FILED: WESTCHESTER COUNTY CLERK 04/16/2024 03:35 PM
`NYSCEF DOC. NO. 5
`RECEIVED NYSCEF: 04/16/2024
`
`INDEX NO. 55160/2024
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNT OF WESTCHESTER
`---------------------------------------------------------------------X
`LUZ BAEZ BY RAFAELA ALBERT VALDEZ,
`
`
`
`
`
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`
`WESTCHESTER CENTER FOR REHABILITATION
`& NURSING and THE ENCLAVE AT RYE
`REHABILITATION AND NURSING CENTER,
`
`Defendants.
`
`
`
`
`
`----------------------------------------------------------------------X
`C O U N S E L O R S:
`
`
`Index No. 55160/2024
`
`VERIFIED ANSWER
`
`
`
`
`
`Defendant, PARKVIEW OPERATING CO., LLC d/b/a WESTCHESTER CENTER FOR
`
`REHABILITATION & NURSING, by its attorneys, BARKER PATTERSON NICHOLS, LLP,
`
`answering the Verified Complaint of the plaintiff, upon information and belief, respectfully shows
`
`to this Court and alleges:
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`
`
`1.
`
`Denies having knowledge or information sufficient to form a belief as to the truth
`
`of each and every allegation contained within paragraphs “1,” “2,” “8,” “9,” “10,” “11,” “12,”
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`“17,” “18” and “19” of plaintiff’s Verified Complaint.
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`
`
`2.
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`Denies each and every allegation in the form alleged contained within paragraphs
`
`“3,” “4,” “5,” “6,” “7,” “13,” “14,” “15” and “16” of plaintiff’s Verified Complaint.
`
`
`
`3.
`
`Denies each and every allegation contained within paragraph “20” of plaintiff’s
`
`Verified Complaint.
`
`ANSWERING THE FIRST CAUSE OF ACTION
`
`In response to paragraph “21” of plaintiff’s Verified Complaint, defendant repeats,
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`4.
`
`reiterates and realleges each and every denial and denial of knowledge or information sufficient
`
`to form a belief heretofore made in regard to each and every paragraph of the plaintiff’s Verified
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`1 of 10
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`NYSCEF DOC. NO. 5
`RECEIVED NYSCEF: 04/16/2024
`
`INDEX NO. 55160/2024
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`
`
`
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`
`
`Plaintiffs,
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNT OF WESTCHESTER
`---------------------------------------------------------------------X
`LUZ BAEZ BY RAFAELA ALBERT VALDEZ,
`
`
`
`
`
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`
`WESTCHESTER CENTER FOR REHABILITATION
`& NURSING and THE ENCLAVE AT RYE
`REHABILITATION AND NURSING CENTER,
`
`Defendants.
`
`
`
`
`
`----------------------------------------------------------------------X
`C O U N S E L O R S:
`
`
`Index No. 55160/2024
`
`VERIFIED ANSWER
`
`
`
`
`
`Defendant, PARKVIEW OPERATING CO., LLC d/b/a WESTCHESTER CENTER FOR
`
`REHABILITATION & NURSING, by its attorneys, BARKER PATTERSON NICHOLS, LLP,
`
`answering the Verified Complaint of the plaintiff, upon information and belief, respectfully shows
`
`to this Court and alleges:
`
`
`
`1.
`
`Denies having knowledge or information sufficient to form a belief as to the truth
`
`of each and every allegation contained within paragraphs “1,” “2,” “8,” “9,” “10,” “11,” “12,”
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`“17,” “18” and “19” of plaintiff’s Verified Complaint.
`
`
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`2.
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`Denies each and every allegation in the form alleged contained within paragraphs
`
`“3,” “4,” “5,” “6,” “7,” “13,” “14,” “15” and “16” of plaintiff’s Verified Complaint.
`
`
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`3.
`
`Denies each and every allegation contained within paragraph “20” of plaintiff’s
`
`Verified Complaint.
`
`ANSWERING THE FIRST CAUSE OF ACTION
`
`In response to paragraph “21” of plaintiff’s Verified Complaint, defendant repeats,
`
`4.
`
`reiterates and realleges each and every denial and denial of knowledge or information sufficient
`
`to form a belief heretofore made in regard to each and every paragraph of the plaintiff’s Verified
`
`1 of 10
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`FILED: WESTCHESTER COUNTY CLERK 04/16/2024 03:35 PM
`NYSCEF DOC. NO. 5
`RECEIVED NYSCEF: 04/16/2024
`
`INDEX NO. 55160/2024
`
`Complaint, designated as paragraphs “1” through “20” inclusive, with the same force and effect
`
`as though more fully set forth at length herein.
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`
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`5.
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`Denies having knowledge or information sufficient to form a belief as to the truth
`
`of each and every allegation contained within paragraphs “22,” “23,” “26,” “27,” “28” and “29”
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`of plaintiff’s Verified Complaint.
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`
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`6.
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`Denies each and every allegation contained within paragraphs “24,” “25,” “30,”
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`“31” and “32” of plaintiff’s Verified Complaint.
`
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`ANSWERING THE SECOND CAUSE OF ACTION
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`In response to paragraph “33” of plaintiff’s Verified Complaint, defendant repeats,
`
`
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`7.
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`reiterates and realleges each and every denial and denial of knowledge or information sufficient to
`
`form a belief heretofore made in regard to each and every paragraph of the plaintiff’s Verified
`
`Complaint, designated as paragraphs “1” through “32” inclusive, with the same force and effect as
`
`though more fully set forth at length herein.
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`
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`8.
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`Denies each and every allegation contained within paragraphs “34,” “35,” “36” and
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`“37” of plaintiff’s Verified Complaint.
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`
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`ANSWERING THE THIRD CAUSE OF ACTION
`
`
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`9.
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`In response to paragraph “38” of plaintiff’s Verified Complaint, defendant repeats,
`
`reiterates and realleges each and every denial and denial of knowledge or information sufficient to
`
`form a belief heretofore made in regard to each and every paragraph of the plaintiff’s Verified
`
`Complaint, designated as paragraphs “1” through “37” inclusive, with the same force and effect as
`
`though more fully set forth at length herein.
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`2 of 10
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`FILED: WESTCHESTER COUNTY CLERK 04/16/2024 03:35 PM
`NYSCEF DOC. NO. 5
`RECEIVED NYSCEF: 04/16/2024
`
`INDEX NO. 55160/2024
`
`
`
`10.
`
`Denies each and every allegation contained within paragraphs “39,” “40,” “41,”
`
`“42,” “43” and “44” of plaintiff’s Verified Complaint.
`
`
`ANSWERING THE FOURTH CAUSE OF ACTION
`
`In response to paragraph “44” of plaintiff’s Verified Complaint, defendant repeats,
`
`
`
`11.
`
`reiterates and realleges each and every denial and denial of knowledge or information sufficient to
`
`form a belief heretofore made in regard to each and every paragraph of the plaintiff’s Verified
`
`Complaint, designated as paragraphs “1” through “43” inclusive, with the same force and effect as
`
`though more fully set forth at length herein.
`
`
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`12.
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`Denies having knowledge or information sufficient to form a belief as to the truth
`
`of each and every allegation contained within paragraph “45” of plaintiff’s Verified Complaint.
`
`
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`13.
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`Denies each and every allegation contained within paragraphs “46,” “47,” “48” and
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`“49” of plaintiff’s Verified Complaint.
`
`
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`ANY PARAGRAPH NOT ANSWERED IS DEEMED DENIED
`
`
`
`
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`AS AND FOR A FIRST DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`
`
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`14.
`
`That any injuries sustained by plaintiff(s) at the time and place mentioned in the
`
`complaint were caused solely and wholly by reason of the carelessness, negligence, recklessness
`
`and acts or omissions on the part of the plaintiff and were not caused or contributed to by reason
`
`of any carelessness, negligence, recklessness or acts or omissions on the part of this answering
`
`defendant.
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`3 of 10
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`FILED: WESTCHESTER COUNTY CLERK 04/16/2024 03:35 PM
`NYSCEF DOC. NO. 5
`RECEIVED NYSCEF: 04/16/2024
`
`INDEX NO. 55160/2024
`
`AS AND FOR A SECOND DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`
`
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`15.
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`That the answering defendant(s) reserve(s) the right to claim the limitations of
`
`liability pursuant to Article 16 of the CPLR, for any recovery herein by the plaintiff for non-
`
`economic loss.
`
`AS AND FOR A THIRD DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`
`
`
`16.
`
`In the event plaintiffs recover a verdict or judgment against defendants, such verdict
`
`or judgment must be reduced pursuant to §4545 of the CPLR by those amounts which have been,
`
`or will, with reasonable certainty replace or indemnify plaintiffs in whole or in part, for any past
`
`or future claimed economic loss, from any collateral source.
`
`AS AND FOR A FOURTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`If plaintiff is entitled to recover damages for loss of earnings or impairment of
`
`17.
`
`
`
`earning ability as against defendants by reason of the matters alleged in the Complaint, liability
`
`for which is hereby denied, then pursuant to CPLR §4546 the amount of damages recoverable
`
`against said defendant, if any, shall be reduced by the amount of federal, state and local income
`
`taxes which the plaintiff would have been obligated by law to pay.
`
`AS AND FOR A FIFTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`The defendant asserts the defense of set-off to reduce the plaintiff’s claims under
`
`18.
`
`
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`§15-108 of the General Obligations Law.
`
`AS AND FOR A SIXTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`If the plaintiff was caused to sustain personal injuries and resulting damages at the
`
`19.
`
`
`
`time and place set forth in the plaintiff’s complaint and in the manner alleged therein through any
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`4 of 10
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`FILED: WESTCHESTER COUNTY CLERK 04/16/2024 03:35 PM
`NYSCEF DOC. NO. 5
`RECEIVED NYSCEF: 04/16/2024
`
`INDEX NO. 55160/2024
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`carelessness, recklessness, acts, omissions, negligence and/or breaches of duty and/or warranty
`
`and/or contract other than of the plaintiff then the said injuries and damages arose out of the several
`
`and joint carelessness, recklessness, acts, omissions, negligence and breaches of duty and/or
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`obligation and/or statute, and/or warranty, and/or contract in fact or implied in law, upon the part
`
`of non-parties subject to in-personam jurisdiction, and if this pleading defendant is found negligent
`
`as to the plaintiff for the injuries and damages set forth in the plaintiff’s complaint, then and in that
`
`event, the relative responsibilities of said pleading defendant must be apportioned by the
`
`percentage of liability of said non-parties subject to in-personam jurisdiction.
`
`AS AND FOR A SEVENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`
`
`20.
`
`The alleged causes of action set forth in the complaint did not accrue within the
`
`applicable statutory period preceding the commencement of said actions, and said actions are
`
`barred by the statute of limitations.
`
`AS AND FOR AN EIGHTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`Plaintiff(s)’ complaint should be dismissed as a frivolous action pursuant to §8303-
`
`21.
`
`
`
`a of the CPLR and defendant is entitled to costs pursuant to such.
`
`AS AND FOR AN NINTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`That the defendant acted in accordance with the appropriate provisions of Section
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`22.
`
`
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`2805-d of the Public Health Law and relies on the defenses set out therein.
`
`
`AS AND FOR AN TENTH DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`The plaintiff(s), as set forth in the caption, lack the legal capacity to commence this
`
`23.
`
`action. Therefore, the complaint must be dismissed.
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`5 of 10
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`FILED: WESTCHESTER COUNTY CLERK 04/16/2024 03:35 PM
`NYSCEF DOC. NO. 5
`RECEIVED NYSCEF: 04/16/2024
`
`INDEX NO. 55160/2024
`
`AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`These claims must be dismissed due to lack of jurisdiction, failure to comply with
`
`24.
`
`
`
`conditions precedent and the immunities granted by the PREP Act (42 U.S.C. §247d-6d). The
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`Complaint against these defendants is barred by U.S.C. §247d-6d(d).
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`AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`The PREP Act provides for the exclusive remedy for these claims, which are
`
`25.
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`subject to a “no fault” fund. This Court lacks the jurisdiction over this matter.
`
`AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`Defendant acted at all times within the proper standards of care generally, as well
`
`26.
`
`as the standards of care in place in the locality in question at the time of the COVID-19
`
`emergency.
`
`AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`These claims are barred in whole or in part by the error in judgment doctrine and/
`
`27.
`
`or the unprecedented and extenuating circumstances of COVID-19, which render the defendants’
`
`judgment proper and within the standards of care concerning accepted medical practice generally
`
`and/ or in place at the locality where the alleged acts or omissions occurred during the COVID-
`
`19 emergency.
`
`AS AND FOR A FIFTEENTH AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`The defendants followed Executive Orders, Federal mandates, as well as the
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`8.
`
`guidance issued by the NY DOH, the CDC, the W.H.O., the federal COVID-19 task force and
`
`other state and federal agencies.
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`6 of 10
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`
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`FILED: WESTCHESTER COUNTY CLERK 04/16/2024 03:35 PM
`NYSCEF DOC. NO. 5
`RECEIVED NYSCEF: 04/16/2024
`
`INDEX NO. 55160/2024
`
`AS AND FOR A SIXTEENTH AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
` That plaintiff’s claims regarding COVID-19 are not subject to any community
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`29.
`
`standard, due to the novel, evolving nature of COVID-19 at all relevant times, and the defendant
`
`was all times were practicing in conformity with all recommendations, guidelines and protocols.
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`AS AND FOR A SEVENTEENTH AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
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`Defendants avail themselves of the doctrine of danger invites rescue. Defendant put
`
`30.
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`themselves at risk for patient care despite sometimes unavailable PPE and other dangerous risks
`
`to their personal health.
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`AS AND FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`The Complaint against these defendants is barred by U.S.C. §247d-6d(d)
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`31.
`
`AS AND FOR A NINTEENTH AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`The care and treatment provided by defendants met standards set forth in federal
`
`32.
`
`and state statutes and regulations, as well as the standards of care prevailing among similar
`
`facilities in this community.
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`AS AND FOR A TWENTIETH AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`If plaintiff sustained the injuries and damages alleged in the Complaint, said injuries
`
`33.
`
`are the result of some independent intervening cause over which defendant had no control.
`
`
`AS AND FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`The alleged injuries and/or damages complained of by plaintiff, if any, were not
`
`34.
`
`foreseeable by these defendants.
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`7 of 10
`
`
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`FILED: WESTCHESTER COUNTY CLERK 04/16/2024 03:35 PM
`NYSCEF DOC. NO. 5
`RECEIVED NYSCEF: 04/16/2024
`
`INDEX NO. 55160/2024
`
`AS AND FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
`Plaintiff’s Complaint fails to state a claim upon which relief may be granted for the
`
`35.
`
`total lack of any scientific or medical evidence linking the transmittal method of COVID-19 to
`
`the presence or absence of any preventative measures such that the alleged negligence and
`
`alleged injuries sustained were preventable by defendants.
`
`AS AND FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
` Defendants specifically deny that they were negligent in any manner and
`
`36.
`
`specifically deny that any actions or inactions on its part put plaintiff or other patients in danger
`
`of contracting COVID-19.
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`AS AND FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE,
`THIS ANSWERING DEFENDANT ALLEGES UPON INFORMATION AND BELIEF:
`
` Plaintiff’s claims are barred because any alleged conduct on the part of the
`
`37.
`
`defendants was made in good faith and as part of defendants' efforts to comply with its
`
`obligations, if any, under the law in preventing the spread of COVID-19.
`
`WHEREFORE,
`
`the defendant, PARKVIEW OPERATING CO., LLC d/b/a
`
`WESTCHESTER CENTER FOR REHABILITATION & NURSING, demands judgment
`
`dismissing the plaintiff’s Verified Complaint together with the costs and disbursements of this
`
`action.
`
`Dated: Valhalla, New York
`
`April 16, 2024
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`Yours, etc.,
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`BARKER PATTERSON NICHOLS, LLP
`
`By: Dylan Braverman
`
`Dylan Braverman
`Attorneys for Defendant
`
`
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`8 of 10
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`FILED: WESTCHESTER COUNTY CLERK 04/16/2024 03:35 PM
`NYSCEF DOC. NO. 5
`RECEIVED NYSCEF: 04/16/2024
`
`INDEX NO. 55160/2024
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`TO: REDMOND LAW FIRM, PLLC
`
`Attorneys for Plaintiff
`
`80 Broad Street, Suite 1202
`
`New York, New York 10004
`
`(212) 799-8989
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`PARKVIEW OPERATING CO., LLC d/b/a
`WESTCHESTER CENTER FOR
`
`REHABILITATION & NURSING
`
`115 E. Stevens Avenue, Suite 206
`Valhalla, New York 10595
`(914) 495-4805
`d.braverman@bpn.law
`BPN File No.: 0304-011
`
`9 of 10
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`
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`FILED: WESTCHESTER COUNTY CLERK 04/16/2024 03:35 PM
`NYSCEF DOC. NO. 5
`RECEIVED NYSCEF: 04/16/2024
`
`INDEX NO. 55160/2024
`
`ATTORNEY'S VERIFICATION
`
`
`
`
`
`DYLAN C. BRAVERMAN, an attorney duly admitted and licensed to practice in the
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`courts of this State affirms the following pursuant to CPLR §2106:
`
`I am the attorney for defendant, PARKVIEW OPERATING CO., LLC d/b/a
`
`WESTCHESTER CENTER FOR REHABILITATION & NURSING, herein; and I have read the
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`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.
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`
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`That the reason this verification is made by your affirmant and not by the defendant
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`personally is, that the defendant is not located within the county where your affirmant has an office.
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`That the sources of your affirmant's information and the grounds of his/her belief as to the
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`matters so alleged herein are investigations had by the defendant, its agents, servants and
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`representatives into the subject matter hereof and correspondence relating thereto, reports of which
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`investigations and copies of which correspondence are in the possession of your affirmant.
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`Dated: Valhalla, New York
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`April 16, 2024
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` Dylan Braverman
`DYLAN BRAVERMAN
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`10 of 10
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