FILED: STEUBEN COUNTY CLERK 04/09/2024 01:24 PM
`NYSCEF DOC. NO. 4
`
`INDEX NO. E2023-1260CV
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`RECEIVED NYSCEF: 04/09/2024
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`VERIFIED ANSWER
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`Index No.: E2023-
`1260CV
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`Plaintiff,
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`Defendants.
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`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF STEUBEN
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`BEVERLY M. HART, by and through
`DAVID HART, as proposed Administrator
`Of the Estate of BEVERLY M. HART,
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`
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`v.
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`ELDERWOOD AT HORNELL and 1 BETHESDA
`DRIVE OPERATING COMPANY,
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`
`
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`Defendants, 1 BETHESDA DRIVE OPERATING COMPANY d/b/a
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`ELDERWOOD AT HORNELL (improperly sued herein as Elderwood at
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`Hornell and 1 Bethesda Drive Operating Company) (hereinafter “Defendants,” or
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`“these Answering Defendants”), through their attorneys, Hurwitz Fine PC, for their
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`Verified Answer to the Plaintiff’s Verifed Complaint herein, state as follows:
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`1.
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`Defendants deny knowledge or information sufficient to form a belief as to
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`the truth of the allegations contained in paragraphs 1, 2, 3, and 15 of Plaintiff’s
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`Complaint.
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`2.
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`Deny the allegations contained in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12,
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`13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35,
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`36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56,
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`57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 70, 72, 74, 76, 78, 80, 82, 84, 86, 87, 88,
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`89, 91, 93, 94, 95, 96, 97, 99, 100, 101, 102, 103, and 104 of Plaintiff’s Complaint.
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`3.
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`In answering paragraphs 67, 92, and 98, Defendants repeat and reallege
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`each admission or denial previously made with regard to the allegations contained and/or
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`referred to therein with the same force and effect as if said admissions and denials were
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`1 of 7
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`NYSCEF DOC. NO. 4
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`INDEX NO. E2023-1260CV
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`RECEIVED NYSCEF: 04/09/2024
`
`
`
`
`
`
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`VERIFIED ANSWER
`
`Index No.: E2023-
`1260CV
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendants.
`
`STATE OF NEW YORK
`SUPREME COURT : COUNTY OF STEUBEN
`
`BEVERLY M. HART, by and through
`DAVID HART, as proposed Administrator
`Of the Estate of BEVERLY M. HART,
`
`
`
`v.
`
`ELDERWOOD AT HORNELL and 1 BETHESDA
`DRIVE OPERATING COMPANY,
`
`
`
`
`Defendants, 1 BETHESDA DRIVE OPERATING COMPANY d/b/a
`
`ELDERWOOD AT HORNELL (improperly sued herein as Elderwood at
`
`Hornell and 1 Bethesda Drive Operating Company) (hereinafter “Defendants,” or
`
`“these Answering Defendants”), through their attorneys, Hurwitz Fine PC, for their
`
`Verified Answer to the Plaintiff’s Verifed Complaint herein, state as follows:
`
`1.
`
`Defendants deny knowledge or information sufficient to form a belief as to
`
`the truth of the allegations contained in paragraphs 1, 2, 3, and 15 of Plaintiff’s
`
`Complaint.
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`2.
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`Deny the allegations contained in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12,
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`13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35,
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`36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56,
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`57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 70, 72, 74, 76, 78, 80, 82, 84, 86, 87, 88,
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`89, 91, 93, 94, 95, 96, 97, 99, 100, 101, 102, 103, and 104 of Plaintiff’s Complaint.
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`3.
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`In answering paragraphs 67, 92, and 98, Defendants repeat and reallege
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`each admission or denial previously made with regard to the allegations contained and/or
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`referred to therein with the same force and effect as if said admissions and denials were
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`1 of 7
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`FILED: STEUBEN COUNTY CLERK 04/09/2024 01:24 PM
`NYSCEF DOC. NO. 4
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`INDEX NO. E2023-1260CV
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`RECEIVED NYSCEF: 04/09/2024
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`herein again fully set forth herein.
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`4.
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`In answering paragraphs 68, 69, 71, 73, 75, 77, 79, 81, 83, and 85 of
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`Plaintiff’s complaint, Defendants state that these allegations call for legal conclusions for
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`which a response is not required. To the extent a response was intended, Defendants
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`deny any wrongdoing.
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`5.
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`In answering paragraph 90 of Plaintiff’s complaint, Defendants state that
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`these allegations call for legal conclusions for which a response is not required. To the
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`extent a response was intended, Defendants deny any wrongdoing and otherwise deny.
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`6.
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`Deny each and every other remaining allegation in Plaintiff’s Complaint not
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`herein before specifically admitted or otherwise denied.
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`FIRST AFFIRMATIVE DEFENSE
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`7.
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`To the extent that the Complaint alleges professional negligence, it fails to
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`state a cause of action as to these Defendants by reason of Plaintiff’s failure to comply
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`with the provisions of CPLR 3012-a.
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`SECOND AFFIRMATIVE DEFENSE
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`8.
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`Defendants have no present knowledge of culpable conduct on the part of
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`Plaintiff, Plaintiff’s decedent, or others over whom these Defendants had no control, but
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`in the event investigation or discovery discloses such conduct, these Defendants reserve
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`the right to prove that such culpable conduct caused or contributed to the alleged injuries
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`and damages.
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`THIRD AFFIRMATIVE DEFENSE
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`9.
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`Defendants have no present knowledge of conduct on the part of Plaintiff or
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`Plaintiff’s decedent that might constitute failure to mitigate alleged damages; however, in
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`order to avoid waiver of such a defense and to preserve these Defendants’ right to prove
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`2 of 7
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`FILED: STEUBEN COUNTY CLERK 04/09/2024 01:24 PM
`NYSCEF DOC. NO. 4
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`INDEX NO. E2023-1260CV
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`RECEIVED NYSCEF: 04/09/2024
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`same at the time of trial, in the event investigation or discovery discloses such conduct,
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`Defendants reserve the right to prove that such conduct caused or contributed to the
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`alleged injuries and damages.
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`FOURTH AFFIRMATIVE DEFENSE
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`10.
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`In the event that the Plaintiff recovers damages which have been paid or are
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`payable by a collateral source, Defendants will seek an offset to such damages pursuant
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`to Article 45 of the CPLR.
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`FIFTH AFFIRMATIVE DEFENSE
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`11.
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`In the event that the Plaintiff recovers damages attributable to a party or
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`parties over whom these Defendants had no control, Defendants’ equitable share of any
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`such recovery will be 50% or less and these Defendants will claim the limited liability
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`protections set forth in CPLR Article 16.
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`SIXTH AFFIRMATIVE DEFENSE
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`12.
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`In the event that the Plaintiff gives a release or covenant not to sue or
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`enforce a judgment to one or more persons claimed to be liable for the same injury alleged
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`in the Plaintiff’s Complaint, these Defendants will seek an offset pursuant to §15-108 of
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`the General Obligations Law.
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`SEVENTH AFFIRMATIVE DEFENSE
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`13.
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`That Defendants exercised all care reasonably necessary to prevent and/or
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`limit the injury and deprivation for which liability is asserted, including liability alleged
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`pursuant to Public Health Law §2801-d.
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`EIGHTH AFFIRMATIVE DEFENSE
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`14.
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`The allegations contained in Plaintiff’s complaint are barred by the
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`applicable statute of limitations.
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`NINTH AFFIRMATIVE DEFENSE
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`15.
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`That the complaint fails to state a cause of action against these Defendants
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`3 of 7
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`FILED: STEUBEN COUNTY CLERK 04/09/2024 01:24 PM
`NYSCEF DOC. NO. 4
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`INDEX NO. E2023-1260CV
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`RECEIVED NYSCEF: 04/09/2024
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`and, therefore, should be dismissed.
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`TENTH AFFIRMATIVE DEFENSE
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`16.
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`That to the extent the Plaintiff seeks to recover for any sum other than fair
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`and just compensation for pecuniary injuries resulting from decedent’s death, such
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`recovery, is barred by Sections 5-4.3 of the Estates, Powers, and Trusts Law.
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`ELEVENTH AFFIRMATIVE DEFENSE
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`17.
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`That service upon all of the Defendants has not been properly effectuated
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`or is otherwise improper.
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`TWELFTH AFFIRMATIVE DEFENSE
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`18. Upon trial, it may appear that some or all of the damages Plaintiff claims
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`have been caused by reason of Plaintiff’s or Plaintiff’s decedent own failure to mitigate
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`damages, including but not limited to failure to obtain health insurance under the federal
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`“Patient Protection and Affordable Care Act,” and, if so, Plaintiff’s damages, if any, must
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`be diminished accordingly.
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`THIRTEENTH AFFIRMATIVE DEFENSE
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`19.
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`That the claims in this action are barred in whole or in part pursuant to
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`immunity granted by New York State Executive Orders, New York State Public Health
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`Law 3080-3082, and the Emergency/Disaster Treatment Protection Act and other
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`immunities arising out of the COVID-19 emergency as promulgated by state or federal
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`law, rule, regulation, and/or executive order.
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`FOURTEENTH AFFIRMATIVE DEFENSE
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`20.
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`That the claims in this action are barred in whole or in part pursuant to the
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`Public Readiness and Emergency Preparedness Act (PREP Act) as set forth in the
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`Declaration Under the Public Readiness and Emergency Preparedness Act for Medical
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`4 of 7
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`FILED: STEUBEN COUNTY CLERK 04/09/2024 01:24 PM
`NYSCEF DOC. NO. 4
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`INDEX NO. E2023-1260CV
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`RECEIVED NYSCEF: 04/09/2024
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`Countermeasures Against COVID-19 and its subsequent amendments.
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`FIFTEENTH AFFIRMATIVE DEFENSE
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`21.
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`The proposed Plaintiff does not have capacity to bring this action.
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`SIXTEENTH AFFIRMATIVE DEFENSE
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`22.
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`These Defendants reserve the right to amend this Answer and to assert
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`additional defenses upon ascertaining more definite facts during and upon completion of
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`discovery and investigation.
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`1.
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`2.
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`WHEREFORE, Defendants demand judgment as follows:
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`Dismissing the complaint herein;
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`Plaintiff’s damages to be diminished in the proportion which the culpable
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`conduct attributable to plaintiff or plaintiff’s decedent bears to the culpable conduct
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`which caused the damages;
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`3.
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`That plaintiff’s damages, if any, be reduced by such amounts as have been
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`or may be recovered in whole or in part from collateral sources;
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`4.
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`In the event plaintiff recovers a verdict herein, Defendants should only be
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`liable for their equitable share of such verdict pursuant to Article 16 of the Civil Practice
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`Law and Rules; and
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`5.
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`For such other, further and different relief as may seem just, equitable and
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`proper, together with the costs and disbursements of this action.
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`Dated: Buffalo, New York
` April 9, 2024
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`HURWITZ FINE P.C.
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`_________________________
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`Elizabeth M. Midgley, Esq.
`Attorneys for Defendants
`424 Main Street, 1300 Liberty Building
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`5 of 7
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`FILED: STEUBEN COUNTY CLERK 04/09/2024 01:24 PM
`NYSCEF DOC. NO. 4
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`INDEX NO. E2023-1260CV
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`RECEIVED NYSCEF: 04/09/2024
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`Buffalo, New York 14202
`(716) 849-8900
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`TO: Victoria Lightcap, Esq.
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`Finkelstein & Partners, LLP
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`1279 Route 300 – Box 1111
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`Newburgh, New York 12551
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`6 of 7
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`FILED: STEUBEN COUNTY CLERK 04/09/2024 01:24 PM
`NYSCEF DOC. NO. 4
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`INDEX NO. E2023-1260CV
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`RECEIVED NYSCEF: 04/09/2024
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`STATE OF NEW YORK
`COUNTY OF ERIE
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`ATTORNEY VERIFICATION
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`
`
` ) ss:
` )
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`Elizabeth M. Midgley, Esq., an attorney at law duly admitted to practice before
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`the Courts of the state of New York, hereby affirms the following, being duly sworn,
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`deposes and says:
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`The undersigned, a member of HURWITZ FINE P.C., admitted to practice in the
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`courts of New York State, shows that deponent is the attorney of record for Defendants 1
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`BETHESDA DRIVE OPERATING COMPANY d/b/a ELDERWOOD AT
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`HORNELL (improperly sued herein as Elderwood at Hornell and 1 Bethesda
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`Drive Operating Company), in the within action.
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`That deponent has read
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`the
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`foregoing Verified Answer and knows
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`the
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`contents thereof.
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`That the same is true to deponent's own knowledge, except as to the matters
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`therein stated to be alleged on information and belief, and that as to those matters
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`deponent believes it to be true.
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` Deponent further says that the reason this verification is made by deponent and
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`not by Defendants is because the Defendants are not in the county where the attorneys
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`for the Defendants have their offices.
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`The undersigned affirms that the foregoing statements are true, under the
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`penalties of perjury.
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`Dated:
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`April 9, 2024
`Buffalo, New York
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`____________________________
`Elizabeth M. Midgley, Esq.
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`7 of 7
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