Preview
(FILED: WEW YORK COUNTY CLERK 0470372013) INDEX NO. 805374/2012
NYSCEF DOC. NO.} 10 RECEIVED NYSCEF: 04/03/2913
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. 805374/12
JANICE MURPHY,
Plaintiff,
-against- VERIFIED ANSWER
ZOE I. RODRIGUEZ, M.D., MICHAEL TSIMIS, M.D.,
BETH ISRAEL OB/GYN ASSOCIATES, BETH ISRAEL
MEDICAL CENTER and CONTINUUM HEALTH
PARTNERS, INC.,
Defendants.
Defendants, ZOE I. RODRIGUEZ, M.D., MICHAEL TSIMIS, M.D., BETH
ISRAEL MEDICAL CENTER and CONTINUUM HEALTH PARTNERS, INC., by their
attorneys, McCALOON & FRIEDMAN, P.C., answering the plaintiff's Complaint, respectfully
allege, upon information and belief, as follows:
1 Deny any knowledge or information sufficient to form a belief as to each
and every allegation set forth in Paragraph 1 of the Complaint.
2 Deny each and every allegation set forth in Paragraph 3 except admit that
defendant, ZOE I. RODRIGUEZ, M.D., is/was a competent, qualified and able specialist in
Obstetrics & Gynecology.
3 Deny each and every allegation set forth in Paragraphs 8, 9, 10, 11, 12 and
13 except admit that BETH ISRAEL OB/GYN ASSOCIATES is the name of the faculty practice
of the defendant, BETH ISRAEL MEDICAL CENTER'S obstetrician/gynecologists and is not a
jural entity.
4 Deny each and every allegation set forth in Paragraph 15 except admit that
defendant, BETH ISRAEL MEDICAL CENTER, is a hospital corporation.
5 Deny each and every allegation set forth in Paragraph 16 except admit that
defendant, BETH ISRAEL MEDICAL CENTER, is and was a full service hospital facility.
6. Deny each and every allegation set forth in Paragraphs 17, 18, 19, 20, 21
and:22 except admit that defendant, CONTINUUM HEALTH PARTNERS, INC., provides only
administrative services to its member facilities, including defendant, BETH ISRAEL MEDICAL
CENTER.
7. Deny each and every allegation set forth in Paragraphs 4, 5, 6, 7, 23, 24,
27, 28, 29, 30, 33 and 34 of the Complaint.
ANSWERING THE FIRST CAUSE OF ACTION
8 The answering defendants repeat and reiterate each and every denial or
denial of knowledge or information sufficient to form a belief as to each of the allegations of the
Complaint repeated and realleged by plaintiffs in Paragraph 35 of the Complaint.
9 Deny each and every allegation set forth in Paragraphs 36, 37, 39, 40, 41,
42, 43, 44, 45 and 46 of the Complaint.
10. Deny each and every allegation set forth in Paragraph 38 except admit that
defendant, ZOE I. RODRIGUEZ, M.D., met the applicable standards of care in this case.
ANSWERING THE SECOND CAUSE OF ACTION
ll. The answering defendants repeat and reiterate each and every denial or
denial of knowledge or information sufficient to form a belief as to each of the allegations of the
Complaint repeated and realleged by plaintiffs in Paragraph 47 of the Complaint.
12. Deny each and every allegation set forth in Paragraphs 48, 49, 51, 52, 53,
54, 55, 56, 57 and 58 of the Complaint.
13. Deny each and every allegation set forth in Paragraph 50 except admit that
defendant, MICHAEL TSIMI, M.D., met the applicable standards of care in this case.
ANSWERING THE THIRD CAUSE OF ACTION
14, The answering defendants repeat and reiterate each and every denial or
denial of knowledge or information sufficient to form a belief as to each of the allegations of the
Complaint repeated and realleged by plaintiffs in Paragraph 59 of the Complaint.
15. Deny each and every allegation set forth in Paragraphs 60, 61, 62, 63, 64,
65, 66, 67, 68, 69 and 70 except admit that BETH ISRAEL OB/GYN ASSOCIATES is just a
name for the defendant, BETH ISRAEL MEDICAL CENTER, OB/GYN faculty practice and is
not a jural entity.
ANSWERING THE FOURTH CAUSE OF ACTION
16. The answering defendants repeat and reiterate each and every denial or
denial of knowledge or information sufficient to form a belief as to each of the allegations of the
Complaint repeated and realleged by plaintiffs in Paragraph 71 of the Complaint.
17. Deny each and every allegation set forth in Paragraphs 72, 73, 75, 76, 77,
78, 79, 80, 81 and 82 of the Complaint.
18. Deny each and every allegation set forth in Paragraph 74 except admit that
the medical staff of defendant, BETH ISRAEL MEDICAL CENTER, met the applicable
standards of care in this case.
ANSWERING THE FIFTH CAUSE OF ACTION
19, The answering defendants repeat and reiterate each and every denial or
denial of knowledge or information sufficient to form a belief as to each of the allegations of the
Complaint repeated and realleged by plaintiffs in Paragraph 83 of the Complaint.
20, Deny each and every allegation set forth in Paragraphs 84, 85, 86, 87, 88,
89, 90, 91, 92, 93 and 94 of the Complaint, and reiterate that defendant, CONTINUUM
HEALTH PARTNERS, INC., provides only administrative, not medical, services to its member
facilities.
ANSWERING THE SIXTH CAUSE OF ACTION
21. The answering defendants repeat and reiterate each and every denial or
denial of knowledge or information sufficient to form a belief as to each of the allegations of the
Complaint repeated and realleged by plaintiffs in Paragraph 95 of the Complaint.
22. Deny each and every allegation set forth in Paragraphs 96, 97, 98 and 99
of the Complaint.
ANSWERING THE SEVENTH CAUSE OF ACTION
23, The answering defendants repeat and reiterate each and every denial or
denial of knowledge or information sufficient to form a belief as to each of the allegations of the
Complaint repeated and realleged by plaintiffs in Paragraph 100 of the Complaint.
24, Deny each and every allegation set forth in Paragraphs 101, 102, 103 and
104 of the Complaint.
ANSWERING THE EIGHTH CAUSE OF ACTION
25, The answering defendants repeat and reiterate each and every denial or
denial of knowledge or information sufficient to form a belief as to each of the allegations of the
Complaint repeated and realleged by plaintiffs in Paragraph 105 of the Complaint.
26, Deny each and every allegation set forth in Paragraphs 106, 107, 108 and
109 of the Complaint, and reiterate that BETH ISRAEL OB/GYN ASSOCIATES is not a jural
entity.
ANSWERING THE NINTH CAUSE OF ACTION
27. The answering defendants repeat and reiterate each and every denial or
denial of knowledge or information sufficient to form a belief as to each of the allegations of the
Complaint repeated and realleged by plaintiffs in Paragraph 110 of the Complaint.
28. Deny each and every allegation set forth in Paragraphs 111, 112, 113 and
114 of the Complaint.
ANSWERING THE TENTH CAUSE OF ACTION
29, The answering defendants repeat and reiterate each and every denial or
denial of knowledge or information sufficient to form a belief as to each of the allegations of the
Complaint repeated and realleged by plaintiffs in Paragraph 115 of the Complaint.
30. Deny each and every allegation set forth in Paragraphs 116, 117 and 118
of the Complaint, and reiterate that defendant, CONTINUUM HEALTH PARTNERS, INC.,
does not provide medical services.
31. Deny each and every allegation set forth in Paragraph 119 of the
Complaint.
AS AND FOR A FIRST, SEPARATE
AND DISTINCT AFFIRMATIVE DEFENSE:
32, The injuries and damages of the plaintiff, for which these causes of action
have been instituted, were caused wholly or in part through the culpable conduct and
contributory negligence on the part of plaintiff, JANICE MURPHY, and therefore the amount of
damages, if any, shall be diminished in the proportion which said conduct attributable to
plaintiff, JANICE MURPHY, bears to the defendants’ conduct, if any, which caused the
damages.
AS AND FOR A SECOND, SEPARATE
AND DISTINCT AFFIRMATIVE DEFENSE;
33. Plaintiff's Sixth, Seventh, Eighth and Ninth Causes of Action, if any, are
barred pursuant to §2805-d of the Public Health Law.
AS AND FOR A THIRD, SEPARATE
AND DISTINCT AFFIRMATIVE DEFENSE:
34. Any verdict or judgment should be reduced by the amounts of past or
future collateral source reimbursements of alleged special damage pursuant to CPLR §4545(c).
AS AND FOR A FOURTH, SEPARATE
AND DISTINCT AFFIRMATIVE DEFENSE:
35 The defendants’ conduct, if any, is limited pursuant to CPLR §1600, et
seq.
WHEREFORE, these defendants demand judgment dismissing plaintiffs
Complaint, together with the costs and disbursements of this action.
McALOO) FRIEDMAN, P.C.
By
LAURA R. SHAPIRO
Attorneys for Defendants
ZOE I. RODRIGUEZ, M.D.,
MICHAEL TSIMIS, M.D., BETH
ISRAEL MEDICAL CENTER and
CONTINUUM HEALTH
PARTNERS, INC.
Office and P.O. Address
123 William Street - 25'" Floor
New York, NY 10038-3804
Tel. (212) 732-8700
ATTORNEY’S VERIFICATION
STATE OF NEW YORK )
SS.:
COUNTY OF NEW YORK )
I, the undersigned, an attorney admitted to practice in the Courts of New York
State, state that | am a member of the firm of McALOON & FRIEDMAN, P.C., attorneys of
record for the defendants, ZOE I. RODRIGUEZ, M.D., MICHAEL TSIMIS, M.D., BETH
ISRAEL MEDICAL CENTER and CONTINUUM HEALTH PARTNERS, INC., in the
within action; I have read the foregoing ANSWER and know the contents thereof: the same is
true to my own knowledge, except as to the matters therein alleged to be on information and
belief, and as to those matters I believe them to be true. The reason this verification is made by
me and not by defendants is because one or more of the defendants reside outside the county
where deponent maintains her office.
The grounds of my belief as to all matters not stated upon my own knowledge are
as follows: all records, reports and documents maintained by deponent in her file.
| affirm that the foregoing statements are true, under the penalties of perjury.
Dated: New York, New York
April 3, 2013
u R, SHAPIRO
Preview
(FILED: WEW YORK COUNTY CLERK 0470372013) INDEX NO. 805374/2012 NYSCEF DOC. NO.} 10 RECEIVED NYSCEF: 04/03/2913 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. 805374/12 JANICE MURPHY, Plaintiff, -against- VERIFIED ANSWER ZOE I. RODRIGUEZ, M.D., MICHAEL TSIMIS, M.D., BETH ISRAEL OB/GYN ASSOCIATES, BETH ISRAEL MEDICAL CENTER and CONTINUUM HEALTH PARTNERS, INC., Defendants. Defendants, ZOE I. RODRIGUEZ, M.D., MICHAEL TSIMIS, M.D., BETH ISRAEL MEDICAL CENTER and CONTINUUM HEALTH PARTNERS, INC., by their attorneys, McCALOON & FRIEDMAN, P.C., answering the plaintiff's Complaint, respectfully allege, upon information and belief, as follows: 1 Deny any knowledge or information sufficient to form a belief as to each and every allegation set forth in Paragraph 1 of the Complaint. 2 Deny each and every allegation set forth in Paragraph 3 except admit that defendant, ZOE I. RODRIGUEZ, M.D., is/was a competent, qualified and able specialist in Obstetrics & Gynecology. 3 Deny each and every allegation set forth in Paragraphs 8, 9, 10, 11, 12 and 13 except admit that BETH ISRAEL OB/GYN ASSOCIATES is the name of the faculty practice of the defendant, BETH ISRAEL MEDICAL CENTER'S obstetrician/gynecologists and is not a jural entity. 4 Deny each and every allegation set forth in Paragraph 15 except admit that defendant, BETH ISRAEL MEDICAL CENTER, is a hospital corporation. 5 Deny each and every allegation set forth in Paragraph 16 except admit that defendant, BETH ISRAEL MEDICAL CENTER, is and was a full service hospital facility. 6. Deny each and every allegation set forth in Paragraphs 17, 18, 19, 20, 21 and:22 except admit that defendant, CONTINUUM HEALTH PARTNERS, INC., provides only administrative services to its member facilities, including defendant, BETH ISRAEL MEDICAL CENTER. 7. Deny each and every allegation set forth in Paragraphs 4, 5, 6, 7, 23, 24, 27, 28, 29, 30, 33 and 34 of the Complaint. ANSWERING THE FIRST CAUSE OF ACTION 8 The answering defendants repeat and reiterate each and every denial or denial of knowledge or information sufficient to form a belief as to each of the allegations of the Complaint repeated and realleged by plaintiffs in Paragraph 35 of the Complaint. 9 Deny each and every allegation set forth in Paragraphs 36, 37, 39, 40, 41, 42, 43, 44, 45 and 46 of the Complaint. 10. Deny each and every allegation set forth in Paragraph 38 except admit that defendant, ZOE I. RODRIGUEZ, M.D., met the applicable standards of care in this case. ANSWERING THE SECOND CAUSE OF ACTION ll. The answering defendants repeat and reiterate each and every denial or denial of knowledge or information sufficient to form a belief as to each of the allegations of the Complaint repeated and realleged by plaintiffs in Paragraph 47 of the Complaint. 12. Deny each and every allegation set forth in Paragraphs 48, 49, 51, 52, 53, 54, 55, 56, 57 and 58 of the Complaint. 13. Deny each and every allegation set forth in Paragraph 50 except admit that defendant, MICHAEL TSIMI, M.D., met the applicable standards of care in this case. ANSWERING THE THIRD CAUSE OF ACTION 14, The answering defendants repeat and reiterate each and every denial or denial of knowledge or information sufficient to form a belief as to each of the allegations of the Complaint repeated and realleged by plaintiffs in Paragraph 59 of the Complaint. 15. Deny each and every allegation set forth in Paragraphs 60, 61, 62, 63, 64, 65, 66, 67, 68, 69 and 70 except admit that BETH ISRAEL OB/GYN ASSOCIATES is just a name for the defendant, BETH ISRAEL MEDICAL CENTER, OB/GYN faculty practice and is not a jural entity. ANSWERING THE FOURTH CAUSE OF ACTION 16. The answering defendants repeat and reiterate each and every denial or denial of knowledge or information sufficient to form a belief as to each of the allegations of the Complaint repeated and realleged by plaintiffs in Paragraph 71 of the Complaint. 17. Deny each and every allegation set forth in Paragraphs 72, 73, 75, 76, 77, 78, 79, 80, 81 and 82 of the Complaint. 18. Deny each and every allegation set forth in Paragraph 74 except admit that the medical staff of defendant, BETH ISRAEL MEDICAL CENTER, met the applicable standards of care in this case. ANSWERING THE FIFTH CAUSE OF ACTION 19, The answering defendants repeat and reiterate each and every denial or denial of knowledge or information sufficient to form a belief as to each of the allegations of the Complaint repeated and realleged by plaintiffs in Paragraph 83 of the Complaint. 20, Deny each and every allegation set forth in Paragraphs 84, 85, 86, 87, 88, 89, 90, 91, 92, 93 and 94 of the Complaint, and reiterate that defendant, CONTINUUM HEALTH PARTNERS, INC., provides only administrative, not medical, services to its member facilities. ANSWERING THE SIXTH CAUSE OF ACTION 21. The answering defendants repeat and reiterate each and every denial or denial of knowledge or information sufficient to form a belief as to each of the allegations of the Complaint repeated and realleged by plaintiffs in Paragraph 95 of the Complaint. 22. Deny each and every allegation set forth in Paragraphs 96, 97, 98 and 99 of the Complaint. ANSWERING THE SEVENTH CAUSE OF ACTION 23, The answering defendants repeat and reiterate each and every denial or denial of knowledge or information sufficient to form a belief as to each of the allegations of the Complaint repeated and realleged by plaintiffs in Paragraph 100 of the Complaint. 24, Deny each and every allegation set forth in Paragraphs 101, 102, 103 and 104 of the Complaint. ANSWERING THE EIGHTH CAUSE OF ACTION 25, The answering defendants repeat and reiterate each and every denial or denial of knowledge or information sufficient to form a belief as to each of the allegations of the Complaint repeated and realleged by plaintiffs in Paragraph 105 of the Complaint. 26, Deny each and every allegation set forth in Paragraphs 106, 107, 108 and 109 of the Complaint, and reiterate that BETH ISRAEL OB/GYN ASSOCIATES is not a jural entity. ANSWERING THE NINTH CAUSE OF ACTION 27. The answering defendants repeat and reiterate each and every denial or denial of knowledge or information sufficient to form a belief as to each of the allegations of the Complaint repeated and realleged by plaintiffs in Paragraph 110 of the Complaint. 28. Deny each and every allegation set forth in Paragraphs 111, 112, 113 and 114 of the Complaint. ANSWERING THE TENTH CAUSE OF ACTION 29, The answering defendants repeat and reiterate each and every denial or denial of knowledge or information sufficient to form a belief as to each of the allegations of the Complaint repeated and realleged by plaintiffs in Paragraph 115 of the Complaint. 30. Deny each and every allegation set forth in Paragraphs 116, 117 and 118 of the Complaint, and reiterate that defendant, CONTINUUM HEALTH PARTNERS, INC., does not provide medical services. 31. Deny each and every allegation set forth in Paragraph 119 of the Complaint. AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE: 32, The injuries and damages of the plaintiff, for which these causes of action have been instituted, were caused wholly or in part through the culpable conduct and contributory negligence on the part of plaintiff, JANICE MURPHY, and therefore the amount of damages, if any, shall be diminished in the proportion which said conduct attributable to plaintiff, JANICE MURPHY, bears to the defendants’ conduct, if any, which caused the damages. AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE; 33. Plaintiff's Sixth, Seventh, Eighth and Ninth Causes of Action, if any, are barred pursuant to §2805-d of the Public Health Law. AS AND FOR A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE: 34. Any verdict or judgment should be reduced by the amounts of past or future collateral source reimbursements of alleged special damage pursuant to CPLR §4545(c). AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE: 35 The defendants’ conduct, if any, is limited pursuant to CPLR §1600, et seq. WHEREFORE, these defendants demand judgment dismissing plaintiffs Complaint, together with the costs and disbursements of this action. McALOO) FRIEDMAN, P.C. By LAURA R. SHAPIRO Attorneys for Defendants ZOE I. RODRIGUEZ, M.D., MICHAEL TSIMIS, M.D., BETH ISRAEL MEDICAL CENTER and CONTINUUM HEALTH PARTNERS, INC. Office and P.O. Address 123 William Street - 25'" Floor New York, NY 10038-3804 Tel. (212) 732-8700 ATTORNEY’S VERIFICATION STATE OF NEW YORK ) SS.: COUNTY OF NEW YORK ) I, the undersigned, an attorney admitted to practice in the Courts of New York State, state that | am a member of the firm of McALOON & FRIEDMAN, P.C., attorneys of record for the defendants, ZOE I. RODRIGUEZ, M.D., MICHAEL TSIMIS, M.D., BETH ISRAEL MEDICAL CENTER and CONTINUUM HEALTH PARTNERS, INC., in the within action; I have read the foregoing ANSWER and know the contents thereof: the same is true to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matters I believe them to be true. The reason this verification is made by me and not by defendants is because one or more of the defendants reside outside the county where deponent maintains her office. The grounds of my belief as to all matters not stated upon my own knowledge are as follows: all records, reports and documents maintained by deponent in her file. | affirm that the foregoing statements are true, under the penalties of perjury. Dated: New York, New York April 3, 2013 u R, SHAPIRO