`NYSCEF DOC. NO. 13
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`INDEX NO. 152321/2023
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`RECEIVED NYSCEF: 04/04/2024
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`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF RICHMOND
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`MARIE PIRO,
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`Plaintiff,
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`-against-
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`FRANK V. TAMBURRINO, MD, GREGORY MANIATIS, MD,
`YEFIM OLKOVSKY, MD and STATEN ISLAND UNIVERSITY
`HOSPITAL/NORTHWELL HEALTH,
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`Index No.: 152321/2023
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`VERIFIED ANSWER
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`Defendants.
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`Defendant, GREGORY MANIATIS, MD, by his attorneys, KAUFMAN BORGEEST &
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`RYAN LLP, hereby responds to Plaintiff’s Verified Complaint, upon information and belief as
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`follows:
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`AS AND FOR AN ANSWER TO THE FIRST CAUSE OF ACTION
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`1.
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`Denies knowledge and information as to each and every allegation contained in
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`those paragraphs designated as “2”, “3”, “4”, “5”, “6”, “7”, “8”, “9”, “10”, “”21”, “22”, “23”,
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`“24”, “25”, “26”, “27”, “28”, “29”, 43”, “44”, “45”, “46”, “47”, “48”, “49”, “50”, “51”, “52”,
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`“53”, “54”, “55”, “56”, “57” and “58” of the Verified Complaint and refers questions of law to
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`this Honorable Court.
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`2.
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`Denies in the form alleged each and every allegation contained in those paragraphs
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`designated at “12” and “13”, of the Verified Complaint, except admits that Defendant GREGORY
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`MANIATIS, MD was a cardiologist and interventional cardiologist, and refers questions of law
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`to this Honorable Court.
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`3.
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`Denies in the form alleged each and every allegation contained in those paragraphs
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`designated at “14” of the Verified Complaint, except admits that at all times Defendant
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`NYSCEF DOC. NO. 13
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`INDEX NO. 152321/2023
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`GREGORY MANIATIS, MD was duly qualified and skilled to perform his profession and
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`function.
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`4.
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`Denies each and every allegation contained in those paragraphs designated as ”15”,
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`“16”, “17”, “18”, “20”, “59”, “60”, “61”, “62”, “63”, “64”, “65”, “66”, “67”, “68”, “69” and “70”.
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`5.
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`Denies in the form alleged each and every allegation contained in those paragraphs
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`designated at “19” of the Verified Complaint, except admits that Defendant GREGORY
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`MANIATIS, MD was an employee of Defendant STATEN ISLAND UNIVERSITY
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`HOSPITAL s/h/a STATEN ISLAND UNIVERSITY HOSPITAL/NORTHWELL HEALTH
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`and refers questions of law to this Honorable Court.
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`6.
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`Denies in the form alleged each and every allegation contained in those paragraphs
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`designated as “30”, “31”, “32”, “33”, “34”, “35”, “36”, “37”, “38”, “39” and “42” of the Verified
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`Complaint, except admits that at all relevant times, Defendant STATEN ISLAND UNIVERSITY
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`HOSPITAL s/h/a STATEN ISLAND UNIVERSITY HOPITAL/NORTHWELL was a non-
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`for-profit corporation organized pursuant to New York State law and duly staffed and equipped to
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`perform its function and refers all questions of law to the Court.
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`7.
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`Denies in the form alleged each and every allegation contained in those paragraphs
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`designated as “41” of the Verified Complaint, except admits that at all times Defendant STATEN
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`ISLAND UNIVERSITY HOSPITAL
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`s/h/a STATEN
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`ISLAND UNIVERSITY
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`HOSPITAL/NORTHWELL HEALTH was duly and appropriately staffed and capable to
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`perform its function and refers questions of law to this Honorable Court.
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`INDEX NO. 152321/2023
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`RECEIVED NYSCEF: 04/04/2024
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` AS AND FOR AN ANSWER TO THE SECOND CAUSE OF ACTION
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`8.
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`With respect to that paragraph of the Plaintiff’s Verified Complaint designated as
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`“71” answering defendant repeats, reiterates and realleges each and every admission or denial
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`heretofore made in response to paragraphs “1” through “70” of Plaintiff’s Verified Complaint.
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`9.
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`Denies each and every allegation contained in those paragraphs designated as “72”,
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`“73”, “74” and “75”.
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`AS AND FOR AN ANSWER TO THE THIRD CAUSE OF ACTION
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`10. With respect to that paragraph of the plaintiff’s Verified Complaint designated as
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`“76” answering defendant repeats, reiterates and realleges each and every admission or denial
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`heretofore made in response to paragraphs “1” through “75” of Plaintiff’s Verified Complaint.
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`11.
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`Denies in the form alleged each and every allegation contained in those paragraphs
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`designated as “77”, “78”, “79”and “80” of the Verified Complaint and refers questions of law to
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`this Honorable Court.
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`12.
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`Denies each and every allegation contained in those paragraphs designated as “81”,
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`“82”, “83”, “84”and “85”.
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`AS AND FOR A FIRST AFFIRMATIVE DEFENSE
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`13.
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`Upon information and belief, whatever damages the Plaintiff may have sustained
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`at the time(s) and place(s) mentioned in the Verified Complaint, were caused in whole or in part,
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`by Plaintiff’s culpable conduct. The amount of damages recovered, if any, shall therefore be
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`diminished in the proportion to which said culpable conduct is attributable.
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`AS AND FOR A SECOND AFFIRMATIVE DEFENSE
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`14.
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`Defendant invokes the protection of Public Health Law §2805-d (4) with respect to
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`the cause of action for lack of informed consent, and reserves all rights pursuant thereto.
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`INDEX NO. 152321/2023
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`AS AND FOR A THIRD AFFIRMATIVE DEFENSE
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`15.
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`That the Complaint fails to state a cause or causes of action upon which relief can
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`be granted against the answering defendant.
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`AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
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`16.
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`Upon information and belief, any past or future costs or expenses incurred or to be
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`incurred by the Plaintiff for medical care, dental care, custodial care or rehabilitative services, loss
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`of earnings or other economic loss, has been or will with reasonable certainty be replaced or
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`indemnified in whole or in part from a collateral source as defined in Section 4545 (c) of the New
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`York Civil Practice Law and Rules.
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`AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
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`17.
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`If any damages are recoverable against this answering defendant, the amount of
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`such damages shall be diminished by the amount of the funds which Plaintiff has or shall receive
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`from such collateral source.
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`AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
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`18.
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`That pursuant to CPLR §1600 et seq., if it is determined by verdict or decision that
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`two or more tortfeasors are jointly liable to the plaintiff, and if the liability of the answering
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`defendant is found to be 50% or less of the total liability assigned to all persons liable, the liability
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`of such defendant to the plaintiff for non-economic loss shall not exceed this defendant’s equitable
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`share determined in accordance with the relative culpability of each person causing or contributing
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`to the total liability for non-economic loss.
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`4 of 10
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`INDEX NO. 152321/2023
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`RECEIVED NYSCEF: 04/04/2024
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`AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
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`19.
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`That the Complaint and the cause(s) of action contained therein may not be
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`maintained because they are barred by the applicable statute of limitations prescribed by the CPLR
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`and the laws of the State of New York.
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`AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
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`20.
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`The answering Defendant is immune from liability for the acts, omissions, and
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`injuries alleged in the Complaint, pursuant to Executive Orders (A. Cuomo) 202 et seq. (9 NYCRR
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`§8.202 et seq.), including but not limited to Executive Order (A. Cuomo) 202.10 (9 NYCRR
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`§8.202 et seq.), and/or the Emergency or Disaster Treatment Protection Act ("EDTPA") (Public
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`Health Law Article 30-D) as it was in effect at the time of the care rendered in this case.
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`AS AND FOR A NINTH AFFIRMATIVE DEFENSE
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`21.
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`The answering defendant is immune from liability for the acts, omissions, and
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`injuries alleged in the Complaint, pursuant to the United States Public Readiness and Emergency
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`Preparedness ("PREP") Act (42 USC §247d-6d et seq.) and/or the Coronavirus Aid, Relief, and
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`Economic Security ("CARES") Act of 2020, §4113c (42 USC §247d-6d[i][1], as added by Pub L
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`116-136, 116 US Stat 3548).
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`AS AND FOR A TENTH AFFIRMATIVE DEFENSE
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`22.
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`Plaintiff's state law claims must be dismissed, as they are preempted by the United
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`States Public Readiness and Emergency Preparedness ("PREP") Act (42 USC §247d-6d et seq.)
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`and/or the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of 2020, §4113c (42
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`USC §247d-6d[i][1], as added by Pub L 116-136, 116 US Stat 3548).
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`5 of 10
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`INDEX NO. 152321/2023
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`RECEIVED NYSCEF: 04/04/2024
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`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE
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`23.
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`This Court lacks jurisdiction over the subject matter of Plaintiff's claims, pursuant
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`to the United States Public Readiness and Emergency Preparedness ("PREP") Act (42 USC §247d-
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`6d et seq.) and/or the Coronavirus Aid, Relief, and Economic Security ("CARES") Act of 2020,
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`§4113c (42 USC §247d-6d[i][1], as added by Pub. L. 116-136, 116 US Stat 3548).
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`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE’
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`24.
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`The damages set forth in Plaintiff's Complaint were caused by intervening and
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`superseding causes that relieve defendant of liability, including but not limited to the COVID-19
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`pandemic and the spread of SARS-CoV-2 or a virus mutating therefrom.
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`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
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`25.
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`At the time of the allegations set forth in Plaintiff's Complaint, Defendant was faced
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`with a sudden and unexpected emergency situation caused by the COVID-19 pandemic and the
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`spread of SARS-CoV-2 or a virus mutating therefrom, which Defendant did not cause, and
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`defendant acted reasonably during the same.
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`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
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`26.
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`The damages set forth in plaintiff's Complaint were caused, if at all, in whole or
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`part by the COVID-19 pandemic and the spread of SARS-CoV-2 or a virus mutating therefrom,
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`which constituted an 'act of god' or 'force majeure' over which defendant had no control and which
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`defendant could not reasonably foresee or prepare for with sufficient efficacy to prevent the
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`damages set forth in the Complaint from occurring, if they occurred at all.
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`6 of 10
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`INDEX NO. 152321/2023
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`RECEIVED NYSCEF: 04/04/2024
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`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE
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`27.
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`At the time of the allegations set forth in plaintiff's Complaint, defendant was acting
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`in the interest of public necessity in the face of a public emergency caused by the COVID-19
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`pandemic and the spread of SARS-CoV-2 or a virus mutating therefrom, and any acts or omissions
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`set forth in plaintiff's complaint were to protect the public as a whole from greater harm that would
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`otherwise have occurred.
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`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE
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`28.
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`The PREP Act provides
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`the remedy for Plaintiff’s claims under
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`the
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`Countermeasures Injury Compensation Program (CCIP). Accordingly, plaintiff failed to exhaust
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`his/her administrative remedies and thus the Court lacks subject matter jurisdiction. 42 U.S.C
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`§247-6e(d)(1); Parker v. St. Lawrence County Pubic Heath Department, 102 A.D. 3d 140 (3d Dept.
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`2012).
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`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE
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`29.
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`The allocation of health care resources during an emergency is a discretionary
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`governmental function and the Defendant, its agents, servants and employees are therefore
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`immune from civil liability.
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`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE
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`30.
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`The injuries complained of were due exclusively to causes of so extraordinary a
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`nature that they could not reasonably have been foreseen and the result avoided.
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`7 of 10
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`FILED: RICHMOND COUNTY CLERK 04/04/2024 10:33 AM
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`INDEX NO. 152321/2023
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`RECEIVED NYSCEF: 04/04/2024
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`AS AND FOR A NINTEENTH AFFIRMATIVE DEFENSE
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`31.
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`Given the declared public health emergency, the Court lacks subject matter
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`jurisdiction pursuant to the Federal Officers Statute (28 U.S.C. §1442 (a)(1)).
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`AS AND FOR AN TWENTIETH AFFIRMATIVE DEFENSE
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`32.
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`Given the declared public health emergency, the Defendant and its agents, servants
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`and employees acted at all times reasonably and in accordance with the applicable standard of care
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`in effect under the conditions existing at the time.
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`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE
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`33.
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`Pursuant to the Volunteer Protection Act of 1997, the defendant is immune from
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`any cause of action arising under Federal or State law for any harm caused by an act or omission
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`of the professional in the provision of health care services.
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`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE
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`34.
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`The claims made in Plaintiff’s Verified Complaint regarding the acts or omissions
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`alleged by this answering Defendant do not rise to the level of gross negligence, recklessness,
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`willful misconduct or intentional misconduct and any damages allegedly sustained or incurred as
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`a result of gross negligence, recklessness, willful misconduct or intentional misconduct are hereby
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`denied.
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`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE
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`35.
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` That the Complaint must be dismissed pursuant to CPLR 308 due to lack of
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`personal jurisdiction.
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`INDEX NO. 152321/2023
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`RECEIVED NYSCEF: 04/04/2024
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` WHEREFORE Defendant GREGORY MANIATIS, MD demands judgment
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`dismissing the Verified Complaint, together with the costs and disbursements of this action.
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`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.
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`Dated: Garden City, New York
`April 4, 2024
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`Yours, etc.
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`KAUFMAN BORGEEST & RYAN LLP
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`By:
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`Betty L. Atlas
`Attorneys for Defendant, GREGORY
`MANIATIS, MD
`1205 Franklin Avenue, Suite 200
`Garden City, New York 11530
`(516) 248-6000
`batlas@kbrlaw.com
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`TO:
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`Marla Stein, Esq.
`HARRIS, KEENAN & GOLDFARB PLLC
`Attorneys for Plaintiff, Marie Piro
`233 Broadway, Suite #900
`New York, NY 10279
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`RECEIVED NYSCEF: 04/04/2024
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`VERIFICATION
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`STATE OF NEW YORK
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`) ss.:
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`COUNTY OF NASSAU )
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`BETTY L. ATLAS, being duly sworn, deposes and says:
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`That she is a member of the firm of attorneys representing the Defendant, GREGORY
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`MANIATIS, MD and That she has read the attached Answer and the same is true to her own
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`belief, except as to matters alleged on information and belief, and as to those matters, she believes
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`them to be true to the best of her knowledge.
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`That this verification is made by deponent and not by the Defendant herein as Defendant
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`resides in counties other than the county where his attorney has its office.
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`_____________________________
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` BETTY L. ATLAS
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