COUNTY CLERK 04/04/2024 10:33 AM
`NYSCEF DOC. NO. 12
`
`INDEX NO. 152321/2023
`
`RECEIVED NYSCEF: 04/04/2024
`
`
`
`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
`
`19.
`
`That the Complaint and the cause(s) of action contained therein may not be
`
`maintained because they are barred by the applicable statute of limitations prescribed by the CPLR
`
`and the laws of the State of New York.
`
`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
`
`20.
`
`The answering Defendant is immune from liability for the acts, omissions, and
`
`injuries alleged in the Complaint, pursuant to Executive Orders (A. Cuomo) 202 et seq. (9 NYCRR
`
`§8.202 et seq.), including but not limited to Executive Order (A. Cuomo) 202.10 (9 NYCRR
`
`§8.202 et seq.), and/or the Emergency or Disaster Treatment Protection Act ("EDTPA") (Public
`
`Health Law Article 30-D) as it was in effect at the time of the care rendered in this case.
`
`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
`
`21.
`
`The answering defendant is immune from liability for the acts, omissions, and
`
`injuries alleged in the Complaint, pursuant to the United States Public Readiness and Emergency
`
`Preparedness ("PREP") Act (42 USC §247d-6d et seq.) and/or the Coronavirus Aid, Relief, and
`
`Economic Security ("CARES") Act of 2020, §4113c (42 USC §247d-6d[i][1], as added by Pub L
`
`116-136, 116 US Stat 3548).
`
`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
`
`22.
`
`Plaintiff's state law claims must be dismissed, as they are preempted by the United
`
`States Public Readiness and Emergency Preparedness ("PREP") Act (42 USC §247d-6d et seq.)
`
`and/or the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of 2020, §4113c (42
`
`USC §247d-6d[i][1], as added by Pub L 116-136, 116 US Stat 3548).
`
`
`
`
`
`
`
`5 of 10
`
` 10072974
`
`
`
`FILED: RICHMOND COUNTY CLERK 04/04/2024 10:33 AM
`NYSCEF DOC. NO. 12
`
`INDEX NO. 152321/2023
`
`RECEIVED NYSCEF: 04/04/2024
`
`
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
`
`23.
`
`This Court lacks jurisdiction over the subject matter of Plaintiff's claims, pursuant
`
`to the United States Public Readiness and Emergency Preparedness ("PREP") Act (42 USC §247d-
`
`6d et seq.) and/or the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of 2020,
`
`§4113c (42 USC §247d-6d[i][1], as added by Pub. L. 116-136, 116 US Stat 3548).
`
`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE’
`
`24.
`
`The damages set forth in Plaintiff's Complaint were caused by intervening and
`
`superseding causes that relieve defendant of liability, including but not limited to the COVID-19
`
`pandemic and the spread of SARS-CoV-2 or a virus mutating therefrom.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
`
`25.
`
`At the time of the allegations set forth in Plaintiff's Complaint, Defendant was faced
`
`with a sudden and unexpected emergency situation caused by the COVID-19 pandemic and the
`
`spread of SARS-CoV-2 or a virus mutating therefrom, which Defendant did not cause, and
`
`defendant acted reasonably during the same.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
`
`26.
`
`The damages set forth in plaintiff's Complaint were caused, if at all, in whole or
`
`part by the COVID-19 pandemic and the spread of SARS-CoV-2 or a virus mutating therefrom,
`
`which constituted an 'act of god' or 'force majeure' over which defendant had no control and which
`
`defendant could not reasonably foresee or prepare for with sufficient efficacy to prevent the
`
`damages set forth in the Complaint from occurring, if they occurred at all.
`
`
`
`
`
`
`
`6 of 10
`
` 10072974
`
`
`
`FILED: RICHMOND COUNTY CLERK 04/04/2024 10:33 AM
`NYSCEF DOC. NO. 12
`
`INDEX NO. 152321/2023
`
`RECEIVED NYSCEF: 04/04/2024
`
`
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
`
`27.
`
`At the time of the allegations set forth in plaintiff's Complaint, defendant was acting
`
`in the interest of public necessity in the face of a public emergency caused by the COVID-19
`
`pandemic and the spread of SARS-CoV-2 or a virus mutating therefrom, and any acts or omissions
`
`set forth in plaintiff's complaint were to protect the public as a whole from greater harm that would
`
`otherwise have occurred.
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
`
`28.
`
`The PREP Act provides
`
`the remedy for Plaintiff’s claims under
`
`the
`
`Countermeasures Injury Compensation Program (CCIP). Accordingly, plaintiff failed to exhaust
`
`his/her administrative remedies and thus the Court lacks subject matter jurisdiction. 42 U.S.C
`
`§247-6e(d)(1); Parker v. St. Lawrence County Pubic Heath Department, 102 A.D. 3d 140 (3d Dept.
`
`2012.).
`
`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
`
`29.
`
`The allocation of health care resources during an emergency is a discretionary
`
`governmental function and the Defendant, its agents, servants and employees are therefore
`
`immune from civil liability.
`
`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
`
`30.
`
`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.
`
`
`
`
`
`
`
`7 of 10
`
` 10072974
`
`
`
`FILED: RICHMOND COUNTY CLERK 04/04/2024 10:33 AM
`NYSCEF DOC. NO. 12
`
`INDEX NO. 152321/2023
`
`RECEIVED NYSCEF: 04/04/2024
`
`
`
`AS AND FOR A NINTEENTH AFFIRMATIVE DEFENSE
`
`31.
`
`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)).
`
`AS AND FOR AN TWENTIETH AFFIRMATIVE DEFENSE
`
`32.
`
`Given the declared public health emergency, the Defendant and its 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.
`
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
`
`33.
`
`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.
`
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
`
`34.
`
`The claims made in Plaintiff’s Verified Complaint regarding the acts or omissions
`
`alleged by this answering Defendant do not rise to the level of gross negligence, recklessness,
`
`willful misconduct or intentional misconduct and any damages allegedly sustained or incurred as
`
`a result of gross negligence, recklessness, willful misconduct or intentional misconduct are hereby
`
`denied.
`
`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
`
`35.
`
` That the Complaint must be dismissed pursuant to CPLR 308 due to lack of
`
`personal jurisdiction.
`
`
`
`
`
`
`
`8 of 10
`
` 10072974
`
`
`
`FILED: RICHMOND COUNTY CLERK 04/04/2024 10:33 AM
`NYSCEF DOC. NO. 12
`
`INDEX NO. 152321/2023
`
`RECEIVED NYSCEF: 04/04/2024
`
`
`
` WHEREFORE Defendant STATEN ISLAND UNIVERSITY HOSPITAL s/h/a
`
`STATEN ISLAND UNIVERSITY HOSPITAL/NORTHWELL HEALTH, demands
`
`judgment dismissing the Verified Complaint, together with the costs and disbursements of this
`
`action.
`
`To the best of my knowledge, information and belief, formed after an inquiry reasonable under the
`circumstances, the presentation of this paper or the contentions herein are not frivolous, as that
`term is defined in Part 130 of the Court Rules.
`
`
`
`Dated: Garden City, New York
`April 4, 2024
`
`
`
`Yours, etc.
`
`
`
`KAUFMAN BORGEEST & RYAN LLP
`
`
`By:
`
`Betty L. Atlas
`Attorneys for Defendant, STATEN ISLAND
`UNIVERSITY HOSPITAL s/h/a STATEN
`ISLAND UNIVERSITY
`HOSPITAL/NORTHWELL HEALTH
`1205 Franklin Avenue, Suite 200
`Garden City, New York 11530
`(516) 248-6000
`batlas@kbrlaw.com
`
`
`
`
`
`
`TO:
`
`
`
`Marla Stein, Esq.
`HARRIS, KEENAN & GOLDFARB PLLC
`Attorneys for Plaintiff, Marie Piro
`233 Broadway, Suite #900
`New York, NY 10279
`
`
`
`
`
`
`9 of 10
`
` 10072974
`
`
`
`FILED: RICHMOND COUNTY CLERK 04/04/2024 10:33 AM
`NYSCEF DOC. NO. 12
`
`INDEX NO. 152321/2023
`
`RECEIVED NYSCEF: 04/04/2024
`
`VERIFICATION
`
`
`
`
`
`STATE OF NEW YORK
`
`)
`
`
`
`
`
`
`
`
`
`) ss.:
`
`COUNTY OF NASSAU )
`
`
`
`
`
`
`
`BETTY L. ATLAS, being duly sworn, deposes and says:
`
`That she is a member of the firm of attorneys representing the Defendant, STATEN
`
`ISLAND UNIVERSITY HOSPITAL s/h/a STATEN ISLAND HOSPITAL/NORTHWELL
`
`HEALTH and That she has read the attached Answer and the same is true to her own belief, except
`
`as to matters alleged on information and belief, and as to those matters, she believes them to be
`
`true to the best of her knowledge.
`
`
`
`That this verification is made by deponent and not by the Defendant herein as Defendant
`
`resides in counties other than the county where his attorney has its office.
`
`
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`
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`
`
`_____________________________
`
` BETTY L. ATLAS
`
`10 of 10
`
` 10072974
`
`
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